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ELCPartially AllowedEnvironment & Land Case E064 of 2022· [2023] KEELC 18771 (KLR)

Kandie v Korir & another

Environment and Land Court
13 July 2023
EOE O Obaga
1,625 words in judgment
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The bottom line

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The Environment and Land Court in Eldoret confirmed an eviction, ruling that an undetermined counter-claim does not block a new land case.

What this practically means

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Executive summary

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The Applicant, administrator of the estate of his late father William Kandie Suter, registered owner of LR Sergoit/Koiwaptaoi Block 12 (Katalel)/557 and 542, moved the court by notice of motion dated December 19, 2022 seeking confirmation of an eviction notice issued on June 22, 2022 under section 152E of the Land Act, an order that the Respondents vacate, execution by Eshikon Auctioneers, and police/county compliance. The Respondents opposed by their own motion dated February 9, 2023, contending the application was res judicata given E&L case No 794 of 2012 between the same parties, and that a miscellaneous application was improper, a fresh suit being required. Obaga J framed four issues: res judicata, propriety of the miscellaneous application, jurisdiction, and costs. On the first, the court noted that the March 6, 2020 judgment in E&L 794 of 2012 dismissed the plaintiffs' suit without determining the 1st Defendant's counter-claim; since a counter-claim is a separate suit, the res judicata bar under section 7 of the Civil Procedure Act was not established. On procedure, section 152F(2) of the Land Act does not prescribe how the court is to be moved, and where there is no ownership dispute a miscellaneous application is proper, as in the Ghati and Makewa decisions. The court held the Applicant's application well founded, allowed it in terms of prayers 2, 3, 4 and 5, confirming the eviction notice and ordering vacant possession, and dismissed the Respondents' motion. A costs anomaly appears: the Respondents' motion was dismissed 'with costs to the Respondent' despite the Applicant's success.

Key legal issues

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01

Res judicata

Holding

The application is not res judicata because the counter-claim in E&L case No 794 of 2012 was never determined

Reasoning

Section 7 of the Civil Procedure Act requires the matter to have been directly and substantially in issue and finally determined. The judgment of March 6, 2020 in E&L 794 of 2012 dismissed the plaintiffs' suit without determining the 1st Defendant's counter-claim. Since a counter-claim is a separate suit, the elements of res judicata were not satisfied.

p. 3
02

Procedure - miscellaneous application versus plaint

Holding

A miscellaneous application under section 152E/152F of the Land Act is proper where ownership is not in dispute

Reasoning

Section 152F(2) does not prescribe the manner of moving the court. The Respondents did not overturn the Tribunal's verdict adopted as judgment, so the Applicant's father remained the lawful registered owner. With no ownership dispute, the miscellaneous application route was appropriate, as in the authorities cited.

p. 4
03

Jurisdiction to confirm eviction notice

Holding

The court has jurisdiction under section 152F(2) of the Land Act to confirm the eviction notice and order vacant possession

Reasoning

By dint of section 152F(2), the court, after considering sections 152C, 152D and 152E, may confirm the notice and order the person to vacate. The eviction notice under section 152E was duly served on the Deputy County Commissioner and OCS, and the Respondents had not heeded it.

p. 3

Legal principles established

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  • A counter-claim is in law a separate suit; failure to determine it means a subsequent application is not res judicata
  • Where there is no ownership dispute, a party may move the court by miscellaneous application under section 152F(2) of the Land Act

Court orders

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  1. 1.The Applicant's notice of motion dated December 19, 2022 is allowed in terms of prayers 2, 3, 4 and 5
  2. 2.The eviction notice dated June 20, 2022 is confirmed and the Respondents ordered to vacate and give possession of Sergoit/Koiwoptaoi Block 12 (Katalel)/542 and 557
  3. 3.Eshikon Auctioneers to effect and execute the eviction orders
  4. 4.The OCS Cherangany Police Station and/or Deputy County Commissioner – Trans Nzoia County to ensure compliance
  5. 5.Costs of the application provided for
  6. 6.The Respondents' notice of motion dated February 9, 2023 is dismissed

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Land Actsection 152E
  • Land Actsection 152F(2)
  • Land Actsections 152C, 152D

Cases cited (4)

  • Independent Electoral & Boundaries Commission – Vs- Maina Kiai & 5 others
    (2017) eKLR

    Elements of res judicata must be satisfied conjunctively

  • Lucy Ghati – Vs- Alex Wambura John & another
    (2019) eKLR

    Miscellaneous application proper where no ownership dispute

  • James Mathura Makewa – Vs- Nzari Ngului
    (2021) eKLR

    Miscellaneous application proper where no ownership dispute

  • Sally Jemeli Korir & Another (suing as the administrators of the estate of Yusuf Kipkorir Chepkeitany) –Vs- William Suter & 2 others
    E&L case No 794 of 2012, judgment delivered March 6, 2020

    Prior judgment; plaintiffs' suit dismissed, counter-claim undetermined

Jurisdiction invoked
Sections 152E and 152F(2) of the Land Act; Environment and Land Court jurisdiction over land parcels Sergoit/Koiwoptaoi Block 12 (Katalel)/542 and 557

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, "Kandie v Korir & another", Case Analysis (2023). Environment & Land Case E064 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18771/eng@2023-07-13

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