https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4498

Obiero v Dache & 8 others (Environment and Land Case E033 of 2025) [2026] KEELC 4498 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELC 4498 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Case E033 of 2025 CC Oluoch, J July 16, 2026 Between Pamela Akinyi Obiero Plaintiff and Japheth Owak Dache 1st Defendant Wilfred Omondi Ododa 2nd Defendant Land Registrar Kisumu 3rd Defendant director of Surveys 4th Defendant Hon Attorney General 5th Defendant and Leonard Omondi 1st Interested Party Joseph Omamo Mbaja 2nd Interested Party Lucas Ouma Obanda 3rd Interested Party Esther Okoyo 4th Interested Party Ruling Introduction 1.The matter before this Court for determination is the Notice of Motion Application dated 23 February 2026, filed by the 2nd Defendant/Applicant, Wilfred Omondi Ododa. The Application is brought under Sections 1A, 1B, 3, 3A, and 7 of the Civil Procedure Act (Chapter 21 of the Laws of Kenya), together with Order 2 Rule 15(1)(a) and (d) of the Civil Procedure Rules, 2010, and all other enabling provisions of the law. The 2nd Defendant seeks the following orders:a)The Plaintiff’s suit herein be struck out for being res judicata.b)The costs of this application be provided for. 2.This application challenges a plaint dated 9th May 2025, in which the Plaintiff averred that on 22nd April 2025 she learned that police officers, a surveyor, and the 2nd Defendant had visited her land (parcel 3316) to demarcate it under a court order in favour of the 2nd Defendant against the 1st Defendant. She pleaded that the execution stemmed from a Chief Magistrate’s Court case (CMCC 605 of 2014), in which she was an Interested Party, now under appeal in Kisumu ELC Appeal No. E065 of 2024. She also claims that, after a search, she found that the 3rd and 4th Defendants (the Land Registrar and the Director of Surveys) allegedly cancelled her title deed on 9th July 2018 without legal notice or court order. Consequently, the Plaintiff sought the following prayers therein:a)An Order of Permanent injunction restraining the 1st and 2nd Defendant, from entering into, interfering, purporting to curve out, dispose, occupy, take possession, entering, trespassing, alienating and or in anyway interfering with the Plaintiff's homestead, land, property and all that parcel of land known as Kisumu/Kapuonja/3316, curved out of Kisumu/Kapuonja/2934 or any portion thereof occupied by the Plaintiff.b)A Mandatory order of Injunction be issued directed at the 3rd, 4th, and 5th Defendant directing them to reinstate all that parcel of land known as Kisumu/Kapuonja/3316 into their records at the lands office and restitute the prevailing legal status of registration of all that parcel of land known as Kisumu/Kapuonja/3316 and cause to be issued a fresh title deed in favour of the Plaintiff herein.c)An order staying and or prohibiting any dealings touching on the mother title namely Kisumu/Kapuonja/2934 and by extension Kisumu/Kapuonja/3316 and that the 1st Defendant’s title deed namely Kisumu/Kapuonja/3315 be subjected to satisfying the demands of the Decree issued in Kisumu Civil Suit Number 354 of 2014 in favor of the 2nd Defendant, without interfering with the Plaintiff's title.d)An order permanently restraining the 1st and 2nd Defendants from trespassing into the Plaintiff's homestead and land, i.e., Kisumu/Kapuonja/3316, carved out of Kisumu/Kapuonja/2934.e)An order directing the land Registrar to close the register in respect of Kisumu/Kapuonja/2934 and reopen Kisumu/Kapuonja/3315 and 3316 and to attach the execution of the order issued in Chief Magistrate No. CMCC no 354 of 2014 over and against the said Kisumu/Kapuonja/3315, being the title in existence at the time of the execution of the orders and/or judgment in the said suit.f)In the alternative, the Honourable Court be pleased to grant an Order of specific performance compelling the 1st Defendant to transfer all that parcel of land known as Kisumu/Kapuonja/2934 into the names of the Plaintiff and the Deputy Registrar to execute all the relevant Transfer Forms.g)Exemplary and punitive damages, and costs of the suit. The Application 3.The application is based on the supporting affidavit sworn by Wilfred Omondi Ododa, the second Defendant. He states that the Plaintiff is a vexatious litigant who has initiated multiple lawsuits concerning the same subject matter and parties, all of which have either been resolved or are still pending in courts with proper jurisdiction. The Applicant details these cases: The first case is CMCC NO. 605 OF 2014 in the Chief Magistrate’s Court in Kisumu, involving Wilfred Ododa against Japheth Owak Dache, with Pamela Akinyi Obiero as an Interested Party. This case concluded with a judgment on 7th August, 2024, in favour of Wilfred Ododa, ordering specific