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ELCDismissedEnvironment & Land Case 264 of 2017 (Formerly Nakuru HCC No. 28 of 2010)· [2023] KEELC 20284 (KLR)

Saoli (Suing on his Own Behalf and as an Administrator of the Estate of Leposo Ole Saoli) & 2 others v Saoli

Environment and Land Court of Kenya
3 October 2023
2,970 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a bid to throw out a family land dispute, confirming that registered co-owners can sue even after a co-owner dies.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Narok (Mbogo, J) determines a Notice of Motion dated 26 June 2023 by the defendant, Soitara Ole Saoli, seeking a declaration that the plaintiffs' suit is incompetent and res judicata and its dismissal with costs. The defendant argued that the 1st plaintiff lacked locus standi at inception because he held no grant of representation when he sued on 3 February 2010, that the limited grant issued on 5 January 2011 was revoked on 5 December 2018, that administrators must sue jointly, and that the suit was res judicata having been determined in Narok CMCC No. 30 of 2012 on 27 February 2014. The 1st plaintiff opposed, contending the plaint was amended after he and his siblings obtained title, that joint commencement by administrators is not legally required, and that the parties and issues in the magistrates' court suit differed. The court framed two issues: res judicata and locus standi. Applying the Supreme Court's five conjunctive elements in IEBC v Maina Kiai, it held the suit was not res judicata because the issues and parties differed and the lower court lacked jurisdiction. On locus standi, relying on Section 91(4) of the Land Registration Act and Isabel Chelangat, the court found the plaintiffs are registered owners of Cis Mara/Olokurto/60 together with their deceased father and sue in their individual capacities, giving them locus standi. The application was dismissed with costs to the respondents, and mention set for 12 October 2023 to fix a defence hearing date.

Key legal issues

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01

Whether the suit is res judicata by virtue of Narok CMCC No. 30 of 2012

Holding

The suit is not res judicata; the five conjunctive elements of Section 7 are not met

Reasoning

The court applied the Supreme Court's five-element test from the IEBC v Maina Kiai case. The issues in the previous suit were not directly and substantially in issue here, the parties differed (the previous suit was against Julius Ndikwe Saoli, the applicant's son), and the magistrates' court lacked jurisdiction to try this suit. The doctrine therefore could not be upheld.

p. 4
02

Whether the plaintiffs have locus standi to prosecute the suit

Holding

They do, as registered owners of the suit land together with the deceased

Reasoning

The court noted the title deed shows the registered proprietors are Leposo Ole Saoli (deceased) and the plaintiffs. Relying on Section 91(4) of the Land Registration Act and the joint tenancy/tenancy in common distinction in Isabel Chelangat, the court held that on death of a joint tenant the interest vests in surviving tenants, so the plaintiffs sue in their own registered capacity, not on behalf of the estate.

p. 4

Legal principles established

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  • The five essential elements of res judicata under Section 7 of the Civil Procedure Act are conjunctive and must all be satisfied
  • Registered joint owners of land have locus standi to prosecute a suit concerning that land notwithstanding the death of a co-owner

Court orders

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  1. 1.The Notice of Motion application dated 26th June 2023 is dismissed with costs to the respondents
  2. 2.Mention on 12th October 2023 to fix a date for defence hearing
Jurisdiction invoked
Sections 3 & 13(7) of the Environment and Land Court Act; Sections 1A, 1B, 3, 3A and 7 of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Saoli (Suing on his Own Behalf and as an Administrator of the Estate of Leposo Ole Saoli) & 2 others v Saoli", Case Analysis (2023). Environment & Land Case 264 of 2017 (Formerly Nakuru HCC No. 28 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20284/eng@2023-10-03

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