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ELCPartially AllowedEnvironment & Land Case 10 of 2018· [2022] KEELC 15322 (KLR)

Gitui v Kihuto

Environment and Land Court
7 December 2022
CNCK Nzili
1,213 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (CK Nzili, J) determines the plaintiff's notice of motion dated July 22, 2022 in a long-running land dispute over LR No 11969/123/Marsabit Township. Following the dismissal of the defendant's counterclaim (based on adverse possession) on May 18, 2022, the plaintiff sought a declaration that the defendant's continued occupation was unlawful, an order of eviction, and mesne profits from July 30, 2012. The defendant opposed, citing a pending notice of appeal, an allegedly invalidated certificate of lease, and the plaintiff's alleged bankruptcy/receiving order in Nyeri ELC No 667 of 2014. The court held that the prayers for eviction and mesne profits were never raised in the plaintiff's pleadings or determined in the judgment, and that parties must bring forward their full case at trial; constructive res judicata and the functus officio doctrine therefore barred relitigating omitted claims. Relying on section 34(1) of the Civil Procedure Act and section 34 jurisprudence, the court distinguished the two prayers: eviction is incidental to execution of the decree and was granted, while mesne profits require a merit-based decision with evidence and were refused. The defendant's objections were dismissed as extraneous, no stay orders from the Court of Appeal having been produced. The court ordered the plaintiff to serve an eviction notice within 7 days under sections 152A-F of the Land Act, with execution and attendant costs against the defendant in default.

Key legal issues

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01

Whether eviction and mesne profits could be sought after judgment when not pleaded

Holding

Eviction granted as incidental to execution; mesne profits refused as requiring a fresh merit-based determination barred by res judicata and functus officio

Reasoning

The applicant withdrew his claim and the counterclaim was dismissed; vacant possession, eviction and mesne profits were never raised in the defence to the counterclaim. Authorities establish that parties must bring forward their full case and cannot reopen matters that could have been litigated. Section 34(1) of the Civil Procedure Act confines post-decree questions to the executing court. Eviction is incidental to execution; mesne profits require evidence and a merit-based decision.

p. 2
02

Whether the respondent's objections (pending appeal, invalidated title, bankruptcy) defeat the application

Holding

Rejected as extraneous; no stay orders from the Court of Appeal were produced

Reasoning

The respondent filed a notice of appeal but produced no stay orders. His response raised issues unrelated to the application rather than answering the prayers sought. The court therefore disregarded those grounds and proceeded on the execution question.

p. 3

Legal principles established

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  • A prayer for eviction incidental to execution of a decree may be granted, but a claim for mesne profits not raised in the pleadings or determined in the judgment is barred by res judicata and functus officio

Court orders

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  1. 1.The applicant to serve an eviction notice on the respondent within 7 days under sections 152A-F of the Land Act for delivery of vacant possession of the suit premises
  2. 2.In default, execution to issue with attendant costs and expenses to be met by the respondent

Authorities

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Legislation

  • Civil Procedure Actsection 34(1)
  • Land Actsections 152A, B, C, D, E & F

Cases cited (8)

  • Mombasa Bricks and Tiles & 5 others v Arvind Shah & 7 others
    [2018] eKLR

    Cited Telkom Kenya with approval that res judicata is only a bar upon merit-based decisional engagement

  • Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited)
    [2014] eKLR

    Res judicata only bars merit-based decisional engagement

  • Serve in Love Africa (Sila) Trust v Abraham Kiptarus Kiptoo & 2 others
    [2021] eKLR

    Functus officio doctrine expresses the principle of finality

  • Republic v City Council of Nairobi & 2 others
    [2014] eKLR

    Cited Gurbachan Singh Kalsi on constructive res judicata

  • Gurbachan Singh Kalsi v Yowani Ekori
    Civil Appeal No 62 of 1958 EA 450

    Parties must bring forward their full case; res judicata extends to points that might have been raised

  • Abdi Mohamed Noor v County Government of Turkana & another
    [2020] eKLR

    Post-judgment application for mesne profits bad on res judicata and functus officio

  • Samuel Juma Keya v Luke Omulo Omollo
    [2015] eKLR

    Issues not conclusively determined constitute a direct and separate cause of action

  • Joseph Kotonya Aketch v NSSF Board of Trustees & another
    [2014] eKLR

    Eviction proceedings incidental to execution; section 34 does not envisage reopening litigation

Jurisdiction invoked
Environment and Land Court jurisdiction over the suit premises; Civil Procedure Act section 34; Land Act sections 152A-F

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, "Gitui v Kihuto", Case Analysis (2022). Environment & Land Case 10 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15322/eng@2022-12-07

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