https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4329

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUSIA** **ELC LOS NO. E014 OF 2024** **RISPER AJIAMBO MUSUMBA …………………….…. 1ST APPLICANT** **PATRICK WANDERA EMASE ………………….…….. 2ND APPLICANT** **JAMES WAFULA WANDERA …………………..…….. 3RD APPLICANT** **LINUS BARASA WANDERA …………………….…….. 4TH APPLICANT** **GABRIEL OKUMU MUSUMBA ………………….……. 5TH APPLICANT** **KIZITO WABWIRE MASIGA ………………………….. 6TH APPLICANT** **= VERSUS =** **GEOFREY APONDI ONYANG ………………….….…... RESPONDENT** **R U L I N G** **INTRODUCTION:** 1. The application by the Respondent in this matter dated 10.3.2026 seeks an order that the suit herein be struck out for being res-judicata as there exists a similar suit between the parties vide BUSIA CMC ELC Case NO 98 of 2018. The Applicant has also prayed for the costs of the application. **THE APPLICANT’S AFFIDAVIT:** 1. The Applicant has filed an affidavit in support of his application sworn on 10.3.2026 where he has deponed, inter alia, that BUSIA CMC ELC CASE NO 98 of 2018 was heard and determined between himself and PATRICK WANDERA EMASE who is the husband of RESPA ADHIAMBO MUSUMBA the 1st Respondent herein. 2. The Applicant has also deponed that the ultimate final decision was an order of eviction and in this regard the Applicant has annexed copies of the judgment and the decree in the said suit. 3. The Applicant further depones that the order against MR PATRICK WANDERA EMASE is an order binding against his wife RESPA ADHIAMBO MUSUMBA and the 3rd, 4th and 5th Respondents being the children of PATRICK WANDERA EMASE. 4. It is the Applicants’ position therefore that the instant suit is an abuse of the Court processes and should be struck out. **THE RESPONDENTS’ AFFIDAVIT IN REPLY:** 1. The Respondents’ affidavit sworn by one MR JAMES WAFULA may be summarized as follows: 2. That he is the son of PATRICK WANDERA EMASE who has historically occupied and utilized land parcel NO BUKHAYO/BUGENGI/6453 as his family land and the Respondents who are the wife and sons of the said PATRICK WANDEAR EMASE were born and raised on the said land and on which they have continuously resided on together as a family unit. 3. That the Respondents’ occupation of the suit land is ancestral and familial, continuous across generations, open, notorious and uninterrupted and without the consent of the registered proprietor. 4. That the Respondents were not parties to BUSIA CMCC ELC CASE NO 98 of 2018 and were therefore never heard in the said case despite having adverse rights over the said land. 5. That the present suit is fundamentally different because it is a claim for adverse possession by the Plaintiffs in their own rights and their actual occupation and possessory rights have never been adjudicated upon and their rights are independently and constitutionally protected. The previous suit did not determine the issue of adverse possession and the cause of action herein is therefore distinct and is not barred by the doctrines of Res-judicata. 6. That the judgment in BUSIA CMC ELC CASE NO 98 of 2018 is currently facing several post judgment challenges and lacks the finality required to sustain a plea of res judicata. 7. That the Defendants' title, if any, is subject to overriding interests including rights arising from adverse possession and customary family occupation. 8. That the application by the Respondent is a calculated attempt to defeat the Plaintiff’s claim and further that the striking out of the suit would occasion grave injustice to the Plaintiffs who have lived on the land their entire lives. **THE APPLICANT’S SUPPLEMENTARY AFFIDAVIT:** 1. The Applicant has deponed in his supplementary affidavit that the 1st Respondent is the wife of MR PATRICK WANDERA with whom he had a case to wit BUSIA CMC ELC Case NO 98 of 2018 which was decided in the Applicant’s favour; and that this relationship is clearly highlighted in an affidavit sworn in the said suit on 23.8.2024. 2. Consequently, it is the Applicants view that this suit is res-judicata. **ANALYSIS AND DETERMINATION:** 1. The only issue that arises for determination in this application is whether the suit is res judicata and whether therefore it ought to be struck out. On matters res-judicata **Section 7** of **Civil** **Procedure Act** 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 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.”** 1. Although the pleadings in BUSIA CMC ELC Case NO 98 of 2018 have not been annexed to any of the parties affidavits, a reading of the copy of the judgment annexed to the affidavit of the Applicant reads as follows in the opening paragraph: The Plaintiff prays for judgment against the Defendant for: 1. Orders of permanent injunction and eviction against the Defendants, his workers, agents or any other person claiming through him from L.R NO BUKHAYO/BUGENGI/6453. 2. Costs. 3. In the present suit, the Applicants have filed an originating summons under **Sections 37** and **38** of the **Limitation of Actions Act** and **Order 37** of the **Civil Procedure Rules**. In the said Originating Summons, the Applicants have sought the following orders: 4. That the Respondent’s rights over L.R NO BUKHAYO/BUGENGI/6453 got extinguished by adverse possession upon expiry of the 12 years from the date the Applicants came into possession. 5. That the Respondent be perpetually barred from taking and or using L.R NO. BUKHAYO/BUGENGI/6453. 6. That the Applicants be registered as the proprietor of L.R NO. BUKHAYO/BUGENGI/6453. 7. That the Respondent do execute all the relevant documents to facilitate the transfer of L.R NO. BUKHAYO/BUGENGI/6453 into the name of the Applicants and that in default the Deputy Registrar do execute the same in the place of the Respondent. 8. That the Respondents do pay the costs of this case. 9. It is clear from the pleadings in both suits that the issues for determination are clearly distinguishable. In the lower Court suit, the suit was only between the Applicant and one PATRICK WANDERA EMASE while the Applicants in the present suit are completely different though it is plain that they are the wife and the children of the Defendant in the lower Court suit. The issue that was determined in the lower Court did not involve the Applicants and the matter that was finally determined in that Court was whether the Plaintiff therein was entitled to orders of eviction and injunction and which were granted as against the Defendant therein. 10. The issue that is for determination in the present suit is whether the title of the Respondent herein has been extinguished by adverse possession in favour of the Applicants and whether therefore the Applicants ought to be registered as the new proprietors of the said property. 11. It is my view therefore that the matters directly and substantially in issue in the lower Court are not directly and substantially in issue in the present suit. Further, the dispute in the lower Court, other than having dealt with completely different issues, does also not concern the parties in the present suit. The issue of adverse possession as between the present parties has never been fully and finally determined by any Court. In the case of **Electoral and Boundaries Commission vs Maina Kiai and 5 Others (2017)** **eKLR,** the Court while on this issue delivered itself as follows: **“The non-commonality of issues apart, the plea of *res judicata* was bound to fail on the basis that the parties between the two sets of proceedings are not the same, or those claiming under the same parties and litigating under the same title.”** 1. I consequently do not find any merits in the application dated 10.3.2026 and the same is hereby dismissed with costs to the Respondents therein. **C. MUGAMBI** **JUDGE** **9TH JULY 2026** **Ruling dated, signed and delivered in open Court on this 9th day of July 2026.** **C. MUGAMBI** **JUDGE** **9TH JULY 2026** .