Bundi v Kiriinya (Enviromental and Land Originating Summons E001 of 2026) [2026] KEELC 4532 (KLR) (15 July 2026) (Ruling)

Bundi v Kiriinya (Enviromental and Land Originating Summons E001 of 2026) [2026] KEELC 4532 (KLR) (15 July 2026) (Ruling) Neutral citation: [2026] KEELC 4532 (KLR) Republic of Kenya In the Environment and Land Court at Isiolo Enviromental and Land Originating Summons E001 of 2026 JO Mboya, J July 15, 2026 Between Kenneth Kiriinya Bundi Plaintiff and Lawrence Daniel Kiriinya Defendant Ruling 1.The subject ruling touches on and concerns the Notice of Preliminary Objection dated the 05.05.2026, filed by and on behalf of the Defendant. The Preliminary Objection seeks to invalidate the Originating Summons dated the 09.04.2026, and to non-suit the Plaintiff. The preliminary objection is premised on various grounds. 2.The grounds underpinning the Preliminary Objection are:i.That this suit is Res judicata Isiolo Chief Magistrates Court E & L Number E001 of 2024 [Samuel Bund Thuranira Vs. Lawrence Daniel Kiriinya] and Isiolo High Court E & L Appeal Case Number E020 of 2025 [Lawrence Daniel Kiriinya vs. Samuel Bundi Thuranira] the former suits having been concluded as between the present Defendant and the father of the present plaintiff, and whom the Plaintiff now claims.ii.That the relief of adverse possession sought by the plaintiff under Section 38 of the Limitation of Actions Act is not Available, and incapable of being granted since the land, the subject matter of the claim, has no registered title.iii.That the land the subject matter of the claim herein being vested in the Isiolo County Council [now County Government] , the plaintiff cannot acquire any title thereto by dint of Section 41[a] [v] of the Limitation Actions Act.iv.That the claims herein do not raise any reasonable cause of action, are frivolous, vexatious and an abuse of the legal process in that:a.The entire claim is futile attempt to clothe previously decided issues in fresh garments of pleadings;b.The plaintiff is asking the court to sit in appeal or review over issue previously heard and determined by courts of competent jurisdiction;c.The registered Land Act, one of the Statutes cited in the title of the originating summons, is a repealed Act;d.Non-disclosure of the proceedings and outcome of High Court E & L Appeal No. E020 of 2025;e.The suit is replete with grave misconceptions of the meaning and application of the doctrine of Adverse Possession.v.That the entire suit is misconceived, incompetent and bad in law and merits to be struck out, with costs to the Defendant. 3.The subject came up for mention on the 01.07.2026, whereupon learned counsel for the defendant intimated to the court that same had filed and served a notice of Preliminary Objection dated the 05.05.2026. Learned counsel posited that the Preliminary Objection touches on and concerns inter alia, the jurisdiction of the court to entertain the originating summons and the competence of the suit. 4.Premised on the nature of the issues highlighted at the foot of the originating summons, learned counsel for the defendant sought directions to canvass the Preliminary Objection before further directions could be issued in respect of the Originating Summons. 5.Bearing in mind the established principle[s] of the law, as espoused in the case of Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), the court directed that the preliminary objection be disposed of beforehand. In addition, the court directed that the parties do file and exchange written submissions. 6.On the 15.07.2026 [today] the matter came up for mention to confirm whether the parties had filed and exchanged their written submissions. Learned counsel for the defendant intimated to the court that same had filed and served written submissions dated the 08.07.2026. However, counsel pointed out that the plaintiff had neither filed nor served any submissions. 7.Considering the directions issued by the court on the 01.07.2026, and bearing in mind the nature of the preliminary objection, the Court thereafter, reserved the ruling for delivery at 12:00 noon [even date]. 8.Learned counsel for the defendant filed written submissions dated the 08.07.2026 and wherein same [counsel] has highlighted and canvassed four [4] key issues. The issues are: The suit beforehand is prohibited by the doctrine of res judicata; the suit amounts to and constitute[s] an abuse of the court; the suit does not disclose any reasonable cause of action; and the suit /claim is contrary to the provisions of Section 41[a] [v] of the Limitation of Actions Act, Chapter 22 Laws of Kenya. 9.Learned counsel submitted that the Plaintiff’s Father, namely: Samuel Thuranira had filed a previous suit as against the defendants and the said suit was heard and determined. In addition, it has been submitted that the suit, namely; ELC Appeal Number E020 of the 2025 was heard and determined by this court, whereupon the court found and held that neither Samuel Thuranira [the plaintiff’s father] nor the defendant herein owned plot numbers Kambi ya Juu 1021 A, B and C, which were the subject of the appeal. 10.Additionally, it has been submitted that the subject suit is an attempt by the plaintiff, who is a son of Samuel Thuranira, to obtain favourable orders, which were not issued in favour of his Father. To this end, it has been submitted that the suit constitutes a subtle, albeit disguised attempt the invite this court to sit on appeal, on its own Judgment, which is neither acceptable nor legally tenable. 