Karimi v Sanga & 3 others (Environment & Land Case 231 of 2020) [2022] KEELC 3180 (KLR)
The bottom line
#Kenya's Environment and Land Court in Mombasa ruled that a buyer who lost a contract dispute can still claim land ownership by adverse possession.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this suit for adverse possession is res judicata Mombasa CMCC No. 3321 of 2009 and Mombasa ELCA No. 8 of 2016
- 2.Whether the claim for adverse possession could have been made a ground of attack in the former suit under explanation (4) to Section 7 of the Civil Procedure Act
Key legal issues
#Whether the adverse possession claim is caught by explanation (4) to Section 7 of the Civil Procedure Act as a matter that might and ought to have been made a ground of attack in the former suit
It was not, because at the time (2009) the Court of Appeal authorities held that a claim for adverse possession could not be combined with a claim for specific performance and had to be brought by separate Originating Summons; benefit of doubt goes to the plaintiff
The earlier suit was for specific performance of a land sale agreement. Before the 2010 Constitution and 2010 Civil Procedure Rules, decisions such as Bwana vs Said, Nitin Properties and Maina Njuguna held adverse possession claims had to be brought by Originating Summons and could not be joined in a plaint. Combining the claims risked the suit being struck out. The plaintiff therefore cannot be blamed for not raising adverse possession then, and striking out the present suit would punish her for the state of the authorities at the time.
Whether the present suit is res judicata the former suit and appeal
It is not; the claim for adverse possession is a completely different cause of action from the earlier claim for specific performance and was never heard
Section 7 of the Civil Procedure Act bars re-litigation of matters directly and substantially in issue in a former suit. Adverse possession was not raised in the previous litigation, and given the procedural ambiguity at the time, it was not a matter which might and ought to have been made a ground of attack. The plaintiff deserves a hearing on her adverse possession and trust claim.
Legal principles established
#- Where, at the time of the former suit, the prevailing authorities made it doubtful that a claim for adverse possession could be combined with a claim for specific performance, the plaintiff cannot be said to have omitted a claim she ought to have made, and such special circumstances defeat a plea of res judicata
Court orders
#- 1.The application dated 8 May 2021 to strike out the suit for being res judicata is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act, Cap 22
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the above reasons, I proceed to dismiss this application with costs.
To dismiss the plaintifi’s suit herein would be to punish her for a position taken by the authorities at the time, that a suit for specific performance could not be combined in the plaint with a suit for adverse possession.
Despite being a claim for the same land, the claim for adverse possession is in fact a completely difierent cause of action from that presented earlier, for it is apparent that the earlier suit was nothing more than a suit for specific performance of a land sale agreement.
Issues in the judgment
#The case name appears as 'Yat Tung' in one passage and 'Yet Tung' in another
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kingati & another v Thiri (Sued as the Legal Representative of the Estate of M’thiri Njeru alias Mbute Kiriti) (Environment and Land Case E009 of 2025) [2026] KEELC 4843 (KLR)[2026] KEELC 4843 (KLR)23 Jul 2026
- Oyomo & 2 others (Suing as the administrators of the Estate of Mohamed Omollo Oyomo) v Okumu (Sued as administrator of Chrisantus Ayoma Oyomo alias Ayomo Oyomo) (Land Case Appeal E045 of 2024) [2026] KEELC 641 (KLR)[2026] KEELC 641 (KLR)22 Jan 2026
Cite this brief
#Cite this brief
Caselaw, "Karimi v Sanga & 3 others (Environment & Land Case 231 of 2020) [2022] KEELC 3180 (KLR)", Case Analysis (2022). Mombasa ELCA No. 8 of 2016 (suit filed 16 December 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3180/eng@2022-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.