Olang’ v Chimba & another (Enviromental and Land Originating Summons E048 of 2026) [2026] KEELC 5352 (KLR) (31 August 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELCLOS NO. E048 OF 2026** **IN THE MATTER OF SECTIONS 7, 17 AND 38 OF THE LIMITATION OF ACTIONS ACT, CAP. 22 LAWS OF KENYA** **AND** **IN THE MATTER OF THE LAND REGISTRATION ACT, NO. 3 OF 2012** **AND** **IN THE MATTER OF ORDER 37 RULE 7 OF THE CIVIL PROCEDURE RULES, 2010** **AND** **IN THE MATTER OF ARTICLE 159 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF AN APPLICATION FOR ACQUISITION OF TITLE BY ADVERSE POSSESSION OVER LAND PARCEL ORIGINALLY KNOWN AS KISUMU/KOGONY/1394 AND SUBSEQUENTLY SUBDIVIDED TO CREATE KISUMU/KOGONY/7050** **BETWEEN** **ANNE ADHIAMBO OLANG’ PLAINTIFF/APPLICANT** **-VERSUS-** **ASMAN OMARI CHIMBA 1ST DEFENDANT/RESPONDENT** **JOHN OUMA GUMBA 2ND DEFENDANT/RESPONDENT** **R U L I N G** 1. By an originating summons dated 16th July 2026 taken out under sections 7, 17 and 38 of the Limitation of Actions Act, Cap. 22, Order 37 rule 7 of the Civil Procedure Rules, 2010, sections 1A, 1B and 3A of the Civil Procedure Act and Article 159 of the Constitution, the plaintiff, Anne Adhiambo Olang’, seeks a declaration that she has acquired title by adverse possession over approximately 0.07 hectares comprised in land parcel KISUMU/KOGONY/7050, originally forming part of land parcel KISUMU/KOGONY/1394 (hereinafter “the suit property”). She further seeks a declaration that the defendants’ title to and right to recover the suit property have been extinguished, an order that she be registered as proprietor in place of the 1st defendant, an order authorising the Deputy Registrar to execute the transfer documents in default, and a direction to the Land Registrar, Kisumu to effect the consequential registration. 2. Contemporaneously with the originating summons, and under a certificate of urgency of even date, the plaintiff filed a notice of motion dated 16th July 2026 brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 rules 1, 2, 3 and 4 of the Civil Procedure Rules, 2010. By that application she seeks temporary orders of injunction restraining the defendants, their agents and servants from evicting her, demolishing her house, pulling down her wall or otherwise interfering with her occupation and possession of the suit property pending the hearing and determination of the originating summons, together with an order directing the Officer Commanding Station of the nearest police station to enforce compliance. The application is supported by her affidavit sworn on 17th July 2026. Interim orders of injunction were issued ex parte on 20th July 2026. 3. In response, the 1st defendant, Asman Omari Chimba, filed a notice of preliminary objection dated 26th July 2026 together with a replying affidavit sworn on even date. By the objection he seeks the striking out of both the originating summons and the notice of motion. The 2nd defendant, John Ouma Gumba, has not filed any response and has not participated in these proceedings; the 1st defendant states that he has not been served. 4. On 28th July 2026 the Court directed that both the preliminary objection and the notice of motion be canvassed by way of written submissions. The plaintiff filed a further affidavit sworn by her, together with written submissions filed on 5th August 2026 and served on 6th August 2026. The 1st defendant filed written submissions dated 12th August 2026, which address both the objection and the application. I have read all of them. 5. This ruling determines the preliminary objection and, consequentially, the notice of motion. **The Preliminary Objection** 1. The objection is expressed to be brought under section 7 of the Civil Procedure Act and Order 2 rule 15 of the Civil Procedure Rules, 2010. It is founded on five grounds, which may be summarised as follows. In his submissions the 1st defendant compresses them into four points of law, namely res judicata, non-existence of the suit land, abuse of the process of the Court, and the pendency of his own application for review. 2. First, that the suit and the application offend the mandatory provisions of section 7 of the Civil Procedure Act, which prohibits a court from trying a suit in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties. 3. Secondly, that the issues raised touching on the acquisition and ownership of land parcels KISUMU/KOGONY/1394 and 7050 are res judicata, the same having been determined in Kisumu ELCC No. 76 of 2015 **Asman Chimba Omari v John Ouma Gumba & 3 others, and in Kisumu ELCLOS No. E022 of 2024 Anne Adhiambo Olang’ v Asman Chimba Omari & another.** 4. Thirdly, that land parcel KISUMU/KOGONY/7050, upon which the suit is founded, does not exist, its fraudulent and irregular creation having been invalidated and cancelled on 25th April 2024 by this Court in Kisumu ELCC No. 76 of 2015, a position confirmed by this Court in its ruling of 3rd July 2025 in Kisumu ELCLOS No. E022 of 2024. 5. Fourthly, that the institution of the present suit is an abuse of the process of the Court contrary to the inherent jurisdiction preserved under section 3A of the Civil Procedure Act, the plaintiff having lost her claim of ownership in Kisumu ELCC No. 76 of 2015 and her originating summons in Kisumu ELCLOS No. E022 of 2024 having been struck out, and she having now filed a fresh suit seeking substantially similar reliefs over the same subject matter, which amounts to forum shopping and an attempt to obtain conflicting decisions from the same Court. 6. Fifthly, that the suit constitutes a collateral attack on subsisting decisions of this Court contrary to the hierarchical judicial structure established under the Constitution, and that the plaintiff’s proper recourse against the decisions in Kisumu ELCC No. 76 of 2015 and Kisumu ELCLOS No. E022 of 2024 lies in an appeal to the Court of Appeal and not in the institution of parallel proceedings before the same Court. **The 1st Defendant’s affidavit evidence** 1. In his replying affidavit sworn on 26th July 2026, the 1st defendant traces the history of the dispute. He deposes that he purchased land parcel KISUMU/KOGONY/1394 from the 2nd defendant by an agreement dated 17th December 2010, took delivery of the original title deed and executed transfer documents, obtained the consent of the Land Control Board and paid the assessed stamp duty, but was unable to register the transfer. Upon conducting a search he discovered that the parcel had been subdivided on 11th September 2014 into KISUMU/KOGONY/7046, 7047, 7048, 7049 and 7050. 