https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2954

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT VIHIGA** **ELCLA CASE NO. E007 OF 2025** FLORENCE LIBWAMA ………………………………..……… APPELLANT VERSUS HERMAN JISII WANGWA……………….…….……………..RESPONDENT ***(Being an appeal from the judgment and orders of the Principal Magistrate, HON. MELANIE OCHIENG delivered on 2nd June 2024 in HAMISI MCELC CASE NO E001 OF 2021 between HERMAN JISII WANGWA -VS- FLORENCE LIBWAMA)*** **JUDGEMENT** Background 1. The record of appeal dated 13/11/2025 shows that the Appellant was the Defendant in HAMISI MC ELC CASE NO. E001 OF 2021 (herein referred to as the suit). She had been sued by the Respondent herein in respect of a parcel of land known as KAKAMEGA/SEREM/146 (the suit land). The Respondent’s case in the suit was that he was the registered owner of the suit land, having been so awarded it by the Environment and Land Court in a case in Kakamega ELC CASE NO. 277 of 2014. His complaint was that the Appellant had unlawfully and without any color of right encroached onto the suit land and constructed structures thereon. The Respondent therefore sought an eviction order, an order of permanent injunction, and costs of the suit against the Appellant. 2. The record shows that in response to the Respondent’s claim, the Appellant filed a defence and counterclaim dated 24th March 2021. The Appellant denied the Respondent’s claim, averred that he had been in quiet and uninterrupted possession of a portion measuring 0.39 Ha of the suit land parcel number KAKAMEGA/SEREM/146 for an aggregate period of and/or exceeding twelve (12) years. Through the counterclaim, he sought a declaration that he was the rightful owner of the portion measuring 0.39 Ha of KAKAMEGA/SEREM/146, that the Respondent’s title to that portion of the suit land had become extinguished, and for an order that the portion of the suit land measuring 0.39 Ha be carved out and be registered in his name as the absolute owner thereof. The Appellant also sought the costs of the suit. 3. The record shows that the suit was heard before the trial court, which, vide its judgment dated 2nd June 2024, found that the Respondent’s case had merit and entered judgment in favour of the Respondent for; 4. An order evicting the Appellant from the suit land upon expiry of 90 days from the date of the judgment. 5. An order of permanent injunction restraining the Appellant and his agents from re-entering, remaining on the suit land, or interfering with the same in any manner complained of whatsoever upon expiry of 90 days from the date of the judgment. 6. And the costs of the suit. The Court dismissed the Appellant’s counterclaim. The Appeal 1. Aggrieved by the judgment, the Appellant preferred the present appeal vide the Memorandum of Appeal dated 24th February 2025 on the ground that the learned trial Magistrate erred in law and fact; 2. in dismissing the counterclaim of the Appellant on the basis that it might amount to entertaining a re-litigation. 3. by not delving into the merits and demerits of the Appellant’s case 4. by failing to determine whether the Appellant fully participated in the Environment and Land case at Kakamega. 5. by failing to be guided by the tenets of adverse possession. 6. by disregarding and failing to take into account credible and reliable evidence presented by the Appellant. 7. by otherwise misinterpreting the law against the facts presented to her by the Appellant. 8. The Appellant seeks in this appeal that the Court do grant the following relief; 9. Set aside the orders of the trial court dated 2nd June 2024, 10. Declare the Appellant as the sole owner of the portion measuring 0.38 Ha of the suit land parcel number KAKAMEGA/SEREM/146. 11. Grant an order of permanent injunction against the Respondent, their agents, representatives, workers, employees, and/or any other person purporting to claim under the Respondent from entering, cultivating, and/or developing the portion measuring 0.38 Ha of land title number KAKAMEGA/SEREM/146, 12. Costs of the appeal, 13. Any other further orders the Court may deem just and further grant in the circumstances. Submissions 1. Pursuant to directions taken on 9/12/2025, the appeal was heard by way of written submissions. On behalf of the Appellant, written submissions dated 6th February 2026 were filed by Mukabi & Co. Advocates. On whether the learned Magistrate erred in fact and law in dismissing the counterclaim of the Appellant on the basis that it might amount to entertaining a re-litigation, Counsel submitted that for the doctrine of res judicata to pass, the following elements have to be present, namely; 2. There has to be a final judgment on the merits of the case, as it was not dismissed on procedural grounds. 