11.In addition, it has also been submitted that the suit property has neither been registered nor issued with any certificate of title. On the contrary, learned counsel has posited that the suit plot constitutes public land belonging to the County Goevernment of Isiolo. To this end, it has been submitted that the claim for adverse possession is legally untenable and does not lie. The provisions of Section 41 [a] [v] of the Limitations of Actions Act, Chapter 22 Laws of Kenya have been cited and relied upon. 12.Flowing from the foregoing, learned counsel for the defendant has contended that the suit by /on behalf of the plaintiff, is not only barred by the Doctrine of Res Judicata, but same constitutes an abuse of the due process of the court. Counsel has thereafter invited the court to find and hold that the suit is premature; misconceived; and does not disclose any reasonable cause of action. 13.Having reviewed the Notice of Preliminary Objection; the originating summons dated the 09.04.2026; and the written submissions dated the 08.07.2026, three [3] key issues emerge for consideration and determination. The issues are: Whether the instant suit is prohibited by the doctrine of res judicata or otherwise; Whether the suit discloses a reasonable cause of action; and Whether the suit constitutes an abuse of the due process of the court. 14.Regarding the first issue, namely; whether the suit is prohibited by the doctrine of res judicata, it is imperative to reiterate that the plaintiff concedes that his father, namely; Samuel Bundi Thurania had filed a previous suit vide Isiolo CMELC No. E001 of 2024. Moreover, the plaintiff has proceeded to and exhibited a copy of the judgment which was delivered by the lower court. [See exhibit KKB-2 attached to the supporting affidavit in respect of the Originating Summons]. 15.Suffice it to state that the lower court [Chief Magistrate court] entertained the suit and thereafter rendered a Judgment dated the 27.06.2025. The Chief Magistrate’s court found and held that the plaintiff in respect of the lower court matter [Samuel Bundi Thuranira] had neither proved nor established ownership to and in respect of plot numbers 1021 A and 1021 B – Kambi ya Juu. In addition, the learned trial magistrate also addressed the question of ownership of plot number 1021 C – Kambi ya Juu. 16.After considering the totality of the evidence that was tendered by the respective parties, the learned trial magistrate found and held that the plaintiff’s father [Samuel Bumdi Thuranira] and the defendant had not proved their claim[s] to the requisite standard, that is, on a balance of probabilities. 17.Thereafter, the learned trial magistrate proceeded to and dismissed the claims by /on behalf of the plaintiff’s father. Subsequently, the plaintiffs father filed an appeal vide Isiolo ELC Appeal number E020 of 2025. The appeal was heard and dismissed. Notably, both the suit in the lower court and the appeal before the Environment and land Court, touched on and concerned ownership of plots 1021 A, 1021 B and 1021 C, [the latter] which is now the subject of the instant case. 18.From the foregoing, what becomes apparent is to the effect that the question of ownership touching on and concerning the suit property, has been canvassed and adjudicated before the Chief Magistrate’s Court; and this court. In addition, there is no gainsaying that one of the parties in the previous suit and the appeal, was the plaintiff’s father. In this regard, it is evident that the plaintiff derives his rights [if any] from his father. Moreover, the Plaintiff has conceded that it is his Father who gave him [sic] the Plot in question. 19.Consequently, and in the premises, it can safely be stated and I hereby do state, that the plaintiff’s claim herein is res judicata. Simply put, the issue at hand, had been determined with finality. The subject cause of action is Res. 20.Additionally, I wish to add that both the Chief Magistrate’s court and the Environment and Land court, which adjudicated upon the original suit; and the appeal were courts of competent jurisdiction. Furthermore, the decisions that were made in respect of the suit and the appeal, were decisions on merit. It is also worthy to underscore that the decisions in questions were made in rem. The decisions touched on and bound the suit property. [See the provisions of Section 44 of the Evidence Act, Chapter 80 Laws of Kenya]. 21.Insofar as the question of ownership in respect of the suit property, had been dealt with, the same cannot be re – agitated afresh. It matters not whether the person now approaching the court is the son of a previous party. The crux of the matter is that the cause of action which is being canvassed, had been interrogated and determined. The said determination births cause of action res judicata. 22.In the case of Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR), the Court of Appeal highlighted and reaffirmed the ingredients that underpin the plea of res judicata. The court stated thus:74.“….res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms;(a)) The suit or issue was directly and substantially in issue in the former suit.(b)That 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 is raised.