[2001] KEHC 414 (KLR)
The court found that the issue of adverse possession was not raised or determined in the earlier suit (Nairobi RMCC No. 2116 of 1978), which concerned a land purchase transaction. Therefore, the doctrine of res judicata did not apply. The applicant demonstrated a prima facie case for adverse possession, as there was...
Source-derived case information.
- Citation
- [2001] KEHC 414 (KLR)
- Parties
- Plaintiff: James Kamuru Kamau; Defendant: Lucy Muthoni Kabata; Defendant: John Kamau Kabata
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2644 of 1993
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application for Inhibition
- Outcome
- Application allowed. Order of inhibition granted. Respondents to bear costs.
- Legal Topics
- Adverse Possession, Inhibition Orders, Res Judicata, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kamuru Kamau
Plaintiff
Lucy Muthoni Kabata
Defendant
John Kamau Kabata
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application for Inhibition
Legal Issues
- 1 Whether the applicant is entitled to an order of inhibition restraining dealings with land parcel Nyandarua/Njabini/465 pending determination of the suit.
- 2 Whether the applicant's claim is barred by res judicata due to prior proceedings in Nairobi RMCC No. 2116 of 1978.
- 3 Whether the applicant has established a prima facie case for adverse possession.
Ratio Decidendi
The court found that the issue of adverse possession was not raised or determined in the earlier suit (Nairobi RMCC No. 2116 of 1978), which concerned a land purchase transaction. Therefore, the doctrine of res judicata did not apply. The applicant demonstrated a prima facie case for adverse possession, as there was evidence of occupation and the existence of a house on the land. To prevent prejudice to the applicant's claim, the court granted an order of inhibition restraining any registration or dealing with the land parcel Nyandarua/Njabini/465 pending the final determination of the suit.
Court Disposition
Application allowed. Order of inhibition granted. Respondents to bear costs.
Orders
- An order of inhibition is granted restraining any registration or dealing with land parcel Nyandarua/Njabini/465 until final determination of the suit.
- The respondents shall bear the costs of this application.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
CIVIL SUIT NO. 2644 OF 1993 (0. S.)
JAMES KAMURU KAMAU…………………………….…..PLAINTIFF
VERSUS
LUCY MUTHONI KABATA………………….………1ST DEFENDANT
JOHN KAMAU KABATA…………………………….2ND DEFENDANT
RULING
By his Notice of Motion, filed on 29/9/2000, the applicant seeks for an order of inhibition, inhibiting any registration or any dealing with land parcel number Nyandarua/Njabini/465 until the final determination of his suit which is based on a claim under adverse possession:
This current application is based on the grounds that the applicant believes that the respondents are negotiating for the sale of the subject land to third parties.
The application is opposed. In his replying affidavit, Johnson Kamau Kabata depones that the applicant’s claim is res judicata, as the matter was concluded in Nairobi RMCC No. 2116 of 1978 and further that the applicant has never been in occupation of the suit premises.
Upon perusal of the pleadings herein I note that in the matter before the Senior Resident Magistrate pertained to a land purchase transaction.
The matter in issue here relates to adverse possession.This was not raised or even addressed in the Resident Magistrate’s Court. The issue of rejudicata can not therefore arise, as the matters in issue in this suit, are not substantially the same as in the other suit. The proprietor of the subject land who was the defendant in that other suit, and who is now deceased, had admitted at the hearing, that the applicant who was the plaintiff therein was in occupation of a portion of 5 acres of the subject land and that he had erected a house thereon. Although judgment had been entered against the deceased the terms of the said judgment have remained unsatisfied and the applicant claims that he has remained in possession of a portion of the subject land, and hence his claim for adverse possession in this suit.
Having taken into account the submissions of both counsel and the pleadings herein, I am convinced that the applicant has a prima facie case with a probability of success.
I therefore do grant an order to pray No.1 of the said application. The respondents shall bear the costs of this application.
Dated and delivered at Nairobi this 20th day of January 2001.
JEANNE GACHECHE
COMMISSIONER OF ASSIZE
Delivered in the presence of Mr. Kinyanjui holding brief for Mr. G.B. M. Kariuki for the plaintiff/applicant.