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ELCDismissedEldoret ELC (as per plaint dated 25th April 2016)· [2020] KEELC 3331 (KLR)

Benjamin Gwaliamba Godia v County Givernment of Nandi & 2 others; Chairman, Chebaria Catholic Church (Interested Party) [2020] KEELC 3331 (KLR)

Environment and Land Court
12 February 2020
MOM. A. Odeny
3,434 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Eldoret dismissed a landowner's claim because he could not prove he bought the specific parcel, underscoring the need to identify land clearly in sale agreements.

What this practically means

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Executive summary

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The plaintiff sued the 1st defendant (Nandi County Council), two other defendants and an interested party (Chebara Catholic Church), seeking a declaration of ownership of the suit land, a permanent injunction, cancellation of title Nandi/Koibarak/B/608 and costs. He relied on a 1984 sale agreement purchasing land from the late Elias Kinangoi Mulekani and alleged that parcel 608 had been fraudulently superimposed on his parcel. The court framed four issues. On res judicata, it held the suit was not barred: the earlier judicial review proceedings were dismissed on a preliminary point, leaving a declaratory suit open per Peter Gicharu Ngige, and the earlier Kapsabet suit was against a different party. On ownership, the court found the sale agreement did not identify the title; the register showed parcel 581 in the deceased's name and parcel 608 registered to the county council reserved for the church; adjudication officials confirmed no superimposition; and the deceased's estate, unrepresented by any grant, could not sustain the claim, a suit filed without letters of administration being null and void ab initio. The injunction and cancellation prayers necessarily failed for want of proprietary rights. The suit was dismissed with costs to the defendants. Judgment delivered by M. A. Odeny, J, at Eldoret on 12th February 2020.

Key legal issues

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01

Res judicata

Holding

The suit is not res judicata; the judicial review proceedings were dismissed on a technicality and the prior CMCC suit was against a different party

Reasoning

The court applied the conjunctive elements of res judicata. The judicial review application was dismissed on preliminary points, not on the merits, so declaratory reliefs remained open, following Peter Gicharu Ngige. Further, Kapsabet CMCC No. 338 of 2004 was against Simon K. Tarus, not the defendants, so the identity-of-parties element failed.

p. 4
02

Plaintiff's ownership of the suit land

Holding

The plaintiff failed to prove ownership of parcel 608

Reasoning

The sale agreement of 10th March 1984 did not identify the title. The register showed parcel 581 in the name of the deceased and 608 in the name of the county council reserved for the church. Adjudication officials confirmed no superimposition and no allocation to the plaintiff. The estate of the registered owner was unrepresented, no grant having been taken out.

p. 5
03

Permanent injunction

Holding

Refused; plaintiff holds no proprietary rights over parcel 608

Reasoning

Since ownership failed, the foundational right for an injunction was absent. The parcel is registered in the name of the county council of Nandi and the plaintiff did not show he purchased that particular parcel.

p. 5
04

Cancellation of title

Holding

Refused; no proof that the plaintiff purchased parcel 608

Reasoning

The plaintiff admitted purchasing parcel 581, not 608. Without proof of entitlement to or fraud over parcel 608, cancellation could not issue.

p. 5

Legal principles established

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  • A suit commenced without letters of administration in respect of a deceased estate is null and void ab initio and cannot be cured by subsequently obtaining the grant
  • Res judicata does not bar a declaratory suit where prior judicial review proceedings were dismissed on a preliminary point rather than on the merits

Court orders

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  1. 1.The plaintiff's suit is dismissed
  2. 2.Costs to the defendants

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Law of Succession Act, Cap 160section 82
  • Land Adjudication Actsection 29
  • Vexatious Proceedings Actsections 2 & 3

Cases cited (5)

  • Uhuru Highway Development Ltd v Central Bank of Kenya
    [1999] eKLR
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR
  • Peter Gicharu Ngige v Kiiru Chomba & 3 others
    [2004] eKLR
  • Peter Ngugi Kaburi v Esther Wangari Githinji & Another
    (2013) EKLR
  • Joseph Chepkong'a Rotich v Michael Cherono
    (2005) eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over land title and ownership disputes

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, "Benjamin Gwaliamba Godia v County Givernment of Nandi & 2 others; Chairman, Chebaria Catholic Church (Interested Party) [2020] KEELC 3331 (KLR)", Case Analysis (2020). Eldoret ELC (as per plaint dated 25th April 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3331/eng@2020-02-12

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