https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3082

Talam v Chepngeno & 3 others (Environment and Land Case E001 of 2023) [2026] KEELC 3082 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3082 (KLR) Republic of Kenya In the Environment and Land Court at Kericho Environment and Land Case E001 of 2023 LA Omollo, J May 21, 2026 Between James Arap Talam Plaintiff and Irene Chepngeno 1st Defendant Kericho District Land Registrar 2nd Defendant Kericho District Surveyor 3rd Defendant The Ministry Of Lands 4th Defendant Ruling Introduction. 1.This ruling is in respect of the Plaintiff/Applicant’s Notice of Motion application dated 28th November, 2025. The application is expressed to be brought under Sections 1A, 1B, 3A & 7 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. 2.The application seeks the following orders;a.That the Honourable Court be pleased to find the 1st Defendant’s Counterclaim suit herein to be res judicata for reason that it offends Section 7 of the Civil Procedure Act.b.That the Honourable Court be pleased to find that the Counterclaim is defective and liable to be struck out, for reason that prayer (b) offends Section 38 of the Limitation of Actions Act and is further legally flawed as it based on a misapprehension of the law of adverse possession as permissive possession is not adverse possession.c.That That (sic) the costs of this application be provided for in the cause. 3.The application is based on the grounds on its face and the supporting affidavit of the Plaintiff/Applicant that is sworn on 28th November, 2025. 4.For purposes of this application, the Plaintiff/Applicant means the Plaintiff in the main suit while the 1st Defendant/Respondent means the 1st Defendant in the Main suit and the Plaintiff in the counterclaim. Factual Background. 5.The Plaintiff/Applicant commenced the present proceedings vide the Plaint dated 18th July, 2023 where he seeks the following prayers;a.A declaration that the resultant titles from Kericho/Kapsuser/933 upon subdivision are Kericho/Kapsuser/5256 and Kericho/Kapsuser/5257.b.A declaration that the Plaintiff is the bona fide and legal owner of LR No. Kericho/Kapsuser/5256.c.A permanent mandatory injunction to restrain the 1st Defendant from encroaching, trespassing, developing, alienating, selling, transferring or in any other way interfering or dealing with the parcel of land known as LR No. Kericho/Kapsuser/5256.d.An order to evict the 1st Defendant, her servants, agents and or individuals claiming ownership from her from Kericho/Kapsuser/5256.e.An order for cancellation of the resultant titles Kericho/Kapsuser/5256 and Kericho/Kapsuser/5257 and further order the restoration of the title Kericho/Kapsuser/933 in the name of the Plaintiff James Arap Talam.f.An order to the Land Registrar, Kericho compelling him to amend all entries made in the register of Kericho/Kapsuser/933 to the detriment of the Plaintiff by reinstating him as the sole owner of the suit land.g.An order to the Land Registrar, Kericho compelling him to issue the Plaintiff with the title for Kericho/Kapsuser /933 as irrefutable proof of ownership of the land.h.General damages.i.Costs and interest of the suit.j.Any other further relief that this Honourable Court may deem fit and just to grant. 6.The 1st Defendant/Respondent filed a Statement of Defence and Counterclaim dated 4th July, 2025. She seeks the following prayers in the Counterclaim;a.The 1st and 2nd Defendants in this Counter-claim hold the title of the entire parcel of land known as Kericho/Kapsuser/5256 measuring 1.82 Ha of (a subdivision of the land parcel known formerly known as Kericho/Kapsuser/933) (sic) in trust for the Plaintiff in this counterclaim.b.The Plaintiff in this counterclaim has been in quiet exclusive possession and occupation of the entire land parcel known as Kericho/Kapsuser/5256 measuring 1.82 Ha of (a subdivision of the land parcel known formerly known as Kericho/Kapsuser/933) (sic) and has hitherto so done for a period exceeding 12 years and has therefore acquired title thereto by adverse possession. (sic)c.The Plaintiff in this counterclaim has as such acquired bona fide title to the entire land parcel known as Kericho/Kapsuser/5256 measuring 1.82 Ha of (a subdivision of the land parcel known formerly known as Kericho/Kapsuser/933) (sic).d.The Plaintiff in this counterclaim is hence entitled to continue being registered as the proprietor of the entire land parcel known as Kericho/Kapsuser/5256 measuring 1.82 Ha of (a subdivision of the land parcel known formerly known as Kericho/Kapsuser/933) (sic) and whether this Honourable Court shall so order. (sic)e.The Plaintiff in this counterclaim is entitled to costs of the Counterclaim. 7.The 2nd, 3rd, 4th and 5th Defendants/Respondents in the main suit filed their Statement of Defence on 17th April, 2025 where they deny the averments in the Plaint and seek that the Plaintiff/Applicant’s suit be dismissed with costs. 8.As at the time of writing of this ruling the 1st Defendant in the Counterclaim has not filed his statement of Defence. 