3. The parties involved in the subsequent case must be the same as or in priority with those involved in the previous case. 4. The cause of action in the subsequent case must be identical to or arise out of the same transaction or occurrence as that in the previous case. 5. Counsel submitted that the parties in the previous suit, namely KAKAMEGA ELC CASE NO 277 OF 2014, and the suit before the trial court were different. That the cause of action in the previous suit was ownership of the suit land arising from adverse possession, whereas in the case before the trial court, the claim was based on trespass and encroachment. Counsel submitted that, therefore, the trial court erred in law and in fact in dismissing the Appellant’s counterclaim on the grounds that the same might amount to re-litigation of the claim. 6. On whether the trial Magistrate erred in law and fact in not delving into the merits of the case, Counsel submitted that the Appellant’s claim of adverse possession was never heard, that the court dismissed the counterclaim regardless of it being competent to hear and determine the matter. That the Appellant was condemned unheard, contrary to Article 50 of the Constitution of Kenya. Counsel submitted that the Appellant’s participation in the previous suit was only as a witness for the defence. That the trial Magistrate erred in law and in fact by failing to determine whether the Appellant participated fully in the Environment and Land Case at Kakamega (the previous suit). 7. On whether the trial Magistrate erred in law and fact in failing to be guided by the tenets of adverse possession, Counsel submitted that the counterclaim raised by the Appellant was based on adverse possession, that if the trial court had been guided by the law and facts, it would have looked at the counterclaim and interrogated the issues it raised and made a proper decision on it. Relying on the case of *Mabwa vs. Angelei & 3 others [2025] KECA 10379(KLR),*Counsel submitted that the Appellant presented sufficient evidence before the trial court to support her claim of adverse possession, namely that she rightfully got possession of 0.38 Ha as her inheritance of the ancestral land. That the trial court failed to take into account the credible and reliable evidence presented. That the trial court misinterpreted the law against the evidence presented and, as a result, denied the Appellant her right to a fair hearing under Article 50 of the Constitution of Kenya. Counsel urged the Court to allow the appeal. 8. For the Respondent, written submissions dated 10th March 2026 were filed by A.B. L Musiega Advocates. On the doctrine of res judicata, Counsel relied on the provisions of section 7 of the Civil Procedure Act, Cap 21, Laws of Kenya, and the case of *Njangu vs. Gichuki [2013]eKLR* to submit that in the previous case, namely KAKAMEGA ELC CASE NO. 277 OF 2014, the Respondent herein was a party, and the Appellant’s predecessor was a party. That the subject matter was the ownership and occupation of land parcel No. KAKAMEGA/SEREM/146, that the Environment and Land Court at Kakamega was competent and that the judgment was final. That the trial court correctly found that the Appellant’s counterclaim amounted to a re-litigation of settled matters and therefore was barred by the doctrine of res judicata. 9. Counsel submitted further that the trial court properly evaluated the merits of the counterclaim before dismissing it. Counsel relied on the case of *Gitobu Imanyara & 2 Others vs. Attorney General [2016]eKLR,*where the Court of Appeal held that an appellate court should not interfere with the findings of fact of a trial court unless these findings are demonstrably wrong or made without basis in evidence or were arrived at by applying the wrong principles. That the Appellant had not demonstrated any such error regarding the Appellant’s participation in the previous case. Counsel relied on the case of *Mburu Kinyua vs. Gachini [1978]eKLR 77****,*** where the Court of Appeal held that a party who participated in earlier proceedings and against whom judgment was entered cannot subsequently re-litigate the same matter by framing it as a different cause of action. 10. Counsel submitted that in the previous suit, namely, KAKAMEGA ELC 277 OF 2014, the Respondent herein obtained an eviction order and a permanent injunction against the Appellant’s associate (one Mmbaya) regarding the suit parcel of land. That the fact that the Appellant was a witness in the previous suit means that she was fully aware of those proceedings, and this made her counterclaim before the trial court the more untenable. 11. Counsel submitted further that the Appellant failed to establish the elements of adverse possession upon which her claim in the counterclaim rested. That the nature and duration of the Appellant’s possession of the suit land were inconsistent. That she claimed occupation since 1958 as an inheritance from her father-in-law, the late Nelson Libwama, yet the Appellant’s own witness by the name of Zacharia Otiende Khatechi, DW2, stated in cross-examination that the Appellant was the wife of the late Joash Jisii Mmbaya, who bought the suit property. 