Osumba & 3 others v Owiny & 2 others (Enviromental and Land Originating Summons E012 of 2025) [2026] KEELC 2940 (KLR) (18 May 2026) (Ruling)

Osumba & 3 others v Owiny & 2 others (Enviromental and Land Originating Summons E012 of 2025) [2026] KEELC 2940 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEELC 2940 (KLR) Republic of Kenya In the Environment and Land Court at Siaya Enviromental and Land Originating Summons E012 of 2025 AE Dena, J May 18, 2026 Between Joab Josiah Langi Osumba 1st Plaintiff John Ojala Osumba 2nd Plaintiff Jeremiah Lang'U Osumba 3rd Plaintiff Samuel Omondi Osumba 4th Plaintiff and Thomas Okong'O Owiny 1st Defendant Chief Lands Registrar 2nd Defendant The Hon Attorney General 3rd Defendant Ruling 1.The court is tasked with making a determination in respect of the Notice of Motion dated 14/11/2025 which seeks the following orders; -1.That the Plaintiff's application dated 25th March 2025 be struck out with costs to the Defendant for being res judicata.2.That the Plaintiff application dated 25th March 2025 be struck out for failure of the Plaintiff's to take out letters of grant of administration in regard to the estates of Malaki Odawa Lang'u and Evans Osumba Langu deceased3.That the Plaintiffs be condemned to bear the costs of this application. 2.The application is supported by the depositions in the affidavit of Thomas Okong'o Owiny the 1st Defendant and on the grounds on its face. It is averred that the Plaintiffs are the deponents distance relatives. That upon service with the application dated 27-03-2025, he noted at paragraph 7 that the Plaintiffs"/Respondents admitted that the matter herein has been previously litigated before courts. He annexed copies of the certificate of official search, and order dated 11-3-1987, Application Dated 1-2-1972, and the Appeal dated 16-12-1985 3.Further that the 2nd Plaintiff herein has similarly litigated the said suit land with the 1st Defendant in Bondo Principal Magistrate's court ELC case number E017 of 2021 which was subsequently followed by an appeal in Siaya Environment and Land court Land Appeal number E034 of 2022 - Copies of the judgement in Bondo PMELC CASE number E017 of 2021 and judgement in Siaya ELC LA number E034 of 2024 delivered on the 19-10-2023 are annexed. 4.That bringing the suit on the basis of Malaki Odawa Lang'u being the first registered owner and the claim on behalf of the late Evans Osumba Lang'u both deceased oughts to have taken out letters of administration in regard to their estates under Section 76 of the Law of Succession Act. Replying Affidavit 5.The application is opposed vide the replying affidavit sworn by John Ojala Osumba the 2nd respondent on 20/1/2025. He avers those proceedings herein relate to Land Parcel No. Siaya/Nyagoko/1383, on which the Plaintiffs/Respondents and their families have lived openly, peacefully, continuously, and exclusively since 1971 and which land was handed over in 1971 to their late father Evans Osumba Lang'u by his brother Malaki Odawa Lang'u, the original registered proprietor, and since then there has never been any other occupant on the land. 6.That the above occupation spans over seventy (70) years from the parent’s time and for the applicants over 20 years, is uninterrupted, and has been exercised nec vi, nec clam, nec precario, thereby extinguishing the title of any registered owner by operation of law under Sections 7, 17, and 38 of the Limitation of Actions Act, Cap 22. 7.It is deponed that the assertion that this suit is res judicata is legally unsustainable and misapplication of Section 7 of the Civil Procedure Act. That the earlier proceedings in Bondo PM ELC Case No. E017 of 2021 and Siaya ELC Appeal No. E034 of 2022 concerned claims for trespass, injunction, and occupation, and not a claim for ownership by adverse possession and which was neither pleaded nor determined in the said suits, and therefore could not form the basis of a final determination barring the present proceedings. 8.It is deponed that the Principal Magistrate's Court lacks jurisdiction to determine claims founded on adverse possession, which jurisdiction lies exclusively with this Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. That the judgments delivered on 2nd September 2022 and 19th October 2023 expressly acknowledged our long occupation and interest in the land, findings that support rather than negate our present claim. 9.That the Applicant's contention that the Plaintiffs lack letters of administration is founded on a misunderstanding of the nature of this suit. 10.That the suit has not been instituted by the plaintiffs as administrators, personal representatives, or beneficiaries of the estates of the deceased persons. It is brought in the individual capacities of the plaintiffs as adverse possessors, asserting rights that accrued independently of succession and by operation of statute. 11.That a claim for adverse possession does not require letters of administration, as it is not a claim on behalf of a deceased estate but a claim against the registered title itself. The requirement for letters of administration is therefore irrelevant, inapplicable, and cannot be used to defeat a statutory claim under the Limitation of Actions Act. 12.That conversely, the Applicant's application seeks to defeat substantive justice through procedural technicalities, contrary to Article 159(2)(d) of the Constitution. That if the orders sought are allowed the plaintiffs will suffer grave and irreparable prejudice by being permanently deprived of land they have occupied as their only home for over seven decades. Submissions 13.The court issued direction on 18/11/2025 on disposal of the application by way of submissions. None of the parties complied with the court’s directions. Analysis and Determination 14.The court has considered the application, the reply thereto and two issues commend for determination namely 1) whether the present suit is res judicata and 2) If the suit is incompetent for want of Letters of administration on the part of the plaintiffs. 