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ELCDismissedBungoma ELC (unnumbered on record - Notice of Motion dated 22/01/2025)· [2025] KEELC 4235 (KLR)

Wephukulu (Suing on Behalf of the Estate of Isaiah Masaba Khauka) v Khauka (Environment & Land Case E020 of 2024) [2025] KEELC 4235 (KLR)

Environment and Land Court
29 May 2025
ECE.C Cherono
1,485 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Bungoma refused to strike out a land dispute, ruling earlier cases over different parcels and a struck-out suit do not block a fresh claim.

What this practically means

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Executive summary

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The defendant brought a Notice of Motion dated 22 January 2025 seeking to strike out the plaintiff's suit as res judicata and statute barred, relying on Sections 3, 3A, 7, 63(1) and 80 of the Civil Procedure Act, Order 40 of the Civil Procedure Rules, and Section 7 of the Limitation of Actions Act. He deposed that prior litigation - a Chwele Land Disputes Tribunal case adopted in Bungoma CM LDT No. 21 of 2005, subsequent High Court miscellaneous applications, an Eldoret Court of Appeal appeal, Bungoma ELC No. 169 of 2013 and Kisumu Appeal No. 84 of 2018 - had conclusively settled disputes over land originating from the family parcels, and that his title had been closed for over 15 years. The plaintiff countered that the subject parcel, LR Bokoli/Chwele/250, was distinct from previously litigated parcels, and that a customary trust claim is exempt from limitation. Applying Section 7 of the Civil Procedure Act as construed by the Supreme Court in the IEBC v Maina Kiai case, the court found the earlier proceedings concerned parcel Bokoli/Chwele/1092 and different parties. The only prior case over the same parcel, Bungoma ELCLC No. E002 of 2023, had been struck out for want of locus standi, which the court held is not a determination on the merits and creates no estoppel. On limitation, the court held that allegations of fraud and trust required full trial. The application was dismissed with costs in the cause, and the suit directed to proceed to hearing on merits.

Key legal issues

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01

Whether the suit is res judicata

Holding

Res judicata not established; prior proceedings involved a different parcel (Bokoli/Chwele/1092) and different parties, and the earlier suit over the subject parcel was struck out for want of locus standi, not determined on merits

Reasoning

The court reviewed the prior cases cited by the defendant and found the subject matter and parties in the tribunal, High Court and Court of Appeal proceedings differed materially from the present suit, which concerns parcel Bokoli/Chwele/250. The only prior case over the same parcel was struck out for want of locus standi, which is not a final determination on the merits and therefore creates no estoppel.

p. 3
02

Whether the suit is statute barred under the Limitation of Actions Act

Holding

Not determined at this stage; the claim of fraud and customary trust requires full trial

Reasoning

The defendant argued the claim relates to land registered in 1965 with title closed in 2001, beyond the 12-year limitation period. The court noted the plaintiff alleges fraudulent acquisition and a trust over the land, and held the limitation question cannot be conclusively resolved on the pleadings without a full evaluation of the facts at trial.

p. 3

Legal principles established

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  • All elements of res judicata under Section 7 of the Civil Procedure Act must be satisfied conjunctively
  • Striking out a suit does not amount to a determination on the merits and does not bar a fresh suit
  • Limitation defences premised on contested facts cannot be conclusively determined on an interlocutory application

Court orders

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  1. 1.The application to strike out the plaintiff's suit is declined
  2. 2.The matter shall proceed to hearing on merits
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A, 7, 63(1) & 80
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2, 3 & 4
  • Limitation of Actions Act, Cap 22 Laws of KenyaSection 7

Cases cited (7)

  • Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others
    [2017] eKLR
  • Chwele Land Disputes Tribunal Case No. 9 of 2005 (adopted in Bungoma CM LTD No. 21 of 2005)
  • Bungoma HC Misc. Civil Case No. 192 of 2005
  • Bungoma HC Misc. Civil Case No. 395 of 2005
  • Eldoret Court of Appeal Case No. 47 of 2009
  • Court of Appeal at Kisumu Appeal No. 84 of 2018
  • Bungoma ELCLC No. E002 of 2023
Jurisdiction invoked
Sections 3, 3A, 7, 63(1) & 80 of the Civil Procedure Act and Order 40 Rules 1, 2, 3 & 4 of the Civil Procedure Rules, 2010 (application under these provisions)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wephukulu (Suing on Behalf of the Estate of Isaiah Masaba Khauka) v Khauka (Environment & Land Case E020 of 2024) [2025] KEELC 4235 (KLR)", Case Analysis (2025). Bungoma ELC (unnumbered on record - Notice of Motion dated 22/01/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4235/eng@2025-05-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.