performance and the transfer of 0.82 hectares from parcel Kisumu/Kapuonja/2934. The second case is ELC NO. 354 OF 2014 before the Environment and Land Court in Kisumu, initially between Pamela Akinyi Obiero and Japheth Owak Dache, with Wilfred Ododa later joining. It concerned the same parcels but was withdrawn by the Plaintiff and closed on 29th November, 2016. The third case, ELC NO. 114 OF 2022, also in Kisumu’s Environment and Land Court, involves Pamela Akinyi Obiero versus Japheth Owak Dache and the Land Registrar, with Wilfred Ododa again involved. These proceedings were stayed by the court on 21st September, 2023, after it was discovered that CMCC 605 OF 2014 concerning the same matter was active. Lastly, an ELC APPEAL NO. E065 OF 2024 is pending before Kisumu’s Environment and Land Court, filed by Pamela Akinyi Obiero and Japheth Owak Dache against Wilfred Ododa, challenging the judgment and decree in CMCC NO. 605 OF 2014. 4.The 2nd Defendant averred that the present suit is an affront to the principles of res judicata and sub judice. He contended that the Plaintiff is improperly attempting to challenge the decision in KISUMU CMCC 605 OF 2014 by instituting a fresh suit, despite having concurrently lodged an appeal against the same judgment in KISUMU ELC APPEAL NO. E065 OF 2024. The Applicant deposes that allowing parties to litigate the same dispute repeatedly after a final judgment has been rendered by a competent court is an abuse of the court process, a waste of judicial time, and an affront to the doctrine of finality in litigation. The Reply 5.The application is contested by the 1st Defendant, Japheth Owak Dache, through a replying affidavit sworn on 10th June 2026. He argued that the request to strike out the suit is legally flawed and a strategic move intended to conceal fraud allegedly committed by the 2nd Defendant. The 1st Defendant confirmed that he sold parcel Kisumu/Kapuonja/2935 (which became 3316) to the Plaintiff in 2010, and that she erected a permanent home thereon. He admitted to entering into a subsequent agreement in 2014 to sell a 0.3 HA portion of the remaining parcel (2934) to the 2nd Defendant, but claims the 2nd Defendant paid only a fraction of the purchase price. 6.The 1st Defendant deposed that the Plaintiff filed the current suit on the 9th of May 2025 to injunct the Land Registrar and the 2nd Defendant from interfering with parcels 2934 and 3316. However, he avers that six months later, on the 25th of November 2025, the 2nd Defendant fraudulently procured a new title deed for Land Parcel No. Kisumu/Kapuonja/4986 (measuring 0.82 HA), which was excised from 2934. 7.The 1st Defendant argues that the creation of parcel 4986 in November 2025 constitutes a fresh cause of action in the present suit (E033 of 2025). Because parcel 4986 did not exist during the pendency of the 2014 suit (CMCC 605 of 2014), the 1st Defendant contends that the matter cannot be res judicata. He asserts that a legal doctrine cannot bar a cause of action before it even arises. 8.Additionally, the 1st Defendant contested the finality of the 2014 judgment as it relates to the Plaintiff. He stated that although the Plaintiff was included as an Interested Party in CMCC 605 of 2014, the trial court abruptly closed the case without affording her a hearing or determining her rights in relation to parcel 3316. He claimed that this denial of a fair hearing is the main reason for the appeal in E065 of 2024 and that it prevents res judicata from applying to her in this case. He maintained that the Plaintiff is only defending her matrimonial home against demolition and concluded by warning that, if the case is dismissed, he risks double jeopardy, as the Plaintiff will likely sue for breach of contract and eviction. In the alternative, he requests a stay of proceedings until the appeal is resolved. Applicant’s Submissions 9.In written submissions dated 13 April 2026, the firm of Bruce Odeny & Company Advocates, representing the 2nd Defendant, reiterated that the suit meets all the statutory and jurisprudential thresholds for striking out under the doctrine of res judicata. Counsel anchored their submissions on Section 7 of the Civil Procedure Act, which establishes a mandatory prohibition against trying any suit or issue that has been directly and substantially in issue in a former suit between the same parties and has been heard and finally decided by a competent court. Counsel relied heavily on the Court of Appeal’s pronouncement in Independent Electoral and Boundaries Commission v Maina Kiai & 5 others [2017] eKLR, which outlined the five conjunctive elements necessary to successfully invoke res judicata under Section 7 of the Civil Procedure Act. 10.Counsel applied these elements to the facts at hand. First, the ownership, subdivision, and transfer of the 0.82 HA portion of land, originally from Kisumu/Kapuonja/636, were the central issues in the former suit (CMCC 605 of 2014). Second, the parties in both suits are unequivocally the same. Third, the parties are litigating under the same titles. Fourth, Counsel emphasised that the issue was heard and finally determined by the judgment and decree dated 7th August 2024 in CMCC 605 of 2014. Fifth, the Magistrate’s Court had competent jurisdiction to try the matter. 