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ELCStruck OutOriginating Summons dated 28th August 2023 (Kericho/Naivasha ELC)· [2024] KEELC 3388 (KLR)

Kimetto (Suing as the Administrator of the Estate of Tiongik Rotich - Deceased) v Koech (Sued as the Administrator of the Estate of Kipkoech Langat - Deceased) & 3 others (Environment & Land Case E006 of 2023) [2024] KEELC 3388 (KLR)

Environment and Land Court
25 April 2024
3,561 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed an adverse possession claim because the same dispute had already been decided in an earlier case between the same parties.

What this practically means

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Executive summary

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By an Originating Summons dated 28th August 2023, the Applicant sought a declaration that he and the estate of his late father Tiongik Rotich had acquired by adverse possession land formerly known as Kericho/Litein/686, now subdivided into Kericho/Litein/1783 and 1784, with ancillary orders for cancellation of the Respondents' registrations and restoration of the original title. The Respondents filed a Notice of Preliminary Objection dated 9th October 2023 contending that the suit was res judicata, having been heard and determined in Kericho ELC Suit No 18 of 2018 (OS), in which the same Applicant had claimed adverse possession over Kericho/Litein/1783 and whose suit was dismissed by judgment dated 15th June 2023, a decision neither appealed nor set aside. The court heard the objection by written submissions. Applying Mukisa Biscuits on the nature of preliminary objections, Section 7 of the Civil Procedure Act, and the five-part test in Bernard Mugo Ndegwa, the court found identity of parties (the addition of a new administrator-defendant being immaterial, per Omondi v National Bank of Kenya), identity of subject matter (the parcel in issue being a subdivision of the parent title), concurrence of jurisdiction and finality of the earlier judgment. The court also relied on the Supreme Court's exposition in Dina Management Limited that the elements of res judicata are conjunctive. Holding that the suit was res judicata and an abuse of process, the court upheld the Preliminary Objection and dismissed the Originating Summons with costs to the Respondents.

Key legal issues

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01

Whether the Originating Summons is res judicata

Holding

The suit is res judicata and an abuse of the court process; the Preliminary Objection succeeds

Reasoning

The Applicant was the plaintiff in Kericho ELC No 18 of 2018 (OS); the 2nd, 3rd and 4th Respondents were defendants therein, and only a new party was added. The subject parcel in the present suit (Kericho/Litein/686 and its subdivisions) is the same subject matter, the same court with jurisdiction determined the earlier suit, and that judgment of 15th June 2023, dismissing the earlier suit, is final and was neither appealed nor set aside. Adding a party cannot cure res judicata.

p. 7
02

Whether the court should determine a preliminary objection on res judicata

Holding

Res judicata is a pure point of law properly raised as a preliminary objection

Reasoning

Relying on Mukisa Biscuits, a preliminary objection consists of a point of law which may dispose of the suit; res judicata based on the identity of parties, subject matter and a prior final judgment can be determined without ascertaining disputed facts, so the objection on jurisdiction was properly heard in the first instance by written submissions.

p. 4
03

Limitation of Actions Act argument

Holding

Not determined; the suit failed on res judicata

Reasoning

The Applicant argued that 12 years had not elapsed since the 3rd and 4th Respondents were issued with title to Kericho/Litein/1783, so the suit was not time-barred. The court did not rule on limitation because the dispositive finding was that the suit was res judicata and an abuse of process.

p. 7

Legal principles established

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  • Res judicata requires identical matters in issue, same parties, same title/claim, concurrence of jurisdiction and finality of the previous decision
  • Parties cannot evade the doctrine of res judicata by adding new parties or causes of action in a subsequent suit

Court orders

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  1. 1.The Preliminary Objection dated 9th October 2023 succeeds
  2. 2.The Plaintiff/Applicant's Originating Summons dated 28th August 2023 is dismissed with costs as res judicata and an abuse of the court process

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 7
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 2 Rule 15
  • Limitation of Actions Act (Cap 22)Section 7
  • Constitution of KenyaArticle 159(b)

Cases cited (11)

  • John Florence Maritime Services Ltd & another v Cabinet Secretary Transport and Infrastructure & 3 others
    Petition 17 of 2015 (2021) KESC 39 (KLR) (Civ) (6 August 2021)
  • Kivanga Estates Limited v National Bank of Kenya
    [2017] eKLR
  • C.K Bett Traders Limited & 2 others v Kennedy Mwangi & another
    [2021] eKLR
  • The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited
    (1969) EA 696
  • James Njuguna Chui v John Njogu Kimani
    [2017] eKLR
  • Bernard Mugo Ndegwa v James Nderitu Githae and 2 others
    (2010) eKLR
  • E.T v Attorney General & another
    (2012) eKLR
  • Omondi v National Bank of Kenya Limited and others
    (2001) EA 177
  • Njangu v Wambugu and another
    Nairobi HCCC No 2340 of 1991 (unreported)
  • Dina Management Limited v County Government of Mombasa & 5 others
    (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023)
Jurisdiction invoked
Article 159(b) of the Constitution; Section 7 of the Civil Procedure Act (Cap 21)

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, "Kimetto (Suing as the Administrator of the Estate of Tiongik Rotich - Deceased) v Koech (Sued as the Administrator of the Estate of Kipkoech Langat - Deceased) & 3 others (Environment & Land Case E006 of 2023) [2024] KEELC 3388 (KLR)", Case Analysis (2024). Originating Summons dated 28th August 2023 (Kericho/Naivasha ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3388/eng@2024-04-25

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