Toroitich v Bullut & another (Environment & Land Case 22 of 2016) [2024] KEELC 6268 (KLR)
The bottom line
#An Eldoret court dismissed a son's land claim because he had not occupied the property peacefully for the required twelve years before suing.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The suit is not res judicata HCCC No. 84 of 1994 because the issues differ - the earlier suit concerned ownership and trespass while this suit claims adverse possession
The court compared the pleadings in the earlier suit, which sought a declaration of trespass, eviction and mesne profits against the Deceased. The present suit seeks registration by adverse possession, a claim the Deceased never made. Since the issues were not the same, the res judicata bar fails even without considering other elements. The High Court had jurisdiction in 1994 and no challenge to forum was raised then or on appeal.
Adverse possession
The Plaintiff failed to prove 12 years of continuous, exclusive, peaceful possession; time ran only from 19th September 2012 and possession was interrupted by eviction in 2015
The Deceased's litigation against the Defendants from 1994 to 2012 meant time could not run in favour of his family. After the Court of Appeal judgment in 2012, the Plaintiff was on the land only about two years before eviction in 2015 pursuant to a valid order, interrupting possession. Further, his occupation was marked by disputes, criminal charges and violent incidents, so it was not peaceful. The claim was premature.
Compensation for destruction of property
Claim for special damages failed; the valuation report was unreliable and the eviction was lawful
The valuation report dated 11th February 2020 was generated almost five years after the alleged 2015 loss, contained a 2019 Google Earth aerial photograph, undated photographs, and no letter of instructions or receipt. Further, the eviction was executed under a valid, unchallenged court order that covered the Deceased and his family members including the Plaintiff. Special damages were neither strictly proved nor founded on any illegal or malicious act.
Costs
Costs follow the event; the Defendants, as successful parties, were awarded costs
Under Section 27 of the Civil Procedure Act costs follow the event unless there is good reason to depart. The court found no misconduct by the Defendants and no justification to deny them costs, the Plaintiff having filed a premature and unmeritorious suit.
Legal principles established
#- For res judicata to be upheld, its elements must be satisfied conjunctively; where the issues in the former suit differ from those in the subsequent suit, the bar fails
- Where litigation over land is pending, time for adverse possession does not run in favour of the party's family until the litigation is concluded
- All elements of adverse possession must be met at all times during the statutory period, and interruption of possession stops time from running
- Special damages must be pleaded and strictly proved
Court orders
#- 1.The Plaintiff's Originating Summons dated 2nd February, 2016 lacks merit and is thus dismissed.
- 2.The Defendants shall have the costs of this suit.
- Jurisdiction invoked
- Environment and Land Court Act (Article 162(2) court), original jurisdiction over land and adverse possession claims under the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Toroitich v Bullut & another (Environment & Land Case 22 of 2016) [2024] KEELC 6268 (KLR)", Case Analysis (2024). Originating Summons dated 2nd February, 2016 (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6268/eng@2024-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.