https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4714

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELCLA CASE NO. E110 OF 2024** JANES AYOO NYAKENO & SAMWEL AJWANG (Suing as Legal Representatives of the Estate of MARGARET ODOYO OKENO……………………………………………………APPELLANTS **VERSUS** **CHARLES NYIDHA……………………..................... RESPONDENT** ***(Appeal from the Judgment and Decree of Hon. D.K. Mtai in Winam MCEL E033 of 2024)*** **JUDGMENT** ## Introduction [1] This appeal challenges the Judgment and ensuing Decree in Winam Land Case No. E033 of 2024. The Appellants herein, Janes Ayoo Nyakeno and Samwel Ajwang, instituted the original suit in their capacity as Legal Representatives of the Estate of Margaret Odoyo Nyakeno (Deceased), against the Respondent, Charles Nyidha, the registered proprietor of the adjacent land parcel known as Kisumu/Kogony/6389. The crux of the dispute concerns the closure of an access road that traverses several land parcels. The Appellants assert that this constitutes a public access road essential for reaching their properties, while the Respondent contends that the road was unlawfully created, subsequently declared an illegality by a competent court of coordinate jurisdiction, and duly ordered closed and deleted from the registry maps. [2] The Trial Magistrate dismissed the Appellants’ suit with costs on the basis that it offended the doctrine of *res judicata* under Section 7 of the Civil Procedure Act. Aggrieved by this outcome, the Appellants have appealed to this Court to overturn the Trial Court’s decision. **Background of the Case** [3] Evidence on record shows that, prior to her death, Margaret Odoyo Nyakeno executed a land exchange agreement on 5 September 2006 with Michael Oginga Dache (the Respondent’s brother). Under this agreement, the mother title Kisumu/Kogony/1103 was subdivided in or around 2011 into two distinct parcels: Kisumu/Kogony/5550 and Kisumu/Kogony/5551. Following this subdivision, Kisumu/Kogony/5551 was transferred to and registered in the name of Michael Oginga Dache, while Kisumu/Kogony/5550 remained with Margaret Odoyo Nyakeno’s Estate. [4] Documentary and oral evidence shows that sometime between 2012 and 2013, an access road was constructed across several parcels, including Kisumu/Kogony/6389 (owned by the Respondent), Kisumu/Kogony/5551 (owned by Michael Oginga Dache), Kisumu/Kogony/1102, and Kisumu/Kogony/1025 (owned by the Late Lazaro Ogonji and used by Raymond Okello Ogonji, his son). The creation of this road prompted Michael Oginga Dache to institute Kisumu CM ELC Case No. 266 of 2018 (initially filed in the High Court as ELC Case No. 21 of 2014 before being transferred), against the Kisumu District Land Registrar, the Kisumu District Land Surveyor, the Commissioner of Lands, and the Attorney General. He sought permanent injunctions and an order amending the Registry Map Sheet No. 5 of the Kogony Registration Section to delete the access road, arguing that it was created illegally, unprocedurally, and without the affected proprietors’ consent. [5] On 31 May 2023, Hon. W.K. Onkunya, Principal Magistrate, delivered a judgment in Kisumu CM ELC Case No. 266 of 2018, finding that the defendants had created the access road illegally, without complying with the statutory requirements under the Public Roads and Roads of Access Act or the Land Registration Act. The court issued a decree ordering the deletion of the road from the registry map and permanently enjoined the defendants and any persons claiming through them from opening the access road. [6] Following the issuance of this decree, the Respondent herein, Charles Nyidha, erected a gate and fence on his own property (Kisumu/Kogony/6389), effectively blocking the road that had been declared illegal. In response to this closure, the Appellants filed Winam Land Case No. E033 of 2024 via a Plaint dated the 9th of July 2024. The Appellants averred that on or about the 30th of May 2024, the Respondent illegally caused the closure of a public access road by erecting a fence, putting up a gate, and felling trees across the road without justifiable cause. They claimed this action left them completely landlocked, forcing them to park their vehicles at a distance at Riat Centre and climb over obstacles to access their homes situated on Kisumu/Kogony/5550 and 5551. The Appellants sought a permanent injunction restraining the Respondent from blocking the road, alongside general damages and costs. [7] The Respondent filed a Statement of Defence on 15 August 2024, denying the allegations and asserting that the Appellants lacked locus standi to litigate over Kisumu/Kogony/5551, as that parcel belonged to his brother. The Respondent also pleaded that the