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ELCDismissedNot stated in the judgment excerpt (Malindi ELC suit)· [2021] KEELC 4544 (KLR)

David Katana Chipira & 139 others v Abdalla Mohamed Issa & 2 others [2021] KEELC 4544 (KLR)

Environment and Land Court
29 January 2021
2,688 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Malindi court refused 141 claimants' bid to block land dealings and claim ownership by adverse possession because their case was contradictory and procedurally flawed.

What this practically means

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Executive summary

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By a Notice of Motion dated 20th June 2019, 141 Plaintiffs sought a temporary injunction restraining the 1st Defendant from dealing with Plot No. 371 Kwachocha, Malindi, and orders that they be registered as proprietors of the plot by adverse possession and that title documents be issued to them. The 1st Defendant opposed the application and filed a Preliminary Objection contending that the Court lacked jurisdiction under Section 6 of the Civil Procedure Act and that the proceedings were sub-judice and res judicata Malindi ELC Case No. 8 of 2016, which he had filed and in which the Court had directed occupants to vacate. The Court applied the Mukisa Biscuits definition of a preliminary objection and the sub-judice test, holding that the 1st Defendant had failed to demonstrate that the parties in both suits were the same, since ELC No. 8 of 2016 had 19 Defendants while the present suit had 141 Plaintiffs and the pleadings in the earlier suit were not annexed. The Preliminary Objection was dismissed. On the Motion, the Court applied the Giella -vs- Cassman Brown conditions and the Mrao and Nguruman definitions of a prima facie case. It found the Plaintiffs' adverse possession claim internally contradictory, since they denied the 1st Defendant's ownership while claiming to have dispossessed him, and procedurally defective because adverse possession claims under Section 38 of the Limitation of Actions Act must be brought by Originating Summons supported by a certified extract of title under Order 37 Rule 7 of the Civil Procedure Rules. Prayers 4, 5 and 6 were described as spurious at the interlocutory stage. The Motion was dismissed with each party bearing their own costs.

Key legal issues

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01

Sub-judice and res judicata under Sections 6 and 7 of the Civil Procedure Act

Holding

The Preliminary Objection failed because the 1st Defendant did not establish that the parties in ELC No. 8 of 2016 are the same as the 141 Plaintiffs herein

Reasoning

The Court found that the previous suit had 19 Defendants while the present suit has 141 Plaintiffs, and the 1st Defendant annexed only a Consent Order and a Ruling, not the pleadings in ELC No. 8 of 2016. Without the pleadings or the names of the parties in the previous suit, the Court could not compare and contrast the parties or conclude that a final decision in the earlier suit would operate as res judicata.

p. 3
02

Validity of the Preliminary Objection under the Mukisa Biscuits test

Holding

The objection did not qualify as a pure point of law as facts had to be ascertained

Reasoning

Applying Mukisa Biscuits, a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct. Here, determining whether the parties in the two suits were the same required ascertainment of facts from pleadings not placed before the Court, so the objection could not succeed as a preliminary point.

p. 3
03

Whether the Plaintiffs established a prima facie case for an interlocutory injunction

Holding

No prima facie case was established; the adverse possession claim was internally contradictory and procedurally defective

Reasoning

The Plaintiffs claimed title by adverse possession while simultaneously denying that the 1st Defendant owned the land, raising the question of who they had dispossessed. Further, adverse possession claims must be brought by Originating Summons supported by a certified extract of title under Order 37 Rule 7 of the Civil Procedure Rules, but the Plaintiffs filed an ordinary Plaint and did not annex an extract of the title they claim. The Giella -vs- Cassman Brown conditions were therefore not satisfied.

p. 4

Legal principles established

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  • A party invoking the doctrine of res sub-judice must establish that the suits are over the same subject matter, one was instituted before the other, both are pending before competent courts, and the suits are between the same parties or their representatives; the test is whether a decision in the earlier suit would operate as res judicata in the later one
  • An application for orders of adverse possession under Section 38 of the Limitation of Actions Act must be made by Originating Summons supported by a certified extract of title

Court orders

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  1. 1.The 1st Defendant's Notice of Preliminary Objection dated 15th July 2019 is dismissed
  2. 2.The Plaintiffs' Notice of Motion dated 20th June 2019 is dismissed
  3. 3.Each party shall bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSections 6 and 7
  • Limitation of Actions ActSection 38(2)
  • Civil Procedure RulesOrder 37 Rule 7

Cases cited (5)

  • Mukisa Biscuits Manufacturing Company Ltd -vs- West End Distributors Ltd
    (1969) EA 676
  • Giella -vs- Cassman Brown & Company Ltd
    (1973) EA 358
  • Mrao Ltd -vs- First American Bank of Kenya Ltd & 2 Others
    (2003) KLR
  • Nguruman Ltd -vs- Jan Bonde Nielsen & 2 Others
    (2014) eKLR
  • Kasuve -vs- Mwaani Investment Ltd & 4 Others
    (2004) 1 KLR 184
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (not expressly stated in judgment)

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, "David Katana Chipira & 139 others v Abdalla Mohamed Issa & 2 others [2021] KEELC 4544 (KLR)", Case Analysis (2021). Not stated in the judgment excerpt (Malindi ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4544/eng@2021-01-29

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