https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5103

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA** **AT HOMA BAY** **ELC APPEAL NO. E030 OF 2025** JOSEPH OGONDA OLUOCH (Appealing as the administrator of the estate of DOMTILA ATIENO AKECH) ...............APPELLANT **VERSUS** HELLEN ATIENO OWINO...............................1ST RESPONDENT GEORGE ODHIAMBO OKEYO.........................2ND RESPONDENT **JUDGEMENT** 1. This is a first appeal arising from the judgment and decree of the Senior Resident Magistrate's Court at Homa Bay (Hon. C.K. Auka, SRM) delivered on 18th August 2025 in Homa Bay MCELC No. 061 of 2022. The appellant, being dissatisfied with the entire judgment, lodged the present appeal vide a Memorandum of Appeal dated 10th September 2025. 2. The dispute revolves around land parcel number **Gem/Kowuor/Kotieno/1095** (hereinafter "the suit property"). The appellant, who is the administrator of the estate of the late Domtila Atieno Akech, instituted the suit before the trial court seeking rectification of the land register, cancellation of the 2nd respondent's title, eviction of the 2nd respondent from the suit property and costs of the suit. 3. The appellant's case before the trial court was premised on the fact that he had previously obtained judgment in Homa Bay CMELC No. E016 of 2021, wherein the court declared that the estate of the late Domtila Atieno Akech had acquired the suit property by adverse possession and directed that the property be transferred to the said estate. The appellant contended that during the pendency of that suit, the 1st respondent fraudulently transferred the suit property to the 2nd respondent with the intention of defeating the decree issued in the earlier proceedings. 4. The respondents denied the allegations of fraud. The 2nd respondent maintained that he lawfully purchased the suit property from the 1st respondent after conducting due diligence, obtaining the requisite Land Control Board consent and subsequently becoming the registered proprietor. He further contended that he was not a party to Homa Bay CMELC No. E016 of 2021 and only became aware of those proceedings after judgment had been delivered. He therefore maintained that the judgment could not bind him. 5. Upon hearing the parties, the learned trial magistrate found that the appellant had failed to prove fraud or any illegality in the transfer of the suit property to the 2nd respondent. The trial court further found that the 2nd respondent was an innocent purchaser for value without notice and declined to order rectification of the register or cancellation of the 2nd respondent's title. Consequently, the appellant's suit was dismissed with costs while the 2nd respondent's counterclaim was equally dismissed with no order as to costs. 6. It is that decision which provoked the present appeal. **Summary of the Evidence before the Trial Court** 1. The appellant testified as PW1 and adopted his witness statement together with his bundle of documents. His evidence was that his late mother purchased the suit property in 1998 and that the family had remained in occupation until they were allegedly evicted by the 1st respondent in the year 2005. He subsequently instituted Homa Bay CMELC No. E016 of 2021 and obtained judgment declaring that the estate of the deceased had acquired the suit property by adverse possession. 2. PW1 testified that upon attempting to execute the decree, he discovered that the suit property had already been transferred into the name of the 2nd respondent. He attributed the transfer to fraud and collusion between the respondents, contending that the transfer was deliberately undertaken during the pendency of the earlier suit to defeat the judgment. He therefore sought cancellation of the 2nd respondent's title and restoration of the suit property to the estate of the deceased. 3. During cross-examination, PW1 conceded that he had not executed the decree issued in Homa Bay CMELC No. E016 of 2021 because he found the land registered in the name of another person. He also acknowledged that the present suit was not one for adverse possession but one seeking cancellation of the title held by the 2nd respondent. 4. The 1st respondent testified as DW1. She denied the appellant's claim and maintained that the suit property belonged to the estate of Anditi Nyaongo. She testified that she sold the suit property to the 2nd respondent in the year 2018 while no one was in occupation of the land. Although she admitted being the defendant in Homa Bay CMELC No. E016 of 2021, she maintained that the deceased's family had no proprietary interest in the land and denied any fraudulent dealings. 5. The 2nd respondent testified as DW2. He stated that he purchased the suit property from the 1st respondent for valuable consideration after conducting an official search, obtaining the necessary Land Control Board consent and fulfilling all statutory requirements before the property was transferred into his name on 3rd December 2021. He denied having any knowledge of the proceedings in Homa Bay CMELC No. E016 of 2021 at the time of purchase and maintained that he was not joined as a party to those proceedings. 6. DW2 further testified that following registration, he took possession of the suit property, fenced it and undertook substantial developments thereon. He denied any allegations of fraud or collusion with the 1st respondent and maintained that he acquired a valid title as a bona fide purchaser for value without notice. 