https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5208

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ELCLOS NO. E048 OF 2025** **SAMUEL DUDU OLOO..............................PLAINTIFF/ RESPONDENT** **VERSUS** **EDWARD BOSIRE ....................................DEFENDANT/ APPLICANT** **RULING** **The Application** 1. The Applicant filed a Notice of Motion dated 9th March 2026 under certificate of urgency. The application is anchored on Sections 1A, 1B, 3A, 6 and 7 of the Civil Procedure Act, as well as Order 51 Rule 1 of the Civil Procedure Rules. He sought orders that: 2. …Spent 3. This suit be deemed as *res judicata* and be dismissed. 4. This suit be deemed as *subjudice* and be dismissed. 5. Costs of this application be awarded to the Defendant/Applicant. 6. The application was supported by the grounds contained in the application as well as the depositions in the Supporting Affidavit deponed by the Defendant, one Edward Bosire. The Applicant stated that there were two decided cases over the same suit land and between the same parties, hence making the instant suit *res judicata*. The decided cases were said to be Migori CM ELC No. 81 of 2022 and Migori CMCC No. 125 of 2001. He also deponed the two cases were decided in his favour. Further, the Applicant contended that the Originating Summons was res sub-judice on account of an ongoing suit, being Migori CMELC Suit No. 5 of 2023. That it involves the same parties litigating over the suit land. 7. The Applicant added that a party could not claim land under adverse possession and at the same time seek to bring a claim over the same land as the Respondent was doing in Migori CMELC No. 5 of 2023 wherein he sued over a purchase though a consideration of Kshs. 80,500/=. 8. The Applicant asserted that on the basis of the above reasons, the Respondent’s suit was bad in law. He prayed that in the interest of justice it be dismissed. He also stated that his application was brought promptly and in good faith. 9. He annexed to the affidavit in support of the application copies of the Ruling and order in Migori CM ELC No. 81 of 2022 (OS); Migori CMCC No. 125 of 2001; and a copy of the Plaint, verifying affidavit and witness statement of the ongoing case in Migori CM ELC No. 5 of 2023. **Reply** 1. The Respondent did not file any response, whether by way of Grounds of Opposition, Preliminary Objection or Replying Affidavit. Therefore, the application was unopposed. That notwithstanding, it did not absolve the Applicant from proving the claims on a balance of probabilities. Thus, the court is obligated to determine the application based on the law and the facts given. **Submissions** 1. The application was canvassed by way of written submissions. The Applicant filed his submissions dated 23rd March 2026. He identified three issues for determination, namely, whether the Respondent’s suit was an abuse of the court process, whether the suit was res judicata and whether the suit was sub judice, and who to bear the costs. 2. On whether the Respondent’s suit is an abuse of court process, he submitted that the fact of filing a multiplicity of suits on the same subject matter amounted to abuse of court process. He cited **Odhiambo v Ndiri (deceased) & 2 others; Owala (Interested Party (Land Case No. 4 of 2024) [2024] KEELC 7549 (KLR)** to support this position. He also relied on **R v Kariuki & 3 others; Law Society of Kenya (Ex-parte Applicant) (Judicial Review No. E045 of 2020) [2020] KEHC 10142 (KLR)** where the court found that the Applicant had filed in an earlier case an application with similar issues to those being litigated. The court found that that application amounted to abuse of court process and struck it out. 3. In the instant matter, the Applicant submitted that the Respondent, Samuel Dudu Oloo, was currently litigating over the same land as in Migori CM ELC No. 5 of 2023. He equally submitted that the Respondent was a brother to Lawrence Oloo and Jared Oloo who also litigated and lost in Migori CMLC No. 81 of 2022. Further, the Respondent was a grandson to Lameck Oloo who litigated over the same suit land in Migori CMCC No. 125 of 2001 against Simon Bosire and lost it. As such, he concluded that the Respondent and his family members resorted to filing various suits over the same suit property even after losing cases. 4. As to whether the suit was *res judicata*, the Applicant relied on the decisions of the **Diocese of Eldoret Trustees (Registered) v Attorney General (on behalf of the principal secretary treasury) & another [2020] eKLR** and **Henderson v Henderson [1843] 67 ER 313** where courts expounded on the meaning and application of the doctrine of *res judicata*. He submitted that there was an existing judgment of the court over the same subject matter in Migori CMCC No. 81 of 2022 (OS) and Migori CMCC No. 125 of 2001. In the latter suit, the Applicant submitted that the court delivered a judgment on 8th November 2018 dismissing the matter. He stated that after the determination the court became *functus officio* over the issue of ownership of the suit parcel of land. He added that no appeal or review had been preferred by after the court rendered itself. 