https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3315

Migai v Otieno & another (Enviromental and Land Originating Summons E010 of 2025) [2026] KEELC 3315 (KLR) (5 May 2026) (Ruling) Neutral citation: [2026] KEELC 3315 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Enviromental and Land Originating Summons E010 of 2025 FO Nyagaka, J May 5, 2026 Between Hellen Akinyi Migai Plaintiff and Walter Ochieng Otieno 1st Defendant Pamela Adhiambo 2nd Defendant Ruling 1.The Defendants/Applicants filed the instant application dated 13th May, 2025, seeking the following orders:1.This Honourable Court be pleased to strike out the Plaintiff’s suit against the 1st and 2nd Respondent for being res judicata.2.This Honourable court be pleased to dismiss the Plaintiff/Respondent’s Application dated 24th February, 2025 for interim orders (sic) and;3.Costs of the suit and this application be awarded to the 1st and 2nd Respondent. 2.The Application was based on grounds set out and supported by the Affidavit of Walter Ochieng Otieno the 1st Defendant sworn on 13th March, 2025. The depositions in the affidavit basically replicated the contents of the grounds in support of the application but in deposition form. I need not rehash them separately. 3.The applicant stated that the Plaintiff had initially instituted Oyugis ELC Cause 17 of 2020 against the Defendants. He further stated that the matter was heard and judgment delivered on 19th May, 2022 in favour of the Defendants. 4.He added that the Plaintiff being dissatisfied with the judgment filed an appeal being Homabay ELCLA E055 of 2022 which was also dismissed. He stated that instead of the Plaintiff lodging an appeal at the appropriate forum, he is seeking to rehash the same issues that had already been disposed of by a court of equal and competent jurisdiction. 5.He went further to state that the Plaintiff deliberately failed to disclose to the court that she unsuccessfully instituted a suit over the same subject matter and later appealed. 6.He stated that the Plaintiff sought to have a third bite of the cherry and deny the Defendants enjoyment of the fruits of their judgment together with their right to property. 7.To the affidavit he annexed three documents namely, a copy of the Application for temporary injunction that accompanied the suit dated 24th February 2020, as “WOO-1”; a copy of the trial Court’s judgment dated 19th May 2022 as “WOO-2”, and a copy judgment dated 7th November, 2023 in the Environment and Land Court Appeal Number E055 of 2022 as “WOO-3”. Response 8.The Plaintiff/Respondent filed her Replying Affidavit dated 24th October, 2025 where she deponed that she had instituted a case Oyugis PMC ELC 17 of 2020 as a representative of the estate of Zablon Migai Odero her late husband. She added that she had sought to assert the rights and interests of her late husband over land parcel number West Karachuonyo/Kanjira/927 that was later subdivided to West Karachuonyo/Kanjira/1619 and 1620. 9.She swore further that in the initial case, the claim was to enforce the sale agreement dated 30th April, 1983 for West Karachuonyo/Kanjira/927. She added that the Land Registrar was to cause a transfer of a portion of the said property. 10.She went on to depose that the matter was heard and determined in favour of the Defendants. She added that she had not instituted the said case in her own capacity but on behalf of the deceased. Further, that in the present suit, she has sued the Defendants in her own capacity claiming adverse possession on land parcel West Karachuonyo/Kanjira/1619. 11.She added that as advised by her advocate, a person acting in a representative capacity is considered a different legal party from the same person acting in their own capacity. 12.She swore that in the previous case, having sued a representative of the deceased estate, the case cannot be res judicata since in this case she had filed in her own capacity. 13.In conclusion, she urged the court to dismiss the application with costs as the same was not merited. Submissions 14.Counsel for the Plaintiff filed his submissions dated 16th January, 2026 where he identified one issue for determination, whether the Plaintiff’s current suit is barred by the doctrine of Res Judicata. 15.He relied on Section 7 of the Civil Procedure Act and the Court of Appeal case of Uhuru Highway Development Ltd V Central Bank of Kenya & 2 others [1996] eKLR which listed the elements for res judicata as follows:1.The issue in dispute in the new suit must be directly and substantially in issue in the former suit.2.The former suit must have been between the same parties or parties litigating under the same title.3.The former court must have been competent.4.The issue must have been heard and finally decided in the former suit. 16.It was her submission that in the instant case, the Plaintiff did not meet conditions (1), (2), and (4). She argued that in the former suit, the Plaintiff sued strictly as an Administratrix thus litigating on behalf of the Estate and not herself. 17.She went on to submit that an Administrator is a distinct legal entity representing the Deceased's estate and that in the previous case, she was fighting for the contractual rights of her late husband. 18.She argued that in the instant suit, the Plaintiff sues in her individual capacity asserting her own possessory rights accrued over time. She relied on the case of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR. 19.She further submitted that the subject matter of the litigation may concern the same physical land, but that the cause of action is legally distinct. She added that the former suit was based on a sale agreement where the Plaintiff sought to enforce the said agreement while the instant suit is based on adverse possession. She cited the case of Wambui v Mwangi [2021] eKLR (sic). 