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ELCAllowedBungoma ELC Case No 143 of 2016 (O.S) — Notice of Motion dated 17th October 2020· [2021] KEELC 4245 (KLR)

Anna Namae Masibo v Benard Wasilwa Wepukhulu; Margaret Onyanchi Maloba & 3 others (Co-Respondents) [2021] KEELC 4245 (KLR)

Environment and Land Court
18 February 2021
BOBoaz N. Olao
6,162 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~25 min to read original · ~4 min brief

The bottom line

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A widow claiming land by adverse possession won protection from eviction, and buyers of the subdivided plots cannot sell it until the case ends.

What this practically means

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Executive summary

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In this interlocutory ruling of the Environment and Land Court at Bungoma, Boaz N. Olao J determined the Applicant's Notice of Motion dated 17th October 2020 in an adverse possession suit over land parcels arising from the sub-division of the original BOKOLI/BOKOLI/692. The Applicant, widow of the original registered owner, sought a temporary injunction, an order of inhibition, and joinder of the four registered proprietors of the resultant sub-divisions. The Co-Respondents opposed, arguing the application was res judicata following the court's ruling of 29th June 2020 in Bungoma ELC Case No 143 of 2014 (OS), and that adverse possession could not run against titles acquired in 2018 and 2019. The court rejected the res judicata plea, holding the Applicant was not a party to the earlier suit and the injunction and inhibition issues were never heard and finally decided there. Applying Order 1 Rule 10(2), the court enjoined the four proprietors, finding their presence necessary for complete adjudication and no prejudice shown. Relying on Giella v Cassman Brown and Nguruman Ltd v Jan Bonde Nielsen, the court found a prima facie case in the Applicant's status as widow of the original owner, held eviction before trial would cause irreparable loss not compensable in damages, and found the balance of convenience in her favour, particularly as the original parcel was sub-divided during the suit. The inhibition objection on grounds of duplicity (cautions already lodged) failed. The court granted the injunction and inhibition, allowed joinder, set timetables for amendment and responses, and directed that costs be in the cause, with the injunction lapsing if the suit is not heard within 12 months.

Key legal issues

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01

Res judicata

Holding

The application is not res judicata; the Applicant was not a party to the earlier suit and the injunction/inhibition issues were never heard and finally decided there.

Reasoning

Section 7 of the Civil Procedure Act requires the same parties litigating under the same title and an issue heard and finally decided. The Applicant was refused joinder in the 2014 suit and that suit was compromised by consent. Since she was never joined, the interim remedies were never interrogated on merit, so the earlier ruling cannot bar this application.

p. 4
02

Joinder of parties

Holding

Joinder of the registered proprietors of the sub-divisions is necessary for complete adjudication and causes no prejudice to them.

Reasoning

Order 1 Rule 10(2) permits addition of persons whose presence is necessary to effectually adjudicate. The proposed Co-Respondents hold titles to the parcels claimed by the Applicant; it is in their own interest to be heard, and they alleged no prejudice from joinder.

p. 4
03

Temporary injunction

Holding

Temporary injunction granted: Applicant established a prima facie case, irreparable harm and balance of convenience.

Reasoning

As widow of the original registered owner, the Applicant demonstrates an apparent interest threatened with violation. Eviction before trial, if she ultimately succeeds, would be irreparable loss not compensable in damages; the sub-division during the suit corroborates the risk of alienation, tilting the balance of convenience her way.

p. 6
04

Order of inhibition

Holding

Inhibition granted because the original parcel was sub-divided and alienated during the suit, showing risk of further dealings.

Reasoning

Under Section 68(1) of the Land Registration Act the court may inhibit dealings with land. The duplex objection fails because a party may employ all available legal means to protect disputed property; the prior sub-division during the suit establishes good grounds and risk of alienation rendering the suit nugatory.

p. 7

Legal principles established

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  • Change of ownership of land occupied by a person in adverse possession does not interrupt that possession
  • Res judicata does not apply where the applicant was not a party to the former suit and the issues were not heard and finally decided therein

Court orders

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  1. 1.Margaret Onyanchi Maloba, Bramwel Gedion Situma Wasilwa, Edmond Khamsin Wasilwa and Elisieba Nasipwondi Kharema enjoined as 2nd, 3rd, 4th and 5th Respondents respectively
  2. 2.Originating Summons to be further amended to reflect the joinder and filed and served within 14 days
  3. 3.2nd to 5th Respondents to file and serve responses and documents within 14 days of service
  4. 4.1st Respondent may file and serve any further affidavit and documents within 14 days
  5. 5.Temporary injunction restraining eviction from and interference with land parcels BOKOLI/BOKOLI/3296, 3297, 3298, 3299, 3300, 3301 and 3622 pending hearing and determination of the suit
  6. 6.Order of inhibition against transfer, sub-division and registration of any dealings with the suit parcels pending determination or until further orders
  7. 7.Parties to comply with pre-trial directions; mention before Deputy Registrar on 24th March 2021
  8. 8.Fresh directions to be taken on 24th May 2021 after which a hearing date will be taken
  9. 9.Applicant to ensure the matter is heard and determined within 12 months failing which the temporary injunction lapses
  10. 10.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 7 (including Explanation 6)
  • Civil Procedure RulesSections 3, 3A; Order 1 Rule 10(2); Order 8 Rule 3; Order 40 Rules 1 and 2
  • Land Registration ActSections 68 and 69
  • Limitation of Actions ActSections 7, 37 and 38

Cases cited (12)

  • Bahadurali Ebrahim Samji v Al Noor Jamal & Others
    1998 eKLR
  • Independent Electoral and Boundaries Commission v Maina Kiai & Others
    2017 eKLR
  • John Florence Maritime Services Ltd & Another v Cabinet Secretary for Transport and Infrastructure & Others
    2015 eKLR
  • Uhuru Highway Development Ltd v Central Bank of Kenya & Others
    1996 eKLR
  • Central Kenya Ltd v Trust Bank & Others
    C.A Civil Appeal No 222 of 1998 [2000 eKLR]
  • Giella v Cassman Brown and Company Ltd
    1973 E A 358
  • Mrao v First American Bank of Kenya Ltd & Others
    C.A Civil Appeal No 39 of 2002 [2003 eKLR]
  • Nguruman Ltd v Jan Bonde Nielsen & Others
    C.A Civil Appeal No 77 of 2012 [2014 eKLR]
  • Films Rover International Ltd v Cannon Films Sales Ltd
    1986 3 All E.R
  • Githu v Ndeete
    1984 KLR 776
  • Edwin Kiruai v Peter Gichomo
    C.A Civil Appeal No 256 of 2009
  • Beth Kaari & Another v M’Rimunga
    C.A Civil Appeal No 352 of 2009
Jurisdiction invoked
Sections 3, 3A of the Civil Procedure Act; Order 8 Rule 3, Order 40 Rules 1 and 2 of the Civil Procedure Rules; Sections 68 and 69 of the Land Registration Act

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, "Anna Namae Masibo v Benard Wasilwa Wepukhulu; Margaret Onyanchi Maloba & 3 others (Co-Respondents) [2021] KEELC 4245 (KLR)", Case Analysis (2021). Bungoma ELC Case No 143 of 2016 (O.S) — Notice of Motion dated 17th October 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4245/eng@2021-02-18

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