12. That the Respondent’s title to the suit property is protected by the provisions of sections 24 and 25 of the Land Registration Act. Counsel submitted further that the trial court rightly considered the case of *Mabwa vs. Angelei & 3 others [2025] KECA 1037(KLR),* which emphasized that an adverse possession claim requires not merely occupation but overriding, unambiguous, and uncontested factual possession that negates the registered owner’s interest for the entire statutory period. That the Appellant’s occupation was neither unchallenged nor uninterrupted, as the Respondent had actively pursued litigation against persons claiming through the Appellant as far back as 2014. Counsel submitted that the trial court’s dismissal of the counterclaim was correct and should be upheld. 13. On whether or not the Appellant was accorded a fair hearing under Article 50 of the Constitution, Counsel submitted that the record demonstrates that the Appellant was awarded a full and fair hearing. That she filed a defence and counterclaim, she led 3 witnesses who were all cross-examined, and that her documents were admitted in evidence and her written submissions considered. That there was no procedural irregularity whatsoever that could ground a complaint under Article 50 of the Constitution. Counsel relied on the case of *Republic Vs. Judicial Service Commission,* where it was held that the right to a fair hearing does not guarantee a particular outcome but guarantees a fair process. That the Appellant in the present case received a fair process. 14. Counsel submitted that the Appellant’s entire case is an attempt to defeat a registered title through a counterclaim that is legally deficient and factually unproven. Relying on the provision of section 24 of the Land Registration Act and the case of *Fatuma Hassan Abdille & Another Vs. Ibrahim Diriye & 3 others [2017] eKLR*, Counsel submitted that a certificate of title is conclusive evidence of ownership and can only be challenged on grounds of fraud or misrepresentation directly attributed to the registered property. That as no fraud, misrepresentation, or illegality has been alleged against the Respondent in the acquisition of his title, the trial court was correct to uphold the Respondent’s title and to grant the orders sought. Counsel urged the Court to dismiss the appeal with costs to the Respondent. Analysis and determination 1. This is a first appeal, and as such, the court has a duty to re-analyse and re-examine the evidence adduced and be able to reach its own independent conclusion in the matter. The court is guided by the decision in *Selle and another vs Associated Motor Boat Company Ltd and others 1968 E. A 123,* where it was held that: “An appeal to this court from a trial by the High Court is by way of a retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has never seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not necessarily bound to follow the trial court’s findings of fact if it appears either that he clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” This position applies in respect of appealsfrom the subordinate courts to the High Court and Courts of Equal Status as well. (See also *South Nyanza Sugar Company Ltd vs Simeona A. Opala[2020]eKLR.)* 1. The first ground of appeal faults the trial court for dismissing the counterclaim of the Appellant on the basis that it amounts to entertaining a re-litigation. A reading of the judgment of the trial court shows that indeed the court did find and hold that even though the Appellant had raised the issue of adverse possession and overriding interest by way of customary trust, the court could not delve into their merits or demerits, as that would be tantamount to entertaining a re-litigation of the Environment and Land Case at Kakamega. 2. From the copy of defence and counterclaim on page 35 of the record of appeal, it is clear that the Appellant had pleaded that she was the wife of one Nelson Libwama, a son of one Paul Murunga Mmbaya and a stepson to one Joash Jisii Mmbaya, the father of the Respondent. She pleaded that her husband had been allocated by his father a portion of the suit land parcel No. KAKAMEGA/SEREM/146, on which her husband constructed a house in which they (Appellant and her late husband) stayed since 1958. She further pleaded that the land was ancestral land owned by her father-in-law. That it was the said father-in-law who allocated the portion of land to the Appellant, while the remainder of the land was allocated to one Margaret Shatimbwa. The Appellant further pleaded that if the Plaintiff acquired registration of the land in his name vide a court order in Kakamega ELC No. 277 of 2014, then the same was done without her knowledge, that she therefore sought that the suit be dismissed and judgment be entered in terms of the counterclaim. She also sought a declaration that she was the owner of the portion measuring 0.39 of the suit land under the doctrine of adverse possession. 