Kabwi v Kabunduru (Enviromental and Land Originating Summons E004 of 2026) [2026] KEELC 1469 (KLR)
The bottom line
#The court struck out an adverse possession claim because the landowner had already lost a trust case over the same land — you must raise all your claims at once.
What this practically means
#Executive summary
#Key legal issues
#Res judicata (Section 7, Civil Procedure Act)
Suit barred; adverse possession claim was closely intertwined with the earlier trust claim and ought to have been pleaded
The plaintiff had litigated a trust claim over the same parcel in Tigania SPMC ELC 81 of 2022, culminating in Meru ELC Appeal No. E028 of 2023 dismissing the trust claim. The adverse possession claim, being related to and capable of being pleaded in the alternative, was caught by constructive res judicata and Order 3 Rule 4 of the Civil Procedure Rules, 2010, which requires a suit to include the whole claim.
Abuse of the due process of the court
Simultaneous prosecution of the Court of Appeal trust appeal and the adverse possession suit, and the shifting of claims, constituted abuse of process
The plaintiff, having failed on trust, changed tack to adverse possession while keeping a live notice of appeal on trust before the Court of Appeal (leave to file the record out of time having been granted in Nyeri CA Civil Application E178 of 2025). Running inconsistent processes contemporaneously, and approbating and reprobating, amounted to misuse of court process.
Incompatibility of trust and adverse possession claims
The two causes of action are mutually exclusive; trust destroys adverse possession
Relying on Catherine Koriko & 3 others v Evaline Rosa, the court held that a claim of trust/beneficial ownership is inconsistent with, and antithetical to, a claim for adverse possession, since an adverse possessor must concede the registered proprietor's ownership. A claimant cannot approbate and reprobate by asserting both.
Legal principles established
#- A party must bring forward the whole of their claim; a claim omitted with due diligence in earlier proceedings is barred by constructive res judicata
- A litigant cannot pursue two inconsistent claims (trust and adverse possession) simultaneously
- A notice of appeal remains alive until withdrawn or struck out
Court orders
#- 1.The Preliminary objection be and is hereby allowed
- 2.The Plaintiff's suit vide originating summons be and is hereby struck out
- 3.The Application dated 13.02.2026 be and is hereby struck out
- 4.Costs of the suit and the application be and hereby granted to the Defendant
- 5.Costs in terms of clause (iv) above shall be agreed upon and in default be assessed in the conventional manner
- Jurisdiction invoked
- Article 48 of the Constitution, 2010 (right of access to justice); Section 7 of the Civil Procedure Act (res judicata)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kabwi v Kabunduru (Enviromental and Land Originating Summons E004 of 2026) [2026] KEELC 1469 (KLR)", Case Analysis (2026). Originating Summons dated 13.02.2026 (Meru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1469/eng@2026-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.