9.The application under consideration came up for hearing on 5th February, 2026 when counsel for the 2nd, 3rd, 4th and 5th Defendants/Respondents in the main suit informed the Court that they would not be participating in the hearing of the application. 10.The Court issued directions that the application be canvassed by way of written submissions. 11.It was mentioned to confirm filing of submissions and on 4th March, 2026 it was reserved for ruling. The Plaintiff/Applicant Contention. 12.The Plaintiff/Applicant contends that matters that were substantially in issue in Kericho ELC Case No. 1 of 2014 have been raised by the 1st Defendant/Respondent in her counterclaim. 13.The Plaintiff/Applicant contends that some of the issues include the alleged sale of the land and goes on to state that the said issue has been raised at paragraph 9 of the Counterclaim and in the witness statements of Irene Chepngeno, Duncan Kipchumba, Daniel Kipkurui Too and Kibiegon A. Mitei Benjamin. 14.The Plaintiff/Applicant also contends that the consent to subdivide and transfer land parcel No. Kericho/Kapsuser/933 together with the transfer instrument have been included in the 1st Defendant/Respondent’s list of documents at No’s 2 and 3 respectively. 15.The Plaintiff/Applicant further contends that the 1st Defendant/Respondent has also attached an order that was issued in Kericho CM Misc. Application No. 73 of 2010 at number 4 of her list of documents. 16.It is the Plaintiff/Applicant’s contention that the issues on the sale and transfer of land parcel No. Kericho/Kapsuser/933 were dealt with in the judgement that was delivered Kericho ELC Case No. 1 of 2014. 17.It is also the Plaintiff/Applicant‘s contention that the Court found that the 1st Defendant in the Counterclaim did not prove his claim and goes on to state that the 1st Defendant in the counterclaim did not have a land sale agreement and neither did he prove the alleged terms of the said agreement. 18.It is further the Plaintiff/Applicant’s contention that the Court that heard Kericho ELC Case No. 1 of 2014 had jurisdiction to hear and determine the suit. 19.The Plaintiff/Applicant contends that the 1st Defendant in the Counterclaim and him were parties in the former suit. 20.The Plaintiff/Applicant also contends that the 1st Defendant/Respondent was registered as the owner of land parcel No. Kericho/Kapsuser/5256 on 14th January, 2016. 21.The Plaintiff/Applicant further contends that the 1st Defendant/Respondent is seeking to be declared to have acquired the said parcel of land by way of adverse possession. 22.It is the Plaintiff/Applicants contention that the issue of adverse possession as pleaded in the Counterclaim is a misapprehension of the law. 23.It is also the Plaintiff/Applicant’s contention that the 1st Defendant/Respondent avers that she took possession of the said parcel of land with the consent of the 1st Defendant in the Counterclaim and goes on to state that a party cannot claim adverse possession if they took possession of the land with the consent of the owner. 24.He ends his deposition by urging the Court to allow the prayers sought in the application. The 1st Defendant/Respondent’s response. 25.The 1st Defendant/Respondent filed a Replying Affidavit sworn on 24th January, 2026. 26.She deposes that the Plaintiff/Applicant commenced the present proceedings vide the Plaint dated 18th July, 2023 and then sets out the prayers sought in the Plaint. 27.She also deposes that the prayers sought in the present suit are meant to assist the Plaintiff/Applicant to execute the judgement delivered in Kericho ELC Case No. 1 of 2014. 28.She further deposes that the parties in Kericho ELC Case No. 1 of 2014 were Wesley Rutto (Plaintiff) and James Arap Talam (Defendant). 29.It is her deposition that in the said suit, Wesley Rutto sought the following prayers;a.A declaration that the 5 acres comprised in the parcel of land Kericho/Kapsuser/933 belongs to the Plaintiff.b.Permanent injunction restraining the Defendant, his agents and/or servants from entering, interfering and or doing anything in the 5 acre parcel of land comprised in Kericho/Kapsuser/933.c.Costs of this suit. 30.It is also her deposition that James Arap Talam filed a Counterclaim and sought the following orders; 1.A revocation of the resultant titles from Kericho/Kapsuser/5156 and Kericho/ Kapsuser/5157 and restoration of the Defendants (now the Plaintiff original title L.R. No. Kericho/Kapsuser/933. 2.An order for demolition of the Plaintiffs (now the Defendant) structures on the Defendant (now the Plaintiff) L.R. No. Kericho/Kapsuser/5157. 3.An order of eviction and permanent injunction (now the Defendant) his children, agents and or servants from L.R. Kericho/Kapsuser/933 from entering, remaining or doing anything on the suit land herein. 