https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3798

Wanyonyi v Nyongesa & another (Land Case E008 of 2025) [2026] KEELC 3798 (KLR) (8 June 2026) (Ruling) Neutral citation: [2026] KEELC 3798 (KLR) Republic of Kenya In the Environment and Land Court at Bungoma Land Case E008 of 2025 AK Bor, J June 8, 2026 Between Roseline Nasiuma Wanyonyi Plaintiff and Ferdinard Chirure Nyongesa 1st Defendant District Land Registrar, Bungoma 2nd Defendant Ruling 1.The 1st Defendant brought the application dated 29/9/2025 seeking to have this suit struck out for being res judicata. The application was made on the grounds that the Plaintiff sued Simon Nyongesa Namurende with the 1st Defendant in Bungoma High Court Civil Case No. 2 of 2003 (OS) claiming adverse possession of 7 acres out of the land known as E. Bukusu/S. Narondo/146 9the suit land) and that that suit was dismissed under Order 17 Rule (2) of the Civil Procedure Rules on 8/11/2016. The 1st Defendant contended that the issues between the Plaintiff and the 1st Defendant are similar to the issues that were in the case dismissed. It was contended that the decision in that suit was final in light of the fact that the Plaintiff did not lodge an appeal against that determination. 2.The 1st Defendant swore the supporting affidavit to which he annexed copies of the Originating Summons and replying affidavit filed in Bungoma HCCC No. 2 of 2003 (OS). He averred that the filing of this suit was an abuse of the court process and that this court was barred by law from trying any suit or issue in which the matter directly and substantially was 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 before a court of competent jurisdiction. He averred that the issues between the Plaintiff and the 1st Defendant in this case are the same issues that were in the case that was dismissed and was over the same suit land. 3.The Plaintiff filed grounds of opposition and urged that res judicata does not apply in this case because Bungoma HCCC No. 2 0f 2023 (OS) was not heard and determined on merit, having been dismissed for want of prosecution; which in the Plaintiff’s view did not constitute a final judgment of the issues in controversy. The Plaintiff urged that the dismissal of that suit was unlawful and prejudicial because no notice to show cause was served upon her contrary to the requirements of Order 17 Rule 2 of the Civil Procedure Rules. The Plaintiff contended that she changed advocates severally which led to challenges in communication and continuity. She maintained that her cause of action remained unadjudicated and alive before this court. 4.The application was canvassed through written submissions. The 1st Defendant submitted that the Plaintiff had sued him with Simon Nyongesa seeking adverse possession of 7 acres forming part of the suit land. That the suit was determined when it was dismissed on 8/11/2016. Further, that the Plaintiff had the option of filing an appeal or applying for review, variation or setting aside of the dismissal orders but not filing another suit. The 1st Defendant argued that res judicata did not only apply to points upon which the court was required to form an opinion 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. He emphasized that the doctrine of res judicata was aimed at preventing parties from abusing the court process by filing endless cases over the same subject matter. The 1st Defendant cited various decisions in support of his submissions. 5.In her submissions, the Plaintiff was emphatic that the previous suit was not heard and finally determined. She went on to argue that a dismissal for want of prosecution was not a judgment on merit and could not therefore sustain a plea of res judicata. She made reference to various decisions in support of the contention that res judicata applied only to matters properly and finally adjudicated. She reiterated that the absence of a notice to show cause vitiated the dismissal of her previous suit. She urged that a court must aim at determining the rights of parties and not procedural technicalities as enjoined by Article 159 (2) (d) of the Constitution. 6.The issue for determination is whether the court should strike out the suit for being res judicata. It is not disputed that the Plaintiff had previously filed another suit against the 1st Defendant over the suit land in this case being Bungoma HCCCC No. 2 of 2003 (OS) and that that case was dismissed for want of prosecution on 8/11/2016. The Plaintiff contends that the dismissal of her suit for want of prosecution was illegal because a notice to show cause was not served upon her before her suit was dismissed. It is not clear when the Plaintiff discovered that her suit had been dismissed in 2016. She filed this suit in 2025, 9 years after the suit was dismissed. A decision made by a competent court cannot be reopened to be heard again unless that decision is set aside or successfully challenged on appeal. 7.The proper recourse would have been for the Plaintiff to apply to set aside the dismissal orders made in 2016 citing non-service of the notice to show cause but not to file a fresh suit as she did through the present suit. 8.If indeed the Plaintiff discovered nine years later that her suit had been dismissed for want of prosecution, then the doctrine of laches must apply to her circumstances for equity aids the vigilant and not those who file cases and then go to slumber. It is worth noting that the Plaintiff’s suit, which was dismissed in 2016, had been filed in 2003, meaning for 13 years the Plaintiff did not take steps to have her case set down for hearing. Litigation must come to an end, it cannot go on endlessly. 9.In Co-operative Bank of Kenya Limited v Cosmas Mrombo Moka and Another [2019] KECA 788(KLR) the Court of Appeal found that where a suit is dismissed for want of prosecution, it could not be resuscitated through a fresh suit. The Court found that the former suit having been dismissed for want of prosecution then the latter suit was res judicata and could not stand. 10.This court agrees with the Defendant that this suit is res judicata and it is therefore struck out. The Defendant is awarded the costs of the application and of the suit. DELIVERED VIRTUALLY AT NAIVASHA THIS 8TH DAY OF JUNE 2026.K. BORJUDGEIn the presence of: -Court Assistant-Bett & MetrineNo appearance for the parties