Vide the Originating Summons dated 14th February 2025, the plaintiff who claims title to land Parcel known as KAKAMEGA/CHEPTULU/66 sought for relief against the Defendant including a declaration that he has become proprietor of the land by reason of adverse possession.
In response to the Originating Summons, the Defendant filed his Replying Affidavit sworn on 6th March 2025 and raised a Preliminary Objection vide the Notice of Preliminary objection dated 5th March 2025.
Directions were taken on 13th March 2025, that the Preliminary objection be disposed of first and by way of written submissions.
Submissions for the Defendant
It was submitted on behalf of the defendant vide the written submissions dated 5th May 2025 that the Preliminary Objection raises pure points of law and that it has the legal capacity to summarily dispose of the entire suit without necessitating a full trial on the merits.
Counsel submitted that the Originating Summons involves the same parties and concerns the same subject matter as VIHIGA HIGH COURT FAMIY, PROBATE & ADMINISTRATION CAUSE NO. 103 of 2021 filed earlier than the present suit. That despite the finality of the decision in the former suit, the applicant has brought the claim herein under adverse possession. That this is merely a strategic attempt to circumvent the binding effect of the doctrine of Res judicata.
On whether the Originating Summons is sub-judice by virtue of the existing ongoing proceedings in Vihiga HC. Family and Probate & Administration cause No. 103 of 2021, Counsel submitted that the suit offends the doctrine of Res judicata given that there is an active and subsisting court order issued in cause No. 103 of 2021 granting a temporary injunction against the applicant restraining him from interfering with the land.
That the filing of the suit in the subsistence of the order, constitutes an abuse of the process of the court.
That as the suit offends the doctrine of res judicata and sub judice, the court lacks the requisite jurisdiction to entertain or determine the suit.
Counsel urged the court to allow the Preliminary objection with costs to the defendant.
Submissions for the plaintiff
Written submissions dated 12th May 2025 were field by the firm of P.D Onyango & Company Advocates on behalf of the plaintiff Counsel submitted that the Preliminary objection as raised does not meet the threshold of a preliminary objection and should be dismissed as the facts are disputed and the court will need to interrogate the issues further so as to be able to make a finding.
That the issues in the succession cause concerned the plaintiff herein seeking to be considered as a beneficiary in the estate of the deceased while the issue in the present case is adverse possession which is a totally different issue and which can only be determined by the land court. That the claim for adverse possession could not have been raised in the succession proceedings. That the court in the succession cause had given directions that the claim be filed in the right court, which is the land court.
Regarding the doctrine of sub-judice counsel submitted that the Respondent’s submission on sub- judice are not anchored in the pleadings before court and that the same should be ignored.
Counsel clarified that Kakamega High Court Succession Cause No. 266 of 1994 is what was transferred to Vihiga High court and registered as Vihiga H.C Succ C No. 103 of 2021 hence they are not two separate cases. Counsel urged the court to dismiss the Preliminary objection.
I have considered the grounds of the preliminary objection and the submissions made by both parties. The evidence placed before court shows that the claim herein is based on adverse possession while the previous litigation being Kakamega H.C Succ Cause No. 266 of 1994 which was later transferred to Vihiga and registered as Vihiga HCSC No. 103 of 2021 concerning distribution of the estate of the deceased to the beneficiaries of the deceased. The issues raised in the two causes are different.
The ruling annexed to the Replying Affidavit by the Respondent by the Hon. Justice Musyoka shows that the court found that the issues raised by the plaintiff herein who was the protestor in the succession proceedings were not for the Probate and Administration court.
Whether or not the plaintiff’s claim based on adverse possession is merited is a matter to be interrogated in the suit.
The court finds that the Preliminary Objection is not merited. The Preliminary Objection is hereby dismissed. No order as to costs.
Orders accordingly.
Ruling, dated and signed at Vihiga, read virtually this 12th day of June, 2025 through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Ajevi: Court Assistant.
Bagada for the Plaintiff.
Mutuku for the Defendant.