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ELCDismissedELC No. 108 of 2012 (formerly Eldoret HCCC No. 9 of 2003)· [2023] KEELC 166 (KLR)

Nguruka & 4 others v National Land Commission & 5 others (Environment & Land Case 108 of 2012) [2023] KEELC 166 (KLR)

Environment and Land Court
25 January 2023
3,206 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

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A Kenyan land court allowed 163 squatters' adverse possession and rights claims to proceed, rejecting an argument that a previous case already settled the dispute.

What this practically means

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Executive summary

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This is a decision of the Environment and Land Court at Mombasa (S.M. Kibunja, J) on a notice of motion dated February 10, 2022 by the 5th defendant, Lonrho Agri-Business (EA) Ltd, seeking to strike out the plaintiffs' amended originating summons for being res judicata and an abuse of the process of the court. The plaintiffs, led by Erinyit Eporon Nguruka representing 163 members, claimed adverse possession of, and constitutional rights violations in respect of, land parcel LR No. 7739/14 (Kambi Turkana D Block) following their alleged forcible eviction on July 5, 2001. The 5th defendant relied on Eldoret HCC No. 82 of 2001 (East Africa Tanning Extract Ltd v John Erinyit & 5 others), in which a mandatory injunction ordering eviction was granted on June 20, 2001. The court set out the five conjunctive elements of res judicata under section 7 of the Civil Procedure Act, applying the Maina Kiai decision, and found that the former suit concerned encroachment and damage while the present suit raises novel issues of adverse possession and constitutional violations. Only the 1st plaintiff was a party to the former suit, and no evidence established that the 5th defendant was the successor of East Africa Tanning Extract Limited or that the plaintiffs sued in a representative capacity there. The application was therefore dismissed, with costs of the application ordered to be in the cause. The underlying suit remains pending for determination on its merits.

Key legal issues

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01

Whether the suit is res judicata in respect of Eldoret HCC No. 82 of 2001 (East Africa Tanning Extract Ltd v John Erinyit & 5 others)

Holding

The application failed; res judicata was not established because the parties and the issues in the two suits differ.

Reasoning

The former suit concerned encroachment and damage to specific subdivisions of LR No. 7739/14, and sought a mandatory injunction and special damages; the present suit raises claims of adverse possession and violation of constitutional rights. Only the 1st plaintiff was a party to the former suit; no evidence showed the other plaintiffs were parties or representatives of squatters, nor that the 5th defendant was the successor of East Africa Tanning Extract Limited. The elements of section 7 of the Civil Procedure Act, being conjunctive, were not met.

p. 6
02

Whether the suit is an abuse of the process of the court

Holding

It is not; since res judicata was not proved, the suit could not be struck out as an abuse of process.

Reasoning

The striking-out application rested entirely on the res judicata plea. Having found the five conjunctive elements of section 7 unsatisfied - differing parties, differing titles and differing issues - the court found the application to have no merit and the 5th defendant not entitled to the reliefs sought.

p. 6
03

Costs of the application

Holding

Costs of the application were ordered to be in the cause.

Reasoning

Although costs normally follow the event under section 27 of the Civil Procedure Act, the court considered that the suit, though filed in 2003, remained fresh, and found it just and proper that costs of the application be in the cause rather than awarded outright.

p. 6

Legal principles established

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  • The five essential elements of res judicata must be satisfied in conjunctive, not disjunctive, terms.
  • Costs are a matter of the court's discretion under section 27 of the Civil Procedure Act; costs follow the event.

Court orders

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  1. 1.The 5th defendant's notice of motion dated February 10, 2022 seeking to strike out the suit for being res judicata and an abuse of the process of court is dismissed.
  2. 2.Costs of the application to be in the cause.

Authorities

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Legislation

  • Constitution of Kenya (pre-2010)sections 71, 77, 81, 82
  • Constitution of Kenya, 2010Articles 1(1), 19, 20, 21, 22, 23, 28, 29(c),(d),(f), 35, 40, 47, 60, 70, 71, 74, 75, 81, 82, 84, 123, 165
  • Judicature Actsection 3(1)
  • Civil Procedure Actsections 1A, 1B, 3A, 7, 27
  • Civil Procedure RulesOrder XXXVI; Order 2 rule 15

Cases cited (6)

  • Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
    [2017] eKLR
  • Lal Chand v Radha Kishan
    AIR 1977 SC 789
  • Gurbachau v Yowani Ekori
    (1958) EA 450
  • Henderson v Henderson
    (1) 67 ER 313
  • State of Haryana & rs v MP Mohla
    (2007) 1 SCC 457
  • Republic v Rosemary Wairimu Munene, Ex-Parte applicant v Ihururu Dairy Farmers Co-operative Society Ltd
Jurisdiction invoked
Articles 1(1), 19, 20, 21, 22, 23, 28, 29(c),(d),(f), 35, 40, 47, 60, 70, 71, 74, 75, 81, 82, 84, 123 and 165 of the Constitution of Kenya; Order XXXVI of the Civil Procedure Rules

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, "Nguruka & 4 others v National Land Commission & 5 others (Environment & Land Case 108 of 2012) [2023] KEELC 166 (KLR)", Case Analysis (2023). ELC No. 108 of 2012 (formerly Eldoret HCCC No. 9 of 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/166/eng@2023-01-25

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