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ELCDismissedEnvironment and Land Court Suit (Narok) – plaint dated 31st July, 2018· [2024] KEELC 4577 (KLR)

Kones & 582 others v Johnstone Kipkoech Langat, Julius Kipkurui Langat & Laurence Kimutai Langat (As Personal Representatives of Isaiah Kiplangat Arap Cheluget) & 3 others (Environment & Land Case 53 of 2018) [2024] KEELC 4577 (KLR)

Environment and Land Court
11 June 2024
16,655 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~67 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed 583 people's land ownership claim because the same dispute had already been decided, warning against re-filing old cases in new clothing.

What this practically means

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Executive summary

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The 583 plaintiffs, members of the Sagamian (Kipsigis) community occupying part of LR No. Narok/Cis-Mara/Ilmotiok/54 (approx. 4,900 acres), sued for declarations that the 1980 first registration of the land in the name of Isaiah Kiplangat Arap Cheluget (now deceased, represented by his son, the 1st defendant) following the 1974–1978 Ilmotiok adjudication was fraudulent, illegal and null and void; that the deceased held the title in trust for them; for cancellation of title, survey and issuance of fresh titles, injunctions and damages. The 1st defendant denied fraud, pleaded res judicata and issue estoppel arising from Nairobi HC Misc. Civil Appl. No. 400 of 2003 (OS) (an adverse possession claim dismissed by J.B. Ojwang J on 19th August 2009) and Civil Appeal No. 289 of 2009 (dismissed 29th December 2017), and counterclaimed for eviction and mesne profits. The 2nd to 4th defendants (Registrar, County Surveyor, Attorney General) relied on the Land Adjudication Act process and limitation. The court framed four issues, chief among them res judicata. Finding that the parties, subject matter and ownership claims were the same as in the former representative suit and appeal, and that re-litigating ownership under the guise of fraud and trust with added defendants was a 'cosmetic face lift', the court held the suit res judicata and an abuse of process, and declined to determine the remaining issues. The plaint was dismissed with costs to the 1st defendant; the counterclaim succeeded only as to costs, eviction being declined because eviction proceedings were pending in the High Court.

Key legal issues

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01

Whether the suit is res judicata in view of HCCC No. 400 of 2003 (OS) and Civil Appeal No. 289 of 2009

Holding

The suit is res judicata. The subject matter, the parties (or those claiming under the same title as Sagamian Community members) and the ownership claim are the same; the change of cause of action from adverse possession to fraud/trust and the addition of defendants do not escape Section 7 of the Civil Procedure Act.

Reasoning

The former suit was a representative claim by Sagamian Community for adverse possession over the entire suit land, dismissed by J.B. Ojwang J on 19th August 2009, and the appeal was dismissed on 29th December 2017 with a finding that the plaintiffs were trespassers. The present 583 plaintiffs claim under the same community title over the same land. Under Section 7 and Explanation (6), matters which might and ought to have been raised were deemed in issue, and relitigating under a 'cosmetic face lift' is an abuse of process.

p. 25
02

Whether the plaintiffs established fraud, trust or overriding interests warranting the orders in the plaint

Holding

Not necessary to determine; having found the suit res judicata, the court declined to delve into the remaining issues.

Reasoning

The court held that once res judicata is established, the other issues (fraud in the adjudication process, customary/constructive trust under the repealed Registered Land Act, overriding interests, and new causes under the 2010 Constitution and current land statutes) need not be reached, since the superior courts' decisions on ownership of the same subject matter stand and have not been set aside.

p. 25
03

Whether the 1st defendant's counter claim (eviction and mesne profits) should be granted

Holding

The counter claim is found to have merit only in terms of prayer (c) (costs); the order of eviction was not granted because eviction proceedings are pending elsewhere.

Reasoning

Although the court found the suit res judicata and dismissed with costs, it declined to grant eviction or mesne profits in this suit, noting the deceased's pending eviction application in the High Court which has not been determined. The counter claim therefore succeeded only as to costs.

p. 25

Legal principles established

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  • A party cannot evade res judicata by re-framing an ownership claim over the same subject matter as a new cause of action (trust/fraud) or by adding parties; doing so is an abuse of court process.

