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ELCDismissedNot stated in extract (Nakuru Environment and Land Court suit)· [2020] KEELC 897 (KLR)

Ipitieti Ole Kilongu (Chairman) & 6 others v Lekishon Ole Linti alias Cllr John Ledidi & 10 others [2020] KEELC 897 (KLR)

Environment and Land Court of Kenya
29 October 2020
JMJ M Mutungi
2,774 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a community group to sue over land allegedly registered fraudulently in individuals' names, despite an earlier related case.

What this practically means

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Executive summary

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The plaintiffs, suing as representatives of Naranka Self Help Group and Enaibor Ajijik Ngatet 1380 Self Help Group, claimed to be beneficiaries of land parcels Maela/Ndabibi Block 5/3073 and 5/2253, which they asserted were awarded to about 3000 Maasai beneficiaries in Nakuru HCCC No.89 of 1996 (upheld in Nakuru Civil Appeal No.64 of 2004) by way of adverse possession. They alleged the 1st to 6th Defendants fraudulently caused the parcels to be registered in their individual names to the exclusion of other beneficiaries, and sought declarations of beneficial ownership, rectification of the register, cancellation of title deeds, and an order that the 17 defendants from the earlier suit hold the land in trust. The 1st to 6th Defendants filed a preliminary objection contending the suit was incompetent under section 34(1) of the Civil Procedure Act as it related to execution of the earlier decree, and was res judicata under section 7. The Attorney General supported the objection for the 7th to 11th Defendants. The court, J M Mutungi J, held that the suit raised fresh issues of beneficial ownership and alleged fraudulent registration distinct from execution of the 1996 decree, and that the issues were not determined in the previous suit. The preliminary objection was dismissed with costs to the plaintiffs; the main suit proceeds to hearing.

Key legal issues

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01

Whether the suit offends section 34(1) of the Civil Procedure Act

Holding

It does not; the suit raises new and fresh issues concerning alleged fraudulent registration of the suit lands in the 1st to 6th Defendants' exclusive names, not the execution of the earlier decree

Reasoning

The court noted the decree in Nakuru HCCC No.89 of 1996 awarded land to the 17 defendants for the benefit of the Maasai community. The present suit contests the subsequent registration of the parcels in the 1st to 6th defendants' sole names, alleging fraud and seeking trust declarations and rectification. Such questions of beneficial ownership and fraud are fresh issues, not questions relating to execution, discharge or satisfaction of the decree, and the earlier judgments may serve as evidence.

p. 4
02

Whether the suit is res judicata regarding Nakuru HCCC No.89 of 1996

Holding

It is not res judicata because the issues raised were not determined in the previous suit

Reasoning

Applying the doctrine, the court held the previous suit determined adverse possession claims over the original parcels, whereas the present suit raises fresh issues on beneficial ownership of the resultant parcels and the alleged fraudulent procurement of registration. The matters were neither directly nor substantially in issue before, hence res judicata under section 7 is not established.

p. 4

Legal principles established

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  • A suit raising fresh issues of beneficial ownership and alleged fraudulent registration, distinct from the execution of an earlier decree, is not barred by section 34(1) of the Civil Procedure Act
  • Res judicata does not apply where the issues raised in the subsequent suit were not determined in the earlier suit

Court orders

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  1. 1.The preliminary objection taken by the 1st to 6th Defendants is found to be lacking in merit and is dismissed
  2. 2.Costs of the preliminary objection awarded to the plaintiffs

Authorities

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Legislation

  • Civil Procedure Act, Cap 21section 34(1)
  • Civil Procedure Act, Cap 21section 7 (Explanation 6)

Cases cited (3)

  • Charles Ngare Karaya v Florence Muthoni & Another
    (2018) eKLR
  • Kepue ole Ngweta & Another v Sarah Njoki Munge t/a Sanjomu Auctioneers
    (2015) eKLR
  • James Wainaina Imunyu & 6 others v Karanja Mbugua & Co Advocates & Another
    (2012) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; ruling on a preliminary objection under section 34(1) and section 7 of the Civil Procedure Act, Cap 21

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, "Ipitieti Ole Kilongu (Chairman) & 6 others v Lekishon Ole Linti alias Cllr John Ledidi & 10 others [2020] KEELC 897 (KLR)", Case Analysis (2020). Not stated in extract (Nakuru Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/897/eng@2020-10-29

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