7. Upon considering the evidence and submissions filed by the parties, the trial court found that the appellant had failed to establish fraud or any illegality on the part of the respondents. The court further found that the 2nd respondent had lawfully acquired the suit property and dismissed the appellant's claim with costs. **The Appeal and Grounds of Appeal** 1. Dissatisfied with the entire judgment and decree of the trial court, the appellant lodged the present appeal through a Memorandum of Appeal dated 10th September 2025 raising five grounds of appeal. In summary, the appellant faults the learned trial magistrate for failing to give effect to the judgment rendered in Homa Bay CMELC No. E016 of 2021 and consequently arriving at a decision that contradicted the earlier determination. 2. Specifically, the appellant contends that the learned trial magistrate erred in law and fact by failing to appreciate the principles of **res judicata** and issue estoppel despite the existence of an earlier judgment involving the same suit property; by arriving at conclusions contrary to the evidence on record; by failing to uphold the principles of judicial consistency and finality of litigation; by permitting the respondents to re-litigate matters that had allegedly been conclusively determined; and by rendering a judgment that was against the weight of the evidence and established legal principles. 3. On the basis of the foregoing grounds, the appellant prays that this Court allows the appeal, sets aside the judgment and decree of the trial court delivered on 18th August 2025, substitutes the same with a judgment allowing the appellant's claim as prayed in the plaint, and awards him the costs of both the suit and this appeal. 4. The appeal was canvassed by way of written submissions, which this Court has carefully considered alongside the record of appeal, the proceedings before the trial court and the applicable law. **The Appeal and Grounds of Appeal** 1. Being dissatisfied with the judgment of the Senior Resident Magistrate delivered on 18th August 2025, the appellant lodged the present appeal vide a Memorandum of Appeal dated 10th September 2025 setting out five grounds of appeal. In summary, the appellant contends that the learned trial magistrate erred both in law and in fact by failing to appreciate the effect of the judgment in Homa Bay CMELC No. E016 of 2021, which had declared that the suit property had been acquired by adverse possession by the estate of Domtila Atieno Akech. The appellant faults the trial court for declining to apply the doctrine of res judicata and issue estoppel, thereby arriving at a decision that contradicted the earlier judgment. 2. The appellant further contends that the learned magistrate failed to appreciate that the earlier judgment conclusively determined the parties' rights over the suit property and that permitting the respondents to contest those rights offended the principles of finality of litigation and judicial consistency. Consequently, the appellant urges this Court to set aside the judgment of the subordinate court and substitute it with one granting the prayers sought in the plaint together with costs of both the suit and the appeal. 3. The appeal was canvassed by way of written submissions which this Court has carefully considered alongside the entire record of appeal. **Duty of the First Appellate Court.** 1. This being a first appeal, this Court is enjoined to reconsider and re-evaluate the evidence that was tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify and should therefore give due allowance for that fact. This duty was succinctly stated in the case of ***Selle & Another v Associated Motor Boat Co. Ltd*** where the Court held that a first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses. 2. Similarly, in ***Peters v Sunday Post Ltd* (1958) EA 424**, it was observed that while an appellate court has jurisdiction to review the evidence in order to determine whether the conclusions of the trial court should stand, it ought not to lightly interfere with findings of fact unless they are based on no evidence, on a misapprehension of the evidence, or the trial court acted on wrong principles. 3. Guided by the foregoing principles, I have carefully considered the pleadings, the evidence tendered before the subordinate court, the impugned judgment, the memorandum of appeal and the rival submissions. **Analysis of the Grounds of Appeal** 1. The five grounds of appeal revolve around one central question, namely whether the learned trial magistrate erred in declining to grant the appellant the reliefs sought on account of the earlier judgment in Homa Bay CMELC No. E016 of 2021. The grounds are therefore conveniently considered together. 2. The appellant's principal argument is that the dispute had already been conclusively determined in Homa Bay CMELC No. E016 of 2021 wherein the court declared that parcel number Gem/Kowuor/Kotieno/1095 had been acquired by adverse possession and ordered that it be transferred to the estate of Domtila Atieno Akech. According to the appellant, the trial court ought to have treated that judgment as binding and consequently ordered cancellation of the 2nd respondent's title. 