20.She also submitted that for Res Judicata to apply, the specific issue of adverse possession must have been adjudicated upon in the previous suit. She argued that in the former suit, the court only determined the validity of the sale agreement, but did not hear evidence regarding the duration, nature, or character of the Plaintiff’s physical occupation of the land. 21.It was her submission that the claim in the former suit was instituted via a Plaint while the present suit being a claim for adverse possession must be instituted via Originating Summons. 22.Counsel further submitted that since the procedures are distinct, the Plaintiff was entitled to file a separate Originating Summons to address the possessory rights. 23.In conclusion, she urged the court to dismiss the Defendants application with costs. 24.Counsel for the Defendants on the other hand filed his submissions dated 17th December, 2025 where he identified one issue for determination, whether the Plaintiff/Respondent’s suit initiated via Originating Summons dated 24th February 2025 is res judicata. 25.He relied on Section 7 of the Civil Procedure Act and the case of John Florence Maritime Services Ltd & another V Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) which set out the test for res judicata. 26.It was his submission that this court rendered judgment in Homabay ELCA E055 of 2022 Hellen Akinyi Migai v Clementina Adhiambo Nyambuga and Walter Ochieng Otieno and 4 Others on 7th November 2023 affirming the judgment of the Principal Magistrate Court in MCELC 17 of 2020 Hellen Akinyi Migayi (Suing as the Personal Representative of the Estate of Zablon Migai Odero) v Clementina Adhiambo Nyambuga and Walter Ochieng Otieno and 4 Others. 27.He further submitted that it is not in dispute that no appeal has been preferred against the judgment rendered by this court. He added that the matters in the previous suit were fully canvased before the Magistrates and the Environment and Land Court where both courts being of competent jurisdiction rendered judgment on merit. 28.It was counsel’s submission that the cause of action and parties in both suits must be identical. He went on and submitted that the subject matter, the subject matter of the present suit is West Karachuonyo/Kanjira/1619 while the subject matter in the previous suit was West Karachuonyo/Kanjira/927 being the original parcel before sub division. 29.He submitted that the contention by the Plaintiff/Respondent that the subject matter of the two suits is different is erroneous and aimed at misleading the court. 30.On cause of action, he submitted that in the present suit, the Plaintiff/Respondent claims she acquired the suit property through adverse possession. 31.He went on to submit that in ELCA E055 of 2022, the grounds of appeal contained in paragraph 2 of this court’s judgement show that the Plaintiff/Respondent, the Appellant then, challenged the Magistrates Court judgment on basis that she had been in open, notorious, peaceful and uninterrupted occupation of the suit property for the past 39 years. 32.Counsel submitted that the issue of ownership of the suit property and adverse possession were canvassed before courts of competent jurisdiction and the judgments remain valid. 34.It was counsel’s submissions that in the Magistrates’ Court proceedings, the Plaintiff was claiming in her representative capacity and thus the bar of res judicata applies. 35.He submitted that the Plaintiff/Respondent was at all times privy to the previous proceedings and cannot evade the doctrine of res judicata by merely changing capacities. He cited the case of Omondi V National Bank of Kenya Limited and others, [2001] EA 177 and Apondi V Canuald Metal Packaging [2005] 1 EA 12 as cited in Kenya Planters Cooperative Union Ltd v Kenya Commercial Bank Limited & 11 others [2016] KEHC 8619 (KLR). 36.He also submitted that the judgments in Oyugis PMELC 17 of 2020 and the appeal therefrom ELCA E055 of 2022 before this Honourable Court are res judicata since the issue of ownership and adverse possession regarding West Karachuonyo/Kanjira/1619, the suit property has already been determined between the parties. 37.In conclusion, he urged the court to allow the application as prayed and dismiss the Plaintiff’s suit with costs. Analysis and Determination 38.This court has considered the application, the response to it and the submissions by both parties and is of the view that two issues arise for determination. Whether the suit is res judicata and who is to bear the costs of the application. 39.The doctrine of res judicata is not a complex one to discern and determine. It is a preliminary point of law, but supported by evidence, and is taken by anyone when he or she is of the view that an issue between him and the other party(ies) litigating under the same title had been determined previously on merits by a court of competent jurisdiction. It means that the Court that handled it must have been legally empowered to make findings on it on merits. The res judicata point basically ousts the jurisdiction of the Court of competent jurisdiction to handle the matter once more since such a court is functus officio on the issue. It has no jurisdiction to go back to determine the same issue. 40.In Suleiman Said Shabhal v Independent Electoral & Boundaries Commission & 3 Others [2014] eKLR the Court of Appeal stated as follows:“To constitute res judicata, there must be adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy.” 41.Section 7 of the Civil Procedure Act provides for the application of the doctrine in Kenya. It stipulates 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.”. 