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ELCStruck OutNot stated in the judgment (arising from application dated 18/7/2025)· [2026] KEELC 968 (KLR)

Ngari v Makothee (Enviromental and Land Originating Summons 18 of 2017) [2026] KEELC 968 (KLR)

Environment and Land Court
18 February 2026
KBK. BOR
790 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out an adverse possession claim because the land dispute between the same parties had already been decided, awarding costs to the defendant.

What this practically means

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Executive summary

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By an application dated 18/7/2025, the Defendant sought to have the Plaintiff's suit struck out with costs as res judicata, on the ground that Siakago MCELC Case No. 79 of 2017 between the same parties over land parcel Embu/Kithunthiri/1016 had been heard and determined, with a decree ordering the Plaintiff to vacate within 60 days. The Defendant annexed the plaint, judgment and decree in that suit and urged that there should be an end to litigation. The Plaintiff opposed, claiming adverse possession since 1992, arguing that adverse possession was never litigated, that the Siakago court lacked jurisdiction over such a claim, and that his defence there was not heard on merit; he noted the decree was issued on 14/11/2023 and only served on him on 17/7/2025. In submissions, both parties cited Section 7 of the Civil Procedure Act. The court framed one issue: whether the suit was res judicata. It found that the Siakago suit, filed by the Defendant against the Plaintiff and another, had been defended and determined on 2/11/2023 by a competent court. Although a magistrate's court cannot determine adverse possession, the Plaintiff could have raised it as a shield in that suit or filed a claim before the Environment and Land Court. The court held the suit res judicata, struck it out with costs to the Defendant. Judgment was delivered virtually at Bungoma on 18 February 2026 by K. Bor, J.

Key legal issues

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01

Whether the suit for adverse possession was res judicata in light of the prior Siakago MCELC Case No. 79 of 2017

Holding

The suit is res judicata and is struck out with costs to the Defendant

Reasoning

The Defendant had previously sued the Plaintiff over the same suit land, Embu/Kithunthiri/1016, in Siakago MCELC Case No. 79 of 2017, claiming unlawful entry and seeking eviction. That suit was heard and determined on 2/11/2023 in the Defendant's favour, resulting in a decree ordering the Plaintiff to vacate, which was not appealed. The Plaintiff, who filed a defence in that suit, could have raised adverse possession as a shield or filed a claim before the Environment and Land Court. Ownership was thus determined by a competent court between the same parties.

p. 2

Legal principles established

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  • A claim for adverse possession, though outside the jurisdiction of the magistrate's court in which an eviction suit is filed, may be raised as a shield in that suit or filed before the Environment and Land Court; failure to do so renders a later suit res judicata.

Court orders

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  1. 1.The suit is struck out with costs to the Defendant

Authorities

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Legislation

  • Civil Procedure ActSection 7
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; application under Section 7 of the 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, "Ngari v Makothee (Enviromental and Land Originating Summons 18 of 2017) [2026] KEELC 968 (KLR)", Case Analysis (2026). Not stated in the judgment (arising from application dated 18/7/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/968/eng@2026-02-18

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