Chemutai (Suing as the Legal Representative of the Estate of William Kipsongok Lagat) v Choi & 5 others (Environment and Land Case E002 of 2022) [2024] KEELC 813 (KLR)

The consent order of 3/4/2019 merely revoked a grant, cancelled entries and appointed administrators; its effect was to change ownership of the property. The Court of Appeal in Peter Thuo Kairu v Kuria Gacheru held that adverse possession claims bind predecessors in title, and Githu v Ndeete held that a change of ownership does not interrupt adverse possession. Distribution of the estate therefore does not bar a prescriptive claim.

Applying Section 7 of the Civil Procedure Act and John Florence Maritime Services, the elements of res judicata include a prior judgment by a court with jurisdiction over the subject matter and identical parties and cause of action. Although the same property and parties were involved, the succession court had no jurisdiction to adjudicate adverse possession, so the last two elements were not proven.

The grant ad litem was issued on 14/7/2022 before suit was filed on 18/7/2022, but extracted as an order rather than in prescribed form. Following Timothy Oluoch Bala v Samuel Jasper Ochoy (Siaya ELC), the court's extraction mistake was curable under Article 159(2)(d) and could not be visited on the litigant.

Entry was pursuant to a sale agreement, so time runs from the last instalment (1975), but since the land was not registered until 1976, time ran from registration. No suit for recovery or eviction occurred before 1988/1989, and the first succession cause (1993) came after the right had crystallised. Occupation was continuous, open and peaceful (nec vi, nec clam, nec precario), confirmed by the survey report showing the Plaintiff utilising about 7 acres.