https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4816

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC CASE NO. E035 OF 2025 (OS)** **THOMAS ODIE OKEYO………………………………APPLICANT** **VERSUS** **THANYA'S PLAZA LIMITED………………………….RESPONDENT** **RULING** 1. The Applicant, Thanya’s Plaza Limited, who is the Respondent in the Originating Summons herein (hereinafter called the Company) filed the Notice of Motion dated 2nd December 2025 under Section 1A, 1B, 3A, 6 and 7 of the Civil Procedure Act, Order 2 Rule 15(c) and (d), Order 51 Rule 1 of the Civil Procedure Rules seeking the following orders; 2. **THAT the Applicant's suit be struck out.** 3. **THAT the Applicant be ordered to comply with the consent Court Order entered by the parties in MCCC No. E5257 of 2023 (now MCELC/E555/2025).** 4. **THAT the costs of this application and the suit be awarded to the Respondent.** 5. **THAT is Honourable Court be pleased to grant any such further orders and/or relief as it may deem fit in the circumstances**. 6. The application is supported by the affidavit of Mohammed Shabbir Chaudhry on the grounds that there exists another suit, MCCC No. E5257 of 2023 previously filed by the Applicant where the Applicant and the Respondent are parties as Plaintiff and Defendant respectively and the subject matter is the same land, namely Dagoretti/Riruta/4504. 7. The main dispute concerns adjacent parcels Dagoretti/Riruta/4504 (The Company’s registered plot) and Dagoretti/Riruta/4505 (occupied by the Applicant as a tenant). The Company claims that it acquired plot 4504 in 2008 and was issued title in 2011. That it subsequently granted a lease to a third party and created a charge over the property in favour of Housing finance Company Ltd. 8. The Applicant admits in earlier proceedings that he is a tenant on plot 4505. 9. The Company states that during the pendency of the lease to the third party a fire broke out and destroyed the property. That consequently in trying reestablish the boundary wall, he contracted the services of a surveyor to point out the boundary to its property and at this point it found out that the Applicant had encroached onto its land. 10. The Applicant then commenced proceedings in MCCC No. E5257 of 2023 (now MCELC/E555/2025) between the same parties and concerning the same subject matter. Those proceedings produced a consent order dated 7th May 2025 directing a Government Surveyor to determine the correct boundary between plots 4504 and 4505 and permitting the Respondent to erect a boundary wall on the identified boundary. 11. The Company states that a licensed Government Surveyor’s report dated 17th October 2023 established that part of the Applicant’s motor-vehicle-repair business and other structures encroached onto plot 4504 (the “triangle” shaded on the survey plan annexed). The Area Chief coordinated the survey and adjoining owners, including the owner of plot 4505, were present. 12. That despite the consent order, the Applicant declined to comply with its terms, sought to withdraw or set aside the consent order informally, and has now filed the present suit which advances a new and inconsistent cause of action based on alleged adverse possession of plot 4504. The Respondent contends the Applicant’s present claim contradicts his prior admissions of tenancy and earlier pleadings. 13. The Company claims that its application is based on strong legal grounds for striking out and enforcement for the reason that the cause of action already before court / *lis pendens* and that the real substance of the dispute is the subject of the earlier pending proceedings (MCCC No. E5257/2023 now MCELC/E555/2025). 14. The Company further states that the present suit is a collateral attack on matters already before the Court and should be stayed or struck out. 15. It is also claimed that the matter is Res judicata and the suit finally compromised by consent. The Company claims that the Applicant’s fresh claim on the same facts is res judicata to the extent determined or put to rest by that compromise and consent order. 16. The Applicant is accused of filing inconsistent pleadings offending the doctrine of approbate and reprobate in that the Applicant is taking different mutually inconsistent and irreconcilable positions by acknowledging tenancy in earlier proceedings while now claiming adverse possession. The Applicant and is estopped from switching stances to obtain inconsistent advantages. 17. The Company further states that the application is an abuse of process, scandalous, frivolous and vexatious. It claims that the suit is an afterthought, introduces no reasonable cause of action consistent with prior pleadings and evidence, and is calculated to embarrass, delay and prejudice the fair determination of the true issues. 18. The Company states that it will suffer irreparable harm and prejudice together with third partiesbeing the Respondent’s mortgagee (first-charge bank), the lessee (who holds a long-term lease and development approvals), and third parties relying on the Respondent’s rights and approvals. 