11.The Applicant’s advocates submitted that the Plaintiff is using the current suit as a disguised appeal to arrest the execution of a valid decree. Counsel concluded that this conduct offends the fundamental policy that litigation must have an end. Respondent’s Submissions 12.M/s Juliet Dima & Associates Advocates, representing the 1st Defendant, urged the Court not to dismiss the suit. Counsel outlined the legal standards for striking out pleadings under Order 2 Rule 15 of the Civil Procedure Rules. Citing DT Dobie v Muchina, Counsel argued that striking out is a severe measure reserved for clear-cut cases where no reasonable cause of action is apparent, and that, so long as a single issue is triable, the case should proceed to a full trial. 13.Counsel drew a distinction between the causes of action, arguing that CMCC 605 of 2014 was a contractual dispute seeking specific performance of the 2014 sale agreement. The Plaintiff was merely an Interested Party and sought no independent relief. Conversely, Counsel submitted that the current suit (E033 of 2025) is an action to cancel a title deed (Kisumu/Kapuonja/4986). Counsel averred that Title 4986 did not exist in 2014. Citing Mburu Kinyua v Gachini Tuti, Counsel further submitted that a cause of action cannot be deemed res judicata before it arises. They also submitted that the Plaintiff’s constitutional right to a fair hearing under Article 50(1) was violated in the Magistrate's Court, as she was denied the opportunity to present evidence, thereby preventing her rights from being finally decided on their merits. 14.Addressing the Applicant’s contention that the Plaintiff’s initial prayers seeking to prohibit the transfer were overtaken by events (because the 2nd Defendant successfully registered parcel 4986 in November 2025), Counsel invoked the doctrine of lis pendens (Section 52 of the Indian Transfer of Property Act 1882 and Section 107 of the Land Registration Act 2012). They argued that the 2nd Defendant rushed to the Land Registrar to procure the title with full knowledge of this pending suit. Therefore, any transfer executed during the pendency of the suit is subject to its outcome. Relying on Macharia v Wanyoike, Counsel submitted that the Court has the power to fashion the reliefs to fit the evolving facts, thereby converting a prayer for prohibition into a prayer for cancellation. 15.Counsel also addressed the multiplicity of suits, citing Attorney General v Kituo Cha Sheria [2017] eKLR to argue that each time the 2nd Defendant changes the land parcel numbers (from 636 to 2934 to 4986), a new, distinct cause of action is generated. Finally, relying on Joseph Ngugi v Kenya Power, Counsel submitted that in scenarios where an active appeal (E065 of 2024) will determine the substratum of the dispute, the appropriate judicial response is to stay the related suit pending the appeal’s outcome, rather than striking it out entirely. Analysis and Determination 16.Having carefully considered the supporting and reply affidavits, the annexures to previous pleadings and decrees, and the submissions of counsel, the issue for determination is whether the Plaintiff’s suit, as pleaded in the Plaint dated 9th May 2025, violates the doctrine of res judicata and amounts to an abuse of the court process. 17.I shall commence by outlining the legal framework for determining this application. The power to strike out pleadings is drawn from Order 2 Rule 15 of the Civil Procedure Rules, which states:“(1)At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that-(a)it discloses no reasonable cause of action or defence in law; or(b)it is scandalous, frivolous or vexatious;(c)it may prejudice, embarrass or delay the fair trial of the action; or(d)it is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.” 