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ELCAllowedBungoma ELC Case (consolidated with Bungoma ELC Case No. 27 of 2013, formerly HCCC No. 89 of 2005)· [2025] KEELC 7077 (KLR)

Kololi & 3 others v Sapiri & 5 others (Environment and Land Case 35 of 2012 & Civil Case 89 of 2012 (Consolidated)) [2025] KEELC 7077 (KLR)

Environment and Land Court
9 October 2025
ECE.C. CHERONO
1,945 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The 8th Defendant/Applicant, Elizabeth Okema Jairo, a widow, moved the Court by Notice of Motion dated 24th April 2024 seeking leave for M/s Nabibia & Co. Advocates to replace M/s Kraido & Co. Advocates on record for her, an order for the Bungoma County Surveyor to survey and carve out 12 acres she occupies from land parcel NO. Bokoli/Bokoli/286, and for the Deputy Registrar to sign land transfer forms in her favour. The application followed a judgment of 16th July 2020 by Olao J which, in consolidated suits including Bungoma ELC Case No. 27 of 2013, found that the Defendants had acquired the suit land by adverse possession and directed registration, with the Deputy Registrar empowered to execute documents in default. The Respondents opposed, arguing the Applicant should cooperate with family members and that a similar 2022 application had been dismissed. The Court held the application was not res judicata since the earlier dismissal turned solely on representation and merits were never considered. Leave to change advocates was granted because Kraido & Co. had also acted for the Respondents, necessitating independent representation. Noting that the pleadings and judgment contemplated eight distinct portions (including 12 acres for the Applicant) while the Respondents unilaterally subdivided into five portions, the Court held that a judgment binds all parties and cannot be implemented selectively or altered to suit familial arrangements. The application was allowed as prayed, with no order for costs given the parties' relations.

Key legal issues

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01

Res judicata vis-à-vis the earlier application of 3rd October 2022

Holding

The application is not res judicata because the earlier application was dismissed on representation grounds without merits determination

Reasoning

The earlier application was dismissed only because M/s Were & Co. Advocates could not act for the Applicant having represented the Plaintiffs in the main suit; the other prayers were never considered on merit. Consequently Section 7 of the Civil Procedure Act does not bar the present application.

p. 3
02

Leave to change advocates after judgment

Holding

Leave granted because M/s Kraido & Co. Advocates acted or previously acted for the Respondents, requiring independent representation

Reasoning

Although the Applicant gave no substantive explanation for the change, the court took cognizance of a conflict: Kraido & Co. had also acted for the Respondents. Independent representation was necessary to pursue her proprietary rights, without absolving her of prior obligations to Kraido & Co.

p. 3
03

Enforcement of the judgment consistent with pleadings

Holding

The decree must be executed per the pleadings (eight portions) rather than the Respondents' unilateral five-portion subdivision

Reasoning

The pleadings and the judgment of 16/08/2020 by Olao J contemplated eight distinct portions including 12 acres for the Applicant. The Respondents' mutation form subdividing the land into five portions did not follow from the pleadings or judgment, and no plausible explanation was given. Parties cannot implement a decree selectively.

p. 4

Legal principles established

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  • A judgment is a final and binding determination which parties must comply with strictly as rendered, and cannot be implemented selectively or altered to suit convenience
  • Parties are bound by their pleadings and a dispute must be determined on the basis of the pleadings filed

Court orders

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  1. 1.Leave granted for the firm of M/s Nabibia & Co. Advocates to act for the 8th Defendant/Applicant in place of M/s Kraido & Co. Advocates
  2. 2.Notice of Motion dated 24th April 2024 allowed as prayed, including survey of 12 acres from land parcel NO. Bokoli/Bokoli/286 and execution of land transfer forms by the Deputy Registrar
  3. 3.No order for costs given the relations of the parties

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (3)

  • Joshua Mungai Mulango & Another v Jeremiah Kiarie Mukoma
    [2015] eKLR
  • Kenya Tea Growers Association v Francis Atwoli and 5 Others
    [2012] eKLR
  • Clarke and Others v Chadburn & Others
    [1985] 1 All ER (PC), 211
Jurisdiction invoked
Original land jurisdiction of the Environment and Land Court; execution/enforcement of its own decree (Civil Procedure Act)

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, "Kololi & 3 others v Sapiri & 5 others (Environment and Land Case 35 of 2012 & Civil Case 89 of 2012 (Consolidated)) [2025] KEELC 7077 (KLR)", Case Analysis (2025). Bungoma ELC Case (consolidated with Bungoma ELC Case No. 27 of 2013, formerly HCCC No. 89 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7077/eng@2025-10-09

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