https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4636

Katana (Administrator to the Estate of the Late Katana Kalama Nguma) v Zani (Administrator to the Estates of Zachariah Mwadebwe Zani and Tereza Kadzo Zani) & another (Environment and Land Case E001 of 2025) [2026] KEELC 4636 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4636 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Case E001 of 2025 EK Makori, J July 2, 2026 Between Abubakar Kaingu Katana (Administrator To The Estate Of The Late Katana Kalama Nguma) Plaintiff and Nicholas Zani (Administrator To The Estates Of Zachariah Mwadebwe Zani And Tereza Kadzo Zani) 1st Defendant Haro Kai 2nd Defendant Ruling 1.The Applicant filed a Notice of Motion dated 18th June 2025 before this Honorable Court and, as amended on 5th August 2025, sought the following prayers:a.Spentb.Spentc.That this Honorable Court issue an order striking out and dismissing the Applicant's Originating Summons dated April 2, 2025, and any subsequent application by the Plaintiff on the ground of res judicata.d.That the Plaintiff's Application and the entire suit constitute an Abuse of the Court's process.e.That the Plaintiff's claim fails to state a reasonable cause of action in law because the alleged acts of invasion or occupation occurred within the last two (2) years and therefore do not satisfy the twelve (12)-year statutory period required to ground a claim for adverse possession.f.That the Application violates the mandatory provisions of Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act, which require that claims for adverse possession be commenced by Originating Summons, supported by an affidavit and accompanied by a certified extract of the title to the land in question.g.That the subject matter of this suit is sub judice, as it concerns the same parcel of land that is the subject of litigation in Kilifi Magistrates Court Land Case No. 01 of 1985 - Haro Kai vs Katana Kalama, which involves the same parties or their privies and raises substantially the same issues.h.That the costs of the instant application be provided for and, in case, be borne by the Plaintiffs herein.i.Such further and/or other orders as the court may deem fit and expedient be granted. 2.The Plaintiff/Respondent opposes the application and relies on the Replying Affidavit, sworn on July 1, 2025. 3.Counsel for the parties was directed to file written submissions. I acknowledge receipt of counsel's submissions with appreciation, as they went a long way toward assisting the Court in resolving the issues raised in the application. 4.Based on the materials and submissions before me, the issues I frame for the determination of this Court are whether the current suit is res judicata, whether the suit is sub judice, and whether the application raises sufficient grounds to warrant striking out the Originating Summons. Costs. 5.Applicant asserts that evidence produced by the Applicant via an affidavit shows a certified copy of the judgment and vesting order (NZ-4(a)(b)), proving that the judgment and order were final because no appeal was filed. Consequently, execution of the vesting order was effected in accordance with the magistrate's instructions/order to the administration police and court bailiffs. The judgment was on the merits, and the court had jurisdiction to entertain the suit. Evidence produced by the Applicant via an affidavit also shows a copy of the title deed, green card, and search, along with a certified copy of the judgment and vesting order (NZ-4(a)(b)), proving that the matter/issue in question in the former suit of 1985 and those mentioned in the plaintiff's originating summons in this instant suit are both related to ownership of plot number Kilifi/Mtwaра 192. 6.Secondly, the parties are the same, because in the former suit in 1985 the defendant was Katana Kalama, and in this instant suit the same party is suing via his personal representative, Abubakar Kaingu Katana, as per their own affidavit. On the other hand, the plaintiff in the former 1985 suit, Haro Kai, sold and transferred his rights, as evidenced in a certified and sealed copy of the green card, to Zachariah Mwabedwe Zani and Tereza Kadzo Zani (deceased), who are the Defendants in this instant suit. Therefore, the parties are the same as envisaged in the aforementioned Section 7. 7.The Respondent avers that the alleged 1985 case involved different parties and did not concern the Plaintiff personally. More importantly, the cause of action in the current suit is adverse possession, which arises from long, uninterrupted possession and was not, and could not have been, litigated in 1985 because the claim for adverse possession had not yet accrued. 