https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1564

Ogweno v District Land Registrar, Rachuonyo District & 2 others (Civil Appeal 301 of 2019) [2026] KECA 1564 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1564 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal 301 of 2019 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA July 24, 2026 Between Yason Oyieke Ogweno Appellant and The District Land Registrar, Rachuonyo District 1st Respondent The Honourable Attorney General 2nd Respondent Albert Adams Yugi 3rd Respondent (Being an Appeal against the Ruling and Order the Environment and Land Court at Kisumu (Ong’ondo. J.) dated on the 10th July 2019 in Case No. 18 of 2017) Judgment 1.On 10th July 2019, the Environment and Land Court (ELC) at Migori, (Ong’ondo, J.) struck out a petition filed by the appellant against the respondents, because it was barred by the doctrine of res judicata. The ELC found that the issues raised in the petition were directly or substantially in issue in Kisii HCC No. 352 of 1990 which was heard and finally determined vide a judgement delivered on the 22nd October 1996. 2.Aggrieved by the decision of the ELC, the appellant lodged a memorandum of appeal dated 17th December 2019 containing 9 grounds of appeal which are largely repetitive. At the hearing of the appeal, the appellant opted to rely on his submissions from which it can be gleaned that the single issue of appeal is whether the ELC erred by holding that the appellant’s petition was res judicata. 3.At this point, it would be remiss of us if we failed to draw attention of counsel for the appellant to the provisions of rule 88(1) of the Court of Appeal Rules which demands that the memorandum of appeal must be drawn concisely, setting forth under distinct heads and without argument or narrative, the grounds upon which the appellant challenges the judgment in question. Indeed, a surfeit of irrelevant or repetitive grounds of appeal does nothing to enhance the prospects of an appeal. See the cases of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Lagat [2020] eKLR & Nasra Ibrahim Ibren v IEBC & 2 Others [2018] KECA 500 (KLR). 4.Notwithstanding all the above, the appellant’s petition before the ELC sought declarations that the proceedings, judgment and resultant decree of 22nd October 1996 in Kisii HCC No. 352 of 1990 concerning ownership and registration of LR No. West Karachuonyo/Kibiri/Kanyipir/616 in the name of Yason Oyieke Ogweno (deceased) who died on the 7th May 1989, prior to filing of the suit, are void, illegal and incapable of implementation and/or enforcement; that the Gazette Notice Number 5429 dated and published on 20th May 2011 seeking to revoke and/or cancel the title in favour of Yason Oyieke Ogweno (deceased) and replace the same with title in favour of Samwel Ogada Yugi, is a nullity and/or ultra vires; and order for payment of damages arising from the said illegal and void actions by and/or at the instance of the respondents. The appellant also sought costs of the petition. 5.Vide a notice of motion dated 12th October 2017, Albert Adams Yugi, who was an interested party to the petition opposed the Petition seeking to have it be declared res judicata Kisii HCC No. 352 of 1990. It was his argument that the decision delivered in Kisii HCC No.352 of 1990 had not been reversed by any other court and thus was still in force and that the petition was merely a re-formulation by the appellant to evade the application doctrine of res judicata. 6.The appellant opposed the motion vide grounds of opposition filed on the 23rd October 2017 in which he stated inter alia that the motion was an abuse of court process meant to delay the determination of the appellant’s petition and further that the interested party was non-suited. 7.In his now impugned ruling, Ong’ondo J, held that since the subject matter of the petition was finally determined in Kisii HCC No. 352 of 1990, it was evident that the petition violated the doctrine of res judicata and accordingly dismissed it. He dismissed the suit. It is on that basis that the appellant moved to this Court. 8.The appellant filed submissions in support of his appeal. The Appellant contended that the ELC erred in finding that the new petition (Migori ELC Petition No. 18 of 2019) was barred by res judicata based on the 1990 case. He argued that the original 1990 case involved specific individuals (Samwel Ogada Yugi, Yashon Oyieke Ogweno, and others) whilst the 2019 petition principally impleads public offices: the District Land Registrar and the Attorney General; that the 2019 petition sought constitutional, declaratory reliefs regarding the nullity of a decree issued against a deceased person, which were never deliberated upon or decided in the 1990 suit and that res judicata strictly requires an identity of identical parties, identical subject matter, and identical causes of action; and because these components do not align between the 1990 and 2019 cases, then the doctrine should not apply. The Appellant thus submitted that the appeal has merit and that the ELC failed to correctly interpret the principles of public policy and finality and as such prayed that this Court to set aside the ELC ruling and order of 10th July 2019. 9.The appellant anchored his submissions on the cases of Maina Kiai & 2 Others v Independent Electoral & Boundaries Commission & 2 Others 2017 eKLR and that of John Florence Maritime Services Ltd & Another v Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021] KESC 39 (KLR) (CIV) (6th August 2021) (Judgment). 10.The respondent did not file any written submissions. 11.At the plenary hearing learned counsel Mr. Mulisa appeared for the appellant, whilst there was no appearance for the respondents although the record shows that the Attorney General was on record for the 1st and 2nd respondents; and Mr Achila was on record for the 3rd respondent and from the hearing notice, both counsel had been served. 