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ELCDismissedOriginating Summons dated 14th March 2019 (Kerugoya ELC)· [2022] KEELC 1387 (KLR)

Stephen Muchira Nyaga & 2 others v Charles Mithamo Mwai & 3 others [2022] KEELC 1387 (KLR)

Environment and Land Court
11 February 2022
ECE. C. Cherono
3,801 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Kerugoya Land Court threw out a 40-year adverse possession claim because the dispute had already been litigated, proving repeat suits waste money and fail.

What this practically means

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Executive summary

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The plaintiffs filed an Originating Summons dated 14 March 2019 seeking a declaration that they had acquired parcel KABARE/NJIKU/504 by adverse possession and an order registering them as absolute proprietors. Their case was that the 1st plaintiff bought part of L.R KABARE/NJIKU/253 from Mwai Murondo in 1975 and 1977, took vacant possession, and that after sub-division in 1981 one resultant parcel (505) was transferred to him while the seller refused to transfer parcel 504, over which the plaintiffs remained in open, exclusive and uninterrupted possession since 7 May 1981. The defendants, Mwai Murondo's children, denied the claim, asserting prior litigation had determined the dispute, that numerous suits interrupted any adverse possession, and that the entry was permissive. By consent, the plaint in the pending lower court case CMCC 267/2009 was taken as a counterclaim. The court framed four issues and held the suit res judicata: the same subject matter had been litigated in HCCC No. 213/1981, tried as SRMCC No. 265/1992 and dismissed on 23 January 2006, with the appeal dismissed for want of prosecution on 28 July 2017, and an Embu eviction suit had already been struck out as res judicata. Alternatively, the 1st plaintiff's own affidavit showed possession was taken with the registered owner's consent under a sale agreement, so time could not run for adverse possession until the licence was determined. The suit was dismissed with costs to the plaintiffs jointly and severally borne by them.

Key legal issues

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01

Whether the suit is res judicata

Holding

Yes - the claim over the suit land was heard and determined in SRMCC No. 265/1992 and the appeal (ELCA No. 42/2013) was dismissed.

Reasoning

The same parties had litigated the subject matter in HCCC No. 213/1981, transferred as SRMCC No. 265/1992 and dismissed on 23/01/2006; the appeal was dismissed for want of prosecution on 28/07/2017. A subsequent Embu High Court eviction suit was also struck out as res judicata. Permitting this Originating Summons would violate Section 7 of the Civil Procedure Act and abuse court process.

p. 4
02

Whether possession under a sale agreement can found adverse possession

Holding

No - the plaintiffs' own affidavit shows entry and possession with the registered owner's consent, defeating the claim.

Reasoning

Relying on Sisto Wambugu v Kamau Njuguna and Mistry Valji, the court held that possession taken under a valid sale agreement is permissive and only becomes adverse upon determination of the licence. The 1st plaintiff deposed that he took possession with leave of the registered owner; permission and adverse possession cannot co-exist, so the claim failed even independent of res judicata.

p. 5

Legal principles established

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  • Res judicata bars relitigation of a matter heard and finally decided between the same parties; courts must be vigilant of parties who take courts in circles over the same subject matter.
  • Possession taken under a valid sale agreement is permissive and cannot be adverse until the licence is determined.

Court orders

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  1. 1.The plaintiffs'/Applicants' suit commenced by way of Originating Summons dated 14th March 2019 and the Supporting affidavit sworn by Stephen Muchira Nyaga, the 1st Plaintiff/Applicant herein together with the annexures thereto is hereby dismissed for being Res-judicata.
  2. 2.The costs of this suit shall be borne by the Plaintiffs/Applicants jointly and severally.
Jurisdiction invoked
Article 162(2) Constitution / Environment and Land Court Act (original jurisdiction over land; Limitation of Actions Act Cap 22 s.38 invoked in the claim)

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, "Stephen Muchira Nyaga & 2 others v Charles Mithamo Mwai & 3 others [2022] KEELC 1387 (KLR)", Case Analysis (2022). Originating Summons dated 14th March 2019 (Kerugoya ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1387/eng@2022-02-11

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