Katana & 125 others v Meuli (Environment & Land Case 65 of 2020) [2024] KEELC 4213 (KLR)
The bottom line
#Kenya's Environment and Land Court in Malindi refused to strike out an adverse possession claim, ruling prior lawsuits by a different person don't block it.
What this practically means
#Executive summary
#Key legal issues
#Whether the adverse possession suit is barred by res judicata given prior litigation including HCCC No. 931 of 1981, Misc. Application No. 104 of 1999 OS, Civil Appeal No. 35 of 2013 and Mombasa ELC No. 270 of 2018
Res judicata does not apply because the applicants were not parties to, nor represented in, the prior suits litigated by Gideon Nassim Kiti
The court examined the judgment of Naikuni J. in ELC No. 270 of 2018, the most recent decision relied on. That judgment dealt with Gideon Nassim Kiti as a trespasser but nowhere found that he litigated on behalf of the applicants or that the judgment bound them. Since res judicata requires identity of parties or parties claiming under the same title, the doctrine cannot operate against the applicants.
Whether the suit should be struck out as an abuse of process
No; striking out is a draconian remedy reserved for clear cases, and where facts must be probed through evidence the suit must go to trial
Relying on Mukisa Biscuits and the Court of Appeal decision in Meya Agri Traders Ltd v Elgon House, the court noted that striking out pleadings must be exercised sparingly and only in clear and obvious cases. Where res judicata must be determined after scrutinizing facts at a hearing, striking out at the interlocutory stage is inappropriate.
Whether the replying affidavit dated April 17, 2023 should be admitted out of time
Yes, it is allowed and deemed properly filed
The alternative prayer in the application was to admit the replying affidavit filed out of time. The court exercised its discretion in favour of admission, deeming the affidavit properly filed, consistent with the preference for determining disputes on their merits rather than on procedural technicalities.
Legal principles established
#- Res judicata requires that the parties in the former suit be the same parties, or parties under whom they claim, litigating under the same title
- Striking out pleadings is a draconian measure to be used sparingly; where a pleading raises a triable issue the suit should proceed to trial
Court orders
#- 1.The replying affidavit dated April 17, 2023 is allowed and deemed properly filed
- 2.The application dated April 17, 2023 succeeds partially by allowing the replying affidavit to be deemed filed, but is dismissed insofar as it seeks to strike out the plaint
- 3.Costs in the cause
- 4.A soft copy of the judgment be transmitted via email to the advocates on record since the Court was not sitting
- Jurisdiction invoked
- Environment and Land Court jurisdiction over the Originating Summons for adverse possession; application under Order 50 rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Katana & 125 others v Meuli (Environment & Land Case 65 of 2020) [2024] KEELC 4213 (KLR)", Case Analysis (2024). MALINDI ELC CASE NO 65 OF 2020 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4213/eng@2024-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.