12.This being a first appeal, the Court’s mandate is to re-evaluate the evidence, assess it and reach its own conclusion. We draw from rule 31(1) of the Court of Appeal Rules 2022 which provides that:1.On an appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the Court shall have power:a.to re-appraise the evidence and to draw Inferences of fact.See also this Court’s decision in Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR. 13.We have carefully considered this appeal. The doctrine of res judicata is provided for in section 7 of the Civil Procedure Act, as follows:“ 7.Res judicataNo 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…” 14.Section 7 prohibits the court, in absolute terms, from hearing a suit which raises issues that have already been heard and finally determined by a court of competent jurisdiction in an earlier suit between the same parties or parties claiming under them. The rationale behind the doctrine of res judicata rests on the principles that litigation must come to an end, and that the court cannot be asked to determine the same issue over and over again. 15.In John Florence Maritime Services Ltd (supra) this Court held as follows on the doctrine:“The rationale behind res-judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res-judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably.” (See also William Koross v. Hezekiah Kiptoo Komen & 4 Others [2015] eKLR). 16.Subsequently, in Kenya Commercial Bank Ltd v Muiri Coffee Estate & Another [2016] eKLR the Supreme Court explained that:“Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights…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, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.” 17.There are two other important principles to bear in mind as regards the doctrine of res judicata, which are relevant to this appeal. The first is that the doctrine applies not only to the issues raised in the first suit, but also to all issues which, by reasonable diligence, the parties ought to have raised in that first suit. 18.Accordingly, parties are required to bring forward their entire claims in the first suit rather than to litigate the issues in instalments. Thus, if, from the nature of the case, an issue ought to have been raised in the first suit but due to accident, inadvertence or negligence it was not raised, the court will not allow it to be raised subsequently. In Henderson v Henderson [1843] 67 ER 313, Wigram VC held as follows on the principle:“…where a given matter becomes the subject of litigation in, and adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a Judgment, 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” (Emphasis added). 19.The second principle is that parties will not be permitted to evade the doctrine of res judicata by adding new parties or introducing a new cause of action so as to seek the same remedy as that sought in the first suit. In Kenya Commercial Bank Ltd (supra), the Supreme Court stated:“59…Courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle…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.” 20.This Court, differently constituted, identified the elements of the doctrine of res judicata in the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR as follows;“…for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms;a.the suit or issue was directly and substantially in issue in the former suit;b.that former suit was between the same parties or parties under whom they or any of them claim;c.those parties were litigating under the same title;d.the issue was heard and finally determined in the former suit; ande.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.” 21.Taking into account the above principles and applying them to the appeal at hand, we note that it is common ground that the first suit was heard and finally determined on 22nd October 1996 by the High Court of Kenya sitting at Kisii, a court of competent jurisdiction. 22.The parties to the first suit were; Samuel Ogada as the plaintiff and Yason Oyieke & 3 Others as defendants whereas in the Petition before the ELC Joel Oyieke Oyieke, an administrator to the estate of the 1st defendant in the first suit was the petitioner while Albert Adams Yugi, a brother to the plaintiff in the first case and administrator of estate was an interested party while the 1st and 2nd respondents in the petition were the same as those in this case. It is thus evident that the parties in the first suit, Kisii HCC No. 352 of 1990 were similarly represented in Migori ELC Petition No. 18 of 2017. 23.As regards the subject matter, the claim by the plaintiff in the first case revolved around the alleged fraudulent registration of LR No. West Karachuonyo/Kibiri/Kanyipir/616 in the name of Yason Oyieke. In his petition, the appellant sought declarations that the judgement and decree in the first suit was void, illegal and incapable of implementation and that the Gazette Notice Number 5429 seeking to revoke and/or cancel the title in favour of Yason Oyieke Ogweno (deceased) and replace the same with title in favour of Samwel Ogada Yugi was a nullity and/or ultra vires. 24.On this issue we are in agreement with the ELC that the subject matter of the first suit and the petition revolved around ownership of LR No. West Karachuonyo/Kibiri/Kanyipir/616, a matter that had been initially adjudicated and determined by the Court in the first suit and remained unchallenged. By seeking a declaration that ownership of the said parcel and subsequent gazettement of the change in ownership as ordered by court was void and illegal, the appellant was merely trying to circumvent a valid court determination that had not been challenged on appeal. 25.Like the ELC, we are satisfied that the addition of new parties and causes of action as well as the framing of the new suit as a constitutional petition is nothing short of a poorly contrived stratagem to defeat the application of the doctrine of res judicata, which the courts have consistently warned against. The central question in the petition, which was resolved by the High Court in the first suit, remains the ownership of LR No. West Karachuonyo/Kibiri/Kanyipir/616. That issue is plainly and simply settled and closed, and is therefore res judicata. 26.For the foregoing reasons, we are satisfied that the appellant’s appeal is totally bereft of merit and the same is hereby dismissed in its entirety. As none of the respondents appeared to defend the appeal, we make no orders on costs. DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF JULY, 2026.ASIKE-MAKHANDIA.......................................JUDGE OF APPEALH. A. OMONDI.......................................JUDGE OF APPEALL. KIMARU.......................................JUDGE OF APPEALI certify that this is a true copy of the original./SignedDEPUTY REGISTRAR