Saniako N. Kibiwott v Stanley Tanui & 4 others [2021] KEELC 3783 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Res judicata under Section 7 of the Civil Procedure Act
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
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.
Burden of proof regarding kinship
The party alleging a kinship relationship that would bring the suit within res judicata bears the burden of proving it
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.
Evidentiary value of illegible documents
An illegible document cannot be relied upon or have its gaps filled by the court; it must be ignored
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.
Limitation objection
The limitation objection was premature at the interlocutory stage
The court found that whether the suit is time barred is a matter for the hearing, not a striking-out application at this stage.
Legal principles established
#- 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
#- 1.The application dated 22/1/2021 is dismissed
- 2.Costs of the application shall be in the cause
- 3.The suit shall be mentioned on 13th April 2021 for confirmation of compliance
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.