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ELCDismissedNot stated in judgment (Machakos ELC; related suit Machakos CMC ELC No. 93 of 2018)· [2021] KEELC 1149 (KLR)

Mary Nthenya Wambua & 5 others v Muli Ndetei [2021] KEELC 1149 (KLR)

Environment and Land Court
4 November 2021
1,469 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Machakos court ruled adverse possession claims belong in the Environment and Land Court, refused to strike out the suit, and ordered consolidation with a related eviction case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) determines a preliminary objection dated 26th January 2021 by the Respondent seeking to strike out an Originating Summons dated 10th August 2020 and an application dated 16th October 2020, in which the Applicants claim ownership of land through adverse possession. The Respondent argued the suit was sub judice under Section 6 of the Civil Procedure Act because a suit, Machakos CMC ELC No. 93 (in which he sought eviction of the Applicants for trespass), was already pending before the magistrates' court, and that the Applicants should have raised their defence or counterclaim there. The court, canvassed by written submissions, framed a single issue: whether the suit should be struck out as sub judice. Applying the test that the matters in issue must be directly and substantially the same such that a decision in the earlier suit would operate as res judicata, the court held the issues were distinct - trespass and eviction in the lower court versus a declaration of adverse possession before the ELC. It further held that a claim for adverse possession falls under the Environment and Land Court Act and cannot be raised by counterclaim in a magistrates' court, and that the decision in Patrick Ndegwa Munyua was persuasive only. The court found no abuse of process, disallowed the preliminary objection with no order as to costs, and directed that the magistrates' court suit be transferred to the ELC and consolidated with the instant suit.

Key legal issues

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01

Whether the instant suit is sub judice under Section 6 of the Civil Procedure Act

Holding

The suit is not sub judice because the issues in the Machakos CMC ELC suit are distinct from the adverse possession claim in this court

Reasoning

Section 6 bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties before a court with jurisdiction to grant the relief claimed. The lower court suit concerns trespass and eviction, while this suit seeks a declaration of ownership through adverse possession. The issues are therefore not the same, and the sub judice rule does not apply.

p. 2
02

Whether the Magistrates' Court has jurisdiction over adverse possession claims

Holding

The Magistrates' Court did not have jurisdiction to deal with adverse possession, which cannot be sought through a counterclaim under Order 37 of the Civil Procedure Rules

Reasoning

A reading of Section 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules shows that adverse possession claims are within the ambit of the Environment and Land Court Act. The decision relied on by the Respondent (Patrick Ndegwa Munyua) is from the ELC and is persuasive, not binding. No decision has amended the Order 37 procedure for instituting adverse possession suits.

p. 2
03

Whether the Originating Summons amounts to an abuse of court process

Holding

The suit does not amount to an abuse of the court process; instead the lower court suit should be transferred and consolidated with this suit

Reasoning

Since the two suits involve the same land and parties but distinct issues, the court found no abuse. Rather than striking out the suit, the appropriate course was to transfer the magistrates' court suit to the ELC and consolidate it with the instant suit for efficient determination.

p. 2

Legal principles established

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  • The test for applicability of the sub judice rule is whether a final decision in the previously instituted suit would operate as res-judicata in the subsequent suit
  • A claim for adverse possession falls within the ambit of the Environment and Land Court Act and cannot be raised by way of counterclaim in a magistrates' court suit

Court orders

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  1. 1.Preliminary Objection dated 26th January 2021 disallowed for being unmerited
  2. 2.CMC ELC No. 93 of 2018 to be transferred to the Environment and Land Court and consolidated with the instant suit
  3. 3.No order as to costs
Jurisdiction invoked
Environment and Land Court Act, Sections 13 and 26

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, "Mary Nthenya Wambua & 5 others v Muli Ndetei [2021] KEELC 1149 (KLR)", Case Analysis (2021). Not stated in judgment (Machakos ELC; related suit Machakos CMC ELC No. 93 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1149/eng@2021-11-04

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