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ELCDismissedMombasa ELCA No. 8 of 2016 (suit filed 16 December 2020)

Karimi v Sanga & 3 others (Environment & Land Case 231 of 2020) [2022] KEELC 3180 (KLR)

Environment and Land Court
7 June 2022
4,322 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The defendants/respondents in an Originating Summons for adverse possession applied on 8 May 2021 to strike out the suit as res judicata Mombasa CMCC No. 3321 of 2009 and Mombasa ELC Appeal No. 8 of 2016. The plaintiff alleged she purchased 6 acres out of Plot No. 473 Mtwapa Settlement Scheme from Charo Sanga Lugukia (deceased) in 1986, occupied and developed it, and sued in 2009 for specific performance; she won before the magistrate but the ELC appeal allowed the defence of limitation and declared the sale agreement null and void for want of Land Control Board consent, dismissing her suit. She then filed this Originating Summons claiming title by adverse possession and, in the alternative, a constructive trust. The court restricted itself to the res judicata question under Section 7 of the Civil Procedure Act. It held that the adverse possession claim is a different cause of action from the earlier claim for specific performance, and that under explanation (4) it could not be said the plaintiff might and ought to have raised adverse possession in the former suit, because at that time the Court of Appeal authorities (Bwana vs Said, Nitin Properties, Maina Njuguna) required adverse possession claims to be brought separately by Originating Summons, with a risk of striking out if combined. Benefit of doubt therefore went to the plaintiff, and special circumstances within Yat Tung vs Dao Heng Bank militated against striking out. The application was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this suit for adverse possession is res judicata Mombasa CMCC No. 3321 of 2009 and Mombasa ELCA No. 8 of 2016
  2. 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

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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

Holding

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

Reasoning

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.

p. 7
02

Whether the present suit is res judicata the former suit and appeal

Holding

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

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The application dated 8 May 2021 to strike out the suit for being res judicata is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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.
p. 7Final orders - dismissal of the striking-out application
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.
p. 7Reasons for rejecting res judicata plea
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.
p. 4Distinct causes of action

Issues in the judgment

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minor

The case name appears as 'Yat Tung' in one passage and 'Yet Tung' in another

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.