19. It is further claimed that the Applicant’s refusal to obey a valid consent order undermines the contractual and binding effect of court-approved agreements and permits trial-splitting and forum-shopping, contrary to justice and equity. **Replying Affidavit** 1. The Applicant in the Originating Summons, Thomas Odie Okeyo (hereinafter referred to as the Applicant) filed a replying affidavit opposing the application herein. He admitted the existence of the suit MCCC No. E5257 OF 2023 and deponed that the consent that the Company claims to be in place in the suit was filed on the 7th May 2025 but was never adopted in Court as an order of the Court. 2. The Applicant claims that he was not agreeable to the terms of the consent and had applied to the Court to withdraw the same and to be allowed to proceed with hearing of the suit. 3. He deponed that no such consent was ever adopted, recorded, or endorsed as an order of the Court and that in law, a consent only becomes binding and enforceable upon formal adoption by the Court, which did not occur in this instance. 4. It is the Applicant’s position that the present suit raises distinct and substantive issues, including adverse possession, which were neither heard nor determined in the alleged previous suit. He further states that the doctrine of res judicata is inapplicable as there has been no final determination on the merits. Similarly, *res sub judice* does not arise as the causes of action and reliefs sought are materially different. 5. The Applicant claims that he has a valid and arguable claim that cannot be determined summarily. He denies being guilt of approbation and reprobation and that the issues surrounding tenancy and alleged encroachment are contested matters requiring evidentiary interrogation at trial. 6. He further states that a party can only place a claim for adverse possession before a superior court and not before a lower court. **Company’s Further Affidavit** 1. The Company filed a further affidavit stating that upon execution the executed Consent took effect as a legally binding contract between the Applicant and the Respondent enforceable on its terms since the Advocates had the actual and/or ostensible authority to execute the Consent and bind the Applicant to its terms and that the alleged adoption of the Consent by the Court is a formality whose purpose is to inform the Court of the settlement reached by the parties; No application has been made by the Applicant to set aside and/or vary the terms of the Consent and therefore remains as a valid and enforceable contract between the parties. 2. The deponent further stated that the parties in the previous suit are the same parties as in this suit and the subject matter is the same namely accordingly, if the Applicant had a legitimate claim of adverse possession, he ought to have raised the same in the previous proceedings. **The Respondents ( Thanya’s Plaza Limited) Submissions** 1. Counsel for the Respondent filed submissions reiterating the facts summarized above and further stating that that the Applicant's suit is incompetent and ought to be struck out as it is **res judicata**, an abuse of the court process, contrary to a binding consent order, and discloses no reasonable cause of action. The Respondent argues that the present suit is barred by the doctrine of **res judicata** under section 7 of the Civil Procedure Act because it concerns the same subject matter and substantially the same issues that were in controversy in MCCC No. E5257 of 2023. It submits that even if adverse possession was not specifically pleaded in the earlier proceedings, the claim falls within the doctrine of **constructive res judicata**, as it was a matter which ought to have been raised during the earlier litigation. In support of this proposition, reliance is placed on **Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd [2017] KECA 98 (KLR)**, where the Court of Appeal reaffirmed the principle in **Henderson v Henderson (1843) 67 ER 313** that res judicata extends not only to issues actually determined but also to every matter which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, ought to have brought before the court. The Respondent also cites **Mburu Kinyua v Gachini Tutu (1978) KLR 69**, where the Court emphasized that litigation must come to an end and parties cannot reopen disputes by raising issues that could have been determined in previous proceedings. 2. The Respondent further submits that permitting the present suit to proceed would expose the courts to the risk of issuing inconsistent decisions over the same subject matter. It relies on **Nguruman Ltd v Nielson [2014] KEHC 1718 (KLR)**, where the court, adopting the reasoning in **Bundotich v Managing Director, Kenya Airports Authority & Another (2007) 2 EA 90**, held that parallel proceedings involving the same property undermine judicial integrity and waste judicial time by creating the possibility of conflicting decisions. 