5. As to whether the suit was *sub judice*, the Applicant cited **Oreo v Natural Assembly & 2 others (petition e 199 of 2023) [2024] KEELC 470 KLR** and **Gathori & another v Mohamed & another (Environment and Land case 239 of 2018) [2022] KEELC 2229 (KLR)** wherein the courts struck out suits that involved similar parties litigating over the same subject matter. He urged the court to find that the instant suit is *sub judice* because it involves the same parties litigating over the same subject matter as Migori CMCC No. 5 of 2023. **The Respondent’s Submissions** 1. The Respondent filed his submissions dated 24th March 2026. He submitted that the suit herein was neither *res judicata* nor *sub judice*. To this end, he stated that Migori CMCC No. 81 of 2022 was between Lawrence Oloo v Samson Bosire Mokua. Therefore, he concluded that the parties were not the same as in the instant suit. He also added that the suit was not before a competent court as the same was filed before the magistrate’s court. Lastly, he submitted that the matter was struck out and asserted that striking out a matter does not amount to final determination of the matter. 2. As for Migori CMCC No. 125 of 2001, the Respondent maintained that the matter was between Lameck Oloo v Samson Bosire Mokua while the instant suit is between Samuel Dudu Oloo and Edward Bosire hence making the parties to the suit different. He also submitted that the suit was dismissed for want of prosecution. 3. The Respondent submitted further that Migori Civil Case No. 5 of 2023 was between Edward Bosire v Lawrence Oloo & Jared Ochieng Oloo hence making the parties different from those in the instant suit. 4. He relied on the Supreme Court decision in **KCB Limited & another v Muiri Coffee Estate Limited & 3 others** in which the established that in determining whether a matter is re judicata or not, courts should consider whether the issues and the parties in the previous and the present case are similar. They should also determine whether the previous mater was determined by a court of competent jurisdiction. 5. Lastly, the Respondent submitted that the doctrine of *sub judice* applies to suits between the same parties, or their representatives litigating over the same subject matter in suits pending in courts with equal jurisdiction. He relied on the case of **Yator & Another vs Kenya Judicial Staff Association (JSA)| & Another (Constitutional) Petition No. E007 of 2025 (2025) KEHC 1165 (KLR)** to buttress this position. 6. On the basis of the foregoing, the Applicant prayed that the application be dismissed. **Issues, Analysis and Determination** 1. I have considered the application, the law, and the submissions by the parties. The issues that arise for determination are: 2. **Whether the suit is res judicata;** 3. **Whether the suit is sub judice;** 4. **Whether the suit is an abuse of court process; and** 5. **Who to bear the costs of the application** 6. Having laid down the issues for issues for determination I now proceed to discuss them in sequence. 7. **Whether the suit is *res judicata*** 8. Res judicata is a principle of law by which courts are barred from proceeding to resolve suit or matter brought subsequent to an already decided one if the previous one was between the same parties or the parties litigated under the same title, over the same issue, before a court of competent jurisdiction and the determination was on merits. By merits it means the issue was concluded based on the evidence presented by the parties over it. It means that if it was an application it must have been heard based on the Applicant’s and Respondent’s pleadings which respectively constitute the supporting affidavit unless it is an application under **Order 2 Rule 15(d) of the Civil Procedure Rules,** and the responses thereto by way of a Replying Affidavit, grounds of opposition or preliminary objection as Order 51 Rule 14 provides. Or, if it is a Claim, Suit or Petition, then evidence must have been led on it based on the respective pleadings. The determination resulting in res judicata also includes a settlement on the issue by way of a consent as between the parties, and where a competent court makes a determination that the matter at hand is res judicata following a previous consideration. For clarity purposes it excludes a conclusion of a matter though dismissal for want of prosecution, striking out on a technicality, abatement, and withdrawal. 9. Based on the above clarification then, **Section 7** of the **Civil Procedure Act** which is the relevant law on the principle, 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. This issue has been determined in numerous cases. For instance, in **Satya Bhama Gandhi v The Director of public Prosecutions & 2 others; united bank of Africa (Kenya) limited (interested party (NRB) Judicial review application no. 685 of 2017** the court determined that: *17. The doctrine of res judicata is provided for in Section 7 of the Civil Procedure Act and its object is to bar multiplicity of suits and guarantee finality to litigation. It makes conclusive a final judgement between the same parties or their privies on the same issue by a court of competent jurisdiction in the subject matter of the suit. The scheme of Section 7 therefore contemplates five conditions which, when co-existent, will bar a subsequent suit. The Conditions are:- (i) the matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit; (ii) the former suit must have been between the same parties or privies claiming under them; (iii) the parties must have litigated under the same title in the former suit; (iv) the court which decided the former suit must have been competent to try the subsequent suit; and (v) the matter in issue must have been heard and finally decided in the former suit****.