Jane Muchunu Adams (Suing by herself and as the Administrator of the Estate of Robert Muchunu Mumbura) v Joyce Ruguru Chege & 4 others [2022] KEELC 649 (KLR)

Although a suit dismissed for want of prosecution cannot be revived by a fresh suit, the reliefs concerning cautions and restrictions registered long after the earlier suit were different causes of action, some involving parties not privy to HCCC No 164 of 2005. Res judicata also cannot bind non-parties, so it could not be invoked against the 1st and 2nd defendants regarding the 1994 litigation between Robert Muchunu and Peter Kamau Chege.

Peter Kamau Chege was registered in 1975 when the defendants were adults; nothing in the register indicated a trust; they took no steps for decades and did nothing about the litigation that vested the land in Robert Muchunu; the decree vesting the land in Muchunu has not been vacated; Sections 24 and 25 of the Land Registration Act protect the registered proprietor's title.

Time ran for only one or two years before HCCC No 164 of 2005 was filed in 2005, did not run during the subsistence of that litigation, and only about six to eight years had accrued by the time of the counterclaim - short of the 12-year threshold. In any event, the defendants have never lived on the land and their activities were met with resistance, disputes and criminal charges, defeating the peaceful and continuous possession required.

The Land Registrar did not justify the caution, and the defendants claimed a licensee's interest for which no evidence existed. Registration on a false premise of licence rendered the caution illegal.

Neither the Land Registrar nor the 3rd and 4th defendants led evidence to justify the cautions; the claims had already been ventilated and rejected in the succession court. The 3rd and 4th defendants neither testified nor filed submissions, so the injunction against them was granted on uncontroverted evidence.