4.Costs and interest on the Counter – Claim. (sic) 31.It is further her deposition that the Court delivered judgement in the said matter in the following terms;a.The Plaintiff's suit is hereby dismissed with costs.b.I enter judgement for the Defendant in terms of the Counter -Claim with costs.c.I hereby Order the revocation of the titles Kericho/Kapsuser/5156 and Kericho/Kapsuser/5157 and further order the restoration of the title Kericho/Kapsuser/933 in the name of James Talam.d.I order the Plaintiff to demolish all structures and vacate the land comprised in the land parcel Kericho/Kapsuser/933 and to do so no later than 30 days from the date hereof.e.In the event that the Plaintiff does not do so, the Defendant is at liberty to apply for an order of eviction and is at liberty if he does wish to demolish the structures put up by the Plaintiff and the costs of all these will be shouldered by the Plaintiff.f.After the period of 30 days above, the Plaintiff and or his servants/ agents/assigns and or anybody claiming under his title are hereby barred by an order of permanent injunction from entering, being upon, or in any other way interfering with the possession of the land parcel Kericho/Kapsuser/933. 32.She deposes that she only came to learn about Kericho ELC Case No. 1 of 2014 after she was served with the present proceedings. 33.She also deposes that she filed her statement of defence and Counterclaim and she then sets out the prayers sought in the Counterclaim. 34.She further deposes that the Plaintiff/Applicant is contending that her Counterclaim is res judicata and offends Section 7 of the Civil Procedure Act. 35.It is also her deposition that she has been advised by her advocates on record that for a suit to be said to be res judicata, the parties and the issues in dispute in the former and present suit have to be the same and adds that the Court which heard the former suit must have been competent to hear it. 36.It is further her deposition that in her counterclaim, she has raised the issue of adverse possession which was not part of the issues raised in Kericho ELC Case No. 1 of 2014. 37.She deposes that she has lived on land parcel No. Kericho/Kapsuser/5256 together with her husband one Duncun Kipchumba Bii since the year 1988 and goes on to state that land parcel No. Kericho/Kapsuser/5356 is one of the resultant subdivisions of land parcel No. Kericho/Kapsuser/933. 38.She also deposes that in the year 2002, they planted tea on the said parcel of land which they begun to sell to Tegat Tea Factory in the year 2006 and adds that they established a dairy farm on the suit parcel of land in the year 2008. 39.She further deposes that they have constructed a primary school on a portion of the said parcel of land and their matrimonial home on another portion and goes on to state that the developments made thereon are valued at kshs. 8,500,000/=. 40.It is her deposition that she secured a loan of Kshs. 3,060,000/= from KCB Bank Kenya Limited and registered a charge over the suit parcel of land and adds that the charge was registered on 3rd February, 2016. 41.She reiterates that she was not served with the pleadings filed in Kericho ELC Case No. 1 of 2014 and neither was she a party to the said suit despite being directly affected by the orders sought therein. 42.It is also her deposition that the parties in Kericho ELC Case No. 1 of 2014 are not the same as the parties in the Counterclaim and neither are they litigating under the same title. 43.It is further her deposition that the Plaintiff/Applicant has not demonstrated that the issues that were raised in Kericho ELC Case No. 1 of 2014 have also been raised in the Counterclaim. 44.She deposes that it is premature for the Court to make the said determination as the suit is yet to be heard. 45.She also deposes that a cursory look at the Plaintiff/Applicant application shows that he is seeking that the Court finds certain documents to be res judicata and that she be precluded from relying on them. 46.She further deposes that the documents that the Plaintiff/Applicant has issues with were documents that were obtained from Kericho ELC Case No. 1 of 2014 and adds that she is relying on the said documents to give context to her evidence and prove the timelines for her occupation. 47.It is her deposition that it is premature to speculate how she intends to use the said documents. 48.It is also her deposition that the doctrine of res judicata has the potential of locking her out from the doors of justice as her counterclaim will be disposed off without considering its merits. 49.It is further her deposition that in considering whether a suit and/or issue is res judicata, the Court has to consider the facts and circumstances of each case. 50.She deposes that she has been advised by her advocates on record that the doctrine of Res Inter allos acta alteri nocere non debet applies in this suit and precludes this Court from gagging her Defence and Counterclaim as she never participated in Kericho ELC Case No. 1 of 2014. 51.She also deposes that the said doctrine means that a transaction between two parties should not operate to the disadvantage of a third party. 52.She further deposes that the said doctrine ensures that contracts, acts and/or judicial decisions do not create rights and/or obligations for people who were not involved. She goes on to state that the said doctrine protects third parties. 