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ELCStruck OutOriginating Summons dated 7th February 2019, filed 14th May 2019 (Malindi)· [2020] KEELC 776 (KLR)

Mbarak Said Ali & another v Sultan Palace Development Limited [2020] KEELC 776 (KLR)

High Court of Kenya
5 November 2020
3,794 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court struck out a land claim because the squatters had already settled for Kshs 950,000 and had not occupied the land for the required 12 years.

What this practically means

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Executive summary

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The Plaintiffs, Mbarak Said Ali and Salim Mkota Kombo, filed an Originating Summons claiming title to LR No. MN/III/1075 by adverse possession against Sultan Palace Development Ltd, seeking declarations that their rights had crystallised, that the Defendant's title was extinguished, transfer of the property, and injunctive relief. The Defendant filed a Notice of Preliminary Objection and a Notice of Motion seeking striking out of the suit on grounds of res judicata, non-crystallisation of the adverse possession claim, and abuse of process, relying on a consent recorded in Mombasa HCCC No. 375 of 2009 (OS) between the Plaintiffs and the National Social Security Fund (the previous registered owner), under which the Plaintiffs accepted Kshs 950,000 to relinquish their claim and vacate. The Plaintiffs opposed, arguing the parties and subject matter differed, that no decree or final judgment existed in the former suit, and that the consent was conditional and unperformed. Justice J.O. Olola found the subject matter identical, the consent binding and unchallenged, and held that a consent judgment sanctioned by the Court has the effect of res judicata; that parties cannot evade the doctrine by adding parties or causes of action; that the consent rendered the Plaintiffs' occupation permissive, stopping time from running; and that, against the Defendant who purchased on 11th March 2011, only eight years had elapsed - four short of the 12 years required under Section 7 of the Limitation of Actions Act. The suit was held misconceived and an abuse of process. The Court allowed the Preliminary Objection and Motion in terms of prayers 3, 4 and 5 and struck out the Originating Summons with costs to the Defendant.

Key legal issues

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01

Whether the present suit is res judicata given the consent judgment in HCCC No. 375 of 2009 (OS)

Holding

Yes. The subject matter was identical and the consent order effectively determined any claim the Plaintiffs had on the suit property; they cannot relitigate against the successor in title.

Reasoning

The parcel in the former suit was described as Plot No. 1075/III/MN Grant No. 19153 (8.169 Ha), a reversal of the description in the present suit. The Plaintiffs did not deny the consent and never moved to set it aside. Although the defendant in the former suit (NSSF) differs from the present defendant, the cause of action is the same, and parties cannot evade res judicata by adding or changing parties. The consent has the force of res judicata.

p. 4
02

Whether the Plaintiffs' adverse possession claim had crystallised against the Defendant

Holding

No. The Defendant purchased the property on 11th March 2011, only eight years before the suit was filed, four years short of the 12 years required under Section 7 of the Limitation of Actions Act.

Reasoning

Time for adverse possession stopped running when the Plaintiffs entered the 2010 consent, which made their occupation permissive. Against the new registered owner, only eight years had elapsed by the time of filing, so the requisite 12-year period had not accrued.

p. 5
03

Whether the suit is an abuse of the Court process

Holding

Yes. Having accepted Kshs 950,000 to relinquish their interest, the Plaintiffs abused the process by bringing this suit and failing to disclose the former suit.

Reasoning

The Plaintiffs accepted payment from the predecessor in title to relinquish their interest and vacate, then waited eight years to sue the new owner on the same claim without disclosing the former suit's existence or outcome. Litigation compromises are binding and cannot be discarded unilaterally.

p. 5

Legal principles established

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  • All elements of res judicata under Section 7 of the Civil Procedure Act must be satisfied conjunctively
  • A consent judgment sanctioned by the Court has the effect of res judicata in respect of the matters dealt with therein
  • Parties cannot evade res judicata by adding other parties or causes of action in a subsequent suit
  • A claimant must prove 12 years of exclusive, open and uninterrupted possession to claim title by adverse possession
  • A consent compromising a claim makes subsequent occupation permissive, stopping time running for adverse possession

Court orders

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  1. 1.Allowed the Respondent's Preliminary Objection and the Motion dated 26th November 2019 in terms of prayers Nos. 3, 4 and 5
  2. 2.Struck out the Originating Summons with costs

Authorities

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Legislation

  • Limitation of Actions ActSection 7; Section 41(a)(i)
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder XXXVI Rule D(2)

Cases cited (7)

  • Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others
    (2017) eKLR
  • Henderson vs Henderson
    (1843) 67 ER 313
  • ET vs Attorney General & Another
    (2012) eKLR
  • Omondi vs NBK & Others
    (2001) EA 177
  • Njanju vs Wambugu & Another, Nairobi HCCC No. 2340 of 1991
    (unreported)
  • John Florence Maritime Services Ltd & Another vs Cabinet Secretary for Transport and Infrastructure & 3 others
    (2015) eKLR
  • Kasuve vs Mwaani Investment Ltd & 4 Others
    (2004) 1 KLR
Jurisdiction invoked
Original jurisdiction of the High Court over land claims, adversive possession under the Limitation of Actions Act (Cap 22)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mbarak Said Ali & another v Sultan Palace Development Limited [2020] KEELC 776 (KLR)", Case Analysis (2020). Originating Summons dated 7th February 2019, filed 14th May 2019 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/776/eng@2020-11-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.