Njoka & another v Korugari (Enviromental and Land Originating Summons E004 of 2025) [2026] KEELC 4573 (KLR) (16 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC (OS) NO. E004 OF 2025** **PATRICK MURIMI NJOKA..................................................1ST APPLICANT** **NJOKA IBRAHIM..............................................................2ND APPLICANT** **VERSUS** **PETERSON NGOROI KORUGARI..........................................RESPONDENT** **RULING** This Court is called upon to determine the Respondent's Notice of Preliminary Objection dated 29th May 2025 and, depending on its outcome, the Applicants' Notice of Motion dated 15th April 2026 seeking interlocutory injunctive relief pending the hearing and determination of the Originating Summons. The Originating Summons is brought under sections 7, 13, 17 and 38 of the Limitation of Actions Act. The Applicants seek declarations that they have acquired title to Land Parcel No. KYENI/MUFU/4017 by adverse possession and consequential orders directing their registration as proprietors. Pending determination of the suit, they seek orders restraining the Respondent from interfering with their occupation and possession of the suit property. The Respondent opposes both the Originating Summons and the interlocutory application. By his Notice of Preliminary Objection, he contends that the suit is barred by the doctrines of **res judicata** and **sub judice**. He states that the dispute over the same parcel of land had previously been litigated in **Embu CM ELC No. E016 of 2024**, wherein he sued the 2nd Applicant for eviction and obtained judgment after a full hearing. According to him, the Applicants are merely seeking to reopen issues that were conclusively determined by a court of competent jurisdiction. The Applicants oppose the objection and maintain that their claim for adverse possession has never been determined on its merits and therefore remains available for adjudication by this Court. Having considered the pleadings, affidavits, submissions and authorities cited by counsel, the Court is of the considered view that the Preliminary Objection ought to be determined first because, if merited, it is capable of disposing of the entire suit. The law governing preliminary objections is settled. In **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**, the former East African Court of Appeal held that a preliminary objection consists of a pure point of law capable of disposing of a suit without the necessity of calling evidence. A plea of res judicata founded upon previous proceedings whose record is before the Court is a proper point of law capable of determination at the preliminary stage. The doctrine of res judicata is codified under section 7 of the Civil Procedure Act. The section bars a court from trying a suit or issue that has already been directly and substantially in issue in a former suit between the same parties or parties litigating under the same title, where the former suit was heard and finally determined by a court of competent jurisdiction. In **Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR**, the Court of Appeal distilled the essential ingredients of the doctrine, while the Supreme Court in **John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR)** reaffirmed that the doctrine serves the public interest by bringing litigation to an end and protecting parties from repetitive suits over the same subject matter. From the material placed before Court, there is no dispute that the suit property in both proceedings is **Land Parcel No. KYENI/MUFU/4017**. There is equally no dispute that the Respondent's title to that parcel and the Applicants' continued occupation thereof formed the central controversy in the former proceedings. The previous suit culminated in a judgment and decree in favour of the Respondent after the matter was heard by a court of competent jurisdiction. Although the 1st Applicant was not named as a party in the former proceedings, that fact alone is not determinative. Section 7 of the Civil Procedure Act expressly extends the doctrine to parties litigating under the same title. Explanation (6) thereto provides that where persons litigate bona fide in respect of a private right claimed in common for themselves and others, all persons interested in such right shall, for purposes of the section, be deemed to claim under the persons so litigating. The pleadings before this Court demonstrate that the Applicants assert one indivisible claim founded upon the same alleged family occupation of the suit property. They claim to have occupied the land jointly as members of the same family and derive their alleged rights from the same source. The 1st Applicant does not assert an independent or distinct possessory interest separate from that of the 2nd Applicant. Rather, both seek identical declarations founded upon the same alleged acts of occupation over the same period against the same registered proprietor. This Court is therefore satisfied that the 1st Applicant claims under the same title as the 2nd Applicant within the meaning of section 7 of the Civil Procedure Act. His omission from the earlier proceedings cannot be employed as a device to reopen litigation that has already been concluded. The Applicants argue that the present proceedings are founded upon adverse possession and therefore raise a different cause of action. That submission cannot be accepted in the circumstances of this case. The doctrine of res judicata extends not only to matters actually determined but also to every issue which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, ought to have brought before the court. That principle, commonly known as the **Henderson v Henderson** principle, has long been accepted as part of Kenyan jurisprudence and was expressly endorsed by the Supreme Court in **John Florence Maritime Services Limited (supra).** The previous proceedings directly questioned the Applicants' continued occupation of the suit property and the Respondent's entitlement to recover possession thereof. If indeed the 2nd Applicant had acquired rights by adverse possession before institution of the former suit, nothing prevented him from raising every available defence to the Respondent's claim within those proceedings or pursuing such relief as the law permitted. Litigation must eventually come to an end. A party cannot, after suffering an adverse judgment concerning possession of the same land, commence fresh proceedings founded upon a legal theory which ought properly to have been raised when the earlier dispute was being adjudicated. To hold otherwise would encourage piecemeal litigation and permit unsuccessful litigants to reopen concluded disputes by merely altering the form of proceedings, introducing additional family members or advancing legal arguments that could and ought to have been presented earlier. Such an approach would defeat the very purpose for which the doctrine of res judicata exists. The Court is alive to the decision of the Court of Appeal in **Sugawara Limited v Isaac Kirubi Gichuki [2024] KECA 1417 (KLR)** regarding jurisdiction over claims founded on adverse possession. That decision, however, does not assist the Applicants in the peculiar circumstances of this case. The question presently before this Court is not whether the Magistrate's Court possessed jurisdiction to grant declarations of adverse possession. Rather, the issue is whether the Applicants, having fully litigated their entitlement to remain on the suit property in earlier proceedings and having allowed judgment to be entered, may institute fresh proceedings seeking substantially the same practical outcome against the same proprietor through a different procedural mechanism. In this Court's view, they may not. Equally, the plea of sub judice is not available since the previous proceedings had already culminated in judgment before institution of the present suit. The applicable doctrine is therefore res judicata. Having found that the Originating Summons is barred by section 7 of the Civil Procedure Act, it follows that the Notice of Motion dated 15th April 2026 cannot stand. An interlocutory application cannot survive where the substantive suit upon which it is founded is itself incompetent. In the end, this Court finds merit in the Respondent's Notice of Preliminary Objection. Accordingly, the Court makes the following orders— 1. The Respondent's Notice of Preliminary Objection dated 29th May 2025 is hereby upheld. 2. The Originating Summons dated 15th April 2026 is hereby struck out for being **res judicata** within the meaning of section 7 of the Civil Procedure Act. 3. Consequently, the Notice of Motion dated 15th April 2026 is struck out. 4. The Respondent shall have the costs of both the Preliminary Objection and the suit. It is so ordered. **DATED, SIGNED AND DELIVERED AT EMBU THIS 16TH DAY OF JULY, 2026.** **...............................................** **HON. JUSTICE E. CHERONO** **ELC JUDGE, EMBU** In the presence of; 1. Mr. Ireri for the Applicant-present. 2.Respondent/Advocate-absent. 3. Ruth C/A-present.