*** 18. In *Gurbachan Singh Kalsi vs. Yowani Ekori* the former East African Court of Appeal stated as follows: *“Where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgement, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence, might have brought forward at the time…No more actions than one can be brought for the same cause of action and the principle is that where there is but one cause of action, damages must be assessed once and for all…A cause of action is every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”* 1. As was stated by this Court in **KERO V CHIEF LAND REGISTRAR & 2 OTHERS (ENVIRONMENT & LAND CASE E046 OF 2021) [2024] KEELC 7529 (KLR) (12 NOVEMBER 2024) (RULING)**, “***16. From the provision, it means that the court that determined the previous matter(s) should have been of competent jurisdiction, the findings it made were on merit on issues between same parties litigating under same title. The import of that is that even where a party excludes or includes one or more parties in a subsequent suit it does not change the character and application of the law in that regard. Therefore, courts have to be vigilant to find whether a party is being disingenuous by trying to ‘mutate’ himself and the subject matter as to appear as though they are different***.” 1. In **Shabhal v Independent Electoral and Boundaries Commission & 3 others (Civil Appeal 42 of 2013) [2014] KECA 658 (KLR) (23 April 2014) (Ruling)** the Court of Appeal stated as follows: ***“To constitute res judicata, there must be adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy.”*** 1. In **Mwangi v Mokaya (Environment and Land Appeal 13 of 2023) [2023] KEELC 18642 (KLR) (6 July 2023) (Ruling)** this Court held, ***“The elements of res judicata are therefore that the*** * + - * 1. ***issue being tried the second time was previously tried and determined*** 2. ***issue being tried was the same, directly or substantially in issue as in the former proceeding*** 3. ***court that tried it had competent jurisdiction*** 4. ***determination was on merits and not on a technicality hence conclusive on the issue*** 5. ***parties in the former proceeding were the same or litigated therein under the same title.”*** 1. In the case of **Uhuru Highway Development Ltd v Central Bank of Kenya (1999) eKLR** the court listed the important ingredients of the res-judicata and follows:- ***The former judgment or order must be final.*** ***The judgment or order must be on merits.*** ***It must have been rendered by a court having jurisdiction over the subject matter and the parties; and*** ***There must be between the first and the second action identity of the parties, of subject matter and cause of action.”*** 1. Therefore, regarding the instant application, the Applicant deponed that the suit is *res judicata*. His reasons for that were that there are judgments that have been rendered in several suits involving the same parties (including family members of the Respondent) who have litigated over the same subject matter previously in courts of competent jurisdiction. The Respondent did not controvert these depositions because he did not file a replying affidavit. However, he filed submissions and tried, in them, to not only explain the points. But in so doing he gave some facts or introduced facts about that view he held. 2. One important legal point the parties herein and the whole world should know is that submissions cannot at any one given time take the place of parties’ pleadings and evidence. This has been held by the Court of Appeal in **Moi v Muriithi & another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR) (9 May 2014) (Judgment) where the court held that:** *‘’59. We have already found that the 1st Respondent failed to discharge his burden of proof of the existence of facts claimed of the companies, what they owned and whether property sales indeed took place, followed by transfers. So what we conclude is that the learned trial judge simply lifted the figure of sh.80,161,720/= from the 1st Respondent’s submissions and awarded it against the appellant. This was wholly in error. Submissions cannot take the place of evidence. The 1st Respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavoring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented. In any event all the 1st Respondent would claim and prove as loss could only relate to the shares in the companies and not the properties of the companies. And even that he did not do.’’