https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5020

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT KAPSABET** **ELCC NO. 121 OF 2021** **CONSOLIDATED WITH** **KAPSABET ELCC 154 OF 2022** **PAUL KIPROBON TALAM……………………..…………………PLAINTIFF** **VERSUS** **WILLIAM KIPKOSGEI BARNGETUNY…………………………DEFENDANT** **JUDGMENT** 1. At the outset, it is notable that this suit was consolidated by consent of the parties herein on the 21st June 2022, whereby this Honourable Court gave the following directions: 2. This case together with **KAPSABET ELCC NO. 154/2021**, be and are hereby consolidated. 3. The head file shall be this case, **KAPSABET ELCC NO. 121/2021**, and the Plaintiff herein shall be the Plaintiff in the consolidated file. 4. The Originating Summons in **KAPSABET ELCC NO. 154/2021** shall be converted to a defence and counter claim. 5. Pursuant to the above directions, the Plaintiff, through M/S Rioba Omboto & Company amended their pleadings per the amended plaint dated 5th September 2022 prayers: 6. A declaration that the defendant’s interest in that portion of suit title measuring 6.40 acres curved out of that parcel of land known as **Nandi/Baraton/258** measuring 6.6 Ha (16.5) (The suit land herein) be extinguished by adverse possession. 7. The Plaintiff be entitled to be registered as the proprietor of 6.40 acres out of the suit land having acquired ownership thereof by adverse possession. 8. The Defendant be ordered to pay costs and interests of the Plaintiff. 9. And any other reliefs that this Honourable Court deem just and fit to grant. 10. By the pleadings namely the Originating Summons in **KAPSABET ELCC NO. 154 of 2021** which was converted into a defence and counterclaim, the Defendant is seeking the following orders; 11. Orders of mandatory injunction directing the Defendant, his children, agents, servants and/or employees to vacate from the suit land within fourteen (14) days from the date of Judgement and in default, they be forcefully evicted therefrom. The O.C.P.D Chemundu Police Post to supervise the exercise. 12. Orders of permanent injunction restraining the Defendant either by himself, his children, employees, agents and/or servant from encroaching, trespassing onto, fencing, ploughing, growing crops, alienating or otherwise dealing with the suit land. 13. Mesne profits for the year he has been in legal occupation and use of the suit property. 14. Costs of the suit and interest thereon at court rates. 15. In KAPSABET ELCC NO. 154 of 2021, the Defendant, who is the Plaintiff in the head file, filed the statement of defense where he stated, inter alia; 16. In further response to paragraph 7 of the plaint, the particulars of trespass, fencing the Plaintiff’s property, ploughing and refusing to demolish is categorically denied by the defendant and the plaintiff is invited to strict proof. 17. The defendant further contends that he has been in a peaceful possession of the purchased portion of land and carrying on his farming activities with the knowledge of the plaintiff thus cannot be accused of trespass of property he lawfully acquired. 18. In response of paragraph 11 of the plaint, the defendant contends that this suit is sub-judice as there is another suit pending being Environment & Land Court at Kapsabet ELC No. 121 of 2021 (formerly Eldoret ELC No. 104 of 2019) **Paul Kiprobon Talam -versus- William Kipkosgei Barngetuny)** which is an abuse of the court process and the Defendant shall raise a preliminary objection on the same. 19. **PW1, Paul Kiprobon Tallam** who is the plaintiff in the head file relied on his statement dated 22nd August 2019 as part of his evidence. He stated that he was in Court because of **the suit land** which measures 17 acres. That he purchased it from Cheboit Kobot Tabarchok 6.4 acres in 1969 and he started living thereon the same year. That he utilizes the whole 6.4 acres. That Cheboit Kobot Tabarchok and Esther Kobot Nyongio sued him in Eldoret, in High Court civil suit No. 142/1991 – Esther Kobot Nyongio versus Paul K. Tallam. That the case for Esther was dismissed. He referred to his list of documents dated 22/8/2019 with documents and a further list of documents dated 2/2/2021 with 3 documents which he produced as evidence. 20. In cross examination, PW 1 stated that he bought a total of 6.4 acres and that he was given 4 acres by the High Court. He stated that he did not register the decree because he wants the additional 2.4 acres. He said that William Kosgei got the title. He explained that he sued William Kosgei from 1993. 