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ELCDismissedNot stated in the extract (Originating Summons under Order 37 of the Civil Procedure Rules dated 14th August 2019)· [2021] KEELC 3652 (KLR)

Peter Githongora Migwi v Kamau Munene Wakaba & 2 others [2021] KEELC 3652 (KLR)

Environment and Land Court
16 April 2021
OAO. A. Angote
3,639 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 dismissed a Machakos landowner's injunction bid, confirming adverse possession claims only apply to registered land.

What this practically means

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Executive summary

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The Plaintiff moved the Environment and Land Court at Machakos by Notice of Motion dated 14th August 2019, filed together with an Originating Summons under Order 37 of the Civil Procedure Rules, seeking interim conservatory orders, maintenance of status quo and an injunction restraining the Defendants from alienating, building on, entering or interfering with land parcels MITC 91, MITC 98, MITC 179, MITC 186 and MITC 198 at Mithini Donyo Sabuk, Machakos County, pending determination of his claim for a declaration of ownership by adverse possession. The Plaintiff asserted that he was allocated and purchased the plots through Muka Mukuu Farmers' Cooperative Society Limited in 1995, was issued beacon certificates, and has been in open, continuous and notorious possession since then. The 1st Defendant denied the claim, asserting he bought and has occupied and developed Plots 179, 186 and 196 since 2010, and that no adverse possession claim can lie over unregistered land. The 3rd Defendant, through its Vice Chairman, deponed that the Society's records show the plots belong to the Defendants, and that the Plaintiff's claims are res judicata and sub judice, having been litigated in Co-operative Tribunal Case No. 498 of 2013 (injunction application dismissed on 23rd February 2015) and Kangundo SPM Suit No. 11 of 2019 (injunction application dismissed on 15th May 2019), both still pending. Applying Giella v Cassman Brown, Mrao Ltd and Nguruman Limited, the court held that a Section 38 adverse possession claim requires registered land; since the suit parcels are neither surveyed nor registered, the Plaintiff established no prima facie case. Further, filing this suit before withdrawing the pending Kangundo suit was an abuse of process. The Application was dismissed with costs on 16th April 2021.

Key legal issues

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01

Whether a prima facie case for an interlocutory injunction was established

Holding

No prima facie case was established; adverse possession under Section 38 of the Limitation of Actions Act applies only to registered land, and the suit properties are neither surveyed nor registered.

Reasoning

The court applied Giella v Cassman Brown and held that the Plaintiff's claim under Section 38(1) and (2) of the Limitation of Actions Act requires land registered under the statutes cited in Section 37. Since the suit parcels are unregistered, no certified extract of title could be annexed as required by Order 37 Rule 7 of the Civil Procedure Rules, and an order of registration would be incapable of being effected. Hence no prima facie case with probability of success.

p. 4
02

Whether the suit and Application are sub judice/res judicata and an abuse of process

Holding

The Application and suit are an abuse of the court process because the Plaintiff filed the present suit while Kangundo PMCC No. 11 of 2019 (OS), raising identical claims over the same properties, was still pending and had not been withdrawn.

Reasoning

The evidence showed the Plaintiff had earlier litigated the same plots in Co-operative Tribunal Case No. 498 of 2013, where his injunction application was dismissed on 23rd February 2015, and in Kangundo SPM Suit No. 11 of 2019, where a similar injunction application was dismissed on 15th May 2019. Filing a fresh suit without withdrawing or appealing the earlier proceedings was unlawful.

p. 4

Legal principles established

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  • A claim for adverse possession under Section 38(1) of the Limitation of Actions Act can only be made in respect of land that is registered at the time of institution of the suit.
  • Filing a fresh suit during the pendency of a similar suit between the same parties over the same subject matter, without first withdrawing the earlier suit, is an abuse of the court process.

Court orders

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  1. 1.The Application dated 14th August 2019 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 (including Rule 7)
  • Limitation of Actions ActSections 37, 38(1) and (2)
  • Government Lands Act (Cap. 280) (repealed)
  • Registration of Titles Act (Cap. 281) (repealed)
  • Land Titles Act (Cap. 282) (repealed)
  • Registered Land Act (Cap. 300) (repealed)
  • Land Registration Act

Cases cited (6)

  • John Musyoki Musembi vs. Henry Muli
    (2015) eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR (Civil Appeal No 39 of 2002); also cited as [2003] KLR 125
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    (2014) eKLR
  • Mtana Lewa vs. Kahindi Ngala Mwangandi
    (2005) eKLR; also cited as [2015] eKLR
  • Giella vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Benson Mukuwa Wachira vs. Assumption Sisters of Nairobi Registered Trustees
    (2016) eKLR
Jurisdiction invoked
Original jurisdiction under Order 37 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Githongora Migwi v Kamau Munene Wakaba & 2 others [2021] KEELC 3652 (KLR)", Case Analysis (2021). Not stated in the extract (Originating Summons under Order 37 of the Civil Procedure Rules dated 14th August 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3652/eng@2021-04-16

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