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ELCStruck OutOriginating Summons No. 341 of 2017 (O.S. No. 341 of 2017)· [2021] KEELC 2328 (KLR)

Peter Odero Nyambok v Benard Odhiambo Omolo [2021] KEELC 2328 (KLR)

Environment and Land Court
28 July 2021
GOG. M. A. Ongondo
1,824 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 struck out an adverse possession claim because the same dispute had already been decided and the wrong person was sued.

What this practically means

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Executive summary

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The plaintiff, Peter Odero Nyambok, brought an originating summons dated 10th April 2017 claiming that he had acquired title to land parcel Kanyada/Kotieno Katuma 'A'/964 by adverse possession after more than twelve years of continuous occupation, and sought registration as proprietor. The defendant, Bernard Odhiambo Omolo, filed a preliminary objection dated 24th June 2019 on four grounds: the land had been transferred to him by his late father; the suit was res judicata because an adverse possession claim over the same land by the deceased, Henry Omolo Odeko, had been adjudicated and dismissed in Kisii HCCC No. 138 of 1995; the suit was misdirected against him as he was not the legal administrator of the deceased's estate; and the suit was frivolous and an abuse of process. The plaintiff opposed, contending that the Kisii proceedings concerned only an injunction application decided on a technicality and that a judicial review application had failed, reviving the tribunal decree in his favour. The court framed two issues: res judicata and whether the suit was misdirected against the defendant. It held that the deceased's adverse possession claim had been heard and finally determined on the merits by a competent court in the 2000 ruling, engaging Section 7 of the Civil Procedure Act, and that the claim against the defendant, who was not the estate's legal representative, was misconceived. The preliminary objection was upheld and the originating summons struck out with costs to the defendant.

Key legal issues

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01

Whether the adverse possession suit is res judicata by reason of Kisii HCCC No. 138 of 1995

Holding

Yes. The deceased's adverse possession claim over the same suit property against the plaintiff was heard and dismissed on the merits by a competent court, engaging Section 7 of the Civil Procedure Act.

Reasoning

The defendant and the deceased had mounted an adverse possession claim over LR No. Kanyada/Kotieno-Katuma 964 against the plaintiff in Kisii HCC No. 138 of 1995 under section 38 of the Limitation of Actions Act. That claim was dismissed on 30th October 2000, with the court finding no evidence supporting the claimants. The parties, subject matter and merits were therefore finally determined, satisfying the elements of res judicata.

p. 3
02

Whether the suit is misdirected against the defendant as he is not the legal administrator of the deceased's estate

Holding

Yes. The adverse possession claim would run against the estate of Henry Omolo Odeko, and the defendant disclaimed being its legal administrator.

Reasoning

The court noted the statutory definition of 'legal representative' under Section 2 of the Civil Procedure Act and authorities such as Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama. Since the defendant was not the legal administrator of the estate against whom adverse possession could run, the claim against him was misconceived, supporting the preliminary objection.

p. 3

Legal principles established

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  • Res judicata under Section 7 of the Civil Procedure Act applies where an earlier claim between the same parties or their privies was heard and finally determined on its merits by a court of competent jurisdiction
  • Litigation must come to an end

Court orders

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  1. 1.The defendant's Preliminary Objection dated 24th June 2019 and filed on 26th June 2019 is upheld in terms of grounds 1 to 4
  2. 2.The plaintiff's suit commenced by originating summons dated 10th April 2017 is struck out with costs to the defendant

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 2
  • Civil Procedure Rules, 2010Order 50 Rule 16
  • Limitation of Actions ActSection 38
  • Land Dispute Tribunal ActNo. 18 of 1990

Cases cited (4)

  • Christopher Orina Kenyariri t/a Kenyariri and Associates Advocates v Salama Beach Hotel Limited and 3 others
    (2017) eKLR
  • Philip Chemwolo & another v Philip Kubende
    (1982-88) KAR 103
  • Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama
    (2014) eKLR
  • Muchanga Investments Ltd v Unlimited (Africa) Ltd and two others
    (2009) KLR 229
Jurisdiction invoked
Environment and Land Court jurisdiction over adverse possession claims relating to land parcel Kanyada/Kotieno Katuma 'A'/964

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, "Peter Odero Nyambok v Benard Odhiambo Omolo [2021] KEELC 2328 (KLR)", Case Analysis (2021). Originating Summons No. 341 of 2017 (O.S. No. 341 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2328/eng@2021-07-28

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