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ELCDismissedChamber Summons and Originating Summons (Embu), Preliminary Objection dated 21.4.2021· [2021] KEELC 47 (KLR)

Laban Njagi Mgari v Mary Muthoni Njagi & another [2021] KEELC 47 (KLR)

Environment and Land Court
30 November 2021
2,985 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled a past Land Tribunal decision cannot block a family land adverse possession claim.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Embu (A.K. Kaniaru, J) on a preliminary objection dated 21 April 2021 targeting both a Chamber Summons and an Originating Summons in which Laban Njagi Ngari (applicant) sought recognition as adverse possessor of parcel Ngandori/Manyatta/T.6, annulment of its transfer to the 2nd respondent, and registration of title in his favour. The respondents (the 1st respondent, his estranged wife, and her nephew) objected on three grounds: res judicata to Embu Award No. 2 of 2006 (adoption of a Land Tribunal award in Case No. 38 of 2003 distributing matrimonial property); disclosure of no cause of action under Order 2 Rule 15(1); and that the suit was frivolous, vexatious and an abuse of process. The court applied the Mukisa Biscuit test and held that grounds 2 and 3 required ascertainment of facts and were not pure points of law, so only res judicata was considered. Applying Section 7 of the Civil Procedure Act, the criteria in Fadhila Zahran Mohamed, Section 3(1) of the Land Disputes Tribunal Act and Section 38 of the Limitation of Actions Act, the court held that an adverse possession claim could not have been raised before the tribunal, which lacked jurisdiction, so the suit was not res judicata. The court also criticised the respondents' failure to file submissions as insufficient prosecution of the objection. The preliminary objection was dismissed with each side bearing its own costs given the family relationship between the parties.

Key legal issues

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01

Whether grounds 2 and 3 of the preliminary objection are pure points of law

Holding

They are not; they require the court to verify facts by evidence and therefore fail the Mukisa Biscuit test

Reasoning

The court applied the Mukisa Biscuit definition and the holding in Winnie Njeri Kariuki v Consolata Wangechi Muriuki, holding that a determination that a suit discloses no cause of action or is frivolous and vexatious requires consideration of pleadings and evidence at trial. Only ground 1 (res judicata) was therefore considered.

p. 2
02

Whether the suit is res judicata to Embu Award No. 2 of 2006

Holding

No, because the adverse possession claim was not raised in the tribunal proceedings and could not have been, the tribunal lacking jurisdiction over adverse possession

Reasoning

Applying the Fadhila Zahran Mohamed criteria, the parties and subject matter overlapped, but the tribunal's jurisdiction under Section 3(1) of the Land Disputes Tribunal Act was limited to boundary division, claims to occupy or work land, and trespass. Section 38 of the Limitation of Actions Act vests adverse possession claims in the High Court. A suit cannot be res judicata before a forum without jurisdiction over the issue.

p. 3

Legal principles established

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  • A Land Disputes Tribunal had no jurisdiction to determine a claim of adverse possession; such a claim lies only in the High Court (and by extension the ELC), so a tribunal award cannot render such a claim res judicata
  • A preliminary objection must raise a pure point of law on assumed facts; grounds requiring ascertainment of evidence are not proper preliminary objections

Court orders

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  1. 1.The preliminary objection dated 21.4.2021 is dismissed
  2. 2.Each side to bear its own costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure Rules, 2010Order 2 Rule 15(1)
  • Land Disputes Tribunal Act (repealed)Section 3(1) and Section 3(7)
  • Limitation of Actions ActSection 38
  • Constitution of Kenya, 2010Article 50

Cases cited (7)

  • Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd.
    (1969) EA 696
  • Grace Njeri Kabiru Vs Stephen Wagiita Kiboi & others
    ELC CASE No. 227 of 2017
  • Diocese of Eldoret Trustees Vs Attorney General (On behalf of the Principal Secretary Treasury and another
    ELC CASE NO. 19 of 2019
  • Winnie Njeri Kariuki v Consolata Wangechi Muriuki & 4 others
    [2015] eKLR
  • Fadhila Zahran Mohamed v Khadiha Abdulkaman Mwinzagu & 2 others
    [2018] eKLR
  • Rose Juma Ogola & 2 others v Paustina Anyango & another
    [2020] eKLR
  • Republic v Funyula Land Disputes Tribunal & 2 others Ex-Parte Hannington Pamba
    [2005] eKLR
Jurisdiction invoked
Article 162(2) jurisdiction of the Environment and Land Court; Section 38 of the Limitation of Actions Act (adverse possession claims)

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, "Laban Njagi Mgari v Mary Muthoni Njagi & another [2021] KEELC 47 (KLR)", Case Analysis (2021). Chamber Summons and Originating Summons (Embu), Preliminary Objection dated 21.4.2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/47/eng@2021-11-30

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