suit was an abuse of the court process and was barred by the doctrine of res judicata, given the determination in Kisumu CM ELC No. 266 of 2018, which declared the road in question an illegality and ordered its closure. ## Summary of the Evidence Adduced Before the Trial Court ### **The Appellants’ Evidence** [8] PW1, Janes Ayoo Nyakeno, testified that the Respondent began laying poles and felling trees along the public access road on 9 May 2024, culminating in the road’s complete closure on 30 May 2024 by erecting a fence and a gate. PW1 further testified that this action was taken unilaterally, without the involvement or authorisation of the County Surveyor or neighbouring property owners. Consequently, he stated that the beneficiaries of the estate were rendered landlocked, severely curtailing their constitutional right to the peaceful enjoyment of their property under Article 40 of the Constitution of Kenya. [9] During cross-examination, PW1 confirmed the existence and validity of the 2006 land exchange agreement between his late mother and Michael Oginga Dache. He acknowledged that pursuant to this agreement, Kisumu/Kogony/5551 was transferred to Michael Oginga Dache in 2011, and he remains the registered owner and occupier of the parcel to date. Secondly, PW1 conceded that the road he sought to have the court reopen was the same one that passed through Michael Oginga Dache’s property (5551) and which had been ordered closed and deleted from the map by the Kisumu Court in 2018. Most notably, PW1 confirmed that Kisumu/Kogony/5550 (the parcel belonging to the estate he administers) possessed its own original access road originating from the mother title, which was separate and distinct from the disputed road crossing the Respondent’s land. He acknowledged that his son occupies 5550 and retains access via this original road. [10] PW2, Sylvia Indagasi, an officer from the Kisumu County Land Surveyor’s office, was called to produce and speak to a Survey Report dated 29 August 2024. The report noted that, upon physical inspection and plotting, land parcels 5550 and 5551 originally had two access roads shown on the map. One six-metre road for access from the northern side was found not to exist on the ground. The report further confirmed that a metallic structure had been erected, obstructing passage on the alternative lower road, and that this structure had been erected by the proprietor of Kisumu/Kogony/6389 (the Respondent). [10] Under cross-examination, PW2 stated that every original parcel in the area prior to subdivision had its own access road, including Kisumu/Kogony/1103 and Kisumu/Kogony/1027. She confirmed awareness of the judgment and decree in Kisumu CM ELC No. 266 of 2018. She averred that the road passing through Kisumu/Kogony/6389 and Kisumu/Kogony/5551, which the Respondent had blocked, was the same road that the Trial Court in 2018 had found to be illegally created and ordered deleted from the registry maps. Additionally, PW2 acknowledged that when the office of the County Surveyor received the 2018 decree, it attempted to implement it by physically deleting the road from the map. However, she claimed that she was immediately called by the Provincial Administration and directed to reverse the closure of the road, citing “problems with the implementation of the court decree”. She stated that the County Surveyor’s office never filed an appeal against the 2018 judgment, nor did it formally apply to the Trial Court to review the decree on the basis of these alleged implementation difficulties. ### **The Respondent’s Evidence** [11] DW1, Charles Nyidha, the Respondent, stated that he is the registered owner of Kisumu/Kogony/6389. He confirmed that he erected a gate on his property, but maintained that the action was lawful, justified, and in direct compliance with a valid court decree. He testified that the road crossing his land had been imposed on him and his neighbours in 2012-2013 without their consent. Following litigation in Kisumu CM ELC No. 266 of 2018, in which he actively participated and gave evidence as a witness, the court determined that the road was illegal and ordered it removed from the map. DW1 stated that he erected the gate to secure his private property against trespassers, as affirmed by the court’s decree. He further clarified that Kisumu/Kogony/5551 is owned by his brother (DW2), that the Appellants have no proprietary interest in it, and that parcel 5550 has its own distinct access road created during the original subdivision. [12] DW2, Michael Oginga Dache, adopted his witness statement as evidence in chief, in which he testified that he is the registered proprietor of Kisumu/Kogony/5551. He corroborated the history of the