3. It is further submitted that the Applicant is legally bound by the **Consent Order dated 7 May 2025**, which settled the boundary dispute between the parties. The Respondent argues that the Applicant's advocates voluntarily executed the consent and that no application has ever been made to set it aside. Consequently, the Applicant cannot ignore its terms by instituting fresh proceedings founded upon an inconsistent cause of action. In support of this argument, reliance is placed on **Arusei v Bett [2023] KEELC 20833 (KLR)**, which reaffirmed the principle in **Flora N. Wasike v Destimo Wamboko [1988] eKLR** that a consent judgment has contractual effect and can only be set aside on grounds that would justify rescission of a contract. The Respondent also relies on **Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd [1982] KLR 485**, where the court held that a consent order entered into by duly instructed advocates is binding unless obtained through fraud, collusion, mistake or misrepresentation. 4. The Respondent contends that the Applicant's pleadings in the present suit are fundamentally inconsistent with those filed in MCCC No. E5257 of 2023. In the earlier proceedings, the Applicant unequivocally pleaded that he occupied parcel **Dagoretti/Riruta/4505** as a tenant under a tenancy agreement and sought protection against eviction from those premises. In the present suit, however, he claims to have occupied part of the Respondent's parcel **Dagoretti/Riruta/4504** as an adverse possessor for over thirty years. According to the Respondent, these positions are mutually exclusive and incapable of standing together. It therefore submits that the Applicant is bound by his previous pleadings and is estopped from advancing a contradictory claim. 5. The Respondent invokes the doctrines of **judicial estoppel** and **approbation and reprobation**, arguing that a litigant cannot assume inconsistent positions in successive proceedings to suit changing circumstances. Reliance is placed on section 120 of the Evidence Act as well as **Ngina v Mwangi & 2 Others [2025] KEELC 3409 (KLR)**, where the court adopted the reasoning in **PIL Kenya Ltd v Oppong (2009) KLR 442** that issues which could have been raised in earlier proceedings are deemed to have been determined and cannot be re-litigated under a different guise. The Respondent also cites **Professor Kivuto Ndeti v Idah Ndinda Mutheke & 5 Others [2012] KEHC 2175 (KLR)**, where the court held that parties are not permitted to litigate disputes in instalments by raising claims piecemeal in separate proceedings. Further reliance is placed on **Goodison Sixty-One School Ltd v Symbion Kenya Ltd [2025] KEHC 550 (KLR)** and **Triton Gas Station Ltd & Another v Kenya Commercial Bank Ltd & 2 Others [2015] KEHC 3478 (KLR)**, where the courts explained that judicial estoppel prevents a party from asserting inconsistent positions that undermine the integrity of the judicial process. The Respondent also relies on **Royal Ngao Holdings Ltd v N K Brothers Ltd & Another [2021] KEHC 275 (KLR)**, which affirmed that a party who has elected one course of action cannot later resile from it after obtaining its benefits. 6. The Respondent further submits that the suit should be struck out under **Order 2 Rule 15 of the Civil Procedure Rules** because it is scandalous, frivolous, vexatious and an abuse of the court process. It argues that the Applicant has transformed what was initially a boundary dispute arising from his tenancy into a claim for adverse possession solely to frustrate implementation of the Consent Order and prolong unlawful occupation of the Respondent's property. In support of this argument, reliance is placed on **Michael Kipkorir Maina & Another v Stephen Kipkorir Ruto [2021] KEELC 1911 (KLR)**, where the court adopted the principles in **Cabro East Africa Ltd v Rosoga Investments Ltd [2013] eKLR** and **Mohammad Hassim Pondor & Another v Falcon Travel Services Ltd & 3 Others [2014] eKLR**, defining frivolous and vexatious proceedings as those lacking substance, brought without bona fides and intended merely to harass or oppress the opposing party. The Respondent also cites **Satya Bhama Gandhi v Director of Public Prosecutions & 3 Others [2018] eKLR**, where the court extensively discussed abuse of court process, observing that instituting multiple proceedings concerning the same subject matter or employing judicial procedures to irritate or oppress an opponent constitutes an abuse warranting the court's intervention. 7. Finally, the Respondent submits that the Applicant's refusal to comply with the Consent Order has prevented the agreed boundary survey and erection of the perimeter wall, thereby prejudicing the Respondent's obligations to its financier, **Diamond Trust Bank Kenya Limited**, and its lessee, **Lipton Investment Limited**, whose development plans depend on implementation of the Consent. **Applicants Submissions** 1. The Applicant/Respondent opposes the Notice of Motion dated 11th February 2026 reiterating the matters of fact as set out above and submitting that although a draft consent was prepared, it was never adopted as an order of the court because he subsequently rejected its terms and communicated his position through a letter dated 23rd May 2025. Consequently, the consent never acquired legal force or became enforceable. 