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ELCPartially AllowedELC Case No. 58 of 2013· [2021] KEELC 2082 (KLR)

Rodgers Mundu Munga v Patrick Chishenga Munga & 2 others [2021] KEELC 2082 (KLR)

Environment and Land Court
31 August 2021
JOJ. O. Olola
2,563 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that land ownership already decided by a tribunal cannot be re-fought, and living on family land with the owner's permission never becomes ownership.

What this practically means

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Executive summary

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The Plaintiff, Rodgers Mundu Munga, sued his three brothers (the Defendants) seeking a permanent injunction restraining them from interfering with parcel Kilifi/Roka/1083 (approximately 12.4 acres) and orders of eviction. He claimed he purchased the land jointly with his brother-in-law in 1969 in a settlement scheme, later bought out his co-purchaser's share, and was registered as sole proprietor in August 2006. He contended that a dispute with his father over ownership had been determined in his favour by the Bahari Land Disputes Tribunal, whose award was adopted as a court order on 20 July 2006, and affirmed on appeal to the Coast Provincial Land Appeal Tribunal on 13 July 2011. The Defendants denied his ownership, asserting the land belonged to their late father and that the Plaintiff held it as custodian as eldest son. By counterclaim they sought a declaration of entitlement to part of the plot, cancellation of the Plaintiff's title and registration in their joint names, claiming ownership through adverse possession. The Defendants did not testify at trial. The court held that the ownership issue was res judicata, having been conclusively determined by the Tribunal, adopted as a court order and upheld on appeal with no further appeal to the High Court. The adverse possession claim failed because the Defendants entered with the Plaintiff's knowledge and permission, and the statutory 12 years had not lapsed by the date of the counterclaim. The court found the Plaintiff had proved his case on a balance of probabilities, allowed the suit as prayed, dismissed the counterclaim, gave the Defendants 45 days to vacate failing which they would be evicted, and awarded the Plaintiff the costs of both the suit and the counterclaim.

Key legal issues

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01

Res judicata

Holding

The issue of ownership of the suit property was long settled in favour of the Plaintiff by the Tribunal decision adopted as a court order and confirmed on appeal; the Defendants cannot re-litigate it.

Reasoning

The subject matter had been determined by the Bahari Land Disputes Tribunal and the award adopted as an order of the court on 20 July 2006 in Kilifi SRM Land Dispute Case No. 7 of 2006. The father's appeal to the Provincial Land Appeal Tribunal was dismissed on 13 July 2011 and no further appeal to the High Court was filed, so the ownership issue was conclusively determined.

p. 3
02

Adverse possession

Holding

The Defendants' adverse possession claim failed: they entered with the Plaintiff's permission and the statutory 12-year period had not run.

Reasoning

The Defendants moved onto the land with their father with the Plaintiff's knowledge and permission, so their possession was not hostile or adverse. Further, time could not run against the Plaintiff before the Tribunal's award was adopted on 20 July 2006, and he was registered in August 2006; by the time of the counterclaim on 1 October 2015, 12 years had certainly not lapsed.

p. 3
03

Rights of a registered proprietor

Holding

The Plaintiff, as registered owner with confirmed title, is entitled to exclusive possession free of interference.

Reasoning

Having been adjudicated the lawful owner and issued with a title, the Plaintiff holds the right to exclusive possession and use of the land. The Defendants' occupation and cultivation were unlawful and justified the permanent injunction and eviction orders sought.

p. 4

Legal principles established

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  • A matter already adjudicated upon by a tribunal whose award has been adopted as an order of the court, and upheld on appeal, is res judicata.
  • Possession taken with the knowledge and permission of the owner is not adverse possession.

Court orders

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  1. 1.Plaintiff's suit allowed as prayed
  2. 2.Defendants' Counterclaim dismissed
  3. 3.Permanent injunction restraining the Defendants from building, cultivating, staying, using, alienating or interfering with Kilifi/Roka/1083
  4. 4.Defendants given 45 days to remove themselves and any structures from the suit property, failing which they shall be evicted
  5. 5.Costs of the suit and the Counterclaim awarded to the Plaintiff

Authorities

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Legislation

  • Constitution of Kenyanot specified

Cases cited (1)

  • Mtana Lewa vs Kahindi Ngala Mwamgandi
    [2005] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (Article 162(2)(b)Environment and Land Court Act)

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, "Rodgers Mundu Munga v Patrick Chishenga Munga & 2 others [2021] KEELC 2082 (KLR)", Case Analysis (2021). ELC Case No. 58 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2082/eng@2021-08-31

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