Odongo & 11 others v Nyawire (Enviromental and Land Originating Summons E007 of 2024) [2026] KEELC 3285 (KLR)

Applying the five-point test in Bernard Mugo Ndegwa v James Nderitu Githae (identity of issues, parties, title, jurisdiction, finality) as adopted by the Supreme Court in KCB v Muiri Coffee Estate, the court compared the pleadings and orders sought. The earlier suit sought exhumation of a body buried on the suit property; the instant suit seeks a declaration of adverse possession. The issues and reliefs differ significantly, so Section 7 of the Civil Procedure Act is not satisfied.

Section 6 of the Civil Procedure Act bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties or parties litigating under the same title. Migori Suit No. 3 of 2010 was filed earlier and is still pending after its judgment was set aside. Once the lower court sheds the irregular adverse-possession counterclaim for want of jurisdiction, the remaining trespass/eviction claim concerns the same land, occupation and title as the instant adverse-possession claim, so the parameters of Section 6 are met.

Relying on the Court of Appeal decision in Sugawara v Kiruti, the court restated that Section 38 of the Limitation of Actions Act confines adverse-possession claims to the Environment and Land Court. It declined to determine the validity of the amended defence in the lower court, since that suit is not before it, and doubted whether a transfer application could succeed where the originating court lacked jurisdiction, since such proceedings are a nullity and there is no suit to transfer.

Having found the res judicata limb to fail but the sub judice limb to succeed, the court exercised its discretion on costs in light of the partial success, ordering that each party bear its own costs.