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ELCPartially AllowedKakamega ELC Appeal No. 2 of 2024· [2025] KEELC 6707 (KLR)

Likhanga & another v Wisayi (Environment and Land Appeal E002 of 2024) [2025] KEELC 6707 (KLR)

Environment and Land Court
24 September 2025
ANA. NYUKURI
5,193 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a land buyer's fresh lawsuit because the same dispute had already been decided, but denied the seller costs for acting mischievously.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kakamega against the judgment of Hon. J. R. Ndururi (SPM) delivered on 22 March 2024 in Kakamega MC ELC Case No. 45 of 2023, which allowed Andrew Manyonyi Wisayi's claim against Protus Amayi Likanga, ordering him to transfer one acre from Isukha/Virhembe/1821 to the respondent within 30 days and to pay Kshs. 265,000/= special damages for legal fees incurred in Kakamega MC ELC Case No. 932 of 2018. The respondent had purchased land from the 1st appellant between 1997 and 2002 for Kshs. 133,000/= before succession was taken out over the vendor's father's estate. After succession (Nairobi Succession Cause No. 495 of 2011), the 1st appellant's sisters obtained titles over the land the respondent occupied and sued him successfully; his counterclaim against the 1st appellant was dismissed and that dismissal was upheld on appeal (Kakamega ELC Appeal No. E002 of 2022). The appellants, neither of whom testified below, argued the trial court condemned them unheard, that the agreements were illegal, and that the suit was res judicata. Nyukuri J framed three issues and held the suit res judicata, faulting the trial court for ignoring the plea, since jurisdiction must be addressed first. The court found the parties effectively identical, the subject matter the same, and that the respondent was engaging in litigation in instalments. The appeal was allowed, the trial judgment set aside, and the respondent's suit dismissed, with no orders as to costs, the court noting the 1st appellant had mischievously structured the succession to defeat the purchaser.

Key legal issues

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01

Whether the respondent's suit in Kakamega MC ELC No. 45 of 2023 was res judicata

Holding

Yes - the suit was res judicata because the same parties litigating under the same title had had the same subject matter (the land sale agreements and occupation) finally determined in Kakamega MC ELC Case No. 932 of 2018 and Kakamega ELC Appeal No. E002 of 2022

Reasoning

The respondent had counterclaimed against the 1st appellant in the former suit over the same sale agreements and occupation of the same land; that counterclaim was heard and dismissed and the dismissal upheld on appeal. The parties were effectively the same, the courts competent, and the determinations were merit-based. Addition of the wife and Land Registrar was cosmetic.

p. 9
02

Whether the trial court erred in failing to address res judicata

Holding

Yes - the trial court erred by not addressing an issue touching on its jurisdiction which had been raised in the pleadings

Reasoning

The court held that issues raised in pleadings must be addressed in the judgment and that jurisdiction must be settled first. Having found the suit res judicata, the trial court had no jurisdiction and ought to have downed its tools from the moment the matter was filed.

p. 9

Legal principles established

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  • Jurisdiction is the first issue a court must address before delving into the merits of a matter, and issues raised in the pleadings must be addressed in the judgment
  • A litigant cannot make two separate claims against the same person regarding the same subject matter, as litigation in instalments is frowned upon
  • Addition of parties to defeat res judicata is immaterial where those parties raise no independent claim
  • On a first appeal the court must re-evaluate the record and determine whether the trial court's conclusions should stand, giving reasons either way

Court orders

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  1. 1.The appeal is allowed
  2. 2.The findings and judgment of the trial court are set aside
  3. 3.The respondent's suit in the lower court is substituted with an order that it is res judicata and is hereby dismissed
  4. 4.No orders as to costs
On appeal from
Chief Magistrate's Court, Kakamega
Kakamega MC ELC Case No. 45 of 2023
Jurisdiction invoked
First appeal from the Chief Magistrate's Court under the Environment and Land Court Act / Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Likhanga & another v Wisayi (Environment and Land Appeal E002 of 2024) [2025] KEELC 6707 (KLR)", Case Analysis (2025). Kakamega ELC Appeal No. 2 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6707/eng@2025-09-24

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