Migai v Otieno & another (Enviromental and Land Originating Summons E010 of 2025) [2026] KEELC 3315 (KLR)

The parties in both suits were the same, albeit the Plaintiff sued previously as a personal representative of her late husband's estate while now purporting to sue in her own capacity. The subject matter was the same parcel, West Karachuonyo/Kanjira/927, and its subdivisions 1619 and 1620. Adverse possession had been raised as part of her evidence in the former suit and determined on appeal. The court held that changing capacities and cloaking the claim as an Originating Summons was a deliberate attempt to evade the doctrine, and that the previous competent courts had already conclusively determined the issues on merit.

The court found the change of capacity to be 'clever' drafting, noting the Plaintiff's evidence in the earlier suit was that her entry onto the land was by virtue of a purchase by her husband, and questioning when, if ever, the land bought by her husband became hers individually. It held the identical living being could not escape the bar of res judicata by such disingenuity.