subdivision and the subsequent creation of the road across his land and the Respondent’s land. He further testified that he instituted the 2018 suit to remove this illegal encroachment. He confirmed that the trial court found in his favour and issued a decree ordering the road's closure. DW2 also testified that he fully supported his brother's (the Respondent's) decision to close the access road at the boundary. He highlighted that the Appellants’ estate property (5550) was not affected by this closure, as it had an alternative route. DW2 also gave evidence on parallel applications by the Appellants to be joined in the 2018 suit, asserting that the Appellants were attempting to litigate the same issue across multiple forums. [13] DW3, Raymond Okello Ogonji, whose family owns Kisumu/Kogony/1025, testified that the subject road had also run across their land without their consent. He confirmed that he had participated as a witness in the 2018 suit, in which he had testified against the road’s legality. DW3 further posited that the Appellants were not genuinely landlocked but were merely acting as proxies for other disgruntled individuals seeking to circumvent the 2018 decree by bringing a fresh suit. ## The Decision of the Trial Court [14] By a judgment delivered on the 26th of November 2024, the Trial Magistrate dismissed the Appellants’ suit in its entirety and awarded costs to the Respondent. The court held that the legality, existence, and status of the public access road leading through the Respondent's parcel and into Kisumu/Kogony/5551 had already been exhaustively heard and conclusively determined by Hon. W.K. Onkunya in Kisumu CM ELC No. 266 of 2018. The court reasoned that granting the orders sought by the Appellants would effectively amount to setting aside, varying, or nullifying the judgment and decree issued in 2023 by a court of coordinate jurisdiction regarding the same subject matter. **Summary of the Memorandum of Appeal** [15] Aggrieved by the dismissal, the Appellants lodged a Memorandum of Appeal dated the 5th of December 2024, delineating seven grounds that the Trial Magistrate: 1. Erred both in law and fact in making a finding that the Appellants did not prove their case on a balance of probabilities as required in civil cases. 2. Erred in law in elevating the standard of proof to beyond a reasonable doubt, which should not be the case in civil cases. 3. Erred in law and in fact in making a finding that the Appellants’suit offends the provisions of Section 7 of the Civil Procedure Act. 4. grossly misdirected himself by failing to consider the Surveyor’s report and its probative value, consequently arriving at a wrong decision. 5. Grossly misdirected himself in completely ignoring the submissions by the Appellant and the authorities presented before him and thus arriving at a wrong decision. 6. Failed to apply himself judicially and to adequately evaluate the evidence and exhibits tendered, thereby arriving at a decision unsustainable in law. 7. Erred in law and in fact in dismissing the Appellants’ suit with costs. The Appellants prayed that the appeal be allowed, that the judgment of the Trial Magistrate delivered on 26th November 2024 be set aside, and that judgment be entered in their favour, granting a permanent injunction restraining the Respondent from blocking the public access road. ## Summary of Submissions in this Appeal [16] On the issue of res judicata, the Appellants argued that the Trial Magistrate committed a grave error of law by applying the elements of Section 7 of the Civil Procedure Act disjunctively rather than conjunctively. Relying on the Court of Appeal decisions in ***Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others eKLR, National Land Commission v The Registered Trustee of the Arya Pratinidhisabha Eastern Africa & Another [2017] eKLR,*** and ***Kenya Commercial Bank Limited v Benjoh Amalgamated Limited [2017] eKLR,*** the Appellants submitted that for res judicata to operate as an absolute bar, all elements must be satisfied simultaneously, particularly the requirement of identical parties. [17] The Appellants submitted that they were neither parties to Kisumu CM ELC No. 266 of 2018 nor were they notified of those proceedings. They argued that the 2018 suit involved the ownership of Kisumu/Kogony/6389, and the Respondents therein closing a public road. They submitted that the element of identity of parties failed, rendering the doctrine of res judicata inapplicable. [18] The Appellants submitted that the Trial Magistrate ignored the probative value of the Surveyor’s Report (PW2’s evidence), which they argued demonstrated that a blockage had been erected by the Respondent, denying them access to their property. [19] They contended that the Trial Magistrate inexplicably elevated the standard of proof to a criminal standard of beyond reasonable doubt, rather than determining the matter on the requisite civil standard of a balance of probabilities. To support their understanding of the standard of proof, they cited ***Miller vs. Minister of Pensions (1947)*** as adopted in ***D. T. Dobie & Company (K) Ltd v Wanyonvi Wafula Chebukati [2014] eKLR.