42.The Court of Appeal in Uhuru Highway Development v Central Bank [1996) LLR CAK 2126 summarized the test in res judicata as follows:“(i)There must be a previous suit in which the matter was in issue;(ii)The parties must be the same or litigating under the same title;(iii)There must be a competent Court which heard the matter in issue;(iv)The issue must have been raised once again in a fresh suit;” 43.In the instant suit, the Defendants claim that the present suit was res judicata in so far as it related to Oyugis ELC Cause 17 of 2020 as filed by the Plaintiff which she later appealed in Homabay ELCLA E055 of 2022. It was his case that both suits had the same parties, subject matter and cause of action and ought to be dismissed. 44.The Plaintiff on the other hand contends that the suit was not res judicata since in Oyugis ELC Cause 17 of 2020 she had not filed the matter by herself but only as an administrator of her deceased husband. She also contends that the cause of action was different since in the initial suit the claim was with regard to a sale agreement while the present suit is a claim of adverse possession. 45.This Court has keenly perused the pleadings and the documents annexed, more particularly the judgment, annextures WOO1 and WOO3. It is not in contention that the Plaintiff and Defendants were parties in Oyugis ELC Cause 17 of 2020 as well as in the appeal ELCA E055 of 2022, albeit the fact that the same living being, the Plaintiff, christened herself as a legal representative and set to claim the suit land through an allegation that it was hers by virtue of an agreement. She does not deny the fact that when she laid such a claim, it was only though the evidence and allegation that her entry onto the land was by virtue of a purchase of the same by her husband, and had since resided on it for over twelve years. 46.The Plaintiff did not deny this fact this time round. She, however, subtly sued and included more parties as Defendants than were in the previous suit. Again, she now claims to have occupied the land as an individual rather than as a beneficiary of her husband’s estate. If such disingenuity were to hold water the question that would remain unaddressed is: when did the land bought by her husband become hers as an individual? Put in another way, did she ever buy the suit land as an individual or her husband bought it? Thus, when did it cease to be her husband’s property and revert to the original seller yet it was her husband’s property? I can only say in answer that it never did revert as to enable her to sue, and this turn around by the Plaintiff underrates the intelligence of this Court: it is sad. 47.Furthermore, when the Plaintiff sued in the trial court, why did she not include herself as an individual or other party in her current alleged status as a second Plaintiff so that the Court would determine all the issues in controversy as between her and the Defendant(s) at once? Was she not aware of the capacities she was suing in then and now? Had she done the right thing the court could have determined the rights of all parties at the time. How could she consciously sue as a personal representative of the Estate and yet as a living being she could not understand and sue as an individual? The Plaintiff was being ‘clever’ by instituting this suit. 48.On the subject matter, it is not in contention that the suit property in both cases relate to West Karachuonyo/Kanjira/927 and its subdivisions West Karachuonyo/Kanjira/1619 and 1620. 49.In addition, the reliefs sought in the previous suit sought for permanent injunction restraining the Defendants from interfering with the suit properties. This court also notes that the Plaintiff raised the issue of adverse possession as part of her evidence in the former suit where the court on appeal made a determination on the same. 50.Notably, the instant suit also seeks for similar orders of adverse possession on the suit properties as in the former suit. 51.In the case of E.T. v. Attorney General and Another (2012) eKLR the court held as follows:“The Court must always be vigilant to guard against litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court in another way and in the form of a new cause of action which has been resolved by a court of competent jurisdiction” 52.It is this court’s view that the parties are the same in both suits. Courts should always guard against parties who cleverly move to ‘transform’ causes of action by changing some minor elements or parties in order to go around the hurdle of similarity. Put in another way, courts must be vigilant and guard against litigants who evade the clear doctrine of res judicata by introducing new causes of action to seek the same remedy as previously determined. Once a party has had his bite on the cherry, adding another would choke the said party. 53.In addition, courts must jealously guard the doctrine of res judicata in order to unmask it when parties subtly draft pleadings as to add new reliefs and break down facts and issues that were previously determined in order to present them as new. This is what the Plaintiff sought to do in this case and the court cannot permit it. 54.It is this court’s view that the court already determined the issues between the parties Oyugis ELC Cause 17 of 2020 and ELCA E055 of 2022 on merit. 55.This court is being called upon to determine the same in a subsequent matter, clothed in the form of an Originating Summons but in essence seeks to re-open the closed chapter as between the parties. 56.Consequently, this court allows the application as prayed with costs and proceeds to strike out the Plaintiff’s suit and the application dated 24th February, 2020 with cost to the Defendants. 57.It is so ordered. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 5TH DAY OF MAY 2026.HON. DR. IUR NYAGAKAJUDGEFrom 1:29 PM, in the presence of,Ms. Nyarige Advocate for the Plaintiff/RespondentMs. Muthoni Advocate for Defendants/Applicants