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ELCAllowedNot stated in the judgment (suit before the Environment and Land Court, Eldoret; application dated 30th April, 2024)· [2024] KEELC 7000 (KLR)

Togom & another v Kipchumba (Environment & Land Case E016 of 2024) [2024] KEELC 7000 (KLR)

Environment and Land Court of Kenya
23 October 2024
5,880 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Defendant, claiming to be a grandson of the late Ngaulo Tanui, filed a Notice of Motion dated 30th April 2024 seeking a declaration that the Plaintiffs' suit over land parcels Cheptiret/Kapkoi Block 1 (KERITA) 229, 230 and 231 is res judicata and time barred, and should be struck out. He relied on the judgment in Eldoret High Court Civil Case No. 65 of 1993 (Ngaulo Tanui vs John Kirwa Togom and 2 Others), which declared that the parcels were trust property of Ngaulo Tanui's family, cancelled the subdivisions and transfers, and directed registration in the family's names. The Plaintiffs opposed, denying the Applicant's connection to the former plaintiff and arguing the 1998 judgment had lapsed after 12 years. The court framed five issues. It held the suit res judicata: the subject matter, the issue of ownership and the parties (litigating under the same title per John Florence Maritime Services) were the same, and the High Court had jurisdiction in 1993. It held that only the executable registration order lapsed on 2nd April 2010 under Section 4(4) of the Limitation of Actions Act; the declaratory and negative orders, including the trust declaration, remain final and binding. The suit, being in substance one for recovery of land, offended Section 7 of the Limitation of Actions Act and was time barred. The court struck out the suit as res judicata, statute barred, incompetent and fatally defective, and awarded the Applicant costs of the application and the suit, while noting the Applicant may pursue legal avenues to bring the subsisting trust to an end and register the land in the beneficiaries' names.

Key legal issues

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01

Whether the suit is res judicata

Holding

Yes - the same subject matter (parcels 229, 230 and 231), the same issue of ownership/trust, and parties litigating under the same title were determined by the High Court in Eldoret HCCC No. 65 of 1993, a court of competent jurisdiction.

Reasoning

The ownership of the suit property was central in both suits; the High Court had declared the parcels trust property and cancelled the subdivisions and transfers. The Applicant, as a grandson of the former plaintiff, claims through that judgment and would litigate under the same title per John Florence. No allegation was made that the High Court lacked jurisdiction, which in 1993 was vested to hear land matters. Entertaining the suit would amount to this court sitting on appeal over the High Court decision, which it cannot do.

p. 5
02

Whether the 1998 High Court judgment has lapsed after 12 years

Holding

Only the executable order directing registration of the suit property in the names of the late Ngaulo Tanui's family lapsed on 2nd April, 2010; the declaratory and negative orders, including the declaration of trust, remain final and binding.

Reasoning

Section 4(4) of the Limitation of Actions Act bars actions upon judgments after 12 years, but it applies only to the executable portion (the registration order). The bulk of the orders were declaratory and took effect immediately, clarifying the parties' rights. The Respondents never appealed or sought review. A judgment, unless set aside or quashed, must be accepted as incontrovertibly correct, and the res judicata doctrine exists precisely to guarantee finality in litigation.

p. 8
03

Whether the suit is time barred under Section 7 of the Limitation of Actions Act

Holding

Yes - the suit, though framed as seeking a permanent injunction, is in substance an action to recover land and was filed more than 12 years after the right of action accrued.

Reasoning

The Respondents were divested of the property by the 1998 judgment yet sought an injunction against the Applicant, making the suit in substance a claim to recover land, barred after 12 years. Limitation goes to jurisdiction. Even if the title had reverted on lapse of the judgment (which the court denied), the deadline would have been 2nd April, 2022; the suit was filed more than two years later.

p. 9
04

Whether the suit should be struck out

Holding

Yes - the suit is res judicata and statute barred, discloses no reasonable cause of action, and is incompetent and fatally defective.

