[2022] KEELC 3180 (KLR)

Karimi v Sanga & 3 others (Environment & Land Case 231 of 2020) [2022] KEELC 3180 (KLR) (7 June 2022) (Ruling)

Neutral citation: [2022] KEELC 3180 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case 231 of 2020

M Sila, J

June 7, 2022

Between

Florence Dean Karimi

Plaintiff

and

Chrispus Sanga

1st Defendant

Lennox Sanga Nyamawi

2nd Defendant

Danson Mazuri

3rd Defendant

Bartholomew Mwanyungu

4th Defendant

Ruling

(Application to strike out suit for being res judicata; plaintiff claiming to have purchased land and having earlier filed suit for specific performance which suit was dismissed on appeal; plaintiff now filing a new suit for adverse possession; whether the suit is res judicata; defendants arguing that adverse possession could have been made a ground of attack in the earlier suit; position at the time being ambiguous as to whether a suit for specific performance could be combined with a suit for adverse possession; there having been decisions of the Court of Appeal that a suit for adverse possession had to be separate from another claim over the same land arising from a different right; plaintiff cannot therefore be blamed for not advancing a suit for adverse possession together with a suit for specific performance at that time; it cannot therefore be held that the claim for adverse possession could have been a ground of attack at the time the suit for specific performance was filed; application dismissed)

1. The application before me is that dated 8 May 2021 filed by the respondents in this suit. They seek orders that this suit be struck out for being res judicata the suits Mombasa CMCC No. 3321 of 2009 and Mombasa ELCA No. 8 of 2016. The application is opposed.

2. I observe that this suit was commenced on 16 December 2020 by way of an Originating Summons taken out pursuant to the provisions of Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act, Cap 22, Laws of Kenya. The applicant in the Originating Summons (whom for ease of reference, and to avoid confusion with the applicants herein, I will simply refer to as the plaintiff) contends to have acquired, by way of adverse possession, title to the land identified as Plot No. 473 Mtwapa Settlement Scheme, measuring 6 acres. In the alternative, she seeks orders that one Charo Sanga Lugukia (deceased) had created a constructive trust in her favour over the same land. In the supporting affidavit to the Originating Summons, the plaintiff averred that on 6 March 1986, she purchased 6 acres out of the Plot No. 473, Mtwapa Settlement Scheme, from Charo Sanga Lugukia (deceased) at a consideration of Kshs. 72,000/= and they had a written agreement which she has annexed. She avers to have paid the purchase price and subsequently moved into the land, built a house and started cultivating. She states that the late Lugukia commenced the process of subdividing the Plot No. 473 and the 6 acres that she purchased became the Plot Kilifi/Mtwapa/774B. It is said that Lugukia died in November 1996 before he could transfer the property to her. She contends that the 1st – 3rd respondents (who for ease of reference, I will refer to as the defendants) agreed that they would process letters of administration and complete the transaction and she has annexed a grant of letters of administration obtained by the 1st – 3rd defendants. She avers that in the year 2009, the 4th defendant, encroached into her property and started cultivating it. Upon interrogation, the 4th defendant indicated that he had purchased the land from the 1st – 3rd defendants. She then filed a suit in the Chief Magistrate’s Court at Mombasa, registered as Mombasa CMCC No. 3321 of 2009 against the defendants so as to have the property transferred to her. Judgment in the suit was delivered on 1 April 2016 in her favour. She avers that the defendants filed an appeal, Mombasa Environment and Land Court Appeal No. 8 of 2016 from the judgment. Judgment on the appeal was delivered on 18 April 2018 when the court declared that the sale agreement of 6 March 1986 was null and void for want of consent of the Land Control Board. She contends that since the agreement was declared null and void, her entry into the suit land cannot be said to have been with the consent of the late Lugukia. She asserts that she has been on the property without interruption since the year 1986 and has developed the land, built permanent structures, planted trees and carries on farming. She thus believes that she is entitled to the land by way of adverse possession. In the alternative, she contends that there is a constructive trust created in her favour and argues that nothing bars her from bringing such a claim in equity despite her earlier suit being dismissed. She avers that the property, then valued at Kshs. 72,000/= , is now worth millions of shillings and it would be unfair for the 1st – 3rd defendants to refund her the sum of Kshs. 72,000/= as she cannot purchase an equivalent property with the same sum. She argues that it is only fair for the 1st -3rd defendants to be directed to compensate her with the current market value of the property together with the developments thereon otherwise the 1st – 3rd defendants will be unjustly enriched. She has added that she had filed an appeal against the judgment in Mombasa ELC Appeal No. 8 of 2016 but she has withdrawn the notice of appeal.