18.The exercise of this power is inherently discretionary, but that discretion is heavily circumscribed by precedent. The guiding principles were aptly enunciated in Ecobank Kenya Limited v Bobbin Limited & 2 others [2014] eKLR, which cited with approval Saudi Arabian Airlines Corporation v Premium Petroleum Company Limited [2014] eKLR and summarised these principles as follows:“The first guiding principle is that, every Court of law should pay homage to its core duty of serving substantive justice in any judicial proceeding before it, which explains the reasoning of Madan JA in the famous DT DOBIE case that the Court should aim at sustaining rather than terminating suit. That position applies mutatis mutandis to a statement of defence and counterclaim. Secondly, and directly related to the foregoing constitutional principle and policy, courts should recognize the act of striking out a pleading (plaint or defence) completely divests a party of a hearing, thus driving such party away from the judgment seat; Civil Suit No. 446 of 2019 -Ruling 4 which is a draconian act comparable only to the proverbial drawing of the “Sword of Damocles”. Therefore, the power to strike out a suit or defence should be used sparingly and only on the clearest of cases where the impugned pleading is a demurer or something worse than a demurer’ beyond redemption and not curable by even an amendment. Thirdly, in case of a defence, the court must be convinced upon looking at the defence, that it is a sham; it raises no bona fide triable issue worth a trial by a court. And a triable issue need not be one which will succeed…” 19.However, this judicial restraint must be balanced against the court’s inherent duty to protect its processes from abuse and to uphold the statutory bar of res judicata. Section 7 of the Civil Procedure Act provides that:“No court shall not try any suit or issue that has been 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 which such issue has been subsequently raised, and has been heard and finally decided by such court.” 20.In John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), the Supreme Court provided an exhaustive exposition of the doctrine of res judicata and its role in preventing abuse of the court process:“(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...” 21.This means that the doctrine of res judicata is a fundamental pillar of substantive law, rooted in the policy that it is in the public interest for litigation to come to an end and for no man to be vexed twice for one and the same cause. It serves to ensure the efficient use of judicial resources, promote certainty and predictability in the law, and protect litigants from repetitive litigation over the same grievances. 22.A comparison of the plaint in the instant case (E033 of 2025) with the Memorandum of Appeal filed by the Plaintiff in E065 of 2024 reveals striking similarities. The subject matter is the same in both proceedings. The current suit concerns subdivisions of the mother parcel Kisumu/Kapuonja/636, specifically parcels 2934, 3315, and 3316. Similarly, the pending appeal involves the same land parcels and challenges the execution of the decree over the mother parcel 2934. The primary parties in the current suit are Pamela, the Plaintiff, against Japheth and Wilfred, the 1st and 2nd Defendants, respectively, with statutory bodies added. In the pending appeal, Pamela and Japheth are the Appellants, and Wilfred is the Respondent. The primary grievance in the current suit is that Wilfred’s execution of the court order in CMCC 605/2014 threatens Pamela’s occupation and title to parcel 3316. Similarly, the grievance in the pending appeal is that the trial magistrate in CMCC 605/2014 failed to appreciate the status quo on the ground, thereby indirectly dispossessing Pamela of her parcel without a fair hearing. 23.The primary reliefs sought in the current suit include an injunction prohibiting Wilfred Ododa from possessing the land, an order directing the execution of the CMCC 605/2014 decree against parcel 3315 rather than parcel 3316, and the reinstatement of title to parcel 3316. The pending appeal seeks corresponding substantive relief: to set aside the judgment in CMCC 605/2014, to declare Pamela in lawful occupation of her portion, and to reinstate the title deed issued to her. The subject matter is the same parcel of land. 24.The underlying transaction, which is a sale agreement executed by the 1st Defendant, is identical. The legal issues, namely proprietary rights and the legality of the execution of the lower court’s decree, are indistinguishable. The Plaintiff's objective in both forums is to arrest the execution of the decree in CMCC 605 of 2014 to protect her claim to parcel 3316. 25.Faced with this glaring duplication, the 1st Defendant argued that the cause of action in the May 2025 suit is not the 2014 decree, but rather an act of fraud: the registration and creation of a new title deed, Kisumu/Kapuonja/4986, by the 2nd Defendant. Because this impugned registration occurred on the 25th of November 2025, about six months after the current suit was filed, the 1st Defendant contends that this constitutes a fresh cause of action that could not have been litigated in 2014, thereby rendering the plea of res judicata inapplicable. 