Kalume Karisa Mbitha v Bromine Investment Limited [2020] KEELC 2881 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a duplicate land suit, finding changing plot numbers cannot override a court judgment you already lost.
What this practically means
#Executive summary
#Key legal issues
#Res judicata and abuse of court process
The Plaintiff's suit was res judicata as its subject matter was identical to the land determined in Mombasa HCCC No. 606 of 2001 and on appeal; it was dismissed as an abuse of process.
The Plaintiff conceded that the parcel he occupied was the same Plot 61 he had claimed to have purchased from Charo Nzai, over which judgment was entered against him by Mwera J on 11th December 2012 and affirmed by the Court of Appeal on 17th July 2014. His earlier Petition No. 57 of 2011 sought the same rectification order he had sought in his Counterclaim in HCCC 606 of 2001, deliberately excluding the registered owner, and was itself abusive. The court found his day in court had already been had.
Legality of the map amendment and re-parcellation
The 2008 re-parcellation and amendment interchanging Plots 61 and 48 were unlawful, done without involvement of the registered owner and in disregard of pending litigation.
The Respondents in the Cross-Petition amended the Mtondia map while HCCC 606 of 2001 was pending, converting Plot 61 to Plot 48, and then allocated Plot 48 to the Plaintiff and issued him a title on 26th August 2014, a month after the Court of Appeal dismissed his appeal. Under Sections 142 and 143 of the (repealed) Registered Land Act there could be no such rectification without involvement of the registered owner, the Defendant.
Defendant's entitlement to damages for breach of right to property
The Defendant was awarded general damages of Kshs 1.5 million for the unlawful deprivation of its property.
The court found the Plaintiff filed the suit aware of a court decree requiring him to vacate, and that his continued stay amounted to trespass and unlawful deprivation of the Defendant's property. Being satisfied the Defendant was entitled to damages for breach of its right to property, the court assessed general damages at Kshs 1.5 million and allowed the Counterclaim as prayed.
Legal principles established
#- A suit or issue whose matter directly and substantially in issue was already heard and finally decided in a former suit between the same parties litigating under the same title is barred by res judicata under Section 7 of the Civil Procedure Act
- Amendments to land maps and records made without the involvement of the registered owner and pending court proceedings, so as to defeat a court decree, are unlawful
Court orders
#- 1.The Plaintiff's suit dated 31st October 2014 is dismissed with costs
- 2.The Defendant's Counterclaim in the Cross-Petition dated 9th December 2014 is allowed as prayed, with general damages assessed at Kshs 1.5 million
- 3.The Defendant shall have the costs of both the suit and the Cross-Petition
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; consolidated suit transferred to this Court by consent recorded on 11th May 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kalume Karisa Mbitha v Bromine Investment Limited [2020] KEELC 2881 (KLR)", Case Analysis (2020). Mombasa ELC Civil Suit No. 272 of 2014 (Consolidated with Malindi ELC Petition No. 57 of 2011 Cross-Petition dated 9th December 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2881/eng@2020-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.