Koskei & 9 others v Yegon & 3 others (Environment and Land Case E009 of 2021) [2025] KEELC 5517 (KLR)
The bottom line
#A Kericho court allowed an adverse possession claim over Kericho land to proceed, rejecting arguments that it duplicated an earlier case.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata in light of Bomet PM ELC Case No. 21 of 2019
The suit is not res judicata because the parties differ (the 3rd, 5th to 10th Applicants were not parties to the former suit) and the issue of adverse possession was not raised or determined in the former suit, which was undefended.
The court applied section 7 of the Civil Procedure Act and the conjunctive ingredients of res judicata. It found the plaintiffs in the former suit were the current defendants, and only the 1st, 2nd and 4th current plaintiffs overlapped. The former suit was undefended and concerned eviction based on registered ownership, not adverse possession. Further, magistrates' courts lack jurisdiction to determine adverse possession claims, so the former court was not competent to try that issue.
Whether the suit is frivolous, vexatious or an abuse of the court process
The claim of vexatiousness and abuse of process was anchored entirely on res judicata, which failed; the court therefore declined to strike out the suit under Order 2 rule 15.
The court noted Order 2 rule 15 permits striking out of pleadings that disclose no cause of action, are frivolous or vexatious, or amount to abuse of process. Since the applicants' only basis for the abuse-of-process contention was that the suit was res judicata, the failure of the res judicata plea meant there was no foundation for striking out. The allegation that the plaintiffs were proxies of the former defendants could only be determined at a hearing.
Legal principles established
#- Magistrates' Courts do not have jurisdiction to determine claims of adverse possession by virtue of section 38 of the Limitation of Actions Act.
- For res judicata to apply, the elements of same parties, same title, same issue, and final determination by a competent court must all be satisfied conjunctively; failure on any single element defeats the plea.
Court orders
#- 1.The Respondents/Applicants' application dated 18th April 2024 is dismissed with costs
- Jurisdiction invoked
- Sections 3A & 7 of the Civil Procedure Act and Order 2 Rule 15 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koskei & 9 others v Yegon & 3 others (Environment and Land Case E009 of 2021) [2025] KEELC 5517 (KLR)", Case Analysis (2025). Bomet PM ELC Case No. 21 of 2019 referred; instant Originating Summons dated 19th October 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5517/eng@2025-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.