2. He deposes that he thereupon instituted Kisumu ELCC No. 76 of 2015, in which judgment was first delivered in his favour on 11th October 2016; that judgment was set aside and the plaintiff and others joined as interested parties; and that upon a rehearing, judgment was again entered in his favour on 25th April 2024, by which the subdivisions, including KISUMU/KOGONY/7050, were declared fraudulent and cancelled. 3. He deposes that the plaintiff obtained leave to appeal and filed a notice of appeal, and obtained a conditional stay of execution on 26th September 2024 upon deposit of Kshs. 200,000/= as security, which condition she did not satisfy. Instead, he says, she instituted Kisumu ELCLOS No. E022 of 2024 and obtained an ex parte order on 14th October 2024 upon materially the same allegations of threatened destruction, and relying on the same photographs and the same certificate of electronic evidence as are relied upon in the present application, none of which bear any dates. 4. He deposes further that by its ruling of 3rd July 2025 in Kisumu ELCLOS No. E022 of 2024, the Court held that KISUMU/KOGONY/7050 does not exist, its title having been cancelled; that the plaintiff’s application for review of that ruling, dated 6th September 2025, was dismissed on 18th June 2026; and that it is that dismissal which has prompted the present suit and application. He points out that the grounds now advanced in the originating summons replicate those advanced in the review application, to which he had responded by a replying affidavit sworn on 21st October 2025. 5. He relies particularly on ground (h) of the originating summons and paragraph 12 of the supporting affidavit, in which the plaintiff expressly maintains that KISUMU/KOGONY/7050 continues to exist in law and in fact notwithstanding the finding of 3rd July 2025, and contends that this is an admission that what the plaintiff seeks is to challenge a ruling of this Court otherwise than by way of appeal. 6. He deposes that the plaintiff had the opportunity to raise adverse possession by way of counterclaim in Kisumu ELCC No. 76 of 2015 but filed a statement of defence consisting of bare denials, and invokes Explanation 4 to section 7 of the Civil Procedure Act. He also deposes that his own application seeking review of the finding in the ruling of 3rd July 2025 that the plaintiff’s suit was not res judicata remains pending in Kisumu ELCLOS No. E022 of 2024 and was fixed for mention on 28th July 2026, and that the issues are for that reason sub judice. 7. Finally, he deposes that a suit filed by the plaintiff against him in the Small Claims Court in 2024 in respect of the same parcel was struck out upon a preliminary objection taken on the same ground of non-existence, and that the present proceedings are a replica of that abuse. He urges that litigation must come to an end. **The 1st Defendant’s submissions** 1. By his submissions dated 12th August 2026, the 1st defendant develops the objection at length. He begins from the proposition that a party must bring forward its whole case and may not litigate in instalments, and that finality is a hallowed principle of the administration of justice. He relies on **Omondi v National Bank of Kenya Ltd & others [2001] EA 177, E.T. v Attorney General & another [2012] eKLR, Trade Bank Ltd v L.Z. Engineering Construction Ltd [2000] 1 EA 266, Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR), John Florence Maritime Services Ltd & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2021] KESC 39 (KLR) and Njangu v Wambugu & another, Nairobi HCCC No. 2340 of 1991 (unreported), together with Obiero v Severin & another [2025] KEHC 2724 (KLR).** 2. His central submission under section 7 is that the main issue in this suit, as in the previous suits, is the ownership of the suit property, irrespective of the mode by which ownership is said to have been acquired whether by purchase, transfer, transmission or adverse possession and that this issue was determined in Kisumu ELCC No. 76 of 2015. He submits that the plaintiff, having been a party to those proceedings, might and ought to have raised adverse possession there by way of counterclaim, and is caught by Explanation 4 to section 7 and by Order 7 rules 3 and 7 of the Civil Procedure Rules, 2010, the requirement to plead a counterclaim being mandatory and not discretionary. 3. He submits, in answer to the reasoning in the ruling of 3rd July 2025, that the premise of that reasoning was mistaken: that the plaintiff’s registration was cancelled on 31st May 2021 when he was issued with a title deed, so that when she filed her amended defence on 6th July 2023 the title was not in her name and she was free to plead adverse possession. That, he says, is the very ground of his pending application for review in Kisumu ELCLOS No. E022 of 2024. 4. On the competence of the objection, he submits that res judicata is a pure point of law, that a judgment of this Court is a public document within section 79(a)(iii) of the Evidence Act, and that by sections 59 and 60 of that Act the Court takes judicial notice of it, the party inviting the Court to do so being obliged to produce it. 5. On the question of a prima facie case, he submits that ownership having been determined in his favour, section 44 of the Evidence Act makes the judgment of 25th April 2024 conclusive proof that any legal character previously claimed by the plaintiff ceased, and that her claims of occupation and development are therefore irrelevant. He adds that the plaintiff herself describes the persons said to be threatening her eviction as strangers rather than the defendants, so that no case is disclosed against the defendants at all. 6. He submits that the interim orders were obtained by material non-disclosure, in that the plaintiff did not disclose the judgment of 25th April 2024 and the permanent injunction issued by it, and relies on **Bahadurali Ebrahim Shamji v Al Noor Jamal & 2 others, Civil Appeal No. 210 of 1997, as applied in Halima Haji Sarah v Multiple Hauliers (E.A.) Ltd & another [2022] KEELC 912 (KLR).