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ELCPartially AllowedMemorandum of Appeal dated 07/03/2023 (Bungoma CM-ELC Case No. 30 of 2021)· [2025] KEELC 7238 (KLR)

Wakwabubi v Kituyi (Environment and Land Appeal E013 of 2023) [2025] KEELC 7238 (KLR)

Environment and Land Court
23 October 2025
ECE.C. Cherono
2,153 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Bungoma struck out a land claim filed 34 years after the sale, because it was already decided and time-barred.

What this practically means

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Executive summary

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This is a first appeal from Bungoma CM-ELC Case No. 30 of 2021, in which the trial magistrate (Hon. T.M. Orlando) had entered judgment for the Respondent, William Khasula Kitui, ordering the Appellant, Mary Nafula Wakwabubi, to transfer 2 acres out of land parcel East Bukusu/North Kanduyi/10306 to him, with each party bearing its own costs. The claim was founded on a 1987 sale agreement between the Respondent and the Appellant's late husband for 2 acres at Kshs. 26,500, of which Kshs. 18,000 was paid. The Appellant appealed on grounds that the judgment contradicted the pleadings, offended res judicata and the Limitation of Actions Act, and resulted from a mistrial; only the Appellant filed written submissions. The court framed a single issue: whether the Respondent's suit was res judicata and statute barred. On res judicata, the court noted the same parties had previously litigated identical subject matter in Bungoma PMCC No. 603 of 1993 (where transfer was ordered), set aside on appeal in Kakamega HCCA No. 21 of 1993, plus a failed Land Disputes Tribunal claim (LDT No. 34 of 1996) and a suit struck out as res judicata (Bungoma CM ELC No. 22 of 2018). Relying on John Florence Maritime Services, the court held the green card showed the new parcel was a sub-division of the former and the same agreement was being enforced. On limitation, the cause of action arose in 1987 or at latest 1993, so the 2021 suit exceeded the 12-year period under Section 7 of the Limitation of Actions Act. The appeal was allowed: the trial court's judgment and decree were set aside, the Respondent's suit was struck out with costs, and the Respondent was ordered to bear the costs of the appeal.

Key legal issues

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01

Res judicata

Holding

The Respondent's suit was res judicata as the same issues between the same parties were conclusively determined in Bungoma PMCC No. 603 of 1993 and the appeal therefrom.

Reasoning

The parties were the same, there was a valid judgment by a competent court, and although the parcels appeared distinct, the green card showed the later parcel was a sub-division of the former and the agreement sought to be enforced was the same. The elements in John Florence Maritime were satisfied.

p. 4
02

Limitation of actions

Holding

The claim, founded on a 1987 sale agreement, was filed in 2021, well beyond the 12-year limitation period for actions to recover land under Section 7 of the Limitation of Actions Act.

Reasoning

The cause of action accrued in 1987 when the contract was executed, or at latest in 1993 when the High Court pronounced itself. The suit filed in 2021 was clearly outside the statutory period, so the trial court erred in entertaining it.

p. 5

Legal principles established

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  • For res judicata to be invoked four elements must be demonstrated: a former final judgment, on merit, by a court with jurisdiction, and identical parties, subject matter and cause of action.
  • Actions to recover land must be brought within twelve years from when the right of action accrued.
  • Parties cannot evade res judicata by adding other parties or causes of action in a subsequent suit.

Court orders

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  1. 1.The judgment and decree of the trial court delivered on 31/03/2021 is set aside
  2. 2.The Respondent's suit before the subordinate court is struck out with costs
  3. 3.The costs of the appeal shall be borne by the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Limitation of Actions ActSection 7

Cases cited (4)

  • John Florence Maritime Services Ltd & Another v Cabinet Secretary Transport and Infrastructure & 3 Others
    Petition 17 of 2015 [2021] KESC 39 KLR [Civ]
  • E.T vs Attorney General & another
    [2012] eKLR
  • Omondi s NBK & Others
    [2001] EA 177
  • Njanju vs Wambugu and another
    Nairobi HCC No. 2340 of 1991 [unreported]
On appeal from
Chief Magistrate's Court, Bungoma
Bungoma CM-ELC Case No. 30 of 2021
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from the subordinate courts in land matters

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, "Wakwabubi v Kituyi (Environment and Land Appeal E013 of 2023) [2025] KEELC 7238 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 07/03/2023 (Bungoma CM-ELC Case No. 30 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7238/eng@2025-10-23

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