*** [20] Relying on Article 40 of the Constitution, the Appellants asserted that their fundamental right to the peaceful enjoyment of their property was violated by the Respondent's unilateral closure of the road, which rendered them landlocked and posed a severe hazard in the event of an emergency. Citing ***County Government of Meru v Mukuchia & 11 others [2025] eKLR,*** the Appellants argued that they will suffer irreparable injury if a permanent injunction is not granted. The Court of Appeal in this case held that: ***“Public roads are essential for economic and sustainable development, as they facilitate the movement of goods and people boosting commerce and creating job opportunities. They also support access to education, healthcare, and essential services. Arbitrarily closing these roads can disprupt local economies, hinder mobility, and negatively impact communities relying on these infrastructure networks for their daily activities and economic well-being.”*** [21] Finally, relying on ***Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR,*** they argued that, having proved their case, costs should have followed the event in their favour. [22] The Respondent countered that the Trial Court’s judgment was unimpeachable, firmly grounded in law, and fully supported by the evidence. Addressing the standard of proof, the Respondent submitted that the Appellants fundamentally misapprehended the Trial Magistrate’s application of the law. The Respondent argued that the Trial Magistrate did not, at any point, elevate the standard beyond reasonable doubt. Rather, the court found that the Appellants failed to meet the requisite civil threshold of the balance of probabilities. The Respondent cited ***Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR*** on the correct application of the civil standard. [23] On the issue of res judicata, the Respondent submitted that the Trial Magistrate had acted impeccably. The Respondent argued that the legality and existence of the subject access road had been the central, substantive issue in the 2018 case. A competent court had declared the road illegal and ordered its closure. The Respondent maintained that the Appellants’ suit was a thinly veiled attack on an existing, valid judgment. The Respondent relied on the Supreme Court's pronouncement in ***John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others [2021] eKLR*** to emphasise the public policy imperative of bringing litigation to an end. [24] The Respondent submitted that the physical existence of a road, as observed by the Surveyor, cannot supersede or invalidate a valid judicial decree that has declared the said road unlawful in law. The Respondent urged the court to dismiss the appeal in its entirety with costs. ## Analysis and Determination [25] This Court has examined the Record of Appeal, the Trial Magistrate’s decision, the grounds in the Memorandum of Appeal, counsel’s submissions, and relevant case law. The outcome of this appeal largely depends on three key aspects: the responsibilities of a first appellate court; the legal principles relating to res judicata; and the Trial Court’s approach to the burden and standard of proof when assessing evidence. **The Duty of the First Appellate Court** [26] It is a well-established tenet of appellate jurisprudence that a first appellate court conducts a retrial. The court is obliged to subject the entire evidence on the record to fresh and exhaustive scrutiny, re-evaluate it, and draw its own independent conclusions. However, this expansive mandate is tempered by the necessary caution that the appellate court lacks the advantage of observing witnesses’ demeanour first-hand. [27] This principle was comprehensively articulated in ***Bonsa v Ngaruthi [2025] KEELC 4383 (KLR),*** where the court extensively quoted the Court of Appeal’s pronouncement in ***Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR).*** The Court of Appeal stated: ***“37. We have considered the appeal and this being a first appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same”.*** [28] This caution echoes ***Peters v Sunday Post Ltd [1958] EA 424,*** where the court stated that: ***“Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. [...] The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.”