53.It is her deposition that the course of action in the present suit and Kericho ELC Case No. 1 of 2014 are different save for some similar, coincidental set of facts and evidence. 54.It is also her deposition that she is advised by her advocates on record that a party seeking orders of adverse possession must prove the following;a.On what date he came into possession.b.The nature of his possession.c.Whether the fact of his possession was known to the other party.d.How long his possession has continued.e.Whether the possession was open and undisturbed for a requisite twelve years. 55.It is further her deposition that it is important for her to rely on the facts as pleaded in her defence and counterclaim to prove her case. 56.She deposes that her occupation was not permissive and goes on to state that if she inadvertently gave that impression in her pleadings then, she will correct the said error through an amendment. 57.She also deposes that the Plaintiff/Applicant’s contention that the Counterclaim should be struck out as it offends Section 38 of the Limitation of Actions Act is flawed. 58.She further deposes that she has been in uninterrupted possession of the suit parcel of land for over twelve years and reiterates that she has demonstrated her proprietary rights over the property by registering a charge over it and constructing her matrimonial home. 59.She ends her deposition by stating that the issues raised by the Plaintiff/Applicant cannot be determined in a summary manner as they require the taking of evidence which evidence has to be challenged through cross examination.The Plaintiff/Applicant’s Response to the 1st Defendant/Respondent’s Replying Affidavit. 60.In response to the 1st Defendant/Respondent Replying Affidavit, the Plaintiff/Applicant filed a Supplementary Affidavit sworn on 20th February, 2026. 61.He deposes that the 1st Defendant/Respondent is the daughter-in-law of the 1st Defendant in the Counterclaim and the father to Duncun Kipchumba Bii. He goes on to state that Duncun Kipchumba Bii is one of the witnesses of the 1st Defendant/Respondent. 62.He also deposes that he is advised by his advocates on record that for res judicata to be proved, there has to be an earlier decision in a suit between the same parties and raising the same issues as the present suit. 63.He further deposes that res judicata can be proved if the suit is between the same parties or parties privy to the original parties and goes on to explain that someone who is privy could mean a purchaser, assignee, heir and/or trustee. 64.It is his deposition that the 1st Defendant in the counterclaim is the father in law of the 1st Defendant/Respondent and goes on to state that the 1st Defendant/Respondent purchased the said parcel of land from the 1st Defendant in the Counterclaim. 65.It is also his deposition that since 1st Defendant in the Counterclaim already litigated on the issue of ownership of the suit parcel of land in the former suit, the 1st Defendant /Respondent is bound by the judgement delivered in the said suit. 66.It is further his deposition that he has been advised by his advocates on record that adverse possession is a doctrine provided established under Sections 7 and 38 of the Limitation of Actions Act and goes on to state that the doctrine of adverse possession allows a person to acquire land if the said person has occupied it openly, continuously, exclusively, without the owner’s consent and for at least 12 years. 67.He deposes that the 1st Defendant/Respondent has averred at paragraphs 12 to 14 that she has been in possession with the knowledge and consent of the 1st Defendant in the Counterclaim. 68.He also deposes that the 1st Defendant/Respondent contends that she took possession of the suit parcel of land in the year 1998 and stayed on the land till the year 2012 with the permission of the 1st Defendant in the Counterclaim. 69.He further deposes that the 1st Defendant/Respondent then purchased the land in the year 2011 and goes on to state that her possession of the suit parcel of land has always been with the consent of the registered owner and therefore she cannot claim to have acquired the land by way of adverse possession. 70.It is his deposition that thereafter the1st Defendant/Respondent was registered as the owner of the suit parcel of land and adds that he is advised by his advocates on record that a party cannot claim to have obtained their own parcel of land by way of adverse possession. 71.It is also his deposition that the 1st Defendant/Respondent is relying on documents that were invalidated in the former suit in support of her claim of adverse possession. 72.It is further his deposition that in Kericho ELC Case No. 1 of 2015 the subject matter of the said suit was land parcel No’s 5156 and 5157 and goes on to state that the said parcels of land were resultant subdivisions of land parcel No.1261. 73.He deposes that the subject matter of the present suit is land parcel No. 5256 which is one of the resultant subdivisions of land parcel No. 933. 