David Kipkoech Kogo v Esther Chesaina Bedford Pim [2016] KEELC 924 (KLR)

REPUBLIC OF KENYA

IN THE ENNVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO.  159 OF 2015 (O.S.)

DAVID KIPKOECH KOGO ….........................PLAINTIFF

VERSUS

ESTHER CHESAINA BEDFORD  PIM .........DEFENDANT

R U L I N G

The Applicant herein is the son of the Respondent.  The Applicant filed an  Originating Summons against the Respondent in which he seeks  orders to the effect that he has acquired 98. 5 acresout of LR No. 6133 by adverse possession.   The Applicant contemporaneously filed a Notice of Motion seeking injunctive orders as well as inhibitory orders in respect of LR No. 6133.

The Respondent is the  registered owner of LR No. 6133 and another Parcel known as LR No. 6150/1 which is not a subject  of this suit.  At the hearing of the Applicant's application, Mr Yano for the Respondent indicated that he had a Preliminary Objection to raise against the application as well as the entire suit.  Mr Yano however proposed to let the Applicant  who appears in person to argue  his application so that he could raise his Preliminary Objection during his response to the applicant's application.

The Applicant argued that he has been  in occupation of 98. 5 acres comprised in title No. 6133  for a period of 12 years and that therefore he has acquired  that portion by adverse possession.  He argued that  if injunction and prohibitory orders are not given, this will interfere  with his rights of prescription which have crystalised.  He contends that there was an attempt to settle this case through Kitale Environment Land case No. 25 of 2014 between him and  the Respondent, but  that that attempted settlement is invalid as there was no consent of  the Land Control Board  obtained and therefore the same became null and void and that besides this, the consent entered in that case was never recorded.

In answer to the Applicant's submissions, Mr Yano for the Respondent argued that the application as well as the entire suit are an abuse of the process of court and the Originating Summons is res judicata as the dispute in this case is the same as the dispute in kitale ELC No. 25 of 2014 which was compromised vide a consent recorded by the parties therein which consent was duly adopted as order of the court.  Mr Yano argued that the parties in the present suit are the same as in the previous suit.  The subject matter in the previous suit as in the present suit is the same i.e LR No 6133.

I have  considered the arguments raised by the Applicant herein and the  counsel for the Respondent.  It was agreed from the outset that what was being raised was a Preliminary Objection which was contained in the pleadings.  Mr Yano allowed the Applicant to argue his application  so that he could raise the Preliminary Objection in the reply.   He did this as the Applicant is appearing in person.   However when the Applicant started arguing his application, it became apparent that he was aware of the  Preliminary Objection and actually addressed it in both his submissions in support of his application as well as his reply to Mr Yano's response which contained the Preliminary Objection.

The issue for determination in this  matter is  therefore whether the Originating Summons  herein is res judicata and if the current application is an abuse of the process of the court.  It is not in dispute that Environment Land Case No. 25 of 2014 was between the same parities as in this suit. The subject  matter of that suit was LR No 6133which is the same as in the present case.

The Respondent in the present suit is the one  who had sued the Applicant in Environment Land Case No 25 of 2014. The Respondent was seeking to restrain the Applicant from occupying any part of LR No. 6133  and  6150/1other than the 70 acres which she had given to the Applicant.  The Applicant in that case was represented by an advocate.  A consent was recorded which settled the case.   The Respondent gave the Applicant70 acres which was to be registered in the Applicant's name at his own cost.   It was agreed in that consent that the Applicant was to remove his structures lying on LR No 6133 and 6150/1 and confine himself to the 70 acres which had been given to him.  It  was further agreed that the Applicant was to pay costs of  Kshs 75,000/= within 60 days.

The consent was duly  endorsed as order of the court.  The Applicant also paid costs as per the consent.   The Applicant seems to  argue that the consent settling Environment Land Case No. 25 of  2014 was rendered invalid due to lack of consent of the Land Control Board.  This is not true. BeforeEnvironment Land Case No 25 of 2014 was filed, the Respondent had started the process of sub division of her  parcels which included LR No. 6133and 6150/1.  She had obtained consent to sub divide the same on 15/2/2012.   There was no need for her to obtain any further consent to sub divide following the  consent recorded in Environment Land Case No. 25 of 2014.   Even if any further consent was to be required, there is no indication that the same cannot be obtained to give effect to the decree of the court resulting from the consent.   It is therefore not right for the Applicant to argue  that the consent recorded  has been rendered  invalid  for lack of consent  of the Land Control Board.

The doctrine  of res judicata was put in place to ensure that there is an end to litigation.  The parties herein settled their claims in Environment Land Case 25 of 2014.  The settlement was by  way of consent.  The consent was adopted as oder of the court.  Once this was done, the rights of the parties were finally settled by a competent court.  To bring  another suit based on the same facts is clearly going against the doctrine of res judicata.   I find that the Applicant's Originating Summons is res judicata.  This is enough to dispose of the application  as well as the entire Originating Summons but since I am not the  final court this case might go on appeal and I should say whether the Applicant's application for injunction and prohibitory orders should have been allowed.

As I said  herein above, the Applicant is the son of the Respondent.  The Applicant is seeking   an injunction on the basis that he has acquired a portion of 98. 5 acresout of LR No. 6133by way of adverse possession.   Before such application can be allowed, the Applicant must demonstrate that he has a prima facie case with  probability of success. Secondly that he will suffer  irreparable loss which  will not be compensated in damages.   Thirdly if the court is in doubt,  it will decide the application on a balance of convinience.  These are the principles which were set down in the case of Giella – Vs – Cassman Brown 1973 EA 358.

In the instant case, I do not find that the Applicant has a prima facie case with probability of success.  The  Applicant has been on LR No 6133 by virtue of being a son  to the Respondent .  In other words he is a licensee and a licensee cannot bring up a claim for adverse possession as long as he is on the suitland as such.  There is  no time a child can cease to be a parent's child and acquire a different status as to allow him to mount a claim for adverse possession.  One remains a child in the African context in as long as the parents are a live however old one maybe.  That child cannot be  legally allowed to lay claim to a parent's land by way of adverse possession except through succession upon the demise of  a parent or through any other lawful means such as consensual distribution by a parent to his children during his lifetime.

The Applicant has already been given 70 acres out of LR No 6133 and 6150/1.  There is  therefore no loss he would have suffered even if an injunction will not have been allowed.   I therefore find that the Preliminary Objection raised by the Respondent is sustainable.  The upshot of this is that the Originating Summons as well as the application filed thereunder are hereby dismissed with costs to the Respondent.

It is so ordered.

Dated, signed and delivered at Kitale on this 19th day of April 2016.

E. OBAGA

JUDGE

In the presence of Plaintiff who appears in person and Mr Yano for the  Defendant.

Court Assistant – Isabellah

E. OBAGA

JUDGE

19/4/16