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ELCDismissedOriginationg Summons dated October 10, 2020 (Kisumu ELC)· [2022] KEELC 3584 (KLR)

Omolo v Registered Trustees Dala Hera & another (Environment and Land Case Civil Suit E9 of 2020) [2022] KEELC 3584 (KLR)

Environment and Land Court
13 May 2022
AOANTONY OMBWAYO
1,606 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kisumu Environment and Land Court ruled that an adverse possession claim could proceed because earlier land cases covered different issues and were never decided on merit.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisumu (Antony Ombwayo, J) determined a preliminary objection dated May 3, 2021 raised by the respondents against an originating summons filed by Boniface Omulo Omolo on October 10, 2020 seeking adverse possession. The respondents contended that the suit was res judicata, having been determined in ELC No 785 of 2015 and ELC No 302 of 2017, and further res sub-judice because ELC No 302 of 2017 was pending when the present suit was filed. The applicant responded that ELC No 302 of 2017, in which he sought a declaration of customary interest, excision of 0.4 hectares and a permanent injunction, was dismissed for non-attendance and never determined on merit, and that adverse possession was not among the issues in either former suit; he relied on IEBC v Maina Kiai and consolidation authorities. The court applied section 7 of the Civil Procedure Act, the Supreme Court's restatement of the res judicata elements in John Florence Maritime Services, the res sub-judice principle in section 6 as restated in Dr Kiama Wangai, and the warning in ET v Attorney General against litigants evading res judicata by repleading resolved causes as new ones. Comparing the pleadings in ELC No 302 of 2017, the court found adverse possession was not raised there and that the former suit was not heard and finally decided on merit. As to ELC No 785 of 2015, neither party attached the pleadings or judgment, so the court could not ascertain res judicata. Holding that the respondents failed to demonstrate res judicata or res sub-judice, the court dismissed the preliminary objection with costs to the applicant.

Key legal issues

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01

Whether the originating summons for adverse possession is res judicata or res sub-judice

Holding

The suit is not res judicata or res sub-judice: ELC No 302 of 2017 sought customary interest and injunction, not adverse possession, and was dismissed for non-attendance (not on merit); ELC No 785 of 2015 could not be assessed as pleadings were not attached.

Reasoning

The court applied section 7 of the Civil Procedure Act and the John Florence elements. The former suit ELC No 302 of 2017 raised different issues (customary interest, excision and injunction) and was dismissed for non-attendance rather than heard and finally decided on merit. As to ELC No 785 of 2015, neither party attached the pleadings or judgment, so the court could not determine res judicata; the respondents bore the burden of demonstrating the doctrine and failed.

p. 4
02

Whether the objection is a proper preliminary objection

Holding

Impliedly the objection failed as a true preliminary objection since its foundation required factual investigation via the pleadings.

Reasoning

Relying on Oraro v Mbaja, the court noted that a preliminary objection must not be blurred with factual details; determining whether the former suits covered the same cause of action required comparison of pleadings and proof, which the respondents did not supply.

p. 3

Legal principles established

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  • Res judicata requires a former final judgment by a competent court with identical parties, subject matter and cause of action.
  • A preliminary objection cannot rest on disputed facts requiring evidential proof.

Court orders

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  1. 1.The preliminary objection dated May 3, 2021 is dismissed with costs to the applicant

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Civil Procedure Actsection 6
  • Limitation of Actions Actnot specified (adverse possession procedure)

Cases cited (7)

  • IEBC v Maina Kiai & 5 Others
    (2017) eKLR
  • Republic v Paul Kihara Kariuki, Attorney General & 2 Others Ex parte Law Society of Kenya
    (2020) eKLR
  • Law Society of Kenya v The Centre for Human Rights and Democracy
  • Oraro v Mbaja
    [2005] 1 KLR 141
  • John Florence Maritime Services Limited & Another v Cabinet Secretary Transport and Infrastructure & 3 others
    [2021] eKLR
  • Dr Kiama Wangai v John Mugambi & Republic
    [2012] eKLR
  • ET v Attorney General & Another
Jurisdiction invoked
Article 162(2) of the Constitution (Environment and Land Court jurisdiction, implied); sections 6 and 7 of the Civil Procedure Act

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, "Omolo v Registered Trustees Dala Hera & another (Environment and Land Case Civil Suit E9 of 2020) [2022] KEELC 3584 (KLR)", Case Analysis (2022). Originationg Summons dated October 10, 2020 (Kisumu ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3584/eng@2022-05-13

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