74.He ends his deposition by stating that it is in the interest of justice that the prayers sought in his application be allowed as prayed. Issues for Determination. 75.The Plaintiff/Applicant filed his submissions on 27th February, 2026 while the 1st Defendant/Respondent filed her submissions on 2nd March, 2026. 76.The Plaintiff/Applicant submits on the following issues; a. Whether the counterclaim is res judicata to (sic) Kericho ELC Case No. 1 of 2014 and whether the new cause of action has been raised so as to evade res judicata. (sic). 77.The Plaintiff/Applicant relies on Section 7 of the Civil Procedure Act, the judicial decisions of Kennedy Mokua Ongiri vs John Nyasende Mosioma & Florence Nyamoita Nyasende [2022] eKLR, Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017]eKLR and while reiterating the averments in the affidavit in support of the application submits that res judicata does not only apply to issues which the Court in the former suit made a determination on but to every point which belonged to the subject of litigation and which the parties had brought forward at the time. (sic) 78.The Plaintiff/Applicant relies on the judicial decisions of Nguruman Limited v Jan Bonde Nielson & another [2017]eKLR, DSV Silo vs The Owners of Sennar (1985) 2 ALL ER 104 as was cited in Peter Kabue Kihara & 10 Others vs Wanjiku Ndungu & another [2021]eKLR, Henderson vs Henderson [1843] 67 ER 313 in support of his submissions. 79.The Plaintiff/Applicant submits that in the Counterclaim, the 1st Defendant/Respondent contends that in the year 1998, she leased the suit parcel of land from the 1st Defendant in the Counterclaim. 80.The Plaintiff/Applicant also submits that the 1st Defendant/Respondent contends, in the Counterclaim, that she later purchased the suit parcel vide a land sale agreement dated 27th April, 2011. 81.The Plaintiff/Applicant then reiterates his averments in the supplementary affidavit and submits that he is a Defendant in both the former suit and the Counterclaim. 82.It is the Plaintiff/Applicant’s submissions that the 1st Defendant/Respondent is claiming under Wesley Rutto, the Plaintiff in the former suit i.e. Kericho ELC Case No. 1 of 2014. 83.It is also his submissions that the 1st Defendant/Respondent is attempting to evade res judicata by adding Wesley Rutto as the 1st Defendant in the Counterclaim and by also introducing the claim for adverse possession. He relies on the judicial decision of Peter Kabue Kihara & 10 Others vs Wanjiku Ndungu & another [2021] KEELC 1804 (KLR) in support of his submissions. 84.The Plaintiff/Applicant reiterates the averments in the affidavit in support of the application and submits that the issues raised in the Counterclaim were determined in the former suit. 85.The Plaintiff/Respondent relies on Section 13(2) of the Environment and Land Court Act, the judicial decisions of E.T vs Attorney General & another [2012] KEHC 5506 (KLR), Chevron (K) Ltd vs Harrison Charo Wa Shutu [2016]eKLR as was cited in Malakwen vs Kogo [2024] KECA 912 (KLR) and reiterates the averments in his supplementary affidavit. 86.The Plaintiff/Respondent concludes his submissions by urging the Court to strike out the Counterclaim, portions of the witness statements that are in support of the Counterclaim and document No’s 1, 2, 3 and 4 that the 1st Defendant/Respondent intends to rely on. 87.The 1st Defendant/Respondent relies on Section 7 of the Civil Procedure Act, the judicial decisions of Mucheke & another (Suing as the legal representatives of the estate of Genesio Murungi (Deceased) vs M’Miriti & another (Environment and Land Appeal E008 of 2023) [2025] KEELC 5529 (KLR) (24th July, 2025) (Judgement), Benard Mugo Ndegwa vs James Nderitu Githae & 2 Others [2010]eKLR, Kenya Commercial Bank Limited vs Benjoh Amalgamated Limited [2017]eKLR and while reiterating the averments in her replying affidavit submits that the issues raised in her counterclaim are not similar to the issues raised in Kericho ELC Case No. 1 of 2014. 88.The 1st Defendant/Respondent submits that in the former suit, the issues raised therein were with regard to breach of a contract while in the counterclaim filed in the present suit, the issue raised is adverse possession. 89.She also submits that the fact that a similar set of facts were pleaded in the former suit does not render her Counterclaim res judicata. 90.She further submits that the parties in the counterclaim and the parties in the former suit are not the same. 91.It is the 1st Defendant/Respondent submissions that she is not a relative and/or a dependent of the 1st Defendant/Respondent in the Counterclaim and relies on Section 29 of the Law of Succession Act in support of her submissions. 92.It is also her submissions that even if she was the 1st Defendant/Respondent in the Counterclaim’s daughter in law, she would not have any direct and/or mutual relationship that will bind her to any legal outcome. 93.It is further her submissions that the judgement in Kericho ELC Case No. 1 of 2014 was in personum and not in rem. 94.She submits that the Plaintiff/Applicant has raised new issues at paragraph 3 of his Supplementary Affidavit and she seeks that the said paragraph be expunged as she has been placed at a point of disadvantage as she cannot respond to the said issues. 