*** Guided by these parameters, the Court will re-evaluate the substantive grounds of appeal. ### **The Doctrine of *Res Judicata*** [29] The fulcrum of this appeal, addressed in Ground 3, is whether the Trial Court correctly held that the case was barred by res judicata under Section 7 of the Civil Procedure Act. *Res judicata* is a key principle of the adversarial legal system, designed to ensure the finality of judgments, prevent multiple lawsuits, and protect parties from being sued twice over the same issue. Section 7 of the Civil Procedure Act (Chapter 21, Laws of Kenya) provides 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.* *Explanation (1)- The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.* *Explanation (2)- For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court. Explanation (3)-The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation (4)- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.* *Explanation (5)- Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. Explanation (6)- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.”* [30] The Court of Appeal outlined the five conjunctive elements of the doctrine in ***Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others (supra),*** which both parties relied upon. The Court stated: ***“Thus, for the bar of 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;*** 1. ***The suit or issue was directly and substantially in issue in the former suit.*** 2. ***That former suit was between the same parties or parties under whom they or any of them claim*** 3. ***Those parties were litigating under the same title*** 4. ***The issue was heard and finally determined in the former suit.*** 5. ***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.”*** [31] The Supreme Court of Kenya articulated the rationale for the doctrine in ***John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others (supra):*** ***“[53] The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end...”*** [31] The Appellants’ primary contention is that the elements of *res judicata* must be applied conjunctively, and that in this case the element requiring identical parties was absent. A perusal of the Record of Appeal shows that in the former suit (Kisumu CM ELC No. 266 of 2018), the Plaintiff was Michael Oginga Dache, and the Defendants were administrative bodies, the Kisumu District Land Registrar, the Kisumu District Land Surveyor, the Commissioner of Lands, and the Attorney General. The Winam suit (E033 of 2024) features the Appellants suing a private individual, Charles Nyidha (the Respondent), for obstructing his private parcel, Kisumu/Kogony/6389. [32] A careful, intentional reading of Section 7 of the Civil Procedure Act, particularly Explanation (6), reveals that the central issue in both the 2018 and 2024 cases is whether a single public access road passing through parcels 6389, 5551, 1102, and 1025 is lawful and exists. In the 2018 case, Michael Oginga Dache challenged the legality of this public road built on his private land. Explanation (6) provides that where persons litigate bona fide in respect of a public right, all persons interested in that right are deemed to claim under the persons so litigating. As rightly observed by the Trial Magistrate, even though the parties were different, the subject matter of the two suits is the same access road. This can be discerned from the Respondent’s witness statement dated 5th February 2014, filed before the transfer of the 2018 Case to Kisumu Magistrates’ Court. He stated that: *“Sometime in the year 2013, an illegal access road was illegally caused to pass through Land Parcel No. Kisumu/Kogony/5551 and 6389 without consulting us….”* [33] This means that, whatever description the parties gave the subject road in their pleadings and documents in the two suits, the impugned road is the same. A judicial determination of the road’s existence, non-existence, or legality constituted a judgment *in rem*. The decision bound all owners of the abutting land parcels and anyone claiming a right to use the alleged public road, not merely the parties litigating. Simply put, once Hon. W.K. Onkunya pronounced the road illegal, ordered it closed, and directed its deletion from the registry maps in 2023, that determination settled the road’s status for all parties claiming a right to traverse it, including the Appellants. [34] The Appellants cannot circumvent the finality of that judgment by merely altering the identity of the defendant and instituting a fresh suit. In 2018, the administrative bodies responsible for creating the road were sued to cure the defect at its source. In 2024, the Appellants sued the adjacent landowner who was merely