3. The record shows that vide the Reply to Defence and Defence to Counterclaim filed by the Respondent (see page 54 of the record of appeal), the Respondent referred to Kakamega ELC No. 277 of 2014, which had been decided in respect of the suit land. 4. Among the documents produced as exhibits was the judgment in Kakamega ELC Case No. 277 of 2014. It shows that the Respondent herein was the Plaintiff in the case, and the Defendant was one Joash Jisii Mmbaya. The judgment shows that the court found that the Plaintiff's suit was credible and that the Plaintiff had been on the land for over 12 years. The Court made a declaration that the Defendant’s title to the suit land had become extinguished by adverse possession in favour of the Plaintiff (Respondent herein) and ordered that the entire of the suit land be registered in favour of the Plaintiff (Respondent herein) and that the Respondent be issued with a title deed. The judgment was made on 23rd October 2018. 5. Although in the defence and counterclaim, the Appellant denied knowledge of the existence of the Kakamega Case, in her testimony before the trial court and the submissions herein, the Appellant admitted that she was aware of the existence of the Kakamega suit and had participated therein as a witness for the Defendant in that former suit. The proceedings at page 88 of the record of appeal show that the Appellant testified before the trial court as DW1. She adopted the contents of her witness statement dated 24/3/2021. On cross-examination before the trial court, she stated that she remembered testifying in Kakamega Court. 6. It is clear that the issue of ownership of the suit land was heard and determined before the ELC Court at Kakamega. The Appellant, who was aware of the suit, did not raise any objection or seek to be joined in the suit at all. The title that the Respondent holds is a product of the decision in the said case. A copy of the title deed produced as exhibit P1 on page 8 of the record of appeal is dated 16th December 2019. 7. I find that the trial court was right in holding that to delve into the issues raised by the Appellant would amount to re-litigating the claim, which had already been decided by the Environment and Land Court at Kakamega. The suit was clearly res judicata as provided in section 7 of the Civil Procedure Act. 8. The third ground of appeal faults the trial court for failing to determine whether the Appellant fully participated in the Environment and Land case at Kakamega. Having read the Appellants pleadings and testimony before the trial court, I find no dispute as to whether the Appellant participated in the suit at the ELC at Kakamega or not. The Appellant admitted that she participated in the suit at the ELC Kakamega as a witness for Joash Jisii Mmbaya, who was the Defendant. The proceedings show that Joash Jisii Mmbaya was also a witness for the Appellant in the suit before the trial court. 9. The 4th ground of appeal faults the trial court for failing to be guided by the tenets of adverse possession. The title of the Respondent was obtained in the year 2019. The suit was filed before the trial court in the year 2021, and the Appellant’s counterclaim for adverse possession was filed on 24th March 2021. The statutory twelve (12) years had not elapsed from the date the Respondent became registered owner of the land. Secondly, the issue of occupation and possession of the suit land had been canvassed in the Case at the ELC Kakamega, which found that it was the Respondent who had had adverse possession of the entire suit land and awarded the land to the Respondent vide its judgement. Neither the Appellant nor the Defendant in that suit challenged the judgment in any way. So, as matters stand, there is a valid judgment on the issue of adverse possession. Thirdly, the basis of the Appellant's claim was that the suit land was ancestral land, which she claimed to have inherited from or allocated by her father-in-law. A claim based on ancestral land cannot be a subject of a claim of adverse possession. Further, the trial court in which the claim of adverse possession was raised lacked the requisite jurisdiction to adjudicate the claim under the provisions of section 38 of the Limitation of Actions Act. 10. Grounds 5 and 6 of the appeal fault the trial court for failing to rely on credible and reliable evidence and for misinterpreting the law. Having taken into account submissions by both parties in respect of these grounds, I find that they have not been substantiated. 11. For the foregoing reasons, I find that the appeal lacks merit. I find no reason to interfere with the findings and decision of the trial court. It has not been shown that the findings were demonstrably wrong or made without basis in evidence or were arrived at by applying the wrong principles. 12. The result is that; 13. **The appeal is dismissed.** 14. **Costs of the appeal are awarded to the Respondent.** Orders accordingly. **Judgment dated and signed at Vihiga and delivered virtually this 14th day of May, 2026.** **E. ASATI,** **JUDGE.** **In the presence of:** Ajevi: Court Assistant. Rabote for the Appellant. Lugadiru for the Respondent.