Kamau Gatibaru Nguyai V Kamau Gatibaru Ngunayu & Another  EKLR
|Civil Case 940 of 1971||16 Dec 1976|
Mathew Guy Muli
High Court at Nairobi (Milimani Law Courts)
Kamau Gatibaru Nguyai v Kamau Gatibaru Ngunayu & Chege Gachie
Kamau Gatibaru Nguyai v Kamau Gatibaru Ngunayu & another  eKLR
Nguyai v Ngunayu
High Court, at Nairobi
December 16, 1976
Civil Case No 940 of 1971
Res Judicata - application of the doctrine - circumstances under which a plea of res judicata can succeed- elements of res judicata - where issues in previous suit different from those in subsequent suit - where one party in subsequent suit not a party to previous suit - whether res judicata applicable
Limitation of Actions- suit for recovery of land - barring of suit by limitation- when time begins to accrue in favour of the person claiming recovery of land - Limitation of Actions Act (cap22) sections 7, 9, 13.
Adverse Possession – claim of – when a person can be said to be in adverse possession –when time begins to run in favour of an adverse possessor.
Land Control Act – application of Act - land to which Act applies - agricultural land - suit for recovery of land based on agreement of sale - suit land not declared to be agricultural land at the time of the agreement - whether
The plaintiff filed a suit against two defendants in which he averred that in 1958, he concluded an agreement for the purchase a portion of the suit land from the 1st defendant as a result of which he (the plaintiff) moved into possession of the portion. It was further averred that in 1964, the 1st defendant transferred the entire piece of land, including the plaintiff’s portion, to the 2nd defendant who in turn refused to transfer the plaintiff’s portion to him. In fact, the 2nd defendant filed a suit against the plaintiff for eviction in which it was decided that the plaintiff (then the defendant) was to vacate the land.
The plaintiff in the present prayed for a declaration that he was entitled to the portion of the land which he had purchased from the 1st defendant and that the 2nd defendant be ordered to transfer that portion to him.
The defendants denied the existence of a sale agreement between the plaintiff and the 1st defendant and averred that the sale to the 2nd defendant was free from all encumbrances and without notice of another agreement in respect of the land. In the alternative, they pleaded that the sale to the plaintiff, if any, was rendered void by the provisions of the Land Control Act or the plaintiff’s claim was time-barred under the Limitation of Actions Act. They also pleaded that the plaintiff’s claim was res judicata by virtue of the decision of the court in the 2nd defendant’s suit against the plaintiff.
1. On a balance of probabilities, the plaintiff had established his claim to a portion of the suit land on account of a sale agreement between him and the 1st defendant.
2. The doctrine of res judicata could not apply against the plaintiff and the 1st defendant as the 1st defendant had not been a party to the previous suit and therefore the issues between him and the plaintiff were neither investigated nor resolved in that suit. The present case was founded on the sale agreement between the plaintiff and the 1st defendant, which was distinct from the issue of eviction on which the previous suit was founded.
3. Under the Limitation of Actions Act (cap 22) the time of limitation will run against the person claiming to recover land from the date of accrual of the cause of action. The plaintiff’s claim was not time-barred as his action had not been brought after 12 years from the date of the accrual of the cause of action.
4. A right of action to recover land by adverse possession does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run and no right of action can accrue unless the land is in the possession of an adverse possessor.
5. In order for the provisions of the Land Control Act (cap 302) to apply to certain land, that land must have been declared to be agricultural land within the meaning of the Act.
6. The disputed land was not within a controlled area by the time of the sale agreement and the Land Control Act could not have retroactive effect, as it came into force subsequent to the agreement.
The sale agreement was therefore not nullified by the provisions of the Act.
Judgment for the plaintiff.
Gachie v Kamau Gatibaru Kiambu Civil Case No 115 of 1970 (unreported)
1. Limitation of Actions Act (cap 22) sections 7, 9(1), 13(1)
2. Land Control Act (cap 302) sections 3, 4
Mr Kamere for the Defendants