3. The subject application asserts that this suit is res judicata given the previous litigation history of the parties. The supporting affidavit is sworn by Chrispus Muye Sanga, the 1st defendant. He and the 2nd defendant are the administrators of the estate of the late Lugukia, who was their grandfather. He avers that the plaintiff filed an ill-disguised claim for specific performance in the suit Mombasa CMCC No. 3321 of 2009 which was allowed by the subordinate court but later dismissed on appeal. He deposes that the plaintiff has also filed an application for revocation of grant which seeks orders to have the property vested in her. He has annexed an excerpt of the said application. He argues that the plaintiff cannot be all over the courts asserting different positions and needs to elect in what capacity she wishes to approach court i.e, whether under contract, whether as beneficiary of the estate of the late Lugukia, or whether as adverse possessor. He otherwise does not think that the claim for adverse possession is merited, on the argument that the plaintiff has been out of the suit property since the year 1997, and that is why she joined the 4th defendant in her previous suit.

4. The plaintiff filed a replying affidavit to oppose the motion. She has inter alia deposed that this suit is not res judicata as her claim in Mombasa CMCC No. 3321 of 2009 was premised on the agreement for sale whereas this suit is premised on the doctrine of adverse possession. She contends that these are two different causes of action and that the issue of res judicata was not dealt with in the previous suit.

5. Both Mr. Mwakisha, learned counsel for the defendants, and Mr. Gikandi, learned counsel for the plaintiff, filed written submissions which I have fully considered before arriving at my decision. The submissions more or less echo the position of the parties as outlined in the supporting and opposing affidavits. Although in his submissions, Mr. Mwakisha went further to assert that even the claim for adverse possession is misplaced, on the basis that the plaintiff has in her affidavit mentioned that the 4th defendant came into the land in the year 2009, I opt not to go into that, as to me, this is an issue of evidence, which ought to be canvassed at a hearing. I also opt not to go into the question of whether this suit is sustainable, given that the plaintiff appears to also have filed an application for revocation of grant within the succession cause of the late Lugukia. In the event that I do not strike out this suit, the defendants can have an avenue to pursue that line if they so wish, at a later stage of this suit. In essence, I will restrict myself to only one issue, that is, whether this suit is res judicata.

6. It is common ground that the plaintiff did file the suit Mombasa CMCC No. 3321 of 2009 against the same defendants in this suit. In that case, the plaintiff urged that in the year 1986, the late Lugukia sold 6 acres of the Plot No. 473 Mtwapa Settlement Scheme to her, which later became identified as Kilifi /Mtwapa/774B. She contended that the same land could not now be sold to the 4th defendant. In that suit, she sought the following orders :-a.A declaration to the effect that the suit property namely Kilifi/Mtwapa/774 B belongs to the plaintiff absolutely;b.An injunction to restrain all the defendants, their agents and servants from interfering with the plaintiff’s occupation and development of the suit property and also restrain the said defendants, their agents or servants from dealing with the suit property at all;c.An order that the Executive Officer of the court do execute all the necessary documents to effect a valid transfer of the suit property in favour of the plaintiff in light of the death of the aforesaid Lugukia.d.Costs of the suit.

7. A defence was filed to contest the suit. Inter alia, it was pleaded that the suit was time barred, pursuant to Section 7 of the Limitation of Actions Act, Cap 22, since the alleged sale was in the year 1986 and the suit was being filed in the year 2009, after lapse of about 23 years. The matter was heard by the Magistrate who entered judgment for the plaintiff. The defendants appealed, through Mombasa ELC Appeal No. 8 of 2016. The appeal was allowed in a judgment delivered on 18 April 2018 by Yano J. The judge inter alia found that there was a valid defence of limitation and also doubted the veracity of the consent of the Land Control Board. Consequently the judgment of the subordinate court was set aside and substituted with an order dismissing the plaintiff’s suit.

8. It is after that judgment that this suit was filed, now seeking title to the suit land by way of adverse possession and/or trust. The position of Mr. Gikandi remained that the claim in the former suit is different from the claim in this suit and therefore res judicata cannot apply.

9. Section 7 of the Civil Procedure Act embodies the res judicata principle. That section is drawn as follows :-“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.Explanation. —(1) The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.Explanation. —(2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.Explanation. —(3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.Explanation. —(4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.Explanation. —(5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.Explanation. —(6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.”