8.Further, the Applicant has not annexed a certified copy of the judgment or vesting order allegedly issued in 1985. In the absence of this, the Court cannot verify the substance, scope, or even the existence of the decision. The Court should not act on mere assertions unsupported by credible documentary evidence. 9.The Respondent asserts that in the same spirit, sub judice will also not apply here. 10.For res judicata to attach, Section 7 of the Civil Procedure Act bars relitigation when: the matter was directly and substantially in issue in the former suit; the parties are the same or are litigating under the same title; and the court was competent to try the suit. 11.The Supreme Court in the case of John Florence Maritime Services Ltd v the Cabinet Secretary for Transport [2021] eKLR held that for res judicata to be invoked in a civil matter, the following elements had to be demonstrated: There was a former judgment or order that was final; the judgment or order was on the merits; the judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and there had to be identical parties, subject matter, and cause of action between the first and the second action. 12.From the material presented in the supporting affidavit, the Respondent's claim over Plot No. Kilifi/Mtwapa/192 was conclusively determined by a Final Judgment that was not appealed in the former suit: Haro Kai v Katana Kalamа, Resident Magistrate's Court at Kilifi, Land Case No. 1 of 1985. 13.The evidence presented by the Applicant through an Affidavit includes a certified copy of the Judgment and Vesting Order (NZ-4(a)(b)), demonstrating the existence of a Judgment and final orders, as no appeal was lodged in the former suit. Accordingly, the Vesting Order was executed in accordance with the Magistrate's directives by the Administration Police and Court Bailiffs. 14.The Judgment was rendered on the merits, and the Court possessed the requisite jurisdiction to hear the case. Additionally, the evidence provided by the Applicant via Affidavit encompasses a copy of the Title Deed, Green Card, Search, and a certified copy of the Judgment and Vesting Order (NZ-4(a)(b)), establishing that the matter or issue involved in the previous suit of 1985, as well as those referenced in the Plaintiff's originating Summons in the present proceedings, pertains to the ownership of plot number Kilifi / Mtwaра 192. 15.Furthermore, the parties involved are identical; in the earlier suit of 1985, the Defendant was Katana Kalama, and in the current suit, the same party is litigating through his Personal Representative, Abubakar Kaingu Katana, as per their Affidavit. Conversely, the Plaintiff in the 1985 suit, Haro Kai, transferred and sold his rights, as evidenced by the certified and sealed copy of the Green Card, to Zachariah Mwabedwe Zani and Tereza Kadzo Zani (Deceased), who are the Defendants in the present suit. Consequently, the parties are the same as contemplated in the aforementioned Section 7. 16.As submitted by the Applicant, the matter concerning a Personal Representative exercising the same powers as if the owner were alive was adjudicated In re Estate of Julius Mimano (Deceased) [2019] КЕНС 10103 (KLR), where it was held that:“ 58.The personal representative of a deceased person holds a unique position in law. The property of the dead person is vested in them by virtue of section 79 of the Law of Succession Act. The effect of section 79, read together with section 82 of the Act, is that the same puts the, and suffered the same burden of duties and obligations over the property as the legal owner would have been under were they to be alive....." 17.Section 7 operates as a jurisdictional bar. The Respondent's attempt to reopen an ownership dispute over plot Kilifi Mtwapa 192, which was settled by a Court of competent jurisdiction nearly 40 years ago, is an abuse of court process. 18.Regarding the doctrine of sub judice, the Applicant has demonstrated that Malindi ELCLC Case No. E063 of 2024 involves the same subject matter, ownership of Plot Kilifi Mtwapa 192, has the same parties (or those claiming under them), and is pending before a court of competent jurisdiction. The Plaintiff in this suit, Abubakar Kaingu Katana, is the son and Administrator of the 2nd Defendant, Katana Kalama, in Malindi ELCLC Case No. E063 of 2024, which was instituted 9 months earlier on 1st July, 2024, while this instant suit was filed on 9th April 2025. 19.Based on the foregoing, the Notice of Motion dated 18th June 2025 before this Honorable Court, as amended on 5th August 2025, is allowed to the extent that the current suit is struck out with costs. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN NYERI ON THIS 2ND DAY OF JULY, 2026.E. K. MAKORIJUDGEIn the presence of:Mr. Matende for the ApplicantDenis: Court AssistantIn the absence of:Ms Apiyo for the RespondentELC NO. E001 OF 2025 OS Page 2 of 2