95.She also submits that the judgement that was delivered in Kericho ELC Case No. 1 of 2014 did not address the issues in dispute in the present suit and in the Counterclaim. 96.She further submits that in the former suit, the Plaintiff/Applicant tried to execute the judgement against her and the Court barred him from doing so. 97.It is the 1st Defendant/Respondent submissions that based on the foregoing, her Counterclaim cannot be said to be res judicata. 98.The 1st Defendant/Respondent relies on Articles 25 (c) and 50 of the Constitution of Kenya, the judicial decision of John Florence Maritime Services Limited & another vs Cabinet Secretary, Transport and Infrastructure & 3 Others [2021] eKLR and submits that courses of action mutate and it may be difficult to specify what is the clearest situation deserving of the orders sought herein. 99.It is her submissions that the Court should invoke one of the exceptions of the doctrine of res judicata, that is the potential for substantial injustice, if the Court does not hear an issue on its merits. 100.The 1st Defendant/Respondent relies on Articles 40 (1) and 45 of the Constitution of Kenya and submits that the application of the doctrine of res judicata has the potential of locking her from the doors of justice. 101.The 1st Defendant/Respondent further reiterates the averments in her replying affidavit and submits that it is premature to speculate how she intends to use the documents she obtained from Kericho ELC Case No. 1 of 2014 to prosecute her counterclaim. 102.She reiterates that she has been in non-permissive occupation of the suit parcel of land for a period of over twelve years and the issues raised in the Counterclaim cannot be determined in a summary manner as sought by the Plaintiff/Applicant. 103.She concludes her submissions by urging the Court to dismiss the Plaintiff/Applicant’s application. Analysis and Determination. 104.Having considered the Plaintiff/Applicant’s application, the response thereto, the supplementary affidavit and the rival submissions, my view is that the following issues arise for determination;a.Whether the 1st Defendant/Respondent Counterclaim is res judicata.b.Whether the 1st Defendant/Respondent Counterclaim is defective.c.Who should bear costs of the application.a.Whether the 1st Defendant/Respondent Counterclaim is res judicata. 105.The Plaintiff/Applicant contends that the 1st Defendant/Respondent Counterclaim is res judicata because the issues raised therein were determined by the Court in Kericho ELC Case No. 1 of 2014. 106.The Plaintiff/Applicant also contends that the 1st Defendant/Respondent is the daughter in law to the 1st Defendant in the Counterclaim and adds that he (1st Defendant in the Counterclaim) was the Plaintiff in Kericho ELC case no. 1 of 2014. 107.The Plaintiff/Applicant further contends that since the 1st Defendant/Respondent is related to the 1st Defendant in the Counterclaim, she is bound by the judgement delivered in Kericho ELC case No. 1 of 2014. 108.On the other hand, the 1st Defendant/Respondent contends that she was not a party in Kericho ELC Case No.1 of 2014 and neither was she served with the pleadings filed therein 109.The 1st Defendant/Respondent also contends that the issues raised in Kericho ELC Case No. 1 of 2014 were with regard to breach of contract while in the counterclaim, she has raised issues of adverse possession and adds that the issues raised in both suits are not the same. 110.The 1st Defendant/Respondent denies that she is the daughter-in-law of the 1st Defendant in the Counterclaim and contends that the judgement delivered in Kericho ELC Case No. 1 of 2014 was in personum and not in rem and she cannot be said to be bound by it. 111.Section 7 of the Civil Procedure Act 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.Explanation. — (1) The expression "former suit" means a suit which has been decided before the suit in question whether or not it was instituted before it.Explanation. — (2) For the purposes of this section, the competence of a Court shall be determined irrespective of any provision as to right of appeal from the decision of that Court.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.” [Emphasis mine] 112.In Communications Commission of Kenya & 5 others - v- Royal Media Services Limited & 5 others [2014] eKLR the Supreme Court, on the question of res judicata, expressed itself as follows;“(317)The concept of res judicata operates to prevent causes of action, or issues from being re-litigated once they have been determined on the merits. It encompasses limits upon both issues and claims, and the issues that may be raised in subsequent proceedings….