Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in judgment (Machakos ELC; notice of motion dated 11/07/2024)· [2025] KEELC 4162 (KLR)

Tuta & another v Ngoloma (Enviromental and Land Originating Summons E016 of 2024) [2025] KEELC 4162 (KLR)

Environment and Land Court
3 June 2025
2,386 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Machakos (A. Y. Koross, J) determined the plaintiffs' notice of motion dated 11/07/2024 in a suit claiming adverse possession over parcel Ndithini/Mananja Block 1/2X5. The motion sought a temporary injunction restraining the defendant from interfering with the parcel, and consolidation of Kithimani ELC Case No. 19 of 2022 with the present suit. The defendant opposed, arguing the suit was res judicata given a prior decision in Machakos ELC No. 87 of 2012 (consolidated with HCCC No. 150 of 2009) decreed him the lawful owner, and that the Kithimani suit sought recovery of damages. Two issues were framed: res judicata and the merits of the motion. On the first, the court applied the Section 7 CPA tests and found the parties, subject matter, jurisdiction and finality elements satisfied, but since the previous case concerned fraud and illegality - not adverse possession - and explanation 4 to Section 7 accommodates claims that could not be raised together, the suit was held not res judicata. On the injunction, applying Giella, Mrao and Nguruman, the court found no prima facie case as the plaintiffs did not avail the title deed proving registered ownership, and declined to consider the remaining tests. However, following Sugawara v Kiruti [2024], which held magistrates' courts lack jurisdiction over adverse possession claims, the court ordered Kithimani PM ELC No. 19 of 2022 withdrawn and transferred to the ELC, with both files to be mentioned for directions on consolidation. Costs were in the cause. The injunction and consolidation limbs effectively failed; the transfer succeeded.

Key legal issues

#
01

Res judicata

Holding

The suit is not res judicata notwithstanding a prior decision between the same parties over the same parcel, because adverse possession could not have been raised in the previous suit which concerned fraud and illegality

Reasoning

Applying Section 7 CPA and its tests (identity of issues, parties, title, jurisdiction, finality), the court found the parties, subject matter and jurisdiction concurrent, and the prior case final on ownership. However, adverse possession was not raised in the previous case, and explanation 4 to Section 7 permits claims that could not be raised together. Hence the suit is not barred.

p. 4
02

Temporary injunction

Holding

Refused for failure to establish a prima facie case

Reasoning

Under Giella and Nguruman, the applicant must first establish a prima facie case. The plaintiffs failed to avail the title deed proving the defendant's registered ownership, so the first test failed and the court did not consider the remaining tests.

p. 5
03

Transfer of Kithimani ELC Case No. 19 of 2022

Holding

Allowed; the magistrate's court lacks jurisdiction over adverse possession claims

Reasoning

Relying on Sugawara v Kiruti [2024], the court held magistrates' courts lack jurisdiction to entertain adverse possession claims; Section 18 CPA empowers transfer, and the file was ordered withdrawn and transferred to the ELC.

p. 5

Legal principles established

#
  • Magistrates' courts do not have jurisdiction to entertain claims of adverse possession; such claims must be transferred to the Environment and Land Court
  • A suit raising adverse possession is not res judicata of a prior suit between the same parties in which only fraud and illegality, not adverse possession, were in issue, by virtue of explanation 4 to Section 7 of the Civil Procedure Act

Court orders

#
  1. 1.An order withdrawing and transferring Kithimani PM ELC No. 19 of 2022 - Titus Wambua Ngoloma v Kyalo Tuta & Another to the ELC for trial and final disposal.
  2. 2.The transferred file and this file to be mentioned together for further directions on consolidation.
  3. 3.Costs in the cause.

Authorities

#

Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 18
  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (8)

  • John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others
    [2015] eKLR
  • Kyalo Tuta (Suing as the legal representative of the Estate of Wanza Tuta (Deceased) v Titus Wamba Ngoloma & 2 others
    [2020] KEELC 2610 (KLR)
  • Haro Yonda Juaje –v- Sadaka Dzengo Mbauro & Kenya Commercial Bank
    (2014) eKLR
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others
    [2003] KLR
  • Giella vs. Cassman Brown & Co. Ltd
    [1973] EA 358
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Airland Tours & Travel Limited vs. National Industrial Credit Bank
    Nairobi (Milimani) HCCC No. 1234 of 2002
  • Sugawara v Kiruti (Sued in her capacity as the administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others
    [2024] KECA 1417 (KLR)
Jurisdiction invoked
Order 40 Rule 1 of the Civil Procedure Rules and Section 18 of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Tuta & another v Ngoloma (Enviromental and Land Originating Summons E016 of 2024) [2025] KEELC 4162 (KLR)", Case Analysis (2025). Not stated in judgment (Machakos ELC; notice of motion dated 11/07/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4162/eng@2025-06-03

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