26.The position is that on 7th August 2024, judgment was entered in CMCC 605 of 2014, resulting in the current execution dispute. In the same month, August 2024, the Plaintiff and the 1st Defendant filed Appeal E065 of 2024. In May 2025, the Plaintiff filed the current suit (E033 of 2025). This date marks the point at which the cause of action was defined. The argument that fraud occurring in November 2025 forms the basis of the May 2025 suit is baseless, as it did not, and could not, form part of the cause of action when the current suit was filed. The Plaint dated 9th May 2025 makes no mention of the creation of parcel 4986, as it did not exist at the time of filing this suit. 27.Curiously, the Plaintiff has not indicated that they are considering seeking leave of this Court to amend the plaint to include the events of November 2025 as a fresh cause of action. The suit is clearly a collateral attack on a judgment rendered by a competent court, the Trial Court and is designed to run concurrently with her own pending appeal. Indeed, Hon. Lady Justice Asati observed as much in the ruling of 30th June 2025, stating: “The Applicant has not denied the existence of other court cases on the same subject matter wherein she is a party. She has not denied that the action of the Defendants were in execution of a judgment obtained in case No. 605 of 2014 in respect of which she has an appeal pending.” The Court went on to find that the filing of multiple suits and the seeking of injunctive relief in this matter constituted an abuse of the court process. The Supreme Court in John Florence Maritime (supra) addressed the manoeuvres litigants employ to circumvent the bar of res judicata by slightly altering their pleadings. Endorsing an earlier precedent, the Supreme Court held:“(59)That Courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in E.T v Attorney -General & Another, (2012) eKLR thus:“The Courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the Court. The test is whether the Plaintiff in the second suit is trying to bring before the Court in another way and in a form of a new cause of action which has been resolved by a Court of competent jurisdiction…” 28.Applying the principles of John Florence Maritime to the matter at hand, this Court finds that the Plaintiff has already had her “bite at the cherry” in the Magistrates’ Court. Dissatisfied with the outcome, she has properly invoked this Court’s appellate jurisdiction in E065 of 2024. However, unwilling to await the outcome of that appeal, she has filed this suit. To evade the bar of res judicata, the Plaintiff has undertaken cosmetic surgery on her pleadings by joining statutory bodies, namely the Land Registrar, the Director of Surveys, and the Attorney General, as well as several Interested Parties. 29.The addition of administrative parties does not defeat the doctrine of res judicata if the main dispute remains between the same principal parties litigating the same proprietary rights. The substantive dispute herein is not a claim against the Land Registrar; it remains exclusively a contractual and proprietary dispute among the Plaintiff (Pamela), the 1st Defendant (Japheth), and the 2nd Defendant (Wilfred) over conflicting land sales arising from parcel 2934. The Court finds that the joinder of the statutory bodies is merely decorative. It is a deliberate tactic to give the suit a different complexion and to clothe the prayers in a way that deceives the Court into viewing the matter as a fresh dispute regarding administrative registration. 30.Addressing the 1st Defendant’s alternative request for a stay of the suit pending appeal, the claim is without merit. Courts typically favour maintaining parallel proceedings rather than striking them out, but when a disguised suit amounts to an abuse of court process, an appropriate judicial response is warranted. Simply staying a fundamentally flawed suit leaves the “Sword of Damocles” hanging unfairly over the Applicant, undermining expeditious dispute resolution. The Plaintiff cannot be permitted to maintain a concurrent original suit that seeks to undermine the very judgment she is actively appealing. Disposition 31.In conclusion, the Court finds that the plaint dated 9th May 2025 is inextricably linked to the issues determined in CMCC 605 of 2014 and to those pending appeal in E065 of 2024. Consequently, the Notice of Motion dated the 23rd of February 2026 succeeds. I make the following final orders:a)The Notice of Motion dated 23rd February 2026 is allowed in its entirety.b)The Plaintiff’s plaint dated the 9th of May 2025 is hereby struck out for being res judicata and an abuse of the court process.c)The costs of this application and the struck-out suit shall be borne by the Plaintiff and the 1st Defendant, jointly and severally. DELIVERED VIRTUALLY, SIGNED AND DATED THIS 16TH DAY OF JULY 2026.C.C. OLUOCHJUDGEIn the presence of:Ms Akinyi for the 2nd DefendantMs Atieno for the 1st DefendantFaith Court Assistant