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ELCDismissedNot stated in the excerpt· [2021] KEELC 3783 (KLR)

Saniako N. Kibiwott v Stanley Tanui & 4 others [2021] KEELC 3783 (KLR)

Environment and Land Court
31 March 2021
1,916 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kitale dismissed defendants' attempt to strike out a land suit, finding res judicata and limitation objections unproven or premature.

What this practically means

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Executive summary

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The 1st and 2nd defendants applied by notice of motion dated 22 January 2021 to strike out the plaintiff's suit on grounds that it was res judicata Kitale ELC Land Case No 16 of 2012, that the earlier judgment was unappealed, that the suit was time barred, and that estoppel applied. The plaintiff filed a replying affidavit denying she was party to the earlier suit, denying kinship with the earlier plaintiff and exhibiting (an illegible copy of) his birth certificate, asserting the fraud claim arose after the earlier suit and that leave had been granted to file out of time. Mwangi Njoroge J held that leave to file out of time cannot be revisited at interlocutory stage. Framing the sole issue as res judicata under Section 7 of the Civil Procedure Act, the court applied Lotta vs Tanaki and Samuel Njau Wainaina. It found the earlier suit was before a competent court, but the defendants' conclusory assertion that the earlier plaintiff was the plaintiff's step-son was unproved, the burden lying on the alleger of kinship under Sections 108 and 109 of the Evidence Act. The illegible birth certificate was disregarded per In Re: Gerishon John Mbogoh. The court further found the two suits raised entirely different claims: adverse possession of Cherangany Kapkanyor/55 versus fraudulent subdivision of Cherangany Kapkanyor/23. The limitation objection was premature. The application was dismissed with costs in the cause and the suit was set down for mention on 13 April 2021 for confirmation of compliance.

Key legal issues

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01

Res judicata under Section 7 of the Civil Procedure Act

Holding

Res judicata was not established because the defendants failed to prove that the plaintiff in the previous suit was the same person or an agent/privy of the plaintiff herein, and the claims in the two suits are entirely different

Reasoning

The court applied the five conditions in Section 7 as restated in Lotta vs Tanaki and Samuel Njau Wainaina. The defendants' assertion that the previous plaintiff was a step-son of the plaintiff was a conclusory statement not supported by evidence, and the plaintiff's denial was uncontroverted. The previous suit concerned adverse possession of Cherangany Kapkanyor/55 while the present suit concerns fraudulent subdivision of Cherangany Kapkanyor/23.

p. 3
02

Burden of proof regarding kinship

Holding

The party alleging a kinship relationship that would bring the suit within res judicata bears the burden of proving it

Reasoning

Relying on Sections 108 and 109 of the Evidence Act, the court held that a conclusory averment that the previous plaintiff was a step-son could not be accepted at face value once denied. More evidence was required after the denial but was not provided.

p. 2
03

Evidentiary value of illegible documents

Holding

An illegible document cannot be relied upon or have its gaps filled by the court; it must be ignored

Reasoning

Following In Re: Gerishon John Mbogoh, the court held that relying on an illegible document risks error and embarrassment and would encourage litigants to dump useless documents before court. The birth certificate exhibited by the plaintiff was therefore disregarded, leaving the kinship question unresolved but not proof of the defendants' allegation.

p. 3
04

Limitation objection

Holding

The limitation objection was premature at the interlocutory stage

Reasoning

The court found that whether the suit is time barred is a matter for the hearing, not a striking-out application at this stage.

p. 3

Legal principles established

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  • Where leave to file suit out of time has been granted, it cannot be revisited at interlocutory stage but only at the hearing through cross-examination
  • When a relationship by kinship is denied, the burden lies on the alleger to prove it
  • A court cannot rely on an illegible document and fill in the gaps itself; such a document must be ignored as though never exhibited

Court orders

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  1. 1.The application dated 22/1/2021 is dismissed
  2. 2.Costs of the application shall be in the cause
  3. 3.The suit shall be mentioned on 13th April 2021 for confirmation of compliance

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 34
  • Evidence ActSections 108 and 109
  • Evidence ActSections 83 and 84
  • Civil Procedure Code of 1966 (Tanzania)Order 9

Cases cited (5)

  • Lotta vs. Tanaki
    [2003] 2 EA 556
  • Samuel Njau Wainaina V Commissioner Of Lands & 6 Others
    [2012] eKLR
  • Karia and Another v Attorney General and Others
    [2005] 1 EA 83, 89
  • Serraco Limited v Attorney General
    [2016] eKLR
  • In Re: GERISHON JOHN MBOGOH
    [2001] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution read with the Environment and Land Court Act (court exercising original jurisdiction as ELC, Kitale)

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, "Saniako N. Kibiwott v Stanley Tanui & 4 others [2021] KEELC 3783 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3783/eng@2021-03-31

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