** 7. On abuse of process he relies on **Agnes Muthoni Nyanjui & 2 others v Annah Nyambura Kioi & 3 others [2015] KEHC 1595 (KLR)** for the proposition that the institution of a multiplicity of actions between the same parties over the same subject matter, and the pursuit of parallel or successive proceedings in the hope of a favourable outcome, are classic manifestations of abuse, and he invokes section 3A of the Civil Procedure Act and Order 2 rule 15(1)(d) of the Civil Procedure Rules, 2010. He sets out a chronology which, he says, discloses a pattern of litigation by instalments, and states that upon the dismissal of her review application on 18th June 2026 the plaintiff sought and was granted leave to appeal but did not file any appeal, choosing instead to institute these proceedings. 8. He also draws attention to what he says are inconsistencies in the plaintiff’s successive accounts of when she purchased the suit property and when she took possession, and to her failure to serve the 2nd defendant notwithstanding that she has joined him. 9. Finally, at paragraph 67 of his submissions, he raises a point not pleaded in the notice of preliminary objection: that there subsists against the plaintiff a permanent injunction issued on 25th April 2024 restraining her from, among other things, using or occupying the suit property, and that a temporary injunction cannot be granted so as to counter a permanent one. **The Plaintiff’s response** 1. The plaintiff has met the objection in three places: in grounds (g) to (n) of the originating summons and paragraphs 10 to 15 of her supporting affidavit; in her further affidavit; and in her written submissions filed on 5th August 2026. 2. I should record at once that I do not accept the 1st defendant’s submission, at paragraph 3 of his submissions, that the preliminary objection is unopposed. Paragraphs 2 to 5 of the further affidavit are directed squarely at res judicata and sub judice. In any event, a preliminary objection raises a question of law which the Court must determine on its merits, and it does not succeed merely because it is unanswered. ***(a) The further affidavit*** 1. The plaintiff deposes that the suit is neither res judicata nor sub judice; that the parties in the previous proceedings did not litigate under the same title; that the former suit was not commenced by way of originating summons; and that the issues for determination in this suit are distinct. Kisumu ELC No. 76 of 2015, she says, was concerned with allegations of fraudulent dealings, which could not properly have been determined in proceedings commenced by originating summons. 2. As to the existence of the suit property, she acknowledges in terms that there is a judgment directing the cancellation of KISUMU/KOGONY/7050 together with the other resultant subdivisions and the reversion of the land to the original title. Her answer is that the 1st defendant has never presented the decree for registration or effected the requisite registration processes, including the payment of stamp duty where necessary, so that the decree has not been implemented in the land register and official searches continue to reflect KISUMU/KOGONY/7050 as a registered parcel. She annexes what she describes as the latest green card and official search, marked “AO1”, and invites any party asserting the contrary to produce a search or green card of its own. 3. As to Kisumu ELCLOS No. E022 of 2024, she deposes that the proceedings were struck out, and that once a suit is struck out it ceases to exist for all practical purposes and cannot constitute a bar to fresh proceedings. She adds that although the Court upheld the preliminary objection in that matter, the objection was supported by an affidavit, thereby introducing evidence into what ought to have been a pure point of law, and she reserves her right to challenge that position in the appropriate forum. All references by the 1st defendant to that suit are, she says, misplaced and legally irrelevant. 4. She deposes further that the 1st defendant has not addressed the principles governing interlocutory injunctions; that he has not denied that she is the person in occupation of the suit property; and that he has not denied what she describes as unlawful attempts to demolish the developments erected on it. She says that the matters relating to her health are supported by medical records, and that as an occupier, a developer of the property and a widow she stands to suffer irreparable prejudice if the status quo is not preserved, the defendants having pleaded no prejudice of their own. ***(b) The plaintiff’s submissions*** 1. The plaintiff’s written submissions are directed exclusively to the notice of motion. She identifies the sole issue as whether she has satisfied the conditions for the grant of a temporary injunction pending the determination of the originating summons, and relies on **Giella v Cassman Brown & Co. Ltd [1973] EA 358.** 2. She submits that she has established a prima facie case, having entered into possession in 1998 and remained in open, peaceful, continuous and uninterrupted possession for more than twenty-eight years, having established her permanent home on the land, having extensively developed it, and now seeking a declaration of title by adverse possession. Those factual matters, she says, have not been controverted for the purposes of the application, the defendants having relied entirely on the arguments raised in the preliminary objection. 