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ELCDismissedNot stated on the copy of the judgment provided· [2020] KEELC 1993 (KLR)

Francis Karani Gatei v Peris Wainoi Gatei [2020] KEELC 1993 (KLR)

Environment and Land Court
8 May 2020
ECE.C. Cherono
1,279 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that an adverse possession claim based on disputed facts must go to full trial, not be dismissed on a preliminary objection.

What this practically means

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Executive summary

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The applicant filed an omnibus application dated 19th February 2019 under Order 40 Rule 1 CPR and Sections 1A, 1B and 3A CPA seeking a temporary injunction restraining the respondent from evicting him, selling, transferring or dealing with land parcel No. INOI/KAITHERI/396. The respondent filed a replying affidavit and later a Notice of Preliminary Objection dated 8th October 2019, by consent to be heard first. The objection raised four grounds: that the suit was res judicata having been heard and determined in Kerugoya High Court Succession Cause No. 350 of 2012 in which the applicant was also a party; that the respondent's title was transferred on 26th May 2011 with consent and title deed issued; that the applicant was a licencee incapable of claiming adverse possession, having entered the land in 2011 and not 2002 as claimed; and a general prayer for dismissal with costs. The applicant opposed, arguing that res judicata requires the same or substantially same issue, same parties litigating under the same title, and a prior determination; that the succession cause concerned revocation of a grant, not adverse possession; and that the objection was not a pure point of law under Mukisa Biscuits. The court agreed that adverse possession is a fact-based claim whose ingredients - open, quiet, exclusive and continuous possession - were denied and had to be proved at the main trial. The preliminary objection dated 8th October 2019 was dismissed with costs to be in the cause. The substantive suit and the injunction application remain for determination.

Key legal issues

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01

Whether the suit is res judicata under Section 7 of the Civil Procedure Act

Holding

The preliminary objection on res judicata was not upheld because the alleged prior determination and the facts underlying the adverse possession claim require ascertainment at trial

Reasoning

The respondent relied on Kerugoya High Court Succession Cause No. 350 of 2012 and Kerugoya PMCC No. 61 of 2010, contending the applicant had sought revocation of a grant there. The court noted the adverse possession claim is founded on disputed facts, including when the applicant entered the land (2002 as claimed, 2011 as alleged by the respondent). Res judicata under Section 7 requires the matter to have been directly and substantially in issue between the same parties and finally decided; the court found the issues could not be resolved without ascertaining facts at the main trial.

p. 3
02

Whether the objection was a proper preliminary objection

Holding

No - the grounds raised require ascertainment of facts, contrary to the Mukisa Biscuits definition

Reasoning

The court adopted the classic definition in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd, which was cited by the applicant. Since the respondent's grounds required examination of the succession cause proceedings, judgment, dates of entry onto the land and the nature of the applicant's occupation (licencee or not), the objection failed the 'pure point of law' test.

p. 2

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained
  • A claim of adverse possession is fact-based and where the ingredients (open, quiet, exclusive and continuous possession) are denied, they must be determined at the main trial, not on a preliminary objection

Court orders

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  1. 1.The Preliminary Objection dated 8th October 2019 is not upheld and is dismissed with costs to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (1)

  • Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd
    (1969) E.A 696
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; application under Order 40 Rule 1 CPR and Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Francis Karani Gatei v Peris Wainoi Gatei [2020] KEELC 1993 (KLR)", Case Analysis (2020). Not stated on the copy of the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1993/eng@2020-05-08

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