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ELCStruck OutSiaya ELC Case (number not stated in judgment; successor to Siaya ELCLOS No. 005 of 2022 referenced)· [2025] KEELC 6403 (KLR)

Chunga & another v Amolo & 3 others (Environment and Land Case E026 of 2024) [2025] KEELC 6403 (KLR)

Environment and Land Court
25 September 2025
ADA.E. Dena
2,331 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Siaya court struck out a land dispute as res judicata, ruling you cannot relitigate issues a court has already finally decided.

What this practically means

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Executive summary

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The plaintiffs, claiming to be beneficiaries of the estate of Romanus Chunga in occupation of North Sakwa/Maranda/40, filed a plaint dated 30/10/2024 seeking an injunction against the defendants and an order directing the District Land Registrar to delete titles issued pursuant to a succession cause. The defendants filed a defence pleading res judicata and a Notice of Motion dated 16/01/2025 seeking striking out of the suit as res judicata and an abuse of process, additionally alleging the Verifying Affidavit was commissioned by a deceased advocate. The court canvassed both applications by written submissions. Applying section 7 of the Civil Procedure Act and the conjunctive elements in IEBC v Maina Kiai, the court compared the decree, pleadings and judgment in Siaya ELCLOS No. 005 of 2022, which it summoned of its own motion. It found the same parcel was in issue; the current defendants had been plaintiffs in the former suit, where they claimed adverse possession and customary trust over 4 HA of the parcel, and the 1st plaintiff had been the 1st defendant there. The addition of the 2nd plaintiff, the 1st plaintiff's sibling, did not defeat the plea since siblings cannot be delinked as estate beneficiaries. The former suit was heard on merits and finally determined by judgment dated 16/02/2023, by a court of competent jurisdiction. The court held the plaintiffs' claim of non-participation was no defence to res judicata, that reopening determined issues was an abuse of process, and that the prayer to cancel titles issued in succession proceedings was outside the court's jurisdiction. The suit was struck out with costs to the defendants; the plaintiffs' injunction application collapsed with it.

Key legal issues

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01

Res judicata - identity of parties and title

Holding

The former suit involved the same parties or parties under whom they claim; the 1st plaintiff was the 1st defendant in the former suit and the addition of his sibling as 2nd plaintiff does not defeat res judicata

Reasoning

The decree in Siaya ELCLOS No. 005 of 2022 shows the current defendants were plaintiffs and the 1st plaintiff was a defendant there. The court held that siblings sharing a deceased father's estate cannot be delinked, so the 2nd plaintiff is deemed a member of the same clan and the same-title requirement is met notwithstanding the new party.

p. 3
02

Res judicata - issues directly and substantially in issue and finally determined

Holding

The subject matter (North Sakwa/Maranda/40) and the issues, including beneficial interest under customary trust, were directly and substantially in issue, heard and finally decided on merits in the former suit

Reasoning

The court called for and perused the former suit's pleadings and judgment under section 3A. The former suit was heard on merits with witnesses cross-examined and a judgment of 16/02/2023 delivered, declaring the current defendants entitled to 4 HA of the suit property under customary trust. The current claim reopens the same issues before the same court.

p. 5
03

Defendant's striking-out application based on defective Verifying Affidavit commissioned by a deceased advocate

Holding

The court did not rule on this ground, striking the suit out solely on res judicata

Reasoning

The court focused on section 7 of the Civil Procedure Act and, having found the suit res judicata, ordered it struck out without making any finding on the defective Verifying Affidavit ground raised in the application.

p. 5

Legal principles established

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  • A party who alleges he did not participate in a former suit cannot relitigate the same issues by filing a fresh suit; res judicata still applies
  • Siblings of a party cannot be delinked from him as co-beneficiaries of their father's estate, so joinder of a new sibling-plaintiff does not defeat a plea of res judicata
  • Relitigating matters already finally determined before the same court is an abuse of the court process and will be struck out

Court orders

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  1. 1.The suit is struck out as res judicata under section 7 of the Civil Procedure Act
  2. 2.The plaintiffs' Notice of Motion application dated 30/10/2024 collapses with the suit and is not determined
  3. 3.Costs of the suit awarded to the Defendants
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court); section 7, Civil Procedure Act (res judicata bar to entertaining the suit)

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, "Chunga & another v Amolo & 3 others (Environment and Land Case E026 of 2024) [2025] KEELC 6403 (KLR)", Case Analysis (2025). Siaya ELC Case (number not stated in judgment; successor to Siaya ELCLOS No. 005 of 2022 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6403/eng@2025-09-25

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