2. The Applicant contends that the threshold for striking out a suit has not been met. Relying on **DT Dobie & Company (Kenya) Ltd v Muchina (1982) KLR**, it is submitted that striking out is a drastic remedy that should only be exercised where a suit is plainly hopeless and incapable of being salvaged by amendment. Since the present suit raises genuine and substantial issues concerning adverse possession, it ought to proceed to a full hearing on the merits. 3. On the legal effect of the alleged consent, the Applicant relies on **Flora N. Wasike v Destimo Wamboko (1988) KLR**, where the Court of Appeal held that a consent judgment derives its binding contractual effect only after being entered as an order of the court and may only be set aside on grounds that would justify setting aside a contract. The Applicant also invokes the principles in **Hirani v Kassam [1952] 19 EACA 131**. 4. , which recognize that a consent is binding when made in the presence and with the consent of counsel. It is argued that because the intended consent was never adopted by the court, it remained merely a proposed agreement, incapable of enforcement, giving rise to no estoppel and imposing no obligation upon the Applicant. 5. The Applicant further submits that the doctrines of **res judicata** and **sub judice** are inapplicable. Under section 7 of the Civil Procedure Act, res judicata only applies where a matter has been heard and finally determined by a competent court. Since the earlier matter was never concluded by a judgment or an adopted consent, there was no final determination capable of barring the present proceedings. Similarly, the doctrine of sub judice does not apply because the present suit is founded on a distinct cause of action—adverse possession—which raises separate legal and factual issues requiring independent determination. 6. The Applicant also relies on **Yaya Towers Ltd v Trade Bank Ltd (In Liquidation)** **[2000] KECA 427 (KLR)**. for the principle that where a suit raises even a single bona fide triable issue, it should proceed to trial. The triable issues identified include whether the Applicant has acquired title by adverse possession, the character and duration of his occupation, and the boundary and encroachment issues between the parties. 7. It is further argued that the Respondent has failed to demonstrate any abuse of the court process. Filing a claim for adverse possession, particularly in the absence of a binding consent order, is a legitimate exercise of the Applicant's legal rights. Accordingly, the application to strike out the suit is founded on a non-existent consent, improperly invokes the doctrines of res judicata and sub judice, and seeks to deny the Applicant an opportunity to have his claim heard on its merits. 8. Regarding the Respondent's prayer that the Applicant be compelled to comply with the alleged consent in MCCC No. E5257 of 2023, the Applicant submits that the court cannot enforce a consent that was never adopted as an order of the court. Since no evidence has been produced to show that the consent was formally recorded or adopted, there is no enforceable obligation requiring compliance. Moreover, the present proceedings concern a different cause of action and should therefore proceed independently. 9. Finally, the Applicant submits that claims for adverse possession fall within the exclusive jurisdiction of the superior courts and cannot be determined by a subordinate court. Consequently, the Originating Summons has been properly instituted before the Environment and Land Court. The Applicant therefore prays that the Notice of Motion dated 11th February 2026 be dismissed with costs and that the suit be allowed to proceed to a full hearing and determination on its merit. **Analysis and Determination** 1. Having carefully considered the Notice of Motion dated 11th February 2026, the affidavits filed in support thereof and in opposition thereto, together with the rival submissions and the authorities cited by the parties, I am of the considered view that the application raises two principal issues for determination. The first is whether this Court should compel the Applicant to comply with the alleged Consent Order arising from **MCCC No. E5257 of 2023**. The second is whether the Originating Summons dated 23rd June 2025 should be struck out on the grounds that it is **res judicata**, an abuse of the court process, discloses no reasonable cause of action and is otherwise barred by the doctrines of judicial estoppel and approbation and reprobation. 2. The first prayer seeks an order compelling the Applicant to comply with an alleged Consent Order said to have been entered in **MCCC No. E5257 of 2023**. In my view, that prayer is incompetent and incapable of being granted. It is common ground, that although the parties negotiated and executed a consent dated 7th May 2025, the same was never adopted by the Magistrates' Court as an order of the court. Consequently, no consent judgment or consent order ever came into existence. 