3. She submits that damages would not be an adequate remedy: the suit property is her only home, she is a widow, permanent structures stand on the land, strangers have already commenced the demolition of her boundary wall, and photographs of the destruction have been exhibited. If eviction occurs before trial, she says, her home will have been destroyed and no monetary award can restore it. 4. As to the balance of convenience, she submits that she is already in possession, that an injunction would merely preserve the status quo, that the defendants would still recover possession after judgment should they succeed, and that if demolition proceeds before trial her claim would be rendered largely academic. She submits, finally, that the preliminary objection does not answer her plea for interim preservation, and that where property is threatened with destruction before the determination of the parties’ rights, preservation orders ought to issue so that the Court’s eventual decision is not rendered nugatory. **Analysis and Determination** 1. Having considered the notice of preliminary objection, the replying affidavit and the annextures thereto, the originating summons and the notice of motion together with the supporting and further affidavits, the written submissions of both parties, and having taken judicial notice of the record of this Court in the proceedings referred to by the parties, the following issues arise for determination: 2. **Whether the matters raised by the 1st defendant qualify as a preliminary objection;** 3. **Whether the suit is res judicata by reason of Kisumu ELCC No. 76 of 2015;** 4. **What effect, if any, section 44 of the Evidence Act has on the claim;** 5. **Whether the suit is barred by the proceedings and orders in Kisumu ELCLOS No. E022 of 2024;** 6. **Whether the suit constitutes an abuse of the process of the Court;** 7. **What becomes of the notice of motion dated 16th July 2026; and** 8. **What orders ought to issue and who should bear the costs**. ***(i) Whether the matters raised qualify as a preliminary objection*** 1. The threshold is settled. In **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law J.A**. described a preliminary objection as consisting of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit; and Sir Charles Newbold P. added that a preliminary objection raises a pure point of law argued on the assumption that all the facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. 2. That statement of principle was adopted by the Supreme Court in **Hassan Ali Joho & another v Suleiman Said Shahbal & 2 others [2014] eKLR, and was amplified in Oraro v Mbaja [2005] 1 KLR 141,** where the Court cautioned that any assertion which bears factual aspects calling for proof, or which seeks to adduce evidence for its authentication, is not a true preliminary objection. 3. The plaintiff takes the point, at paragraph 4 of her further affidavit, that an objection supported by an affidavit introduces evidence into what ought to be a pure question of law. As a general proposition that criticism has force, and it is one this Court should be slow to dismiss. It does not, however, avail her here, for three reasons. 4. First, the annextures to the replying affidavit are, without exception, records of this Court and of proceedings between these very parties: judgments, rulings, pleadings, applications and orders. A plea of res judicata will almost always require the Court to look at the record of the earlier proceedings, and the production of that record does not convert a point of law into a question of fact. The 1st defendant is right to submit that a judgment of this Court is a public document within the meaning of section 79(a)(iii) of the Evidence Act, and that by sections 59 and 60 of that Act no fact of which the Court takes judicial notice need be proved, the Court being entitled to require production of the document to enable it to do so. The Court is in any event entitled to take judicial notice of its own record. 5. Secondly, the plaintiff herself has filed a further affidavit annexing a green card and a certificate of official search, and invites the Court to act upon them. A litigant who asks the Court to look at documents cannot complain that her opponent has done the same. 6. Thirdly, in so far as the complaint is directed at the manner in which the objection in Kisumu ELCLOS No. E022 of 2024 was determined, it is a complaint about a ruling of this Court which stands until set aside. As the plaintiff herself recognises, her remedy in that respect lies elsewhere. 7. Whether the present suit is precluded by the decisions already rendered by this Court between these parties is a question capable of determination on the face of the record, without the ascertainment of any contested fact. The objection is therefore properly before me, save that ground 3, which asserts the non-existence of KISUMU/KOGONY/7050, is not a free-standing point of law but is subsumed within the wider question of the effect of the earlier decisions, and I so treat it. 8. I should add that a number of matters urged in the 1st defendant’s submissions are not capable of determination on a preliminary objection at all. The alleged inconsistencies in the plaintiff’s accounts of when she purchased the property and when she entered into possession, the assertion that she encroached on the land in 2014 with the assistance of goons, and the characterisation of her conduct as mendacious, are all matters of contested fact. They are the stuff of a trial, not of an objection argued on the assumption that the facts pleaded by the plaintiff are correct. I have disregarded them, and nothing in this ruling should be read as a finding upon them. ***(ii) The litigation history*** 1. Because the objection turns entirely upon what has gone before, it is necessary to set out the history with some precision. From the record placed before me, the sequence is as follows. 2. On 16th March 2015 the 1st defendant instituted Kisumu ELCC No. 76 of 2015 against the 2nd defendant, seeking a declaration that the subdivision of KISUMU/KOGONY/1394 into KISUMU/KOGONY/7046 to 7050 and the subsequent transfers were fraudulent, and orders for cancellation and rectification. Judgment was entered in default on 11th October 2016 (Kibunja, J.), by which an order of specific performance issued directing the 2nd defendant to transfer the resultant parcels to the 1st defendant. 3. By an order made on 8th December 2022 that judgment was set aside and the plaintiff herein was joined to those proceedings as the 2nd interested party. She filed an amended statement of defence dated 6th July 2023, testified at the rehearing as DW1, and asserted ownership of KISUMU/KOGONY/7050 by purchase from one Joannes Ouma Ondu. She did not counterclaim. 