3. However, a careful examination of the record reveals an inconsistency in the appellant's position. The record tells a different story and it shows that during the proceedings before the trial court, the respondents raised a Notice of Motion dated 2nd November 2023 seeking, among other things, to have the suit struck out on the basis that it was **res judicata** by virtue of Homa Bay CMELC No. E016 of 2021. In opposition thereto, the appellant filed a Replying Affidavit sworn on 24th November 2023 in which he expressly deponed that the present suit was **not** res judicata because, although some of the parties were similar, the issues for determination were different. The appellant urged the trial court to dismiss that application, and indeed the application was dismissed. 4. Having successfully persuaded the trial court that the present suit was not barred by the doctrine of res judicata, the appellant cannot now, on appeal, contend that the same suit ought to have been determined on the very basis he had previously opposed. Litigation must be conducted consistently, and a party cannot be permitted to approbate and reprobate by adopting mutually inconsistent positions in the same proceedings. To allow such conduct would undermine the integrity of the judicial process. 5. Moreover, the law pertaining to the doctrine of res judicata is captured under the provision of Section 7 of the Civil Procedure Act which states: “No court shall try any suit or issues 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 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.” 1. Section 28 of the Environment and Land Court Act also bars the court from adjudicating over disputes between the same parties and relating to the same issues previously and finally determined by any court of competent jurisdiction. 2. The doctrine of res judicata as stated has been explained in a plethora of decided cases. In the case of **Independent Electoral and Boundaries Commission –v- Maina Kiai & 5 Others (2017) eKLR,** the Court of Appeal held as follows: “Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in distinctive terms; a) The suit or issue was directly and subsequently in issue in the former suit. b) The former suit was between the same parties or parties under whom they or any of them claim. c) Those parties were litigating under the same title d) The issue was heard and finally determined in the former suit. e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue was raised.” 1. The Court of Appeal went ahead and explained the role of the doctrine thus: “The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as prigmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundation of res judicata thus rest in the public interest for swift, sure and certain justice.” 1. The res judicata principle is meant to lock out from the court system a party who has had his day in a court of competent jurisdiction from re-litigating the same issues against the same opponent. The question therefore is whether the conditions for the principle of res judicata in view of the fact of this appeal have been met. 2. It is evident from the record that the earlier suit, Homa Bay CMELC No. E016 of 2021, was litigated between the appellant and the 1st respondent only. By the time judgment was delivered on 27th July 2022, the suit property had already been transferred and registered in the name of the 2nd respondent on 3rd December 2021. The 2nd respondent was therefore neither a party to those proceedings nor afforded an opportunity to be heard before orders affecting his registered interest were made. 3. The right to be heard is a cardinal principle of natural justice. It would therefore have been contrary to the rules of natural justice to cancel the 2nd respondent's title solely on the basis of proceedings in which he did not participate. Although the appellant maintained that the transfer was undertaken during the pendency of the earlier suit, that fact alone could not automatically invalidate the 2nd respondent's title in the absence of cogent evidence establishing fraud, collusion or illegality on his part. 4. The record demonstrates that Homa Bay CMELC No. E016 of 2021 was a claim founded on **adverse possession**. The question before that court was whether the appellant, on behalf of the estate of Domtila Atieno Akech, had acquired title to land parcel No. Gem/Kowuor/Kotieno/1095 by virtue of long, uninterrupted, open and exclusive possession for the statutory period. Having considered the evidence presented before it, that court rendered judgment declaring that the appellant had acquired the suit property by adverse possession and ordered that the same be transferred to the estate of Domtila Atieno Akech. 5. The present suit, however, was neither a claim for adverse possession nor one seeking a declaration of rights founded on long occupation. Instead, the appellant instituted a fresh suit seeking, inter alia, rectification of the land register, cancellation of the 2nd respondent's title, and eviction of the 2nd respondent on the basis that the transfer of the suit property during the pendency of Homa Bay CMELC No. E016 of 2021 was fraudulent and intended to defeat the earlier judgment. The issues before the trial court therefore related to the legality of the transfer to the 2nd respondent, whether fraud had been proved against the respondents, and whether the appellant had established legal grounds for the cancellation of the 2nd respondent's title. 