Talam v Chepngeno & 3 others (Environment and Land Case E001 of 2023) [2026] KEELC 3082 (KLR)
The bottom line
#A Kericho court allowed a landowner's counterclaim for trust and adverse possession to proceed, ruling it was not barred by an earlier case.
What this practically means
#Executive summary
#Key legal issues
#Whether the Counterclaim is res judicata to Kericho ELC Case No. 1 of 2014
The Counterclaim is not res judicata; the issues of trust and adverse possession were not raised in the former suit and Irene Chepng'eno was not a party to it.
Section 7 of the Civil Procedure Act requires that the matter directly and substantially in issue in the former suit be the same, between the same parties or parties under whom they claim, litigating under the same title, before a competent court. Comparing the pleadings, the former suit concerned a declaration of ownership of 5 acres in Kericho/Kapsuser/933 and a counterclaim for revocation of titles 5156 and 5157. The present Counterclaim raises trust and adverse possession over parcel 5256, which were not raised in the former suit, and Chepng'eno was not a party to the former suit. The daughter-in-law relationship alleged to bring her within explanation 6 was denied and unproved.
Whether the Counterclaim is defective for offending Section 38 of the Limitation of Actions Act
The Counterclaim is not defective; whether possession was permissive or adverse is a question of fact and merit to be determined at the hearing.
The applicant argued that prayer (b) offends Section 38 of the Limitation of Actions Act because permissive possession is not adverse possession. The court held that the character of the Respondent's possession - whether with the permission of the registered proprietor or hostile - goes to the merits of the Counterclaim and requires evidence and cross-examination, and cannot be resolved on a preliminary application. The issue is best left to the full hearing of the main suit.
Costs of the application
Costs follow the event; the successful 1st Defendant/Respondent is awarded costs.
Under Section 27 of the Civil Procedure Act the general rule is that costs follow the event, and a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise. No reason was shown to depart from that rule, and the application was dismissed with costs.
Legal principles established
#- The doctrine of res judicata requires that the parties and issues in the former and present suits be the same; new issues such as trust and adverse possession not raised in the former suit fall outside Section 7 of the Civil Procedure Act.
- Whether a party's possession of land was permissive or adverse is a matter of merit to be determined at trial, not on a striking-out application.
- The court will not infer a party's intention to abuse process by pleading adverse possession to evade res judicata.
Court orders
#- 1.The Plaintiff/Applicant's Notice of Motion application dated 28th November, 2025 is dismissed with costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court (Sections 1A, 1B, 3A & 7 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules invoked for the application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Talam v Chepngeno & 3 others (Environment and Land Case E001 of 2023) [2026] KEELC 3082 (KLR)", Case Analysis (2026). Kericho ELC Case (Plaint dated 18th July, 2023) - Notice of Motion dated 28th November, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3082/eng@2026-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.