4. On 25th April 2024, Asati, J. delivered judgment in Kisumu ELCC No. 76 of 2015 in favour of the 1st defendant. The Court declared the subdivision of KISUMU/KOGONY/1394 into KISUMU/KOGONY/7046, 7047, 7048, 7049 and 7050 and the subsequent transfers fraudulent; ordered cancellation of the subdivision and of the transfers and registrations; ordered rectification of the register and the map by reinstating KISUMU/KOGONY/1394 in the name of the 1st defendant; directed surrender of the title deeds for cancellation; and issued a permanent injunction restraining the defendant and the interested parties from claiming, entering, using, occupying or otherwise interfering with the 1st defendant’s possession of the suit land. 5. The plaintiff filed a notice of appeal dated 3rd May 2024 and applied for stay of execution. By a ruling of 26th September 2024, stay was granted on condition that she deposit Kshs. 200,000/= as security within 45 days, failing which the stay would lapse. It is common ground on the record that the condition was not met. 6. On 11th October 2024 the plaintiff instituted Kisumu ELCLOS No. E022 of 2024 against the 1st defendant, claiming KISUMU/KOGONY/7050 by adverse possession on the basis of occupation since 1998, and obtained an interim order on 14th October 2024. She amended the originating summons on 21st February 2025. The 1st defendant raised a preliminary objection dated 24th January 2025 on three grounds: res judicata, non-existence of the suit parcel, and sub judice. 7. By a ruling delivered on 3rd July 2025, Okong’o, J. (as he then was) determined that objection. Three findings in that ruling are material. First, the Court held that, the orders of 25th April 2024 not having been stayed, the parcel KISUMU/KOGONY/7050 does not exist, its title having been cancelled by the Court, and that the suit was therefore brought in respect of a non-existent parcel. Secondly, the Court expressly *rejected* the plea of res judicata. Thirdly, the Court declined to strike out the suit, holding that it could be saved by amendment, and granted the plaintiff leave to further amend her originating summons within fourteen days “to claim the portion of the land which she is occupying within the larger land parcel owned by the defendant”, with a direction that if she failed to do so the suit would stand struck out with costs. Status quo as to her occupation was ordered maintained pending the filing of the new pleadings. 8. It is important to be exact about the reasoning by which the plea of res judicata was rejected. The learned Judge held: *“... If the plaintiff had an adverse possession claim in respect of the suit property, in normal cases, the same should have been raised as a defence and a counterclaim based thereon should have been mounted against the defendant herein who was the plaintiff in the previous suit. What I need to determine is whether the Plaintiff would have raised her adverse possession claim in the previous suit. The answer, in my view, is negative. Not for the reason advanced by the plaintiff that she could only bring an adverse possession claim by way of an Originating Summons, but for the reason that when the defendant brought the previous suit, the suit property was registered in the name of the plaintiff. The plaintiff could not claim land registered in her name by adverse possession. It was after the plaintiff’s title was cancelled and Title No. Kisumu/Kogony/1394 reinstated and restored in the name of the defendant that the plaintiff could claim the portion thereof which she claims to have occupied since 1998 by adverse possession. It is therefore my finding that the plaintiff’s suit is not res judicata.”* 1. The plaintiff did not amend within the fourteen days allowed. The suit accordingly stood struck out with costs upon the expiry of that period. On 6th October 2025, when the matter came up for mention to confirm compliance, her counsel informed the Court that no further amended originating summons had been filed because parcel KISUMU/KOGONY/1394 did not exist. 2. The plaintiff then applied by a notice of motion dated 6th September 2025 to set aside the order of 3rd July 2025 and to have the suit reinstated, or in the alternative for enlargement of time, pleading medical incapacity. By a ruling delivered on 18th June 2026, Asati, J. dismissed that application, holding that no sufficient cause had been shown, noting that the plaintiff had been able to file other documents within the very period in question, and further holding that in so far as the application challenged the propriety, validity and merits of the orders of 3rd July 2025, that was a matter for the Court of Appeal alone. Leave to appeal was sought and granted on the same day. 3. For his part, the 1st defendant filed his own notice of motion in Kisumu ELCLOS No. E022 of 2024 seeking review of the ruling of 3rd July 2025, and specifically of the findings that “when the defendant brought the previous suit, the suit property was registered in the name of the plaintiff” and “that the plaintiff’s suit is not res judicata”. On his own deposition at paragraph 19 of his replying affidavit, and again at paragraph 23 of his submissions, that application remains pending and awaits hearing and determination. 4. The present originating summons and notice of motion were filed on 16th July 2026, twenty-eight days after the dismissal of 18th June 2026. No appeal has been filed against either the ruling of 3rd July 2025 or that of 18th June 2026. ***(iii) Whether the suit is res judicata by reason of Kisumu ELCC No. 76 of 2015*** 1. Section 7 of the Civil Procedure Act provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation 4 provides that any matter which might and ought to have been made a ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in that suit. 2. The elements are conjunctive and are conveniently collected in **Christopher Kenyariri & another v Salama Beach Hotel Ltd & 3 others [2017] eKLR:** the matter must have been directly and substantially in issue in the former suit; the former suit must have been between the same parties or parties under whom they claim; those parties must have been litigating under the same title; the issue must have been heard and finally determined; and the court must have been competent. The doctrine is one of substance and not of mere technicality, and the courts must be vigilant to prevent litigants from evading it by recasting the same claim in a new form: See **Omondi v National Bank of Kenya Ltd & others [2001] EA 177.** 3. I bear in mind, however, the caution of the Supreme Court in **John Florence Maritime Services Ltd & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2021] KESC 39 (KLR),** cited to me by the 1st defendant, that res judicata is a doctrine of substance whose application must be invoked in the clearest of cases, its effect being to shut a litigant out of the seat of justice. 