(319)There are conditions to the application of the doctrine of res judicata: (i) the issue in the first suit must have been decided by a competent Court; (ii) the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and (iii) the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title Karia and Another v. The Attorney General and Others, [2005] 1 EA 83, 89. (Emphasis supplied)” 113.In the judicial decision of Christopher Kenyariri vs Salama Beach [2017] eKLR the Court stated that the following elements must be satisfied together in determining the question of res judicata;“...the following elements must be satisfied...in conjunctive terms;(a)The suit or issue was directly and substantially in issue in the former suit.(b)Former suit between same parties or parties under whom they or any of them claim.(c)Those parties are litigating under the same title.(d)The issue was heard and finally determined.(e)The Court was competent to try the subsequent suit in which the suit is raised.” 114.In the affidavit in support of the application, the Plaintiff/Applicant has attached a copy of the Plaint filed in Kericho ELC Case No. 1 of 2014. It is dated 7th January, 2014. 115.The parties are; Wesley Rutto vs James Talam 116.The parties in the Counterclaim are:Irene Chepng’eno vs Arap Ruto Wesley Kibii also known as Wesley Rutto & James Arap Talam. 117.It is evident that Wesley Rutto, the 1st Defendant in the Counterclaim was the Plaintiff in Kericho ELC Case No. 1 of 2014. 118.It is also evident that James Arap Talam, the 2nd Defendant in the Counterclaim was the Defendant in Kericho ELC case No. 1 of 2014. 119.It is further evident that Irene Chepng’eno was not a party in Kericho ELC Case No. 1 of 2014. 120.In Kericho ELC case No. 1 of 2014, the Plaintiff therein sought the following prayers;a.A declaration that the 5 acres comprised in the parcel of land Kericho/Kapsuser/933 belongs to the Plaintiff.b.Permanent injunction restraining the Defendant, his agents and/or servants from entering, interfering and/or doing anything in the 5 acre parcel of land comprised in Kericho/Kapsuser/933.c.Costs of the suit. 121.The Defendant therein filed a Statement of defence and Counterclaim dated 12th February, 2014 and sought the following prayers;a.Revocation of the resultant titles from Kericho/Kapsuser/5156 and / Kericho/Kapsuser/5157 and restoration of the Defendants (sic) (now the Plaintiff) original title LR No. Kericho/Kapsuser/933.b.An Order for demolition of the plaintiffs (now the Defendant) structures on the Defendant (now the plaintiff) L.R. No. Kericho/Kapsuser/5157.c.An order of eviction and a permanent injunction (now the Defendant), his children, agents and/or servants from L.R. No. Kericho/Kapsuser/5157 from entering, remaining or doing anything on the suit land herein. (sic)d.Costs and interest of this counter-claim. 122.The Court delivered judgement on 2nd September, 2016 in the following terms;a.The Plaintiff’s suit is hereby dismissed with costs.b.I enter judgement for the Defendant in terms of the counterclaim with costs.c.I hereby order the revocation of the titles Kericho/Kapsuser/5156 and Kericho/Kapsuser/5157 and further order the restoration of the title Kericho/Kapsuser/933 in the name of the Defendant James Talam.d.I order the Plaintiff to demolish all structures and to vacate the land comprised in the land parcel Kericho/Kapsuser/933 and to do so no later than 30 days from the date hereof.e.In the event that the Plaintiff does not do so, the Defendant is at liberty to apply for an order of eviction and is at liberty if he does so wish to demolish the structures put up by the Plaintiff and the cost of all these will be shouldered by the Plaintiff.f.After the period of 30 days above, the Plaintiff and/or his servants/agents/assigns and/or anybody claiming under his title are hereby barred by an order of permanent injunction from entering, being upon, or in any other way interfering with the possession of the land parcel Kericho/Kapsuser/933. 123.The prayers sought in the Counterclaim filed in the present suit have been set out in the preceding paragraphs but I will nonetheless replicate them as hereunder;a.The 1st and 2nd Defendants in this Counter-claim hold the title of the entire parcel of land known as Kericho/Kapsuser/5256 measuring 1.82 Ha of (a subdivision of the land parcel known formerly known as Kericho/Kapsuser/933) (sic) in trust for the Plaintiff in this counterclaim.b.The Plaintiff in this counterclaim has been in quiet exclusive possession and occupation of the entire land parcel known as Kericho/Kapsuser/5256 measuring 1.82 Ha of (a subdivision of the land parcel known formerly known as Kericho/Kapsuser/933) (sic) and has hitherto so done for a period exceeding 12 years and has therefore acquired title thereto by adverse possession.c.The Plaintiff in this counterclaim has as such acquired bona fide title to the entire land parcel known as Kericho/Kapsuser/5256 measuring 1.82 Ha of (a subdivision of the land parcel known formerly known as Kericho/Kapsuser/933) (sic).d.The Plaintiff in this counterclaim is hence entitled to continue being registered as the proprietor of the entire land parcel known as Kericho/Kapsuser/5256 measuring 1.82 Ha of (a subdivision of the land parcel known formerly known as Kericho/Kapsuser/933) (sic) and whether this Honourable Court shall so order.e.The Plaintiff in this counterclaim is entitled to costs of the Counterclaim. 