David Katana Chipira & 139 others v Abdalla Mohamed Issa & 2 others [2021] KEELC 4544 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Sub-judice and res judicata under Sections 6 and 7 of the Civil Procedure Act
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
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.
Validity of the Preliminary Objection under the Mukisa Biscuits test
The objection did not qualify as a pure point of law as facts had to be ascertained
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.
Whether the Plaintiffs established a prima facie case for an interlocutory injunction
No prima facie case was established; the adverse possession claim was internally contradictory and procedurally defective
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.
Legal principles established
#- 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
#- 1.The 1st Defendant's Notice of Preliminary Objection dated 15th July 2019 is dismissed
- 2.The Plaintiffs' Notice of Motion dated 20th June 2019 is dismissed
- 3.Each party shall bear their own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (not expressly stated in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.