4. The 1st defendant’s contention under this head is that the plaintiff, having been joined as an interested party in Kisumu ELCC No. 76 of 2015 and having filed a defence there without a counterclaim, might and ought to have raised her adverse possession claim in those proceedings, and is now caught by Explanation 4. 5. That is a serious argument, and it is developed with care in his submissions. It is, however, an argument which the 1st defendant has already advanced, on identical facts, against this very plaintiff, and which this Court has already rejected. The preliminary objection dated 24th January 2025 in Kisumu ELCLOS No. E022 of 2024 raised precisely this plea; it was argued; and by the ruling of 3rd July 2025 the Court held, for the reasons reproduced above, that the plaintiff’s adverse possession claim was not res judicata. That finding was a determination of a contested question of law, made after hearing both parties, and it has not been set aside, reviewed, varied or reversed on appeal. 6. The 1st defendant is bound by it. The doctrine he invokes cuts both ways. A party against whom an issue has been finally determined may not re-agitate that same issue in a fresh suit against the same opponent merely because he has found a different judge of the same Court before whom to place it. To permit that would be to allow him to do precisely what he accuses the plaintiff of doing. 7. Nor can the position be altered by the submission that the premise of the ruling of 3rd July 2025 was factually mistaken that the plaintiff’s registration had already been cancelled on 31st May 2021, so that she was free to plead adverse possession when she filed her defence in 2023. That submission may or may not be well founded. It is not for me to say. It is the very ground upon which the 1st defendant has moved another judge of this Court by an application which, on his own evidence, remains pending. He cannot invite this Court to determine, in a separate file, the identical question that awaits determination there. If the finding of 3rd July 2025 is to be disturbed, it must be disturbed in Kisumu ELCLOS No. E022 of 2024 or on appeal not by a collateral ruling in Kisumu ELCLOS No. E048 of 2026. 8. This Court is a court of concurrent jurisdiction with the courts that delivered the rulings of 3rd July 2025 and 18th June 2026. Under Article 164(3) of the Constitution, appellate jurisdiction over the decisions of this Court is vested in the Court of Appeal. Just as this Court cannot sit on appeal over those rulings at the instance of the plaintiff, it cannot do so at the instance of the 1st defendant. The principle for which he contends so forcefully in his submissions that a court does not sit on appeal over its own decisions is the principle that defeats him on this ground. 9. Grounds 1 and 2 of the preliminary objection, in so far as they rest upon Kisumu ELCC No. 76 of 2015, accordingly fail. I decline to hold that the plaintiff’s claim to have acquired title by adverse possession is res judicata by reason of that judgment. ***(iv) Section 44 of the Evidence Act*** 1. A related submission may be disposed of shortly. The 1st defendant argues that by section 44 of the Evidence Act the judgment of 25th April 2024 is conclusive proof that any legal character previously enjoyed by the plaintiff in respect of the property ceased, and that ownership vested absolutely in him; from which it is said to follow that her occupation and her developments are irrelevant and that she has no arguable claim at all. 2. The submission proves too much. Section 44 establishes conclusively the legal character which a judgment in rem confers, declares or takes away, and the time from which it operates. It says nothing whatever about whether a period of limitation has run against the person upon whom that character is conferred. A claim of adverse possession is, by its nature, a claim asserted against the registered proprietor; if proof of the proprietor’s title were an answer to it, the claim could never be brought at all. The maxim *cuius est solum, eius est usque ad coelum et ad inferos*, upon which the 1st defendant also relies, concerns the vertical extent of ownership and its fixtures; it has nothing to say about the extinction of a right of recovery by lapse of time under the Limitation of Actions Act. 3. Indeed, the ruling of 3rd July 2025 proceeded on the footing that it was precisely upon the reinstatement of the land in the 1st defendant’s name that a claim of adverse possession to a portion of it became open to the plaintiff. Section 44 therefore affords the 1st defendant no additional assistance, and I reject this limb of his argument. ***(v) The effect of the proceedings in Kisumu ELCLOS No. E022 of 2024*** 1. That, however, is not the end of the matter, and it is here that the objection has real force. 2. Kisumu ELCLOS No. E022 of 2024 stood struck out for failure to comply with the direction to amend. A striking out for procedural default is not, without more, a determination on the merits, and does not of itself found a plea of res judicata under section 7; the requirement that the matter be “heard and finally decided” is not satisfied by an order made in consequence of non-compliance. To that limited extent the plaintiff is right when she says at ground (l) of the originating summons, and at paragraph 4 of her further affidavit, that the striking out was not a determination of her claim on its merits. 3. But her proposition that a struck-out suit “ceases to exist for all practical purposes” proves far too much. What ceases upon a striking out is the suit. The reasoned determinations made in it before it was struck out do not evaporate with it. The ruling of 3rd July 2025 did a great deal more than strike out a suit. It determined, as a contested question of law argued between these parties, that land parcel KISUMU/KOGONY/7050 does not exist, its title having been cancelled by the judgment of 25th April 2024 and the register having been ordered rectified by the reinstatement of KISUMU/KOGONY/1394. That was a substantive judicial determination on a discrete issue, between the same parties, by a court of competent jurisdiction. It binds them. The plaintiff sought to reopen it by her application dated 6th September 2025 and failed, the Court holding on 18th June 2026 that any challenge to the propriety, validity or merits of the ruling lay only to the Court of Appeal. 