21. **PW2, Samuel Kiptanui Seurei** wrote a witness statement filed on 8/12/2021 which he relied on as part of his evidence in chief. He stated that he never heard of a dispute between Esther Kobot Nyongio and Paul Tallam although there was a court case where Paul Tallam was given the suit land. That there had been no dispute between William Barngetuny and Paul Tallam before this case. 22. **PW3, Kimeli Arap Kogo** stated in examination in chief, among others, that he had not heard of any dispute between William and Paul Tallam. That Paul Tallam lives on 6.4 acres of the suit land which he bought from Cheboit. That he relied on his statement filed on 8/12/2021 as part of his evidence. 23. During cross examination, PW3 stated that there was a case in Eldoret in which he was a witness. He said that he bought the land parcel by paying in installments. That it was agreed that he had bought 6.4 acres. That he did testify because he was a witness in regard to the sale. 24. PW4, Phillip Busienei stated in examination in chief that he relied on a written statement filed on 8/12/2021 which was adopted as part of his testimony. Under cross examination, PW4 told the court that he was present in the High Court for the other case, but he did not testify in the case. 25. **DW1, William Kipkosgei Barngetuny** National Identity Card number 5589994 relied on the Replying Affidavit dated 8th November 2019 as part of the witness’s evidence in chief. During cross examination, DW1 stated that he had the Death certificate of his mother and grandmother. He said that he might have filed Succession in respect of his late mother. That he was aware his mother sued Paul Tallam in civil suit No. 142/1991 before Eldoret High Court. That there was a judgement delivered by Justice Aganyanya which they did not appeal because his mother was sick. 26. **DW2, Mary Cheptanui Tuwei** relied on her statement which was adopted as part of her evidence. He stated that the court had passed a verdict on the case and prayed that Paul Tallam moves from the land. In cross examination he stated that he was aware of the Eldoret High Court and there was a decision made. 27. On further cross examination, DW2 stated that he remembered a case in the High Court filed by William’s mother Esther Nyongio who sued Paul Tallam. He said that he did not know the outcome of the case. That Mr. Tallam still occupies the 6.4 acres. 28. DW3, Benjamin Kipsang Letting relied on his statement and stated that the parties herein are his neighbours. In cross examination, he stated that he remembered a suit filed at Eldoret High Court between the defendant’ mother, Esther Nyongio against the plaintiff. That he was not aware of its outcome. 29. Notably, the Court was called upon to exercise discretion in allowing an application by the learned counsel for the Defendant to reopen the Plaintiff’s case to allow the Plaintiff for cross examination. In its ruling the Court noted that DW2 and DW3 already testified and allowed them to be recalled hence, the court granted the application accordingly. 30. Upon being recalled, DW2 relied on his affidavit sworn on 8th November 2019 as part of his evidence in chief. Under cross examination, he stated partly that he appeared before Justice Aganyanya as he then was in HCCC No. 142 of 1991. That he was the Defendant in the suit and was not entitled to four acres of the suit land. 31. DW3 in cross examination stated in part that the late Esther Nyangio and Plaintiff had a suit No. 42 of 1981 at Eldoret (HCCC) but was not a witness therein. That she was not conversant with its determination. 32. By the Plaintiff’s submissions dated 15th June 2026m it was stated that the instant dispute is not novel. That it was conclusively determined in Eldoret High Court Civil Case No. 142 of 1991. Wherein the then registered proprietor, Esther Kobot Nyongio (mother to the present Defendant) -versus- Paul Kiprobon Tallam, sought the eviction of the Defendant who is now Plaintiff herein. 33. The Plaintiff further submitted that he had been in open and notorious possession of 6.4 acres curved out of NANDI/BLOCK/258 and relied on the case of **Mbira v Gachuhi (2002) eKLR** to support his argument. That he was confident to have met all the requirements necessary for adverse possession. He also relied on the judgment in HCCC No. 142 of 1991 in which Justice Aganyanya (as he then was) found that the Plaintiff herein had acquired ownership of the 4 acres by adverse possession. 34. Moreover, counsel for the plaintiff relied on **Waweru v Waweru (2018) eKLR** to argue that the Defendant, being a successor in title to Esther Kobot Nyongio, cannot acquire better title than that held by his predecessor. Counsel urged Court the court to grant the orders sought in the Originating Summons. 