enforcing the 2018 decree. The said decree has not been set aside or overturned on appeal. The position is that Lady Justice Asati, in a ruling delivered on 7th May 2026, remitted the application for joinder of the Appellants as interested parties therein to the Trial Court for rehearing. [35] This type of tactical manoeuvring to evade the strictures of res judicata was eloquently explained by the ***Court of Appeal in 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),*** which was cited with approval as an opening in Bonsa v Ngaruthi (supra): ***“1. In the contemporary world, one animal known for changing its color to camouflage with its surrounding environment is the chameleon. It will be green in the morning, brown in the afternoon and yellow in the evening, depending on where its majestic walk has taken it. In the legal world, it is known that parties may attempt to approach the court in different shades, while remaining the same parties. To prevent this mischievous way of litigation, the doctrine of res judicata was developed to bar parties from bringing a litigious action once a final determination has been made on the merits of a similar previous suit.”*** [36] The Appellants herein are the very embodiment of this jurisprudential “chameleon.” Having realised that the road had been legally abolished by the 2018 decree, they approached a different Magistrate in Winam in 2024, changing their “colour” by suing the adjacent landowner under the guise of property obstruction. However, the substantive issue, namely the legality and usability of the road, remains unchanged and has been decisively answered, unless that decision is challenged on appeal or otherwise, not in a parallel subsequent suit. [37] The record shows that the impugned judgment in this matter was delivered on 26 November 2024. The decree in Kisumu CM ELC No. 266 of 2018 (delivered on 31 May 2023) was subsisting and fully operative. It had not been stayed, overturned, or set aside. The Trial Magistrate was legally obliged to recognise the finality of that decree. A trial court cannot issue injunctive orders that directly contradict and effectively nullify a valid decree issued by a court of coordinate jurisdiction. To do so would invite judicial anarchy and violate the hierarchy and comity of courts. Judge Asati’s ruling on 7th May 2026 was strictly procedural. It merely granted the Appellants the right to be heard on their application to set aside the judgment. It did not adjudicate the merits of the road’s legality, nor did it vacate or set aside the 2023 decree itself. Until the Trial Court hears the remitted application and affirmatively issues an order vacating the decree on the merits, the judgment in Kisumu CM ELC No. 266 of 2018 remains a conclusive determination *in rem.* [38] This Court finds that the Trial Court properly apprehended the law and the facts. The dismissal of the suit on the ground of *res judicata* was not an error of law but a necessary application of the principle of finality. **Burden and Standard of Proof** [39] Grounds 1, 2, 4, 5, and 6 of the Memorandum of Appeal collectively allege that the Trial Magistrate failed to evaluate the evidence properly, ignored the surveyor’s report’s probative value, and erroneously elevated the standard of proof to beyond reasonable doubt. The statutory framework governing the burden of proof is set out in the Evidence Act (Chapter 80, Laws of Kenya). *“Section 107: (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.* *Section 108: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.* *Section 109: The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”* [40] In civil litigation, the standard by which this burden is discharged is the balance of probabilities. Suffice it to say that the Trial Court’s judgment was largely grounded in the doctrine of *res judicata,* rather than on the merits or on disputed factual issues in the suit. It would be prudent not to conclusively determine this point, in light of the issues likely to arise in the remitted application in CMEL 266 of 2018. **Final Orders** [41] Consequently, having found no error of principle, misapprehension of fact, or failure of judicial discretion on the part of the Trial Magistrate, the Court orders as follows: i) The appeal fails and is dismissed in its entirety. ii) The Judgment and Decree of the Senior Principal Magistrate’s Court at Winam, delivered on 26 November 2024, are hereby upheld and affirmed. iii) The costs of this appeal are awarded to the Respondent. **Delivered virtually, signed and dated this 23rd day of July 2026.** **C.C. Oluoch** **Judge** In the presence of: Mr Abuor for the Appellants Faith Court Assistant In the absence of the Respondent