Nguruka & 4 others v National Land Commission & 5 others (Environment & Land Case 108 of 2012) [2023] KEELC 166 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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)
The application failed; res judicata was not established because the parties and the issues in the two suits differ.
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.
Whether the suit is an abuse of the process of the court
It is not; since res judicata was not proved, the suit could not be struck out as an abuse of process.
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.
Costs of the application
Costs of the application were ordered to be in the cause.
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.
Legal principles established
#- 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
#- 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.Costs of the application to be in the cause.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.