124.It is apparent that in the Counterclaim filed in the present suit, the 1st Defendant/Respondent has raised issues of trust and adverse possession which issues were not raised in Kericho ELC Case No. 1 of 2014. 125.It is therefore my finding that the Counterclaim is not res judicata. 126.Before penning off on this issue, I note that the Plaintiff/Applicant submitted that the 1st Defendant/Respondent in the main suit is the daughter-in-law of the 1st Defendant in the Counterclaim and she is therefore bound by the judgement delivered in Kericho ELC Case No. 1 of 2014. 127.The 1st Defendant/Respondent denied that she is the daughter-in- law of the 1st Defendant in the Counterclaim. As things remain, this is a question of fact that is yet to be proved. This Court cannot at this stage establish this allegation and determine whether it would fall within explanation 6 of Section 7 of the Civil Procedure Act. 128.I also note that the Plaintiff/Applicant contends that the 1st Defendant/Respondent has pleaded adverse possession in order to evade the doctrine of res judicata. 129.It is my view that it is not the duty of the Court to infer a party’s intention with regard to a course of action that a party decides to pursue. I shall therefore not address this any further. B. Whether the 1st Defendant/Respondent Counterclaim is defective. 130.The Plaintiff/Applicant contends that the Counterclaim is defective as prayer (b) offends Section 38 of the Limitation of Actions Act. 131.The Plaintiff/Applicant also contends that the Counterclaim is flawed as it is based on a misapprehension of the law of adverse possession as permissive possession is not adverse possession. 132.The 1st Defendant/Respondent on the other hand contends that her possession of the suit parcel of land was not permissive and that she has been in peaceful possession of the suit parcel of land for a period of over twelve years. 133.Under prayer (b) of the Counterclaim dated 4th July, 2025, the Plaintiff/Respondent in the Counterclaim seeks the following prayer;b.The Plaintiff in this counterclaim has been in quiet exclusive possession and occupation of the entire land parcel known as Kericho/Kapsuser/5256 measuring 1.82 Ha of (a subdivision of the land parcel known formerly known as Kericho/Kapsuser/933) (sic) and has hitherto so done for a period exceeding 12 years and has therefore acquired title thereto by adverse possession.” 134.Section 38 of the Limitation of Actions Act provides as follows;“(1)Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37 of this Act, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.(2)An order made under subsection (1) of this section shall on registration take effect subject to any entry on the register which has not been extinguished under this Act.(3)A proprietor of land who has acquired a right to an easement under section 32 of this Act may apply to the High Court for an order vesting the easement in him, and may register any order so obtained in the register of the land or lease affected by the easement and in the register of the land or lease for whose benefit it has been acquired, and the easement comes into being upon such registration being made, but not before.(4)The proprietor, the applicant and any other person interested may apply to the High Court for the determination of any question arising under this section.(5)The Cabinet Secretary for the time being responsible for Land may make rules for facilitating the registration of titles to land or to easements acquired under this Act.” 135.The Plaintiff/Applicant contends that the 1st Defendant/Respondent’s occupation of land parcel No. Kericho/Kapsuser/5256 was with the permission of the registered proprietor while the 1st Defendant/Respondent denies that her occupation of the suit parcel of land was on account of permission. 136.It is my view that the issue whether or not the 1st Defendant/Respondent’s possession of the suit parcel of land was on account of permission or not goes into the merits of the Counterclaim and cannot be addressed at this preliminary stage of the proceedings. 137.It is also my view that the said issue will be best addressed during the hearing and determination of the main suit. C. Who should bear costs of the application. 138.The general rule is that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). 139.A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. Disposition. 140.Taking the foregoing into consideration, I find that the Plaintiff/Applicant’s Notice of Motion application dated 28th November, 2025 lacks merit and it is hereby dismissed with costs. 141.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 21ST DAY OF MAY, 2026.L. A. OMOLLOJUDGE.In the presence of: -Miss Wangui for Mr. Gitonga for the Plaintiff/Applicant.Mr. Ochieng for the 1st Defendant/Respondent – AbsentMiss Chepkemoi for Ojwang for 2nd, 3rd and 4th Defendant/Respondents2nd Defendant in Counter Claim. Absent.Court Assistant; Mr. Joseph Makori.