35. By the defendant’s submissions dated 17th July 2026, reference is made to the amended plaint and the Replying Affidavit sworn on 8th November 2019. It was submitted that the Plaintiff never bought 6.4 acres of land as alleged herein and referred to the judgment in High Court in HCCC No. 142 of 1991. That the matter is thus, conclusively adjudicated and can not be visited again as litigation has to come to an end. 36. To fortify the submissions, the defendants counsel relied on the cases of **ET vs Attorney General & Another (2012) eKLR, and Kenya Commercial Bank Ltd & Another vs Muiri Coffee Estate Ltd & 3 others (2016) eKLR 2016**, among others. Therefore, Counsel urged the court to dismiss the consolidated suit with costs. 37. It is established law that the issues for determination in a suit arise out of the pleadings or as frame by the parties for the court’s determination; see **Great Lakes Company Transport Company (U) Ltd-vs- Kenya Revenue Authority {2009] KECA 401 (KLR).** 38. Further, it is well settled that the parties are bound by their pleading generally; see **Raila Odinga-vs-Independent Electoral and Boundaries Commission & 2 others {2017} KESC 37 (KLR).** 39. Additionally, it is established law that a Court may base its decision on an un-pleaded issue if it appears from the course followed at the trial that the issue has been left to the Court for decision; see **Odd Jobs- vs-Mubia 1970 EA 476.** 40. Having anxiously considered the parties’ respective pleadings, the evidence given in Court, and the submissions herein, this Court is of the view that the following issues arise for determination: 41. Whether the suit herein is *res judicata* by virtue of the judgment of the Eldoret High Court Civil Case No. 142 of 1991. 42. Subject to issue (a) hereinabove, whether the Plaintiff has proved his claim for adverse possession over the suit land against the defendant on a balance of probabilities to attract the orders sought in the originating summons? 43. The orders to issue for the ends of justice herein. 44. On res judicata issue, it is worth to note that the issue is not explicit from the parties’ respective pleadings or submissions. Nonetheless, in their evidence, both parties made reference to Eldoret HCCC No. 142 of 1991 which was rendered by Justice Aganyanya (as he then was) and its possible implication to the current suit. So, this Court is clothed with the power to consider and make a finding on other issues, which though may not have been brought out expressly by parties, can be deduced from the pleadings, the trial and/or submissions of parties as noted in **Odd Jobs case (supra).** 45. In paragraph 2 of the Plaintiff’s submissions dated 15th June 2026, the Plaintiff notes that the case herein “***is not novel and that it is a matter that was conclusively determined”*** in Eldoret High Court Civil Case No. 142 of 1991. 46. On the other hand, the Defendant, in making reference to the said judgment at paragraph (vii) of his Replying Affidavit sworn on the 8th November 2019. He averred that in the judgment in HCCC No. 142 of 1991, the Plaintiff’s evidence, which was accepted as evidence by the Court, was that he took possession on 11th August of 1969. 47. Essentially, both parties acknowledge that the issues raised for determination in the current suit are similar to those that were raised in HCCC No. 142 of 1991 where the court delivered its judgment that: *‘(a) The Plaintiff had been in occupation of the disputed portion since 11th August 1969;* 1. *Such occupation was open, continuous and uninterrupted;* 2. *The title of the registered owner had been extinguished by operation of the law; and* 3. *The Plaintiff had acquired ownership of the 4 acres by adverse possession.’* 4. Res judicata principle is founded under section 7 of the Civil Procedure Act Chapter 21 Laws of Kenya which reads; *“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*** *(emphasis added) between the same parties, or between* ***parties under whom they or any of them claim*** *(emphasis added), 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.”* The same section provides explanations; some of which we believe are instructive in the present case. These include: *Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.* *Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.* *Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.* *Explanation. — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.* 1. In the case of **Independent Electoral & Boundaries Commission (IEBC) vs Maina Kiai & 5 Others [2017] eKLR**, the Supreme Court while considering the said provision held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is; *"(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.”