Reasoning

Striking out must be sparingly exercised in clearest of cases, but here both res judicata and limitation apply. Further, the 1st Respondent holds the land as declared trustee and cannot bar beneficiaries from accessing it, while the 2nd Respondent's title was extinguished by the High Court, leaving him no ownership on which to ground a permanent injunction.

p. 10

Legal principles established

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  • For res judicata, the court must examine the previous decision to establish what issues were determined, whether the parties are the same or litigating under the same title, and whether the previous court was competent.
  • Declaratory or negative orders in a judgment do not lapse with limitation; they take effect immediately and remain final and binding as to the rights they declare.
  • The plea of res judicata may properly be raised by application rather than preliminary objection because its determination requires examination of facts.
  • Limitation of actions goes to the jurisdiction of the court; a statute-barred suit cannot be entertained.

Court orders

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  1. 1.That this honourable court lacks jurisdiction to hear and determine the instant suit as the suit is res judicata by virtue of Eldoret High Court Civil Case No. 65 OF 1997 (Ngaulo Tanui vs John Kirwa Togom and 2 Others)
  2. 2.That the Plaintiffs'/Respondents' suit offends the mandatory provisions of Section 7 of the Limitation of Actions Act Cap 22 and is thus struck out
  3. 3.That the Plaintiffs/Respondents shall bear the costs of this Application and the suit
  4. 4.Liberty noted: the Applicant and other family members are at liberty to pursue legal avenues to bring the trust declared by the High Court to an end and have their names registered as absolute owners, or otherwise have the land vested in different trustees

Authorities

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Legislation

  • Civil Procedure ActSection 7 (Cap 21), including Explanation 6
  • Civil Procedure ActSection 27 (proviso on costs)
  • Limitation of Actions ActSection 4(4) (Cap 22)
  • Limitation of Actions ActSection 7 (Cap 22)
  • Constitution of Kenya2010 Constitution (creating the Environment and Land Court)
  • Black's Law Dictionary 10th EditionDefinition of res judicata

Cases cited (14)

  • Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others
    (2017) eKLR
  • John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport & Infrastructure & 3 Others
    (Petition 17 of 2015) [2021] KESC 39 (KLR)
  • Diocese of Eldoret Trustees (Registered) vs Attorney General (on behalf of the Principal Secretary Treasury) & Another
    (2020) eKLR
  • Mehta vs Shar
    (1965) EA 321
  • Owners of Motor Vessel Lillian 'S' vs Caltex Oil (Kenya) Ltd
    (1989) KLR
  • Anaclet Kalia Musau vs Attorney General & 2 Others
    (2020) eKLR
  • Julian Adoyo Ongunga vs Francis Kiberenge Abano
    Migori Civil Appeal No. 119 of 2015
  • Kenya Commercial Bank Limited vs Benjoh Amalgamated Limited
    (2017) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors
    (1969) EA 696
  • Mathias Dzombo Jumaa & Another (Suing as the Personal representative of the Estate of Patrick kwessha Dzombo {Deceased}) vs Crispin Mwangolo Sanga & 2 Others
    (2017) eKLR
  • M'ikiara M'irinkanya Sebastian Nyamu vs Gilbert Kabere M'mbijiwe
    CA No. 124 of 2003
  • Sohanladurgadass Rajput and another vs Divisions Integrated Development Programmes Co Ltd
    (2021) eKLR
  • Ramji Megji Gudka Ltd vs Alfred Morfat Omundi Michira & 2 Others
    (2005) eKLR
  • DT Dobie & Company (Kenya) LTD. V. Muchina
    [1982] KLR 1
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution (the court noted the previous suit was filed in 1993 when the High Court was vested with jurisdiction over land matters)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Togom & another v Kipchumba (Environment & Land Case E016 of 2024) [2024] KEELC 7000 (KLR)", Case Analysis (2024). Not stated in the judgment (suit before the Environment and Land Court, Eldoret; application dated 30th April, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7000/eng@2024-10-23

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