https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3817

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT BUSIA ELC APPEAL NO.E007 OF 2025 MUSA NANDIE KOSMA (Suing as the Legal representative of the Estate of SAMSON MBURUHA MURURU) ..................... APPELLANT VERSUS JACKTON OUMA ODUNGA .................. RESPONDENT JUDGMENT (Being an Appeal from the Ruling of Hon. Richard Odenyo SPM delivered on 16th April 2025 in Busia CMC ELC No. E033 of 2025) 1. By a plaint dated 22nd March 2024, the appellant herein instituted a suit in the lower court to wit Busia CMC ELC Case No.E033 of 2024 seeking judgment against the respondent for, inter alia:- a) An order of permanent injunction restraining the respondent by himself, his servants, workers and/or agents from cultivating or in 1 | P a g e any manner whatsoever putting to use LR No.Bukhayo/Bugendi/2165; b) An order of demolition of the illegally erected fence and eviction of the respondent, his servants, agents or any other person claiming through him from LR No.Bukhayo/Bugengi/2165. 2. As can be discerned from the averments in the plaint, the appellant’s suit was premised on the ground that the defendant had without any justifiable reasons or cause, entered onto the suit property which belongs to his deceased father, Samson Mbaruha Maruru, and hived off ¾ of an acre, fenced it off and planted trees thereon; that the alleged encroachment onto the suit property by the respondent was confirmed by the Land Registrar and Surveyor through their report dated 1st November 2023 and that efforts by the appellant to have the respondent relinquish the illegally acquired portion had been in vain. 2 | P a g e 3. The respondent filed a statement of defence, dated 30th July 2024 in which he inter alia contended that the court lacked jurisdiction to entertain the suit as it was res judicata Busia CMC ELC No. 104 of 2019. 4. Based on his plea that the suit was res judicata Busia CMC ELC No. 104 of 2019, the respondent filed a Notice of Motion (application) dated 5th September 2024 through which he sought to strike out the suit in limine on the said ground. 5. In reply and opposition to the application, the appellant filed the replying affidavit he swore on 18th November 2024 in which he acknowledged that there existed another suit between him and the appellant over the subject matter of the suit but contended that the former suit was not heard as the trial court declined jurisdiction. 3 | P a g e 6. Terming the application lacking in merit, the appellant urged the trial court to dismiss it with costs to him. 7. Upon considering the application, the trial court held that the suit was a replica of Busia CMELC Case No.104 of 2019 and accordingly struck it out on the ground that it was res judicata the former. 8. Aggrieved by the decision of the lower court, the appellant filed an appeal to this court challenging the decision of the trial court on the ground that the learned trial magistrate erred in law and fact in finding that the suit was res judicata Busia CMC ELC Case No.104 of 2019 which had been struck out for want of jurisdiction. 9. Claiming that the former suit was dismissed because it was not accompanied by the report of the County Land Registrar and the County Surveyor, the respondent contends that the circumstances in the suit hereto were different from 4 | P a g e the circumstances in the former suit because the suit hereto is supported by a report of the County Land Registrar and the Surveyor concerning the boundary dispute. 10. The appellant urges this court to set aside the ruling of the lower court dismissing his suit and substitute it with an order setting down the suit for hearing. 11. The appeal was disposed of by way of written submissions which l have read and considered. The appellant filed submissions on 10th March 2026 of even date and the respondent filed his on 22nd April 2026 dated 20th April 2026. 12. In exercise of the duty vested in this court as a first appellate court, I have re-evaluated the evidence adduced before the lower court with a view of reaching my own conclusion on it. I have reminded myself that a first appellate court will not ordinarily 5 | P a g e interfere with findings of fact by the trial court unless they were based on no evidence at all, or were based on misapprehension of the evidence or unless it is demonstrated that the trial court acted upon wrong principles in reaching the finding. In that regard, see Selle & another vs. Associated Motor Boat Co. Ltd (1968)E.A 123 and Mwanasokoni vs. Kenya Bus Service Ltd (1982-88)1 KAR and Kiruga vs. Kiruga & Another (1988)KLR 348. 13. As pointed out herein above, the appellant instituted the suit hereto seeking judgment against the respondent for an order of permanent injunction restraining the respondent by himself, his servants, workers and/or agents from cultivating or in any manner whatsoever putting to use L.R No.Bukhayo/Bugendi/2165 and an order of demolition of the illegally erected fence and eviction of the respondent, his servants, agents or any other person claiming through him from LR No.Bukhayo/Bugengi/2165. 6 | P a g e 14. The suit was premised on the the ground that the defendant had without any justifiable reasons or cause entered onto the suit property, which belongs to the appellant’s deceased father, Samson Mbaruha Maruru, and hived off ¾ of an acre fenced it off and planted trees thereon; that the alleged encroachment onto the suit property by the respondent was confirmed by the Land Registrar and Surveyer through their report dated 1st November 2023 and that efforts by the appellant to have the respondent relinquish the illegally acquired portion had been in vain. 15. In his statement of defence, the respondent inter alia contended that the court lacked jurisdiction to entertain the suit as it was res judicata Busia CMC ELC No. 104 of 2019. 