10. Generally, from the above, it will be noted that a court is barred from hearing a case which has already been decided by a competent court. What constitutes a former suit for purposes of res judicata is spelt out in the explanations (1) to (6) above. In our case, it is correct to state that the issue of adverse possession was not among the issues that were raised in the previous litigation. Despite being a claim for the same land, the claim for adverse possession is in fact a completely different cause of action from that presented earlier, for it is apparent that the earlier suit was nothing more than a suit for specific performance of a land sale agreement. The question which I need to address in this application is whether the claim for adverse possession is caught up by explanation (4) that is, whether it is a claim which may have been made a ground of defence or attack in the former suit. This is indeed the gist of Mr. Mwakisha’s submissions, for he argued that the claim of adverse possession was one of the reliefs that the plaintiff had opportunity to agitate. In support of his submissions, Mr. Mwakisha referred me to the case Yat Tung Investment Limited vs Dao Heng Bank(1975) AC 581 andMburu Kinyua vs Gachini Tuti (1978) KLR 69. I have looked up at these cases. In the case of Yat Tung Investment Limited the following dictum from the case of Henderson vs Henderson(1843) 3 Hare 100, 115 was cited :-“… where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

11. After citing the above dictum, the court continued to state as follows at pg 590 :-“The shutting out of a “subject of litigation”- a power which no court should exercise but after scrupulous examination of all the circumstances – is limited to cases where reasonable diligence would have caused a matter to be earlier raised; moreover, although negligence, inadvertence or even accident will not suffice to excuse, nevertheless “special circumstances” are reserved in case justice should be found to require non-application of the rule.

12. What I need to pronounce myself is whether the claim of adverse possession could have been made a ground of attack in the previous litigation. On this, I must give benefit of doubt to the plaintiff. Why do I say so ?

13. It needs to be recalled that the claim for adverse possession is by Originating Summons which is what is prescribed under the current Order 37 Rule 7 and the old Order XXXVI Rule 3 D before the 2010 Civil Procedure Rules. Strictly, following the above dictate, a suit for adverse possession could not be made through plaint. Courts, however, were ambivalent in the manner in which they appreciated a suit for adverse possession which was not brought by way of originating summons. Whether such suit was liable to be struck out, or combined with a suit pressing for an alternative claim to the land, say, by way of trust, was a subject that never elicited unanimity prior to the 2010 Constitution and the 2010 Civil Procedure Rules. There was initial emphasis that a suit for adverse possession must be filed by way of Originating Summons and no other procedure. In the case of Bwana vs Said (1991) KLR 454, the Court of Appeal emphasised that:-“the proper procedure for asserting entitlement by way of adverse possession was vide an originating summons under order 36 rule 3D and secondly that it was not possible to correct the position by converting the action into a claim by way of an originating summons as there is no provision in the civil procedure Rules by which this could be done.”

14. Bwana vs Said was applied in several cases including the case of John Kamunya & Another vs John Nginyi Muchiri & 3 Others, Court of Appeal at Nakuru, Civil Appeal No. 123 of 2007 (2015) eKLR. In that case, a plaint was filed vide which the plaintiff contended to have purchased the land in dispute which was however subsequently subdivided and sold to other persons. He sought orders that he was entitled to the land by sale or by way of adverse possession. The matter was heard and judgment entered for the plaintiff. On appeal, one of the issues raised (issue No. 3 in the appeal) was whether the plaintiff’s entitlement to the original suit property by way of sale could co-exist with his alternative claim of entitlement to the same suit property by way of adverse possession. The Court held that the two claims were severable and stated as follows :-“…we are satisfied that indeed the two subject claims, one for entitlement by way of sale and another by way of adverse possession though laid in one pleading, are severable. One had to give way to the other and the learned trial Judge should have ruled so. This is because the issues in controversy in the litigation culminating in this appeal were complex as they involved ownership of land, production of documents, issues as to whether the various sales were valid or not. They were therefore not ideal for disposal by way of an originating summons. They were properly laid by way of a plaint. As for the alternative claim of adverse possession, we find that this was just an appendage as it had not supportable averments in the body of the plaint and it had not been laid in a counter claim. It was therefore severable. We so find it and hereby sever it. Its severance will have no effect on the main claim which still has feet to stand on.”

15. It will be observed from the above that the Court of Appeal proceeded to sever the two claims meaning that they were not liable to be heard together.

16. It is the same reasoning that the Court of Appeal had earlier employed in the case ofNitin Properties Limited vs Jagjit S. Kalsi & Another, Court of Appeal at Nairobi, Civil Appeal No. 132 of 1989 (1995) eKLR. In that case, a suit was commenced through a plaint claiming land by way of a constructive trust and adverse possession. A preliminary objection was raised that the plaint was defective and liable to be struck out, for reason that the claim for adverse possession needed to be commenced through Originating Summons. The objection was sustained. On appeal, the Court of Appeal did uphold the position that a claim for adverse possession needed to be brought by way of Originating Summons. However, the Court held that the High Court ought to have allowed the appellant to amend his plaint so as to remove the claim for adverse possession.

