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Court of AppealPartially AllowedCivil Appeal No. 160 of 1997

Greenfield Investment Ltd v Manji (Civil Suit 160 of 1997) [2000] KECA 387 (KLR)

Court of Appeal of Kenya
31 March 2000
3,184 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal let a land claim based on 12 years of occupation proceed, but cancelled an order made without hearing the other side.

What this practically means

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Executive summary

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The respondent filed an Originating Summons under Order XXXVI rule 3D of the Civil Procedure Rules claiming to have acquired L.R. No. 214/273, Nairobi, by adverse possession of over 12 years. The appellant applied to strike out the summons as res judicata and an abuse of process, relying on the respondent's two earlier suits over the same property: H.C.C.C. No. 2763 of 1982 (a trust claim, dismissed in 1988) and H.C.C.C. No. 2849 of 1995 (a trespass claim, dismissed as res judicata and time-barred in 1996). Pall, J.A. dismissed the appellant's Notice of Motion, holding the adverse possession claim disclosed a distinct cause of action, and also granted the respondent an interlocutory injunction in a Chamber Summons that had not been argued. The appellant appealed on eleven grounds. The Court of Appeal, in a judgment delivered by Gicheru, J.A. with Akiwumi and Owuor, JJ.A. agreeing, applied section 7 of the Civil Procedure Act and the extended res judicata doctrine in Henderson v Henderson, Greenhalgh v Mallard and Yat Tung Investment v Dao Heng Bank. It held that although every point properly belonging to the subject of litigation should be raised in earlier proceedings, the adverse possession claim could not have been raised in the two earlier suits, which were founded on trust and trespass; the summons was therefore not res judicata and the appeal failed on that limb. However, the injunction had been granted on a Chamber Summons never canvassed and without the appellant being heard; on that limb the appeal succeeded. The Court set aside the interlocutory injunction, ordered the Chamber Summons set down for hearing inter partes, and made no order as to the costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent's Originating Summons claiming adverse possession of the suit property was res judicata in view of his two earlier suits, H.C.C.C. Nos. 2763 of 1982 and 2849 of 1995, and therefore an abuse of the process of the court
  2. 2.Whether the Originating Summons disclosed a reasonable cause of action, the respondent being a self-described beneficial owner claiming the appellant held the property in trust for him
  3. 3.Whether the learned judge was entitled to grant the respondent an interlocutory injunction in a Chamber Summons that was never canvassed and without the appellant being given an opportunity to be heard

Key legal issues

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01

Whether the adverse possession claim was res judicata

Holding

It was not, because adverse possession was not an issue in either of the two earlier suits and could not have been raised in them.

Reasoning

Although the suit property was common to all three suits, the earlier suits were founded on an express/beneficial trust and on trespass and distraint respectively. The adverse possession claim required proof of continuous, open and hostile possession for over 12 years, a distinct cause of action that could not have been litigated in the earlier proceedings. Section 7 of the Civil Procedure Act was therefore not attracted, and the extended Henderson v Henderson doctrine did not apply because the matter could not with reasonable diligence have been raised earlier.

p. 4
02

Whether the interlocutory injunction was properly granted

Holding

It was not; the Chamber Summons seeking it was never urged before the judge and the appellant was not heard, breaching natural justice.

Reasoning

The record showed the judge disposed of the Chamber Summons together with the Notice of Motion, but the Chamber Summons was never discussed. The appellant's complaint that it was determined without an opportunity to be heard was well founded. The court held the subsequent rejection of a review application and the absence of an appeal against that rejection irrelevant to the present appeal, set the injunction aside, and directed the Chamber Summons be heard inter partes.

p. 4

Legal principles established

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  • A claim by adverse possession is a distinct cause of action that cannot be barred by res judicata where the issue of adverse possession was not in issue in the earlier suits between the same parties.
  • An interlocutory injunction cannot be granted on an application that was never argued inter partes; a party must be given an opportunity to be heard before such relief issues.
  • Res judicata extends, per the extended doctrine, to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward.

Court orders

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  1. 1.Appeal dismissed insofar as it challenged the Originating Summons as res judicata and an abuse of process
  2. 2.Appeal allowed to the extent that the interlocutory injunction granted to the respondent was set aside
  3. 3.The respondent's Chamber Summons seeking the interlocutory injunction to be set down for hearing inter partes
  4. 4.No order as to the costs occasioned by the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
OW
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 3655 of 1995 (O.S.)
Jurisdiction invoked
First appeal to the Court of Appeal from an interlocutory ruling of the High Court (no specific constitutional/statutory provision stated in the judgment)

Relief refused

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Striking out of the respondent's Originating Summons as res judicata and an abuse of process

The adverse possession claim could not have been raised in the two earlier suits, so res judicata did not apply

p. 4

Costs

No order as to the costs occasioned by the appeal, the appellant having been partly successful and partly unsuccessful

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Its being litigated in the respondent's Originating Summons was not caught up by the doctrine of res judicata and was not an abuse of the process of the court.
p. 4Res judicata and adverse possession
I would allow the appellant's appeal, set aside the interlocutory injunction granted to the respondent by the superior court and order that the Chamber Summons in connection therewith be set down for hearing inter partes.
p. 5Final orders - setting aside injunction granted without hearing
As the appellant has partly been unsuccessful and partly successful in this appeal, I would make no order as to the costs occasioned by the appeal.
p. 5Costs
res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but... it covers issues or facts which are so clearly part of the subject matter of the litigation
p. 1Extended doctrine of res judicata (Greenhalgh v Mallard)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Greenfield Investment Ltd v Manji (Civil Suit 160 of 1997) [2000] KECA 387 (KLR)", Case Analysis (2000). Civil Appeal No. 160 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/387/eng@2000-03-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.