6. It is therefore evident that, although the two suits concerned the same parcel of land and involved **some** common parties, the causes of action and the issues for determination were fundamentally different. Whereas the earlier suit called upon the court to determine whether title had been acquired through adverse possession, the present suit required the court to determine whether the registration of the 2nd respondent as proprietor was tainted by fraud or illegality so as to warrant rectification of the register under the applicable land laws. 7. In my view, the learned trial magistrate cannot therefore be faulted for determining the issues placed before him independently of the earlier proceedings. The judgment in Homa Bay CMELC No. E016 of 2021 remained valid and binding upon the parties thereto in so far as it determined the claim for adverse possession. However, that judgment did not relieve the appellant of the burden of proving the allegations of fraud, illegality or collusion pleaded against the respondents in the present suit. Those allegations constituted a separate cause of action requiring independent proof. 8. Consequently, I find no merit in the appellant's contention that the learned trial magistrate disregarded the doctrine of res judicata or issue estoppel. To the contrary, the learned magistrate correctly appreciated that the dispute before him arose from a different cause of action and called for determination on the basis of the evidence adduced in that suit. The appellant's first four grounds of appeal therefore fail. 9. The Law of Evidence, in all its complex glory, naturally revolves around two cardinal things: facts and proof. It is these two that combine to form evidence, which the court may or may not accept as showing the merit or otherwise of a party’s case. Some facts are however more important than others and it is not just expected but demanded that these facts be proved by the party seeking to rely on them. Section 3 (2) & (3) of the [*Evidence Act*](https://kenyalaw.org/akn/ke/act/1963/46) provides as follows: 2.A fact is proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it exists. 3.A fact is disproved when, after considering the matters before it, the court either believes that it does not exist, or considers its nonexistence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does not exist. 10. Section 107 (1) of the [*Evidence Act*](https://kenyalaw.org/akn/ke/act/1963/46) provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Sub-Section (2) of the said provision provides that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. In terms of Section 108 of the [*Evidence Act*](https://kenyalaw.org/akn/ke/act/1963/46), the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 11. Fraud is a serious allegation which must not only be specifically pleaded but must also be strictly proved to a standard higher than a balance of probabilities though not beyond reasonable doubt. While the appellant pleaded particulars of fraud against both respondents, the evidence placed before the trial court fell short of demonstrating that the 2nd respondent knowingly participated in any fraudulent scheme or that he acquired the property with knowledge of the pending litigation. 12. The evidence before the trial court showed that the 2nd respondent entered into a sale agreement with the 1st respondent, conducted an official search, obtained the requisite Land Control Board consent and was thereafter registered as proprietor. There was no evidence that any restriction, inhibition, caution or court order had been registered against the title to alert him to the pending litigation. The learned trial magistrate cannot therefore be faulted for concluding that the appellant had failed to discharge the burden of proving fraud against the 2nd respondent. 13. The other crucial issue this court will address is whether the decree issued in Homa Bay CMELC No. E016 of 2021 remains valid and enforceable against the parties to those proceedings.? 14. The Court of Appeal has recently addressed the question as to whether or not the Magistrates courts have jurisdiction to entertain or adjudicate upon a claim for adverse possession. 15. In the case of Sugawara v Kiruti (Sued in her Capacity as the Administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others (Civil Appeal E141 of 2022) [2024] KECA 1417 (KLR) (11 October 2024) (Judgment), the Court of Appeal held thus; **‘’It is our view that, if it was intended that claims for adverse possession be determined by the Magistrates’ Court, nothing would have been easier than for Parliament to have expressly enacted such a provision. So that in view of the express provisions of the law, a strict interpretation of section 38 would mean that hearing and determination of such matters is specifically limited to the Environment and Land Court to the exclusion of Magistrates’ Court.** .