4. The plaintiff’s substantive answer, developed at paragraph 3 of her further affidavit, is that the decree has never been presented for registration, that stamp duty has not been paid where necessary, and that the register accordingly still shows the parcel; and she produces a green card and an official search to prove it. The argument is not without practical force, and I understand why it is made. But it does not meet the difficulty. Whether the Land Registrar has yet given effect to the decree is a question about the implementation of an order of this Court. It is not a question about whether the order was made, or what it decided. A decree remains binding upon the parties to it whether or not a public officer has done what the decree requires; and the remedy of a party aggrieved by non-implementation is to move for execution or, as this Court has previously observed, to seek judicial review not to invite a differently constituted court to declare, in a fresh suit, that the parcel survives after all. The register cannot be prayed in aid to contradict the judgment that ordered it rectified. 5. That is nevertheless precisely what this suit invites. The plaintiff pleads, in terms, that she “maintained in the previous proceedings, and maintains herein, that land parcel KISUMU/KOGONY/7050 continues to exist in law and fact” (ground (h)), and repeats the assertion at paragraph 12 of her supporting affidavit. Grounds (i) to (m) and paragraphs 13 to 15 of the affidavit are devoted to the same proposition. It is an invitation to this Court to find the opposite of what this Court found on 3rd July 2025 and declined to revisit on 18th June 2026. I am not at liberty to accept it. 6. The existence or otherwise of KISUMU/KOGONY/7050 as against these parties is a matter that has been judicially determined and remains binding until set aside by the Court of Appeal. Every prayer in the originating summons is anchored on that parcel: the declaration sought in prayer 1, the extinguishment sought in prayer 2, the registration sought in prayers 3 and 5, and the execution of transfer documents sought in prayer 4. The suit as pleaded therefore stands on a foundation that the plaintiff is precluded from asserting. 7. Ground 3 of the preliminary objection, understood in that way, succeeds. ***(vi) Abuse of the process of the Court*** 1. Section 3A of the Civil Procedure Act preserves the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of its process, and Order 2 rule 15(1)(d) of the Civil Procedure Rules, 2010 empowers the Court to strike out a pleading which is otherwise an abuse of the process of the Court. The rule against abuse is wider than the strict plea of res judicata. Its classical formulation is that of Wigram V.C. in **Henderson v Henderson (1843) 3 Hare 100:** where a matter becomes the subject of litigation, the parties are required to bring forward their whole case, and will not, except under special circumstances, be permitted to reopen the same subject in respect of matters which might have been brought forward at the time. The Court of Appeal applied the same principle in **Muchanga Investments Limited v Safaris Unlimited (Africa) Limited & 2 others [2009] eKLR.** 2. The sequence in this matter speaks for itself. On 3rd July 2025 the plaintiff was given the very indulgence which the interests of justice required. Her suit was not struck out. She was told, expressly, that her claim was not res judicata; that it could be saved; and that she was at liberty to reframe it, within fourteen days, as a claim to the portion she occupies within the larger parcel KISUMU/KOGONY/1394. Her occupation was protected in the meantime by an order that the status quo be maintained. That was, on any view, a generous and carefully calibrated order. 3. She did not take it. The reason given by her counsel in open court on 6th October 2025 was not illness but disagreement: that she would not amend because, on her case, the parcel did exist. Her subsequent attempt to attribute the default to hospitalisation was examined and rejected on 18th June 2026. She was granted leave to appeal on that very day and did not appeal. Twenty-eight days later she filed this suit, asserting once more the identical proposition which caused her to forfeit the indulgence in the first place. 4. A litigant who has failed to have a struck-out suit reinstated may not obtain the same result by the simple expedient of filing the suit afresh. If that were permitted, the orders of 3rd July 2025 and 18th June 2026 would be rendered wholly nugatory, the costs awarded against her would be defeated, and the appellate jurisdiction of the Court of Appeal which she was expressly granted leave to invoke would be bypassed. That is the vice which section 3A exists to prevent. 5. Two further features of the record confirm that conclusion. First, the plaintiff did not comply with the condition upon which stay was granted to her on 26th September 2024. Secondly, the notice of motion dated 16th July 2026 is supported by the same undated photographs and the same certificate of electronic evidence, itself dated in 2025 and drawn in the title of Kisumu ELC(OS) No. E022 of 2024, as were deployed to obtain the ex parte order of 14th October 2024. 