Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment (Originating Summons dated 28th March 2022, Murang'a)· [2022] KEELC 2918 (KLR)

Kanji & another v Gathigi & another (Environment & Land Case E007 of 2022) [2022] KEELC 2918 (KLR)

Environment and Land Court
23 June 2022
3,236 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court ruled you cannot use a preliminary objection to kill a land suit on res judicata grounds, and protected long-term occupants with an injunction.

What this practically means

#

Executive summary

#
The Applicants filed an Originating Summons claiming adverse possession of LLC.15/GAKUYU/789 measuring 0.7 acres, averring occupation since 1966 (1st Applicant) and 1969 (2nd Applicant, through marriage) — some 54 years of open, exclusive and peaceful occupation, including a residential house. They sought an interim injunction, apprehending eviction following the Respondents' filing of CMCC ELC No. E012 of 2022 seeking eviction and exhumation orders. The Respondents, registered owners by dint of Succession Cause No. 1183 of 2013 over their mother's estate — in which the 1st Applicant's protest was dismissed on 31st July 2018 and an appeal, Civil Appeal No. 179 of 2018, was upheld by the Court of Appeal on 23rd September 2021 — raised a Preliminary Objection contending the suit was res judicata under Section 7 of the Civil Procedure Act and an abuse of process amounting to forum shopping. The court, L Gacheru J, held that a plea of res judicata requires investigation of facts and cannot be sustained as a preliminary objection, applying Mukisa Biscuit, Oraro v Mbaja and George Kamau Kimani, and dismissed the objection. On the injunction, applying Giella v Cassman Brown, the court found the Applicants in uncontroverted occupation with no alternative home, established a prima facie case and balance of convenience, and granted the injunction in terms of prayer No. 2 pending determination of the adverse possession claim, directing expeditious hearing of the Originating Summons. No costs order was made.

Key legal issues

#
01

Whether the Preliminary Objection on res judicata is merited

Holding

Not merited and dismissed, because determining res judicata would require investigation of facts, disqualifying it as a preliminary objection

Reasoning

Applying Mukisa Biscuit and Oraro v Mbaja, a preliminary objection must be a pure point of law on assumed facts. Determining whether the suit is res judicata under Section 7 of the Civil Procedure Act requires establishing the elements of res judicata from facts, including prior pleadings and competence of the former courts. The court endorsed George Kamau Kimani: res judicata should be raised by notice of motion with annexed pleadings. The objection therefore failed the standard for preliminary objections.

p. 4
02

Whether an interim injunction can issue

Holding

Granted in terms of prayer No. 2 in the meantime, the Applicants having established a prima facie case and balance of convenience

Reasoning

Applying Giella v Cassman Brown, the court found the Applicants live on and use the suit land, uncontroverted by photographs of a permanent structure, while the registered owners do not live there. Whether they are entitled to adverse possession must be determined at a fair hearing; they may win or lose, but the right must first be ascertained. Eviction upon enforcement of the succession judgment would cause substantial loss, and no alternative home was shown, tilting the balance of convenience towards granting the injunction.

p. 6

Legal principles established

#
  • A preliminary objection must raise a pure point of law and cannot be sustained where facts must be ascertained
  • Res judicata cannot be raised by way of preliminary objection; it should be raised by notice of motion with pleadings annexed

Court orders

#
  1. 1.The Preliminary Objection dated 5th May, 2022, and filed on 6th May, 2022, is not merited and is dismissed
  2. 2.Interim injunction granted in terms of prayer No. 2 of the Originating Summons application dated 28th March 2022, in the meantime
  3. 3.Parties directed to prepare the Originating Summons for expeditious hearing of the contested issues

Authorities

#

Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 40, Rule 1

Cases cited (13)

  • John Florence Maritime Services Limited & Another v Cabinet Secretary Transport and Infrastructure & 3 others
    [2021] eKLR
  • Giella v Cassman Brown & Company Limited
    [1973] EA 358
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others
    [2015] eKLR (Application No 50 of 2014)
  • Oraro v Mbajja
    [2005] eKLR
  • The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
    Nairobi CA Civil Appeal No. 105 of 2017 [2017] eKLR
  • George Kamau Kimani & 4 others v County Government of Trans-Nzoia & another
    [2014] eKLR
  • American Cyanamid Co. v Ethicom Limited
    [1975] A AER 504
  • Mrao Ltd vs First American Bank of Kenya & 2 others
    [2003] KLR 125
  • Moses C. Muhia Njoroge & 2 others v Jane W Lesaloi and 5 others
    [2014] eKLR
  • Nguruman Limited Jan Bonde Nielsen & 2 others
    Nairobi Civil Appeal No. 77 of 2012 [2014] eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR
  • Banis Africa Ventures Limited v National Land Commission
    [2021] eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over a claim of adverse possession (not stated by express provision in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kanji & another v Gathigi & another (Environment & Land Case E007 of 2022) [2022] KEELC 2918 (KLR)", Case Analysis (2022). Not stated in the judgment (Originating Summons dated 28th March 2022, Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2918/eng@2022-06-23

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