**We come to this conclusion also bearing in mind that the jurisdiction of Magistrates’ Courts is largely determined by the pecuniary interest designated for determination by each level of the Magistracy specified in the hierarchy of courts, in terms of section 7 of the Magistrates Courts Act.In claims for adverse possession where the value of the land in question may be unknown, as in the instant case, it could be that by the time of filing, the value of the land subject of determination may be far in excess of the particular Magistrates’ Court’s pecuniary jurisdiction, which for all intents and purposes was not what was intended by the Act.** **In the circumstances, in view of the express provisions of section 38 of the**[***Limitation of Actions Act***](https://kenyalaw.org/akn/ke/act/1968/21)**, as did the Environment and Land Court, we find that Magistrates’ Courts do not have jurisdiction to determine the claims of adverse possession. As a consequence, the trial magistrate in the instant case rightly disregarded.’’** 1. Flowing from the foregoing decisions, there is no gainsaying that the Chief Magistrates court including the trial court whose decision underpins the instant appeal, is not vested with jurisdiction to address and adjudicate upon the issues pertaining to adverse possession. 2. Therefore, the proceedings beforehand and the resultant judgment were rendered by a court devoid and divested of jurisdiction under the law. Instructively, any proceedings undertaken by a court without jurisdiction and any resultant decision arising therefrom, are a nullity ab initio 3. In a nutshell, it is common ground that the entire proceedings that were conducted before the trial court in respect of **ELC NUMBER CMELC No**. **E016 of 2021** and consequential judgment arising therefrom are null and void. The same cannot be enforced in any manner and this court so declares 4. In [*Macfoy v United Africa Co. Ltd*](https://vlex.co.uk/vid/macfoy-v-united-africa-804792457) [1961] 3 All E.R. 1169, Lord Denning delivering the opinion of the Privy Council at page 1172 (1) said; “**If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”** 1. I find it rather misguided for the Appellant to rely on a decree that was overtaken by events by virtue of the law divesting a Magistrates court to hear and determine disputes relating to adverse possession. 2. To add salt to injury the Appellant then filed a fresh suit seeking cancellation of a title held by a person who had not been a party to the earlier proceedings could not succeed merely by relying on the existence of the previous judgment without independently establishing the legal basis for impeaching the registered title. 3. In the case of **Adiel Muriithi Philip v Thomas Maingi [2017] eKLR**where the Court of Appeal stated: **“[13] In this regard, Section 34 of the Civil Procedure Act is relevant. That provision provides as follows:** **“34(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit.” (Emphasis added).** **[14] A plain reading of the above provision shows that matters concerning discharge or satisfaction of a decree are determined by the court executing the decree.”** 1. The law is that any person who is not a party to a Suit cannot be held liable for the outcome of the Judgment in the said Suit. This is because a party cannot be held liable for the outcome of Court proceedings when he/she was not given opportunity to be heard or present his own case. Similarly, where Judgment is made against the whole world, a party cannot be held for contempt except the party or person in question is brought to the knowledge of the said judgment or order of the Honourable Court. See **Nigerian case of** ***YEKINI ABBAS VS SOLOMON (2001) FWLR (pt. 67) 847.*** 2. In the ordinary course of procedure, this Court has the bounden duty to strictly apply the rules. Conversely, the Court equally has the bounden duty to do justice in every way possible and exercise its soundest discretion to prevent a wrong.. Therefore, in pursuit of equity justice, this Court resolves to regard this Appeal as a backdoor attempt for revival of judgment so as to allow this Court to rule on the merits of the case, which cannot be countenanced as it will be prejudicial to the 2nd Respondent herein. 3. Consequently, I find no basis for interfering with the learned trial magistrate's finding that the appellant failed to prove the allegations of fraud or establish any legal ground warranting rectification of the land register or cancellation of the 2nd respondent's title. **Determination.** 1. Upon my own independent evaluation of the entire record, I am satisfied that the learned trial magistrate properly appreciated the issues before the court and correctly found that the appellant had failed to prove his claim against the respondents. The appellant has equally failed to demonstrate that the learned magistrate misdirected himself either on the law or on the evidence so as to warrant interference by this Court. 2. Accordingly, none of the grounds of appeal has merit. In the result, the appeal is hereby dismissed in its entirety. 44.The judgment and decree of the Senior Resident Magistrate in Homa Bay MCELC No. 061 of 2022 delivered on 18th August 2025 are hereby declared as a nullity for want of jurisdiction and the same is therefore unenforceable in law. 45.The appellant shall bear the costs of this appeal. Judgement dated and delivered at Homa Bay this 29th day of July 2026. **In the Presence of;** 1. Wara for the 2nd Respondent. 2. Adeya for Nyakwamba for the Appellant 3. Migele for the 1st Respondent. 4. Court Assistant, Awino. JUSTICE J.W WANYONYI – JUDGE 29/7/2026.