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ELCDismissedKitale ELC suit (plaint dated 30/3/2016)· [2021] KEELC 2801 (KLR)

Eunice Lugatsiba Ambutsi v Nicholas Kibowen Kigen & 2 others [2021] KEELC 2801 (KLR)

Environment and Land Court
22 June 2021
2,132 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The court dismissed a family land claim because it had already been decided in an earlier suit and only one of four estate administrators had filed it.

What this practically means

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Executive summary

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The plaintiff, one of four administrators of the estate of Barnabas Ambutsi Masinjila, sued for a declaration that LR No. 6614/10 belongs exclusively to the estate, a permanent injunction against the defendants, and general damages for trespass. The 2nd and 3rd defendants defended on the basis of sale agreements dated 10th December 2013 and 15th July 2015 under which they took possession of their respective portions. The court first dealt with the 2nd defendant's plea of res judicata, having called for and examined the record of Kitale ELC No. 23 of 2017, in which the plaintiff's son had sued the same 2nd defendant over the same land and lost. Applying Section 7 of the Civil Procedure Act and the conjunctive elements of res judicata set out in the IEBC v Maina Kiai decision, the court held that the matter had been resolved with finality and could not be re-litigated by a fellow administrator and family member. The court further found the suit incompetent because, per Order 31 Rule 2 of the Civil Procedure Rules and the Joram Kaberia and Raffaella Adiyakhiso Ntotoi authorities, all administrators of an estate must be enjoined when a suit is brought by administrators; only one of four was joined, and the verifying affidavit showed the plaintiff sued on her own behalf rather than for the estate. The suit was dismissed with costs to the 1st and 2nd defendants; the 1st defendant, having never appeared, was denied costs.

Key legal issues

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01

Whether the suit is barred by res judicata

Holding

The suit is res judicata, the same land and dispute between family members/administrators having been finally determined in Kitale ELC No. 23 of 2017

Reasoning

The previous suit concerned the same land, LR No. 6614/10, and involved a son of the plaintiff suing the 2nd defendant over the same sale agreement; the plaintiff is a fellow administrator and family member. The previous suit was dismissed, so the doctrine in Section 7 of the Civil Procedure Act bars the present suit as against the 2nd defendant.

p. 3
02

Whether the suit is incompetent for failure to enjoin all administrators

Holding

The suit cannot lie because only one of four administrators was enjoined, and the plaintiff sued on her own behalf, not the estate's

Reasoning

The grant in Eldoret HC Succession Cause No. 184 of 2006 names four administrators, none of the others was joined, and the verifying affidavit shows the plaintiff instituted the claim on her own behalf. Under Order 31 Rule 2 all administrators must be enjoined when a suit is commenced by administrators, as the cited authorities confirm.

p. 3
03

Whether the defendants trespassed on the suit land

Holding

No, the defendants entered under sale agreements known to the plaintiff's family

Reasoning

The 2nd and 3rd defendants relied on sale agreements of 10/12/2013 and 15/7/2015; a section of the plaintiff's family was involved in the sale, and the earlier judgment found the 2nd defendant was not in breach. The plaintiff's claim of a wrongful invasion could not stand.

p. 2

Legal principles established

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  • Elements of res judicata must be satisfied conjunctively
  • Where there are several administrators, all must be enjoined as parties to a suit brought by them

Court orders

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  1. 1.Dismissal of the plaintiff's suit
  2. 2.Costs of the suit awarded to the 1st and 2nd defendants
  3. 3.The 1st defendant (who never appeared) denied costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 31 Rule 2

Cases cited (7)

  • Joseph Makarios Masinjila v Gabriel Biwott Kanda
    [2018] eKLR (Kitale ELC No. 23 of 2017)
  • E.T. v Attorney General & Another
    [2012] eKLR
  • Independent Electoral and Boundaries Commission -vs- Maina Kiai & 5 Others
    [2017] eKLR
  • Joram Kaberia v District Land Adjudication and Settlement Officer Igembe South District & 2 others
    [2018] eKLR
  • Raffaella Adiyakhiso Ntotoi V Robert Obrian Lenguro
    [2012] eKLR
  • The Attorney General-Vs-Kenya School of Flying Ltd
    Civil Suit 215 of 1999
  • Mary C. Kitur v County Government of Trans-Nzoia
    [2019] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - implied by the court's character; Section 7 Civil Procedure Act applied

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, "Eunice Lugatsiba Ambutsi v Nicholas Kibowen Kigen & 2 others [2021] KEELC 2801 (KLR)", Case Analysis (2021). Kitale ELC suit (plaint dated 30/3/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2801/eng@2021-06-22

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