* 1. The first element of res judicata is whether the suit or issue was directly and substantially in issue in the former suit. Having considered the pleadings and prayers sought in the suit herein, this Court finds that the issue in the suit herein touches adverse possession claim in respect of 6.4 acres of the suit land measuring 17 acres. From the judgment in HCCC No. 142 of 1991, it is observed that the Plaintiff herein, who was the Defendant in the previous suit, via a counterclaim, applied for the said 6.4 acres of land in the previous suit, even though the Court only awarded him 4 acres of the land. Clearly, the Plaintiff herein, who was the Defendant in the previous case, seeks similar prayers. Thus, I find this first element satisfied. 2. The second element is the former suit was between the same parties or parties under whom they or any of them claim. This court notes that the Plaintiff in the present case was the Defendant in the former case. In the latter case, he lodged a counterclaim which was allowed by the court in the former suit where the Plaintiff was one Esther Kobot Nyongio. Both parties to this suit have confirmed that Esther Nyongio was the mother to William Kipkosgei Barng’etuny, the Defendant herein. 3. The Plaintiff’s submissions dated 15th June 2026 reveal that the present Defendant, being the son and successor in the title to Esther Kobot Nyongio, subsequently procured registration of the suit property in his name. It is therefore, evident that the Defendant herein, is a successor in title of the previous Plaintiff. Section 26 of the Land Registration Act 2016 (2012) provides that certificate of title can be issued upon registration or upon transfer in a sale or upon transmission. In this case, this Court finds that the Defendant herein, being a successor in title to the suit land on behalf of his late mother, qualifies as a party, under whom Esther Kobot Nyongio, claims. In that regard, this element is satisfied, too, herein. 4. The third and fourth elements relate to the suit having been filed under the same title and that the same was heard and finally determined in the former suit. This court finds that this suit was filed in the same form, manner and under the same title. It was heard on merit following the hearing of witnesses and the court rendered its judgment in Eldoret HCCC No. 142 of 1991. By the said judgment, this Court is of the considered view that all the issues in the former suit were fully deliberated upon and determined. Both parties herein confirmed that no application for review was done and no appeal was filed. The judgment of the court in the former suit is therefore binding upon the parties. In the premises, the Court finds these twinned elements duly satisfied. 5. The fifth element relates to the court that heard and determined the former suit was of competent jurisdiction. The former suit was heard and determined by the High Court sitting at Eldoret and presided over by Justice Aganyanya (as he then was). During the suit, no objection was filed touching on the jurisdiction of the Court. This Court therefore, finds that the court had the requisite jurisdiction to hear and determine the suit. Thus, this element is satisfied. 6. Having found all the elements set down in , inter alia, **IEBC vs Maina Kiai and cases (supra)** are duly satisfied in this consolidated case, I endorse the words of Kuloba J (as he then was) in **Omondi s NBK & Others (2001) EA 177** where he stated; *“If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift in every occasion he comes to court, then I do not see the use of doctrine of res judicata…..”* 1. It is crystal clear that in Eldoret HCCC No. 142 of 1991 where the judgment that binds parties and was never set aside, the parties cannot seek to be “appeal” or ‘review’ the same through the use of a similar case, raising similar issues and between the same parties. If the Plaintiff herein disputed the acreage that he was awarded in that suit, he ought to know the avenues to resort to in respect of the claim. 2. In conclusion, it is the finding of this Court that the suit herein is substantially the same as that in HCCC No. 142 of 1991, having been filed by the same parties and touching on the same issues. The principle of res judicata applied very handy herein. In view of this court’s finding of merit in regard to the first issue herein which is a jurisdictional issue, the said issue automatically terminates all the other issues for determination herein. 3. Accordingly, the consolidated suits namely Kapsabet ELCC No. 121 of 2021 being the head file commenced by an amended plaint dated 5th September 2022 and Kapsabet ELCC NO. 154 OF 2021 herein, are hereby dismissed with costs to the defendant in the head file. **Dated** and **Delivered** at **Kapsabet** this day of **21st Day of July, 2026.** **HON. G M A ONGONDO** **JUDGE** **In the presence of;** 1. Mr. David Omboto learned counsel for plaintiff 2. Mr. Rotuk Bitok learned counsel for the defendant 3. Mr. Walter Kipkorir, Court Assistant