3. The law regarding consent judgments is settled and Counsel for the Respondent cited this position. In **Flora N. Wasike v Destimo Wamboko [1988] eKLR**, the Court of Appeal held that a consent judgment has contractual effect and can only be set aside on grounds that would justify the setting aside of a contract. Similarly, in **Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266**, the East African Court of Appeal held that a consent judgment is binding upon the parties unless obtained by fraud, collusion or other grounds which would justify the setting aside of a contract. Likewise, in **Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd [1982] KLR 485**, the Court held that a consent entered into by duly instructed advocates is binding unless procured through fraud, collusion, mistake or misrepresentation. However, all these authorities concern **consent judgments or consent orders that had already been entered by the court.** They do not support the proposition that an unadopted draft consent may be enforced as though it were a decree of the court. 4. Moreover, even assuming that a valid consent order existed, this Court would still be unable to grant the relief sought. The Respondent invites this Court to enforce what is alleged to be an order made in separate proceedings pending before a different court. This Court is neither sitting on appeal nor exercising review or supervisory jurisdiction over the Magistrates' Court in **MCCC No. E5257 of 2023**. Questions relating to the enforcement, interpretation or implementation of orders made in that suit properly fall within the jurisdiction of the court seized of those proceedings. Section 34 of the Civil Procedure Act provides that **“ *All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit*. “** 5. It would therefore be procedurally improper for this Court, in an independent suit commenced by Originating Summons, to compel compliance with an order allegedly made in another case. Consequently, the first prayer is declined. 6. The second prayer by the Respondent is for striking out of the Originating Summons on the grounds that it is **res judicata**, an abuse of the court process, contrary to the alleged consent and discloses no reasonable cause of action. The Court is not persuaded that those grounds have been established. 7. The Respondent's primary argument is founded on section 7 of the Civil Procedure Act. However, one of the indispensable elements of the doctrine of **res judicata** is that the former suit must have been heard and finally determined by a court of competent jurisdiction. This principle was authoritatively restated by the Supreme Court in **Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR**, where the Court identified the essential ingredients of the doctrine, including the requirement that the previous proceedings must have been heard and finally determined. Likewise, in **Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd [2017] eKLR**, the Court of Appeal reaffirmed the principle in **Henderson v Henderson (1843) 67 ER 313**, that **res judicata** extends not only to issues actually determined but also to every matter which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, ought to have brought before the court. That principle, however, presupposes that the earlier proceedings culminated in a final determination. 8. In the present case, **MCCC No. E5257 of 2023** has neither proceeded to judgment nor resulted in an adopted consent capable of constituting a final determination. In the absence of that essential ingredient, **res judicata** cannot arise. 9. The Respondent has argued that the Applicant ought to have raised the claim for adverse possession in the Magistrates' Court. That submission cannot be sustained. A claim for adverse possession falls within the jurisdiction of the Environment and Land Court. The subordinate court before where **MCCC No. E5257 of 2023** was filed lacked jurisdiction to determine such a claim. Jurisdiction is conferred by the Constitution and statute and cannot be assumed by a court. The Court of Appeal in[**Sugawara v Kiruti (Sued in her capacity as the administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others**](https://kenyalaw.org/akn/ke/judgment/kesc/2019/83)**[2024] KECA 1417 (KLR)** authoritatively held that, by virtue of section 38 of the Limitation of Actions Act, Magistrates' Courts lack jurisdiction to hear and determine claims for adverse possession, such jurisdiction being reserved to the Environment and Land Court. Any proceedings or judgment rendered by a Magistrate's Court in an adverse possession claim are therefore a nullity for want of jurisdiction 10. The Supreme Court in **Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR**, held that a court cannot arrogate to itself jurisdiction exceeding that conferred by law. Equally, in the celebrated decision of **Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1**, Nyarangi JA held that jurisdiction is everything and that without it a court must immediately down its tools. It would therefore be contrary to principle to hold that the Applicant ought to have advanced, before a court lacking jurisdiction, a claim which only this Court is competent to determine. 