Gichui ((Suing as a Personal Representative of the Estate of the Late Gichui Kimani)) v Gichui (Sued as the Legal Representative of the Estate of Kaniaru Gichui) & another (Enviromental and Land Originating Summons 17 of 2023) [2024] KEELC 398 (KLR)
The bottom line
#The court refused to throw out an adverse possession claim, ruling that res judicata requires proof that the earlier case actually decided the same issues.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata by reason of Nairobi HCCC No 602 of 2006
No - there was no evidence that the former suit was heard and finally determined, and the former claim was anchored on trust while the present claim is one for adverse possession
The defendants alleged the former suit was dismissed for want of prosecution but did not exhibit the dismissal order or certified proceedings, only a notice to show cause. The court could therefore not know the precise circumstances in which the suit was terminated. Further, the former claim was founded on customary trust over a different parcel, whereas the present claim is for adverse possession. Without proof of final determination on the same issues between the same parties, res judicata was not made out.
Whether the ruling in Kiambu Succession Cause No 48 of 2018 rendered the suit res judicata
No - that ruling concerned an application for revocation of a grant filed in the wrong court and did not adjudicate on adverse possession
The exhibited ruling of Lady Justice (Rtd) Mary Kasango declined to determine the revocation application on its merits because it was filed in a separate file from the court that issued the grant. Since the High Court did not adjudicate upon the issue of adverse possession, no issue was heard and finally determined in that cause, and the res judicata elements were not satisfied.
Whether the alleged defect in the plaintiff's limited grant affects the res judicata application
No - the ground was not raised in the application, the previous limited grant lapsed on the death of its holder, and such a defect is not an element of res judicata
The motion's prayers sought dismissal solely on res judicata grounds, so the locus complaint was outside the scope of the application. James Njoroge Solomon was described as deceased, so his limited grant lapsed on his death. In any event, an alleged defect in a limited grant cannot constitute an element of the doctrine of res judicata.
Legal principles established
#- The elements of res judicata under Section 7 of the Civil Procedure Act are conjunctive rather than disjunctive and must all be established
- A party seeking dismissal of a suit as res judicata must exhibit evidence that the issues in the former suit were adjudicated upon and finally determined by a competent court
Court orders
#- 1.The notice of motion dated 19/6/2023 is rejected for lack of merit
- 2.The defendants to bear the costs of the application
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act in respect of land in Kiambu (adverse possession claim under the Limitation of Actions Act, Cap 22)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichui ((Suing as a Personal Representative of the Estate of the Late Gichui Kimani)) v Gichui (Sued as the Legal Representative of the Estate of Kaniaru Gichui) & another (Enviromental and Land Originating Summons 17 of 2023) [2024] KEELC 398 (KLR)", Case Analysis (2024). Originating Summons dated 4/5/2023; notice of motion dated 19/6/2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/398/eng@2024-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.