Obwora v Buluma & another (Environment and Land Case Civil Suit 29 of 2015) [2022] KEELC 2493 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Res judicata based on Busia PM Land Case No 20 of 2003
The suit is not res judicata because the trust claim now raised was not determined in the earlier case
The defendant argued that boundary issues over LR 33 and 34 were resolved in Busia PM Land Case No 20 of 2003. The court distinguished the earlier suit from the present claim, noting that the plaintiff now raises trespass on LR 2245 (a subdivision of LR 33) and a claim of trust over ½ acre of LR 36, matters not determined in the earlier case.
Limitation of actions in respect of the trespass claim
Although pleaded entry was in 1989 (which would be time barred), the continuous nature of trespass saves the claim, so the court determined the suit on its merits
The plaint pleaded trespass from 1989 while oral evidence stated 2010, creating inconsistency. Section 7 of the Limitation of Actions Act bars land recovery suits after 12 years. However, because trespass is a continuing wrong, the claim was not time barred and the court proceeded to the merits.
Whether trespass and encroachment were proved
Not proved - the sketch map lacked an accompanying report and no registry index map was produced to show the alleged illegal road
The plaintiff relied on a sketch map drawn by a surveyor on July 2, 2013 pursuant to a court order in Land Case No 32 of 2011. Without a surveyor's report or a registry index map, the court could not interpret the sketch or verify that the roads shown were not on the RIM. No survey report corroborated the allegation of encroachment on LR 2245.
Claim to the ½ acre in LR Samia/Butabona/36 on the basis of trust
The claim fails - the parcel 36 was created during adjudication as a first registration, and any entitlement was extinguished by limitation given the pleaded 1989 entry
The plaintiff contended the ½ acre belonged to his father and was erroneously included in LR 36 during the 1972 adjudication, with the 2nd defendant holding it in trust. The tribunal award on which he relied had been quashed by the High Court in Busia HC JR No 16 of 2011. His pleadings and evidence did not support the trust claim, and the pleaded 1989 encroachment meant any rights were extinguished by operation of law.
Legal principles established
#- A suit based on continuous trespass is not defeated by the limitation period, and the court may proceed to determine the suit on its merits
- A res judicata plea fails where the issues now raised (such as trust) were not determined in the earlier suit
Court orders
#- 1.The plaintiff's amended plaint dated December 4, 2018 is dismissed with costs to the defendants
- Jurisdiction invoked
- Original civil jurisdiction over claims relating to title to and trespass on land; Trespass Act (Cap 294) and Limitation of Actions Act invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Obwora v Buluma & another (Environment and Land Case Civil Suit 29 of 2015) [2022] KEELC 2493 (KLR)", Case Analysis (2022). Busia PMCC Land Case (as pleaded in the amended plaint; amended plaint dated December 4, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2493/eng@2022-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.