* 1. Thus, however much the Respondent pleads in submissions or introduces facts through them, it cannot help his side of the argument or standpoint. These cannot be raised in and considered through submissions. He ought to have raised the facts by way of a Replying Affidavit if he wished the Court to consider them. Thus, by the Respondent explaining and giving the cases he considered that made the instant one *res judicata* it is of no avail. The facts in the Supporting Affidavit remain uncontroverted. It means where there is an oath to support a fact, it can only be controverted by another oath and therefore it remains undisputed unless the former is discounted by other incurable defects as to make it not stand. This legal position has found interpretation and support in many cases as below. 2. In **Kamlesh Mansukhalal Damji Pattni v Director of Public Prosecutions & 3 others [2015] KECA 690 (KLR)** the court of appeal held as follows: *27. Before embarking on the analysis of the applications, perhaps we should mention that Mr. Mwenesi did urge us to disregard the DPP’s supplementary record of appeal on the ground that the notice of appeal was served out of time. In his submission in this regard, Mr. Mwenesi contended that the defects in serving the notice of appeal and the record of appeal out of time were fatal and rendered the appeal incompetent. Mr. Mwenesi also alluded to the replying affidavit sworn by Mr. Martin Kiogora Muriungi, a process server, and pointed out that the averments in it showed that the service was out of time. He did not comment or develop or amplify his submission further, nor did he comment on the annextures to the affidavit which have direct bearing on the service of the record of appeal which Mr. Mwenesi alleges was served out of time. But no matter. The averments in the replying affidavit and in the affidavit of service sworn by Mr. Martin Kiogora Muriungi which was annexed to the replying affidavit were not controverted, and are thus not denied.* 1. Equally, in **Malala v Inspector General of Police & 4 others (Criminal Petition E009 of 2025) [2026] KEHC 5799 (KLR) 27April 2026) (judgment)**, the court held that: *‘‘41.* In Gullied v. Registrar of Persons & Another [2021] KEHC 110 (KLR), the Court held that: *“As stated earlier the Respondents did not file any replying affidavit to challenge and/or controvert the sworn averment by the petitioners that they were victims of the post- election violence. Ground of Opposition which were filed are only deemed to address issues of law. They are general averments and cannot amount to a proper or valid denial of allegations made on oath. (See Mereka & Co Advocates v Unesco Co Ltd 2015 eKLR, Prof Olaka Onyango & 10 others v Hon Attorney General Constitution Petition No 8 OF 2014 and Eliud Nyauma Omwoyo & 2 others v Kenyatta University). The Respondents have failed to refute specifically the allegations in the petitioner’s sworn affidavit in support. Failure to file a replying affidavit can only mean that those facts are admitted...”* 1. Be that as it may, the Applicant, just as any other party who alleges the existence or non existence of a fact, still has the burden of proving his allegations to the requisite standard. That means, he facts given must be sufficient to convince the court to the required standard of a balance of probabilities in civil case or beyond reasonable doubt in criminal cases that they are and exist as such. Thus, in **Equity Bank (K) Limited v Wambua & 2 others (Civil Appeal E246 of 2023) [2025] KEHC 2555 (KLR) (17 February 2025) (Judgment)**, a decision I am persuaded by, the court held as follows: ***26. The fact that a defence is held as mere allegations in no way lessens the burden on the plaintiff to prove her case. The court in the case of Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR the court stated: “I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence in unchallenged or not. (See Kirugi and Another v Kabiya and Others [1983] e KLR).”*** 1. This Court has carefully considered the application and the annexures thereto. The Applicant annexed to his application the following annexures: a ruling in Migori MCELC No. 081 of 2022, an order dated 8th November 2018 in Migori Civil Suit No. 125 of 2001, and a plaint dated 25th January 2023 filed by the Applicant herein in Migori MCELC NO. 5 of 2023. 2. In his submissions, the Respondent did not explain that the suit property being litigated over is the same: but the pleadings show it to be the same. He, however, stated that the parties were different yet he did not controvert the Applicant’s averment that the said parties were relatives. Actually, it he latter are only an introduction of ‘new’ or ‘different’ names of family to hoodwink the court that the parties are different. This is what this Court, in **KERO V CHIEF LAND REGISTRAR & 2 OTHERS** (*supra*), likened or referred to as ‘mutating’ a suit or issue. The court is convinced that the parties are relatives, the Respondent having not challenged this averment. In **Satya Bhama Gandhi v The Director of public Prosecutions & 2 others; United Bank of Africa (Kenya) Limited (Interested Party (NRB) (supra),** the court clarified that the mere addition or omission of parties in a subsequent matter does not shield a party from the operation of the doctrine of res judicata. The court thus held: *‘‘19. However, it is trite that the mere addition of parties in a subsequent suit or omission of a party or parties as has happened in this case does not necessarily render the doctrine of res judicata inapplicable since a party cannot escape the said doctrine by simply undertaking a cosmetic surgery to his pleadings. If the added parties peg their claim under the same title as the parties in the earlier suit, the doctrine will still be invoked since the addition of the party would in that case be for the sole purpose of decoration and dressing and nothing else.’’