[2025] KEELC 5008 (KLR)

[2025] KEELC 5008 (KLR)

The court found that the suit property, Title No. Kisumu/Kogony/7050, no longer exists as its title was cancelled by a prior judgment, and thus the current suit is based on a non-existent parcel. However, the court held that the suit is not res judicata because the plaintiff could not have raised an adverse...

Source-derived case information.

Citation
[2025] KEELC 5008 (KLR)
Parties
Plaintiff: Anne Adhiambo Ollang'; Defendant: Asman Omari Chimba
Court
Environment and Land Court
Court Station
Environment and Land Court at Kisumu
Jurisdiction
Kenya
Judgment Date
3 July 2025
Case Number
Environment and Land Case Civil Suit E022 of 2024
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Outcome
Preliminary objection partially upheld; suit not struck out; leave granted to amend originating summons.
Judges
SO Okong'o
Legal Topics
Adverse Possession, Res Judicata, Preliminary Objection, Sub Judice, Land Title Cancellation
Source Language
english
Land and Property Civil Procedure Adverse Possession Res Judicata Preliminary Objection Sub Judice Land Title Cancellation

Source-derived case record

Summary, issues, holding and outcome

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Parties

Anne Adhiambo Ollang'

Plaintiff

Asman Omari Chimba

Defendant

Procedural Posture

Civil Suit / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the suit is incompetent for being based on a non-existent parcel of land whose title was cancelled by a previous judgment.
  2. 2 Whether the doctrine of res judicata bars the plaintiff's claim for adverse possession.
  3. 3 Whether the suit is sub-judice due to pending appellate proceedings.

Ratio Decidendi

The court found that the suit property, Title No. Kisumu/Kogony/7050, no longer exists as its title was cancelled by a prior judgment, and thus the current suit is based on a non-existent parcel. However, the court held that the suit is not res judicata because the plaintiff could not have raised an adverse possession claim in the previous suit when she was the registered owner. The court also found that the matter is not sub-judice as no appeal has been filed. Rather than striking out the suit, the court exercised discretion to allow the plaintiff to amend her pleadings to claim the portion of land she occupies within the larger parcel now owned by the defendant. The court emphasized...

Court Disposition

Preliminary objection partially upheld; suit not struck out; leave granted to amend originating summons.

Orders

  • Plaintiff granted leave to further amend the Originating Summons within 14 days from the date of the ruling.
  • Defendant at liberty to amend his response within 14 days from service of amended pleadings.