15.The application has been brought under the Provisions of Sections 1A, 3, 3A, 6, 7 and 63(e) of the Civil Procedure Act, Chapter 21, Laws of Kenya 16.The substantive law on the plea of res judicata is found in Section 7 of the Civil Procedure Act Cap 21 which 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” 17.The Black’s law Dictionary 10th Edition defines “res judicata” as"An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…” 18.The plea of res judicata has been litigated upon up to the Apex Court. Its rationale was aptly explained in the case of John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR the essence of the doctrine of res judicata was expounded as follows:"The rationale behind res-judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res-judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably.” 19.The threshold to be met for a suit to be deemed as being res judicata was enunciated by the Court of Appeal in the case of The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR), and which spells out the factors to be considered as follows;For the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;a)The suit or issue was directly and substantially in issue in the former suit.b)That former suit was between the same parties or parties under whom they or any of them claim.c)Those parties were litigating under the same title.d)The issue was heard and finally determined in the former suit.e)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. 20.The court will therefore be guided accordingly noting that all the conditions must be met. 21.The former suit has been identified as Bondo PM ELC Case No. E017 of 2021 and Siaya ELC Appeal No. E034 of 2022. The appeal arose from the proceedings in Bondo. 22.The subject of the dispute revolved around Land Parcel No. Siaya/Nyagoko/1383, which is also the subject matter of the present proceedings. 23.In the suit at Bondo Thomas Okongo Owiny (herein Thomas) the 1st Defendant herein had sued John Ojala Osumba (herein John) the 2nd Plaintiff in the present suit. These two parties therefore feature in both the former suit at Bondo and the present suit. Two additional parties have been added to the present proceedings. The 1st Respondent never sued them specifically in the former suit. I must state they have pleaded in the Originating Summons as suing in their own capacity as adverse possessors. They have all the rights to defend their alleged individual interests on the claim of adverse. This court therefore finds the parties are different 24.In the suit at Bondo Thomas sued John for trespass upon Land Parcel No. Siaya/Nyagoko/1383 registered in the name of Thomas Okongo Owiny claiming that John had entered and occupied the same without his permission causing the loss and damage. Thomas sought orders of permanent injunction and eviction. 25.In response to the suit John raised a counterclaim contending he and his family had been in long occupation of the suit property from 1971 with permission by the 1st registered owner. Two issues were identified by the trial court who was the owner of the suit property and whether John was a trespasser. 26.The trial court held that Thomas was the registered owner of the suit property, that John and his family were not mere trespassers and the plaintiff was guilty of material non-disclosure. As for the counterclaim it was found to be defective for offending the provisions of Order 7 Rule 8 of the Civil Procedure Rules and the same was struck out. 27.It is trite that a counterclaim is a standalone suit and having been struck out it was therefore not heard on merit and would therefore not be subject to a plea of res judicata. Even on the appeal filed herein this court upheld the trial court decision striking out the counterclaim. 28.The issue of long occupation/adverse possession was not canvassed on its merit both at the trial court level and this court exercising its appellate jurisdiction. 29.While there was the finding that there was a semblance of right to occupation by John this court did not delve into the merits of the issue. 30.In my view there is therefore no bar to raising the plea of adverse possession in the present suit for determination on its merits. 31.Having failed to meet all the requirements enunciated in the authorities cited above it is the finding of this court that the present suit is not res judicata. 32.I will now address the contention that the present proceedings should be struck out for failure of the Plaintiff's to take out letters of grant of administration in regard to the estates of Malaki Odawa Lang'u and Evans Osumba Langu both deceased. 33.The Plaintiffs plead that the Originating summons is ‘issued on the application of Joab Josiah Langi Osumba, John Ojala Osumba, Jeremiah Lang’u Osumba and Samuel Omondi Osumba…who claim to have acquired ownership of ….’. prima facie they are suing in their own capacity as occupants in adverse possession. The details of when time starts to run in their individual occupation is what will be in issue for determination by this court. Moreover, the title as it is presently is in the name of Thomas and not the deceased persons. 34.The upshot of the foregoing is that this court finds that the Notice of Motion application dated 14/11/2025 lacks merit and is hereby dismissed.Orders accordingly DELIVERED AND DATED AT SIAYA THIS 18TH DAY OF MAY 2026HON. LADY JUSTICE A.E. DENAJUDGE18/5/2026Ruling delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:Mr. Okello for the Applicant/PlaintiffN/A for 1st Defendant/RespondentMr. Okoth holding brief Ms. Essendi for 2nd & 3rd Defendant/respondentCourt Assistant: Abiud Wekesa