* 1. This court also appreciates that the doctrine of *res judicata* applies where a previous matter has been determined with finality. The Applicant stated that there are previous judgments on the said matters which he never annexed to the application. In Migori MCELC 081 of 2022, he annexed a ruling in which the court struck out the said matter at the preliminary stage. The court found that the parties in that suit were the same as in No. 125 of 2001, the latter suit having terminated for want of prosecution. The court finds that neither of the two cases were determined on the with finality and as such, the doctrine of *res judicata* cannot apply. 2. Furthermore, the order annexed to the application, that is the one of Migori MC ELC 081 of 2022, only shows that the suit was dismissed for want of prosecution. The court also ordered that the caution and or/ restriction registered against the title of the suit property be removed. 3. The Applicant also annexed the plaint in Migori ELC No. 5 of 2023. The court has looked at the prayers therein. They are not similar to the prayers in the instant where the Respondent is seeking to ownership of the land by virtue of adverse possession. In CMELC No. 5 of 2023, the prayers a declaration of the plaintiff therein as the absolute owner of the suit property, eviction of the defendants from the suit land, a permanent injunction barring the defendants from accessing the suit land, general and special damages as well as the costs of the suit. 4. The upshot of the foregoing is that the instant suit is not *res judicata*. 5. **Whether the suit is *sub judice*** 6. Section 6 of the Civil Procedure Act impliedly bars parties from filing suits in various courts over the same subject matter where the parties are similar, which amounts to the latter suits being sub judice such that the suit are litigated consecutively hence it prohibits courts from proceeding with the subsequent ones until the previous ones are determine in one way or other. The Section provides that: ***‘‘****No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.’’* 1. In **Republic v Kariuki & 3 others; Law Society of Kenya (Ex parte Applicant) (Judicial Review E045 of 2020) [2020] KEHC 10142 (KLR) (Judicial Review) (8 October 2020) (Ruling),** the court held as hereunder concerning the application of the doctrine of sub judice: *‘‘10. In the context of section 6 of the Civil Procedure Act which encapsulated the principles that underpinned the sub judice rule, it meant that no court ought to proceed with the trial of any suit or proceedings in which the matter in issue was also directly and substantially in issue in a previously instituted suit or proceeding; and or the previously instituted suit or proceedings was between the same parties; and or the suit or proceeding was pending in the same or any other court having jurisdiction to grant the reliefs claimed.* *11. The sub judice rule, like other maxims of law had a salutary purpose. The basic purpose and the underlying object of sub judice was to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. That was to pin down the parties to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and was aimed to prevent multiplicity of proceedings.* *12. Sub judice would apply only if there was identity of the matter in issue in both suits, meaning that the whole of the subject matter in both proceedings was identical. The key words in applying sub judice rule was that the matter in issue was directly and substantially in issue in the previously instituted suit. The test for applicability of the sub judice rule was whether on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit. The answer to that question in the instant matter was yes. However, when the matter in controversy was the same, it was immaterial what further relief was claimed in the subsequent suit or suits.* *13. For the doctrine of sub judice to apply, the following principles ought to be present:* *a. existence of two or more suits filed consecutively;* *b. the matter in issue in the suits or proceedings had to be directly and substantially the same;* *c. the parties in the suits or proceedings had to be the same or had to be parties under whom they or any of them claimed and they had to be litigating under the same title.* *d. the suits had to be pending in the same or any other court having jurisdiction to grant the relief* *claimed.’’