“75.The learned Judges were fully aware and applied their minds to these elements when, applying this Court’s decision in Uhuru Highway Development Ltd v Central Bank of Kenya [1999] eKLR they rendered the elements as;(a)the former judgment or order must be final;(b)the judgment or order must be on merits;(c)it must have been rendered by a court having jurisdiction over the subject matter and the parties; and(d)there must be between the first and the second action identity of parties, of subject matter and cause of action.”76.The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties 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 a pragmatic and common-sensical 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 and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.” 23.I do not wish to belabor the point. However, it suffices to reiterate that the current plaintiff cannot re-invent the suit/cause of action afresh; undertake cosmetic face – lifting; and thereafter seek to partake of a second bite on the cherry of justice under the guise of [sic] adverse possession. This kind of behavior is unacceptable. [See the holding in the case of Kahoro & 2 others (Suing on their Behalf and on Behalf of Members of Twendane Company Limited) v Kanyamwi Trading Company Limited [2025] KECA 941 (KLR). 24.I now wish to turn to the question whether the current suit is a subtle but disguised attempt to invite this court to sit on appeal, on its previous Judgment. Barring repetition, it is important to recall that the plaintiff’s father filed/lodged an appeal vide Isiolo ELC Appeal No. E020 of 2025 and which appeal was heard and determined. The appeal touched on and concerned the same subject matter. 25.It is important to highlight that both the chief magistrate’s court and this court [environment and land court] found and held that the plots, including the suit plot, did not belong to either Samuel Bundi Thuranira [Plaintiff’s Father] or the current defendant. In fact, it transpired that the disputed plots, including the suit plot constituted public land under the custody of the county Government of Isiolo. Besides, it also transpired that no letter of allotment had been issued to anyone, over and in respect of inter alia, the suit plot. 26.Despite the foregoing findings, which are finding in rem, the plaintiff in now back to this court and is seeking to be declared as having acquired ownership to the suit property [sic] on the basis of adverse possession. Technically, what the plaintiff is seeking to achieve is to circumvent and defeat the Judgment of the court issued vide Isiolo ELC Appeal number E020 of 2025. 27.I beg to state that the issue under reference cannot be revisited before this court. The issue was heard and determined with finality. This court cannot entertain the subject suit and to do so, would amount to sitting on appeal [by sidewind] which is legally untenable. 28.In a nutshell, I agree with the submissions by learned counsel for the defendant, that the plaintiff herein is merely inviting the court to have a second bite on an issue, which has since been determined. Such an endeavor is antithetical to the rule of law; and by extension the administration of justice. 29.In addition, such conduct also constitute[s] an abuse of the due process of the court. What amounts to an abuse of the due process of the court, has been the subject of various decisions. I wish to reference the decision in the case of MUCHANGA INVESTMENTS LTD v SAFARIS UNLIMITED (AFRICA) LTD & 2 others [2009] KECA 453 (KLR), where the Court of Appeal considered the concept of abuse of the due process of the court. 30.The court stated as hereunder:“In our view he, knowingly and dishonestly used the legal process to accomplish an ulterior purpose to that of the court process, which is to protect the interests of justice. We are of course aware that we cannot comprehensively list all possible forms of abuse of court process and that we cannot formulate any hard and fast rule to determine whether in any given facts, abuse is to be found or not, but in the circumstances of this case we do think that since the Originating Summons was instituted in the face of the admission of tenancy, this, in our view, does constitute an abuse of the court process. The 1st respondent and Mr Church did manifestly exploit the process whereas it was in our view clear to them that they lacked good faith in instituting the Originating Summons thereby causing prejudice and delay. The action was also wanting in bona fides and was oppressive to the appellant. All these in our view constitute abuse of process.To re-inforce the point, abuse of process has been defined in WIKIPEDIA, the free encyclopedia:“The person who abuses process is interested only in accomplishing some improper purpose that is collateral to the proper object of the process, and that offends justice.”In BEINOSI v WIYLEY 1973 SA 721 [SCA] at page 734F-G a South African case heard by the Appeal Court of South Africa, Mohomad CJ, set out the applicable legal principle as follows:-“What does constitute an abuse of process of the court is a matter which needs to be determined by the circumstances of each case. There can be no all-encompassing definition of the concept of “abuse of process.” It can be said in general terms, however, that an abuse of process takes place where the proceedings permitted by the rules of court to facilitate the pursuit of the truth are used for purposes extraneous, to that objective.” 31.To my mind, the subject suit fits within the parameters highlighted in the decision [supra]. Notably, the plaintiff before the court is actuated by ulterior motives. 