6. I have considered the 1st defendant’s further submission that the interim orders of 20th July 2026 were procured by material non-disclosure. The duty of candour on an ex parte application is not ornamental, and the authorities he cites state the principle accurately. But I am not able to accept the assertion, at paragraph 53 of his submissions, that the plaintiff never mentioned Kisumu ELCC No. 76 of 2015 in her pleadings. She did. Ground (i) of the originating summons and paragraphs 13 and 15 of her supporting affidavit refer to that judgment and to its effect upon the register, which is the very foundation of her argument. What she did not disclose was the permanent injunction issued by that judgment. Since the interim orders fall in any event with the suit upon which they depend, it is unnecessary to decide whether that omission was material in the relevant sense, and I decline to do so. 7. For the same reason I say nothing about the point raised at paragraph 67 of the 1st defendant’s submissions, namely the effect of the permanent injunction of 25th April 2024 upon the plaintiff’s occupation. That point was not pleaded in the notice of preliminary objection; it was raised for the first time in submissions filed after the plaintiff had filed hers; and she has had no opportunity to answer it. Questions touching the scope, effect and enforcement of that injunction are properly for the file in which it was issued, and I express no view upon them. 8. Subject to those qualifications, grounds 4 and 5 of the preliminary objection succeed. The originating summons dated 16th July 2026, as presently constituted, is an abuse of the process of this Court. ***(vii) The notice of motion dated 16th July 2026*** 1. An interlocutory application cannot survive the suit in which it is brought. Once the originating summons is struck out, the notice of motion falls with it. Strictly, no more need be said. But the plaintiff’s submissions were directed exclusively to that application, and she is entitled to know why they have not availed her. 2. The three conditions in **Giella v Cassman Brown & Co. Ltd [1973] EA 358** are settled, and the first of them is a prima facie case with a probability of success. A prima facie case is one which, on the material placed before the Court, discloses a right which appears to have been infringed by the opposite party in a manner calling for an explanation or rebuttal: See **Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KLR 125.** 3. The plaintiff’s difficulty is anterior to the merits of her occupation. Her claim as pleaded is a claim to KISUMU/KOGONY/7050, and, as against these parties, she is precluded from asserting that the parcel exists. A prima facie case cannot be built upon a foundation which the applicant is not at liberty to assert. Her submission that the defendants have failed to controvert her occupation, her developments and her long possession does not answer that difficulty, because those matters, however genuinely deposed to, do not supply the missing foundation. 4. There is a second and independent difficulty. An injunction is a remedy directed against the party enjoined. Yet the plaintiff herself describes the persons who are said to have threatened her eviction and pulled down her wall as strangers, and not as the defendants or their agents. That is her own case at paragraph 3 of the certificate of urgency and paragraph 16 of her supporting affidavit. On her own material, therefore, the acts complained of are not attributed to the defendants, and an injunction against the defendants would not meet the mischief of which she complains. 5. The first condition in *Giella* not being satisfied, the questions of the adequacy of damages and of the balance of convenience do not arise for decision, and I do not decide them. 6. Lest there be any misunderstanding, I should say this. Nothing in this ruling authorises any person to take the law into his own hands. This Court has determined no question of the plaintiff’s possession, and any party who claims a right to possession of any land must vindicate that right by lawful process and not by self-help. The plaintiff, for her part, retains whatever recourse the law affords her against unlawful conduct by any person, in the appropriate forum. ***(viii) Whether the suit should be saved by amendment*** 1. I have considered anxiously whether the course taken on 3rd July 2025 should be taken again. The Court leans towards sustaining suits rather than striking them out, and no litigant should lightly be shut out from a hearing on the merits: See **D.T. Dobie & Company (Kenya) Ltd v Joseph Mbaria Muchina & another [1980] eKLR; Philip Chemwolo & another v Augustine Kubende [1982–88] 1 KAR 1036.** I am also conscious that the plaintiff is an elderly widow who says she has lived on the land since 1998, that she says her health is poor, and that her claim to adverse possession has never been tried. 2. But the indulgence has already been extended once, in precisely the terms that would be appropriate now, and it was declined as a matter of deliberate choice rather than inadvertence. To grant it a second time, in a fresh file, would be to review the orders of 18th June 2026 by a side wind and to reward the very default which those orders addressed. The plaintiff’s remedy against the rulings of 3rd July 2025 and 18th June 2026 lies in the Court of Appeal, for which she has already been granted leave, and it lies there alone. 3. I should make plain what this ruling does and does not decide. It does not decide that the plaintiff has, or has not, acquired any right by adverse possession. It does not decide, and nothing in it should be read as deciding, that a claim to a portion of land comprised in KISUMU/KOGONY/1394 is barred by Kisumu ELCC No. 76 of 2015 I have expressly declined to so hold. Nor does it decide the questions raised by the 1st defendant’s pending application for review in Kisumu ELCLOS No. E022 of 2024, which remain for the judge seised of that file. What it decides is that this suit, pleaded as it is upon a parcel which this Court has already held does not exist, and filed as it is in the immediate aftermath of a refusal to reinstate an identical suit, cannot be entertained. **Costs** 1. Under section 27 of the Civil Procedure Act costs follow the event and are otherwise in the discretion of the Court. Considering the circumstances of the case and the parties herein, it is hereby directed that each party to bear own costs. **Disposition** 1. For the foregoing reasons, I make the following orders: 2. **The Notice of Preliminary Objection dated 26th July 2026 is upheld to the extent set out in this ruling.** 3. **The Originating Summons and Application dated 16th July 2026 are hereby struck out.** 4. **The interim orders issued herein on 20th July 2026, and any other interim orders subsisting herein, are hereby discharged.** 5. **Each party to bear own costs.** **RULING DATED, SIGNED AND DELIVERED AT KISUMU THIS 31ST DAY OF AUGUST 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of:** **Mr. Otieno Obiero for the Plaintiff/Applicant.** **Mr. Owino for the 1st Defendant/Respondent.** **N/A for the 2nd Defendant/Respondent.** **Court Assistant; Joanne Omondi.**