Court orders

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  1. 1.The plaint dated 31st July, 2018 is dismissed with costs to the 1st defendant.
  2. 2.The counter claim is found to have merit only in terms of prayer (c) (costs of the suit and counter claim); no order of eviction is granted, there being a pending application for eviction.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(1)
  • Registered Land Act (repealed)Sections 28(b), 30(g), 144(1)
  • Land Adjudication ActSections 26(1), 29
  • Limitation of Actions ActSections 7, 26
  • Civil Procedure ActSection 7
  • Land Control ActSections 6, 7
  • Land Registration Act, 2012Section 26(2)(b)
  • Land Act, 2012Sections 7, 14
  • Law of Contract ActSection 3(1) and (2)
  • Law of Succession Actgeneral
  • Community Land Actgeneral
  • Environment and Land Court Actgeneral

Cases cited (32)

  • Speaker of the National Assembly versus Karume
    [1992] KLR 22
  • Julia Kaburia versus Kabeera & 5 Others
    Nyeri Civil Appeal 340 of 2002
  • John Masiantet Saeni versus Daniel Aramat Lolungiro & 3 Others
    [2017] eKLR
  • Mutanga Tea & Coffee Company Limited versus Shikara Limited & Another
    [2015] eKLR
  • Mohamed Ahmed Khalid (Chairman) & 10 Others versus The Director of Land Adjudication & 2 Others
    [2013] eKLR
  • African Inland Church versus County Council of Nakuru & 2 Others
    [2006] eKLR
  • East Africa Development Bank versus Blueline Enterprises Limited
    [2013] 2 EA 52
  • Samuel Kiiru Gitau versus John Kamau Gitau
    Nairobi HCCC No. 1249 of 1998
  • Greenfield Investment Limited versus Baber Alibhai Mawji
    [2000] eKLR
  • Peter Kimondio versus Land Adjudication officer Tigana West District and 4 Others
    [2016] eKLR
  • Joel Phenehas Nyaga and Joseph Nyaga Nzau versus Alysius Nyaga Kanyua & Julia Gicuku Nyaga
    [2020] eKLR
  • Abu Chiaba Mohammmed versus Mohammed Bwana Bakari & 2 Others
    [2005] eKLR
  • Solomon Meme Muthamia versus Ntaari Kabutura & Land Adjudication Officer, Meru
    [2001] eKLR
  • Kanyi versus Muthiora
    [1984] KLR 712
  • Isack M'inanga Kiebia versus Isaaya Theuri M'lintari & Another
    [2018] eKLR
  • John Riungu M'mutea and 5 Others vs Gladys Njeri Waruiru & 2 Others
    [2022] eKLR
  • Mudamba Ojwang versus John Opondo Onyango & 4 Others
    [2022] eKLR
  • Stephen Kirimi M'rinturi vs Land Adjudication and Settlement Officer-Igembe District & 3 Others; Peter Kumbu Kimunya & Another (Interested Parties)
    [2020] eKLR
  • Kenneth Nyaga Murige versus Austin Kiguta and Others
    [2015] eKLR
  • Trade Bank Limited versus LZ Engineering Construction Limited
    [2001] EA 266
  • Kinyanjui Kamau versus George Kamau
    [2015] eKLR
  • Gituanja versus Gituanja
    [1983] KLR 575
  • Gathiba versus Gathiba
    KLR (E&L) 1
  • Daniel Kirui & Another versus Monicah W. Macharia & Another
    C.A No. 261 of 2002
  • Independent Electoral & Boundaries Commission versus Maina Kiai & 5 Others
    [2017] eKLR
  • Ibrahim Wakhayanga & Others versus Peter Mubatsi Nambiro
    CA. No. 84 of 1998
  • Apondi versus Canuals Metal Packaging
    [2005] 1 EA 12
  • Gladys Nduku Nthuki versus Letshego Kenya Limited; Mueni Charles Maingi (Intended Plaintiff)
    [2022] eKLR
  • Uhuru Highway Development Ltd V Central Bank & Others
    CA No. 36 of 1996
  • Nancy Mwangi t/a Worthlin Marketers versus Airtel Networks (K) Ltd (Formerly Celtel Kenya Ltd) & 2 Others
    (2014) eKLR
  • Omondi Vs National Bank of Kenya Limited and others
    (2001) EA 177
  • Njangu Vs Wambugu and another
    Nairobi HCCC No. 2340 of 1991 (unreported)
Jurisdiction invoked
Environment and Land Court Act (original jurisdiction over land disputes)

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, "Kones & 582 others v Johnstone Kipkoech Langat, Julius Kipkurui Langat & Laurence Kimutai Langat (As Personal Representatives of Isaiah Kiplangat Arap Cheluget) & 3 others (Environment & Land Case 53 of 2018) [2024] KEELC 4577 (KLR)", Case Analysis (2024). Environment and Land Court Suit (Narok) – plaint dated 31st July, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4577/eng@2024-06-11

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