32.Next is the issue of whether the originating summons discloses a reasonable cause of action. What constitutes a cause of action was defined in the case of Diana Katumbi Kiio v Reuben Musyoki Muli [2018] KECA 860 (KLR). The Court of Appeal opined thus:16. A cause of action' is:“.... every fact which is material to be proved to entitle a party to succeed and every fact which the defendant would have a right to traverse." per Aldous LJ in Ord vs Upton [2000] 1 All ER 193.Lord Esher, M.R. in the case of Read vs Brown (1888), 22 QBD 128, defined it as:-“Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court”.while Lord Diplock in Letang vs. Cooper [1964] 2 All ER 929 at pg 934 opined:-“A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.” 33.Back to the subject matter. Has the plaintiff established a cause of action as pertains to the suit property? To begin with, both the Chief Magistrate’s court vide CMCELC No. E001 of 2024 ; and this court vide ELC Appeal No. E020 of 2025, found and held that the defendant herein does not own the suit property. The said defendant has now been sued vide the subject suit and a claim of adverse possession has been raised. 34.The question that does arise, is whether a claim for adverse possession can arise against a person, who has been adjudged not to be the owner of the designated plot [property]. My answer is certainly, in the negative. 35.Most importantly, it is worthy to recall that this court had found and held that what constitutes the suit plot, is public land belonging to the county government of Isiolo; and which has not been alienated on the basis of any letter of allotment. To the extent that the suit property is public land, there is no gainsaying that the plea of adverse possession, cannot be canvassed in respect thereof. 36.The provisions of Section 41 [a] [v] of the Limitations of Actions Act Chapter 22 Laws of Kenya, stipulate thus:41.Exclusion of public landThis Act does not—(a)enable a person to acquire any title to, or any easement over—(i)i) Government land or land otherwise enjoyed by the Government;(ii)mines or minerals as defined in the Mining Act (Cap. 306);(iii)mineral oil as defined in the Mineral Oil Act (Repealed);(iv)water vested in the Government by the Water Act (Cap. 372)(v)) land vested in the county council (other than land vested in it by section 120(8) of the Registered Land Act (Repealed); or(vi)land vested in the trustees of the National Parks of Kenya; or(b)affect the right of Government to any rent, principal, interest or other money due under any lease, licence or agreement under the Government Lands Act (Repealed) or any Act repealed by that Act. 37.Simply put, a claim for adverse possession cannot be raised as pertains to land which belongs to the Government, whether National Government or County Government. The plea of adverse possession collapses, the moment the land in question constitutes public land. 38.In the case of Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] KECA 248 (KLR), the Court of Appeal clarified the obtaining jurisprudence in the following manner:“Until 1994 the property was Government land hence the period before 1994 does not account for the period to be computed in arriving at the statutory 12 years as there cannot be a claim of adverse possession against public land. See Wambugu v. Njuguna [1983] KLR 172” 39.In my humble view, the plaintiff’s claim before the court does not establish or demonstrate a reasonable cause of action. Moreover, it is common ground that the orders sought cannot issue over and in respect of the suit property [plot] bearing in mind the provisions of Section 41 [a] of the Limitations of Actions Act, Chapter 22 Laws of Kenya. Conclusion 40.The plaintiff approached the court vide originating summons seeking to be declared as the owner of the suit property [plot] on the basis of adverse possession. However, the plaintiff failed to appreciate that a claim for adverse possession, cannot be pursued over and in respect of public land. 41.Further, and in addition, it is also worth recalling that a claim for adverse possession only applies to registered land and not otherwise. The land in question, is yet to be registered. No certificate of title or lease, has ever been issued. No wonder, the plaintiff has not even exhibited [sic] a copy of the extract of title, in respect of the suit property. 42.Finally, it is worthy to point out that court proceedings ought to be filed and pursued for genuine causes. Parties, the plaintiff not excepted, should not be allowed to deploy the machinery of the court for ulterior motives. Those keen to abuse the court process, including the plaintiff herein, must be stopped on their track[s]. Final orders: 43.Flowing from the foregoing, it is apparent that the preliminary objection dated the 05.05.2026, is meritorious. The objection is well founded. It merits being allowed. 44.Consequently, and in the premises, the final orders that commend themselves to the court are:i.The Preliminary Objection dated the 05.05.2026 be and is hereby Allowed.ii.The Plaintiff’s suit vide Originating Summons dated the 09.04. 2026 be and is hereby struck out.iii.Costs of the Preliminary Objection and the suit shall be borne by the Plaintiff.iv.The costs in terms of clause [iii] shall be agreed upon and in default be taxed in the conventional manner. 45.It is so ordered. DATED, SIGNED AND DELIVERED AT ISIOLO THIS 15TH DAY OF JULY, 2026OGUTTU MBOYA, FCIArb; CPM [MTI].JUDGEIn the presence ofCourt Assistant: Zakayo/MukamiMr. Mwirigi Mbaya for the DefendantN/a for Mr. Kiogora Mugambi for the Plaintiff