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ELCAllowedKakamega ELC Case (transferred from Kakamega HCCC No. 56 of 2004)· [2024] KEELC 6026 (KLR)

Nyongesa & another v Okusimba (Environment & Land Case 11 of 2021) [2024] KEELC 6026 (KLR)

Environment and Land Court
19 September 2024
DOD. O. Ohungo
1,512 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kakamega Environment and Land Court ruled that land owners with registered titles can evict occupiers whose adverse possession claim was already rejected in an earlier case.

What this practically means

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Executive summary

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The Plaintiffs sued in the High Court (Kakamega HCCC No. 56 of 2004, later transferred to the Environment and Land Court) as registered proprietors of East Wanga/Mung'ang'a/1122, seeking eviction of Henry Okusimba and vacant possession. Henry Okusimba counterclaimed, asserting he had been in open, continuous, peaceful and exclusive occupation for over 12 years and had acquired title by adverse possession. After Henry Okusimba's death, his sons Dickson Mayabi Okusimba and Bernard Sakwa Okusimba were substituted. One Plaintiff testified, as did a second witness who produced a judgment in Kakamega ELCC No. 93 of 2019, delivered 21st February 2023, in which the same adverse possession claim over the same parcel was dismissed. The defence sought an adjournment at the defence hearing; it was dismissed and the defence case closed. The court raised res judicata of its own motion, holding it a jurisdictional issue. It found that the parties litigated under the same title in the 2019 suit where the adverse possession issue was heard and finally decided, and held the counterclaim res judicata. On the Plaintiffs' claim, the court found registration proved on 19th April 2004, title unimpeached under Sections 24 and 26 of the Land Registration Act and Article 40, and continued occupation a violation of the Plaintiffs' rights. Judgment was entered for the Plaintiffs: the estate of Henry Okusimba and the substituted defendants to vacate and hand over vacant possession within ninety days, in default eviction to issue, with costs to the Plaintiffs.

Key legal issues

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01

Whether the Defendant's counterclaim for adverse possession is res judicata

Holding

Yes - the same issue was heard and finally decided in Kakamega ELCC No. 93 of 2019 between the same parties and dismissed.

Reasoning

The court noted the suit property was the subject of Kakamega ELCC No. 93 of 2019, in which the parties were the same and the issue was whether the Defendant had acquired East Wanga/Mung'ang'a/1122 by adverse possession. That court held adverse possession was not established and dismissed the case. Invoking Section 7 of the Civil Procedure Act and the res judicata conditions in the cited authorities, the court held the claim was barred.

p. 3
02

Whether the Plaintiffs, as registered proprietors, are entitled to eviction and vacant possession

Holding

Yes - the Plaintiffs proved registration on 19th April 2004, their title was not impeached, and the Defendants' occupation violated their rights.

Reasoning

The Plaintiffs' evidence established registration as proprietors via a certificate of official search dated 5th May 2005. The Defendants offered no evidence, the defence having been closed after an adjournment application was dismissed, and made no attempt to impeach the title under Section 26 of the Land Registration Act. Their continued occupation breached the Plaintiffs' rights as registered proprietors, entitling them to the reliefs sought.

Legal principles established

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  • Res judicata is a jurisdictional issue which the court must consider sua sponte.
  • The counterclaim for adverse possession over East Wanga/Mung'ang'a/1122 was barred by res judicata having been dismissed in Kakamega ELCC No. 93 of 2019.
  • A registered proprietor enjoys constitutional and statutory protection of title under Article 40 and Sections 24 and 26 of the Land Registration Act.

Court orders

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  1. 1.The estate of Henry Okusimba including Dickson Mayabi Okusimba and Bernard Sakwa Okusimba to vacate the parcel of land known as East Wanga/Mung'ang'a/1122 and hand vacant possession to the Plaintiffs within ninety (90) days of delivery of the judgment; in default, an eviction order shall issue
  2. 2.The Plaintiffs shall have costs of the suit

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Constitution of KenyaArticle 40
  • Land Registration ActSection 24
  • Land Registration ActSection 26(1)(a) and (b)

Cases cited (3)

  • Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another
    [2016] eKLR
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Maithene Malindi Enterprises Limited v Kaniki Karisa Kaniki & 2 others
    [2018] eKLR
Jurisdiction invoked
Transferred from the High Court to the Environment and Land Court; original civil jurisdiction over land parcel East Wanga/Mung'ang'a/1122

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, "Nyongesa & another v Okusimba (Environment & Land Case 11 of 2021) [2024] KEELC 6026 (KLR)", Case Analysis (2024). Kakamega ELC Case (transferred from Kakamega HCCC No. 56 of 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6026/eng@2024-09-19

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