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ELCPartially AllowedPreliminary Objection dated 19.03.2025 in Originating Summons dated 30.09.2024· [2025] KEELC 4683 (KLR)

Chemor & 3 others v Chemor (Enviromental and Land Originating Summons E013 of 2024) [2025] KEELC 4683 (KLR)

Environment and Land Court
24 June 2025
2,856 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a family's adverse possession claim over land already decided by the Court of Appeal, ruling a finished case cannot be reopened.

What this practically means

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Executive summary

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The Environment and Land Court at Eldoret, per Emmanuel M. Washe J, allowed a preliminary objection dated 19.03.2025 raised by the applicant, Joseph Kipkoech Chemor, against an originating summons dated 30.09.2024 filed by four applicants seeking a declaration of adverse possession over 1.6 acres of LR No. Moiben/Moiben Block 9 (Barsombe)/319 and an order compelling the County Land Registrar, Uasin Gishu to sub-divide and register that portion in their names. The applicants pleaded as children of the late Chemjor Chesigary Koibelell, whose estate had litigated ownership of the same property against the applicant in Eldoret ELC No. 499 of 2012 (judgment dated 25.09.2014) and Eldoret Court of Appeal Civil Appeal No. 111 of 2015 (judgment dated 28.06.2019, in favour of the applicant); an application to review that judgment was dismissed on 26.09.2024, the court having held itself functus officio. Framing five issues, the court held all ingredients of res judicata under Section 7 of the Civil Procedure Act satisfied: identical subject matter, parties claiming under the same title, concurrent jurisdiction, same property and prior final determination. It followed that the court lacked jurisdiction, and that the OS, filed about five years after the appellate judgment and four days after the functus officio ruling, was an abuse of process intended to circumvent the Court of Appeal decision. The OS was declared res judicata and dismissed forthwith, with costs to the applicant.

Key legal issues

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01

Whether the originating summons was res judicata

Holding

The OS was res judicata as ownership of the same suit property between the same parties/estate had been finally determined in Eldoret ELC No. 499 of 2012 and Court of Appeal Civil Appeal No. 111 of 2015

Reasoning

The claim rested on the deceased's alleged ownership of 1.6 acres of the same property litigated in the prior suits. The respondents, as children and beneficiaries of the late Chemjor Chesigary Koibelell, litigate under the same title as the Estate. Jurisdiction was concurrent and the Court of Appeal judgment of 28.06.2019 determined ownership with finality, binding the ELC.

p. 5
02

Whether the court had jurisdiction to hear the pending OS

Holding

Having found the suit res judicata, the court lacked jurisdiction to entertain it

Reasoning

Ownership of the suit property between the Estate and the applicant was determined with finality by the Court of Appeal on 28.06.2019; a subordinate determination of the same issue would contradict that binding decision, so the court declined jurisdiction.

p. 5
03

Whether the pending OS was an abuse of court process

Holding

Filing the OS five years after the Court of Appeal judgment, days after a functus officio ruling, was an abuse of process aimed at circumventing that judgment

Reasoning

The court adopted Meme v Republic on abuse of process and found the respondents, fully aware of the appellate decision, filed numerous applications and causes of action to vex the applicant and circumvent the final judgment. The OS was therefore vexatious and oppressive.

p. 6

Legal principles established

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  • Ingredients of res judicata under Section 7 of the Civil Procedure Act
  • A superior court cannot re-litigate ownership of property finally determined by the Court of Appeal

Court orders

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  1. 1.The preliminary objection dated 19.03.2025 is merited
  2. 2.The originating summons dated 30.09.2024 is res judicata the proceedings known as Eldoret ELC No. 499 of 2012 & Court of Appeal Civil Appeal No. 111 of 2015
  3. 3.The originating summons dated 30.09.2024 be and is hereby dismissed forthwith
  4. 4.The respondents in the preliminary objection & applicants in the originating summons are condemned to pay costs of both the preliminary objection and the originating sums to the applicant and respondent respectively

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 7 (including Explanation 6)

Cases cited (1)

  • Meme vs Republic & Another
    (2004) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction; Section 7 of the Civil Procedure Act, Cap 21 (res judicata)

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, "Chemor & 3 others v Chemor (Enviromental and Land Originating Summons E013 of 2024) [2025] KEELC 4683 (KLR)", Case Analysis (2025). Preliminary Objection dated 19.03.2025 in Originating Summons dated 30.09.2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4683/eng@2025-06-24

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