* 1. The Applicant herein stated that the instant suit is *sub judice,* considering that the there was an ongoing suit, being, Migori CMELC No. 5 of 2023. This Court notes that both parties are seeking to be declared the owners of the suit land in both the instant case and the Migori CMELC No. 5 of 2023. However, in the latter case filed at the lower court, the Applicant herein is the one who filed a Plaint seeking to be declared the owner of the land while in in the instant case, the Respondent filed an Originating Summons seeking to be declared the owner of the applicant’s suit property by way of adverse possession. Those, to me, are different causes of action. 2. Furthermore, 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 (Civil Appeal E141 of 2022) [2024] KECA 1417 (KLR) (11 October 2024) (Judgment),** the Court of Appeal put to rest the issue of whether magistrate’s court’s have the jurisdiction to hear and determine matters touching on adverse possession. In the case, the Court determined that: *‘‘50. In the circumstances, in view of the express provisions of section 38 of the Limitation of Actions Act, as did the Environment and Land Court, we find that Magistrates’ Courts do not have jurisdiction to determine the claims of adverse possession. As a consequence, the trial magistrate in the instant case rightly disregarded hearing and determining it. In the result, this ground is without merit and is accordingly dismissed.’’* 1. Granted the above stated facts (in paragraph 42), this court finds that the instant application is not *sub judice* : for reason of different causes of action. If the matters were in the same court one cause of action could have formed a counterclaim of the other. Regarding the instant matter, the Respondent herein could only file his case in a court with jurisdiction, which is this court, since the lower court does not have jurisdiction to hear and determine adverse possession claims. The issue cannot be res sub judice then. 2. The court is however apprehensive of a possibility of having different outcomes the two matters should they proceed in the courts where they are currently filed. In the circumstances, parties need to consider a consolidation of the suits. 3. **Whether the instant suit amounts to abuse of court process** 4. The Applicant stated that the Respondent’s suit amounts to abuse of court process by virtue of the multiplicity of suits that have been filed by the said Respondent and his family. For a suit to be an abuse of the process of the Court, it must be demonstrated that it has been brought purposely to misuse or take advantage of the process of the court where the claimant is not entitled to do so. 5. In **Muturi Waithuo & another v Margaret Nyakarima & another, Succession Cause No. 436 of 2006 and Succession Cause No. 854 of 2014**, the court held as hereunder concerning abuse of court process: *‘‘...The concept of abuse of court/judicial process is imprecise. It involves circumstances and situation of infinite variety and conditions. ...It is recognized that the abuse of process may lie in either proper or improper use of the judicial process in litigation. However, the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponents.**The situation that may give rise to an abuse of court process are indeed in exhaustive, it involves situations where the process of court has not been or resorted to fairly, properly, honestly to the detriment of the other party. However, abuse of court process in addition to the above arises in the following situations:-* ***(a)*** *Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.* ***(b)*** *Instituting different actions between the same parties simultaneously in different court even though on different grounds.* ***(c)*** *Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and Respondent notice.* ***(d)*** *Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below.* ***(e)*** *Where there no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.* ***(f)*** *Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.* ***(g)*** *Where an appellant file an application at the trial court in respect of a matter which is already Subject of an earlier application by the Respondent at the Court of Appeal.* ***(h)*** *Where two actions are commenced, the second asking for a relief which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the irritation or annoyance of an opponent.* 1. Having determined that the Respondent filed his suit in this court which has jurisdiction to determine his cause of action, and considering that there is no evidence that the previous suits the Applicant referred to were determined with finality, this court finds that the instant suit does not amount to abuse of court process. 2. On the basis of the foregoing, the application does not succeed. It is dismissed. 3. On costs, under Section 27 of the Civil Procedure Act, they follow the event. Therefore, herein they shall be borne by the Applicant. 4. This matter shall now be mentioned for compliance with Order 11 of the Civil Procedure Rules on 1st October 2026 for compliance. **Ruling dated, signed and delivered virtually via the Teams Platform this 15th day of July, 2026.** **HON. DR. IUR NYAGAKA,** **JUDGE** From **10:33 AM in the presence of,** **E. Awino Advocate for the Respondent** **Sala Advocate for the Applicants**