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ELCStruck OutOriginating Summons dated 9th December 2019 (Bungoma)· [2021] KEELC 4679 (KLR)

John Makokha Barasa v Joseph Wangila Wanjala [2021] KEELC 4679 (KLR)

Environment and Land Court
21 January 2021
2,277 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A son's 21-year-delayed land dispute was struck out because the same fight had already been decided, and courts can enforce time limits on their own.

What this practically means

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Executive summary

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The plaintiff, as administrator of the estate of the late Martin Sifirino, brought an Originating Summons seeking declarations that the sub-division of land parcel KIMILILI/KIMILILI/415 into parcels 3447 and 3448 was unlawful, that the defendant's registration over parcel 3448 be declared null and void, that title 415 be reinstated and registered in his name, plus costs. The defendant raised a Notice of Preliminary Objection dated 30th August 2020, contending the suit was res judicata, frivolous, vexatious and an abuse of process, the dispute having been resolved in Kimilili Court Case No 29 of 1997. The court canvassed the objection on written submissions; only the plaintiff filed submissions. Applying Section 7 of the Civil Procedure Act, the court held that the dispute over the parcel had been heard and determined by the Kimilili Land Disputes Tribunal, affirmed by the Kakamega Provincial Appeals Committee on 16th December 1998, and adopted as a decree of the Resident Magistrate's Court, with the sub-division and transfer executed by September 1999. The plaintiff was pursuing the same interest as his late father and, under Explanation 6 to Section 7, was deemed to claim under him; res judicata binds privies, as reinforced by Lotta v Tanaka. The court further raised limitation suo moto: the suit, filed 21 years after the titles were created, was barred by Section 7 of the Limitation of Actions Act, and was not a claim for adverse possession. The suit was struck out with costs to the defendant.

Key legal issues

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01

Whether the suit is res judicata

Holding

The suit is res judicata because the dispute over KIMILILI/KIMILILI/415 was heard and determined by the Tribunal and the Provincial Appeals Committee, adopted as a decree in Kimilili RMCC No 29 of 1997, and the plaintiff claims as administrator of the estate of the original litigant.

Reasoning

The dispute between Martin Sifirino and the defendant over trespass and boundary was determined by the Land Disputes Tribunal and affirmed by the Provincial Appeals Committee on 16th December 1998, and adopted as a judgment of the Resident Magistrate's Court in Land Case No 29 of 1999. The plaintiff pursues the same interest as his late father and, under Explanation 6 to Section 7 of the Civil Procedure Act, is deemed to claim under him. Res judicata binds parties and their privies.

p. 3
02

Whether the suit is barred by limitation

Holding

The suit is statute barred under Section 7 of the Limitation of Actions Act.

Reasoning

The plaintiff sought recovery of land, the titles having been created on 31st August 1999, yet the suit was filed on 10th December 2019, some 21 years later. Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years. Although not raised in the preliminary objection, the court may raise limitation suo moto as it goes to jurisdiction. The claim was also not one for adverse possession.

p. 3

Legal principles established

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  • For res judicata to apply, the matter must be the same, between the same parties or their privies litigating under the same title, decided by a competent court, and heard and finally decided
  • The doctrine of res judicata binds both the parties to a suit and their privies
  • A court may raise limitation suo moto since it goes to jurisdiction
  • An action to recover land may not be brought after twelve years from when the right of action accrued

Court orders

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  1. 1.The plaintiff's suit is struck out
  2. 2.The plaintiff shall pay the defendant's costs of the suit

Authorities

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Legislation

  • Civil Procedure ActSection 7, Explanation (6)
  • Limitation of Actions ActSection 7
  • Land Disputes Tribunals Act (repealed)Sections 3 and 8(9)

Cases cited (1)

  • LOTTA .V. TANAKA & OTHERS
    2003 2 E.A 556 (CAT)
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes

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, "John Makokha Barasa v Joseph Wangila Wanjala [2021] KEELC 4679 (KLR)", Case Analysis (2021). Originating Summons dated 9th December 2019 (Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4679/eng@2021-01-21

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