Michael Ole Dikirr v Tananko Ole Kwena & 3 others [2021] KEELC 1907 (KLR)
The bottom line
#A Kenyan land court threw out landowners' attempt to undo a 2018 adverse possession judgment, ruling it was a repeat of an earlier failed application.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The application is res judicata because the issues of review, setting aside and stay of the 7th February 2018 judgment were already heard and determined in the Ruling of 25th November 2019 on the application dated 11th June 2018.
The court found that the issues in the application dated 11th June 2018 were substantially the same as those in the instant application. The Defendants merely sought to add the cross-examination of the process server, a prayer never sought earlier. Relying on Section 7 of the Civil Procedure Act and cited authorities, the court held the application was a cosmetic facelift of the earlier, dismissed application.
Setting aside the ex parte judgment and cross-examination of the process server
The court declined to set aside the judgment or allow cross-examination, finding no triable issues, inordinate delay, and that the Defendants were served with summons.
The affidavit of service outlined service at Corner Baridi in Ngong and the Defendants did not deny residing there, so the presumption of service stood. The Defendants denied instructing the firm on record but produced no affidavit from that firm or the 1st Defendant, and appeared in court on 4th October 2018. Setting aside is discretionary and the decree had been executed; litigation must come to an end.
Adverse possession against the Applicants as registered owners
The Defendants' argument that the Plaintiff could not claim adverse possession as a purchaser in possession was rejected; limitation had run from 1988 when the Plaintiff purchased and took possession.
Relying on Public Trustee v Wanduru, the court held that adverse possession runs from payment of the purchase price where the purchaser takes possession. The Plaintiff entered a sale agreement with the 1st Defendant in 1988 and took possession, so the twelve-year period elapsed before the 1st Defendant sold the land to the 2nd to 4th Defendants in 2010.
Legal principles established
#- A subsequent application raising substantially the same issues as a previously heard and determined application is res judicata, even if clothed in different apparel
- An affidavit of service by a process server raises a presumption of service and the burden lies on the party denying service to rebut it
- In adverse possession claims by a purchaser, limitation runs from the date of payment of the purchase price if the purchaser takes possession
- An advocate already on record continues to act for a party unless properly removed; a new advocate who does not apply to take over conduct of the matter is not properly on record
Court orders
#- 1.The Notice of Motion application dated 7th September, 2020 is dismissed with costs
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 45 Rules 1, 2, 3 and 5 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Ole Dikirr v Tananko Ole Kwena & 3 others [2021] KEELC 1907 (KLR)", Case Analysis (2021). Notice of Motion dated 7th September, 2020 (ELC suit, Machakos; judgment of 7th February 2018 under review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1907/eng@2021-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.