16. It is not in dispute that there was a previous suit between the parties to the suit over the subject matter. The only issue that was in contention was whether the previous suit having been 7 | P a g e dismissed/struck out for want of jurisdiction, the doctrine of res judicata invoked by the respondent was applicable in the circumstances. 17. The law on res judicata is provided for in Section 7 of the Civil Procedure Act which provides as follows:- “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 claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in such issue has been raised, and has been heard and finally decided by such court”. 18. The doctrine of res judicata has been espoused in many decided cases of superior courts, the Court of Appeal and the Supreme Court. For instance, in John Florence Maritime Services Ltd & 8 | P a g e another vs. Cabinet Secretary for Transport and Infrastructure Supreme Court Petition No. 17 of 2025. the Supreme Court stated/held:- “Whenever the question of res judicata is raised, a Court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The Court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a Court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v. James Nderitu Githae & 2 Others, (2010) eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision. 9 | P a g e ...Courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in E.T v. Attorney- General & Another, (2012) eKLR, thus: “The Courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the Court. The test is whether the plaintiff in the second suit is trying to bring before the Court in another way and in a form of a new cause of action which has been resolved by a Court of competent jurisdiction. In the case of Omondi v. National Bank of Kenya Limited and Others, (2001) EA 177 the Court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the Court quoted Kuloba J., in the case of Njangu v. Wambugu and Another Nairobi HCCC SC PETITION NO. 17 OF 2015 Page 29 10 | P a g e of 64 No.2340 of 1991 (unreported) where he stated, ‘If parties were allowed to go on litigating forever over the same issue with the same opponent before Courts of competent jurisdiction merely because he gives his case some cosmetic face-lift on every occasion he comes to Court, then I do not see the use of the doctrine of res judicata…..” ...For res judicata to be invoked in a civil matter the following elements must be demonstrated: a) There is a former Judgment or order which was final; b) The Judgment or order was on merit; c) The Judgment or order was 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 identical parties, subject matter and cause of action. (See Uhuru 11 | P a g e Highway Developers Limited v. Central Bank of Kenya & Others [1999] eKLR and See the decision of the Court of Appeal in Nicholas Njeru v. Attorney General & 8 Others Civil Appeal 110 of 2011 (2013) eKLR)...” ...the courts have differed on whether the doctrine of res judicata is applicable to constitutional matters. Some of the decisions include In Okiya Omtatah Okoiti & Another v. The Attorney General and Another Petition No. 593 of 2013 [2014] eKLR where Lenaola J. (as he then was) held as follows: For res judicata to be invoked in a civil matter therefore, the issue in a current suit must have been decided by a competent court. Secondly, the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar. Thirdly, the 12 | P a g e parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating SC PETITION NO. 17 OF 2015 Page 30 of 64 under the same title. (See the case of Karia and Another v. The Attorney General and Others (2005) 1EA 83). It therefore follows that the essence of the doctrine of res judicata is to bring an end to litigation and a party should not be vexed twice over the same cause. This was what was held with approval in Omondi v. National Bank of Kenya Ltd and Others (2001) EA 177...” 19. In applying the said principles/tests to the circumstances of this case, where the former suit was dismissed for want of jurisdiction, the subsequent suit cannot be said to be res judicata the former because it was not heard and determined by a Court competent jurisdiction to hear and determine it. 13 | P a g e 20. Whereas the dispute brought before the court related to the former, in that it was between the same parties and over the same issues, there was change of circumstances in that the dispute had been heard by the body with jurisdiction and a decision or determination on it made, which decision could be used by the court to guide it in resolving the dispute brought before it, which dispute was not merely a boundary dispute but a claim for recovery of land claimed to have been encroached on by the defendant/respondent. 21. The upshot of the foregoing, is that I find the appeal to be merited and allow it as prayed. That is to say, I set aside the decision of the learned trial magistrate striking out the appellant’s suit and substitute it with an order dismissing the respondent’s notice of motion dated 5th September, 2024 with costs to the appellant. I also award the appellant the costs of the appeal. 22. Orders Accordingly. 14 | P a g e Judgement dated, signed and delivered at Busia this 28th day of May, 2026 in the absence of the parties L. N. WAITHAKA JUDGE Court Assistant: Tracy 15 | P a g e