17. A more or less position was taken by the Court of Appeal in the case of Maina Njuguna vs Paul Njuguna Mwangi, Court of Appeal at Nairobi, Civil Appeal No. 151 of 1999. In that case, a suit was filed in the High Court vide a plaint where the respondent claimed land through adverse possession with the alternative prayer that he was entitled to the land by way of a trust. A preliminary objection was raised that the suit is incompetent by dint of the fact that the prayer for adverse possession was contained in a plaint. This objection was dismissed by the High Court. On appeal, the Court of Appeal faulted the High Court, and was of opinion that the preliminary objection was merited, since a suit for adverse possession could not be in a plaint. The Court of Appeal stated as follows :-“In view of the foregoing, the claim based on trust may proceed to hearing but the claim based on adverse possession can only be brought by way of originating summons in a separate suit.”

18. Reading the decisions above, it will be seen that there was a school of thought, which was of opinion that the claim for adverse possession, could not be mixed with another claim for the same land, for reason that the procedures to be employed were different. If one needed to present a suit for adverse possession, he needed to file a separate suit commenced by way of Originating Summons. Indeed, one risked dismissal of a plaint which had a claim for adverse possession combined with another cause of action for the same land. This is precisely what transpired in the 2009 case ofGeorge Arwonga Kombo vs Jackson Ondari Kombo, High Court at Kisii, Civil Suit No.254 of 2009 (2011) eKLR. The plaintiff filed suit where he combined a claim for land through adverse possession and one for specific performance of a contract. A preliminary objection was raised that the suit was incurably defective. This objection was sustained and the plaint was struck out.

19. There was a different school of thought which was of opinion that it was not fatal if a claim for adverse possession was not brought through an Originating Summons and that it was a mere technicality if such claim was originated by way of plaint or by way of a defence and/or counterclaim. This school of thought gained considerable momentum after the promulgation of the 2010 Constitution, which, under Article 159 (2) (d), mandates courts to dispense justice without undue regard to procedural technicalities. Thus in the case of Gulam Miriam Noordin vs Julius Charo Karisa, Court of Appeal at Malindi, Civil Appeal No.26 of 2015 (2015) eKLR, the Court of Appeal held that a defendant can raise as a defence the plea of adverse possession. Also in the case of Mary Nduta Mutungi & 5 Others vs Wambui Njenga & 2 Others, Court of Appeal at Nairobi, Civil Appeal No.253 of 2007 (2017) eKLR, the Court of Appeal held that it was not fatal that a claim for adverse possession was introduced by way of plaint. The Court stated as follows :-“Thus a claim to land by adverse possession by a procedure other than the prescribed procedure does not go to the jurisdiction of the court to entertain the claim. It is merely a procedural irregularity which the court in its discretion and in the interest of justice can waive under Article 159(2)(d) of the Constitution which provides that in exercising judicial authority, the court shall be guided by the principle that justice shall be administered without undue regard to procedural technicalities.”

20. I think in the present time, one may very well argue that a person is at liberty to present the whole of his claim in one suit, and combine a claim for adverse possession with a claim for specific performance and/or trust over land. That may be a powerful argument, but I am not persuaded that this reasoning prevailed in the year 2009, when the plaintiff first filed suit. It is apparent from the authorities that I have displayed above, that there was considerable doubt as to whether, in the year 2009, a claim for adverse possession could have been entertained in a plaint together with a claim for the land under contract and which plaint sought orders for specific performance. There was a risk, at the time, that if the plaintiff had combined the cause of action for specific performance with the cause of action for adverse possession, her suit may very well have been struck out. That is why, I said earlier that benefit of doubt must be given to the plaintiff. I am not persuaded to hold that as at the year 2009 she could have made adverse possession a ground of attack in the same suit as that which sought specific performance without risk of her suit being struck out. She would have, as held in the above cases which apply the strict rule of Originating Summons for adverse possession, had the right to file one suit by way of plaint for specific performance and another by way of Originating Summons for adverse possession. The fact that she filed suit by way of specific performance cannot be held as having prevented her from presenting a suit for adverse possession through Originating Summons. To dismiss the plaintiff’s suit herein would be to punish her for a position taken by the authorities at the time, that a suit for specific performance could not be combined in the plaint with a suit for adverse possession. Her suit for adverse possession and/or trust has never been heard and the plaintiff deserves a hearing on the same. In my view, there are special circumstances herein, as espoused in the case of Yet Tung vs Dao Heng Bank, which militate against dismissal of the plaintiff’s suit for being res judicata.

21. For the above reasons, I proceed to dismiss this application with costs.

22. Orders accordingly.

DATED AND DELIVERED THIS 7 TH DAY OF JUNE 2022JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURTAT MOMBASA