11. The Respondent also contends that the Applicant's present pleadings are inconsistent with those filed in **MCCC No. E5257 of 2023** and that he is therefore estopped from asserting an adverse possession claim. It is true that the Applicant previously pleaded that he occupied parcel **Dagoretti/Riruta/4505** as a tenant, whereas he now claims adverse possession over a portion of parcel **Dagoretti/Riruta/4504**. However, the Court is not persuaded that those positions are necessarily irreconcilable. It is entirely conceivable that a party may lawfully occupy one parcel as a tenant while simultaneously asserting long, uninterrupted occupation of an adjoining parcel owned by another person. Whether that is indeed the factual position is a matter requiring evidence. 12. The Respondent's reliance on judicial estoppel and approbation and reprobation, though supported by decisions cited such as **Ngina v Mwangi & 2 Others [2025] KEELC 3409 (KLR)**, **Goodison Sixty-One School Ltd v Symbion Kenya Ltd [2025] KEHC 550 (KLR)** and **Royal Ngao Holdings Ltd v N K Brothers Ltd & Another [2021] eKLR**, cannot justify striking out the suit at this preliminary stage, particularly where the earlier proceedings did not culminate in a judgment or consent order upon which the Applicant obtained any judicial advantage. As observed by the Supreme Court in **John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR**, procedural doctrines such as **res judicata** are intended to preserve the integrity of the judicial process while ensuring that litigants are not unjustly denied a hearing. 13. The Respondent further urges the Court to strike out the suit under Order 2 Rule 15 of the Civil Procedure Rules as being scandalous, frivolous, vexatious and an abuse of the court process. While there is no dispute that the Court possesses such jurisdiction, it is equally well settled that striking out is a draconian remedy to be exercised sparingly and only in the clearest of cases. In **DT Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1**, Madan JA stated that no suit ought to be summarily dismissed unless it is so hopeless that it plainly and obviously discloses no reasonable cause of action and is beyond redemption. If a suit raises even a semblance of a cause of action capable of being injected with life by amendment, it ought to proceed to trial. Similarly, in **Yaya Towers Ltd v Trade Bank Ltd (In Liquidation) [2000] eKLR**, the Court held that where even a single bona fide triable issue is disclosed, the matter should proceed for hearing. 14. The Originating Summons before this Court pleads that the Applicant has openly, continuously, exclusively and uninterruptedly occupied a defined portion of the Respondent's land for approximately thirty-six years and has thereby acquired title by adverse possession. Whether those allegations are ultimately proved is a matter for evidence. As the Court of Appeal observed in **Wambugu v Njuguna [1983] KLR 172** and later in **Kasuve v Mwaani Investments Ltd & 4 Others [2004] 1 KLR 184**, a claim for adverse possession is fact-intensive and depends upon proof that the claimant has been in open, exclusive, continuous and uninterrupted possession for the statutory period. Those issues cannot properly be determined on affidavit evidence in an interlocutory application to strike out. 15. The Respondent has also argued that the Applicant merely transformed a boundary dispute into an adverse possession claim to frustrate implementation of the intended consent. That argument may ultimately prove correct or otherwise after evidence is adduced at trial. However, it cannot be conclusively determined at this interlocutory stage. Courts are slow to summarily terminate proceedings where the dispute turns upon contested questions of fact requiring oral evidence and cross-examination. 16. In the final analysis, the Court finds that the Respondent has failed to establish any legal basis upon which this Court can compel compliance with an unadopted consent allegedly arising in another suit before a different court. The Respondent has equally failed to demonstrate that the Originating Summons is barred by ***res judicata***, judicial estoppel or any other recognised ground warranting its summary dismissal. On the contrary, the pleadings disclose a bona fide claim for adverse possession which falls within the jurisdiction of this Court and raises substantial triable issues that can only be determined after a full hearing on the merits. 17. Accordingly, the **Notice of Motion dated 11th February 2026 is dismissed in its entirety.** The **Originating Summons dated 23rd June 2025** shall proceed to hearing on its merits. The **Respondent shall have the costs of the application.** **Delivered, dated and signed via Microsoft Teams this 9th day of July 2026.** **HON. L. G. KIMANI** **JUDGE ENVIRONMENT AND LAND COURT** *The Ruling read in the presence of-* *M/s Okumu holding brief for Nyangito for the Applicant.* *M/s Gachanja holding brief for Gachanja for the Respondent.*Bottom of Form