Mbago v Obel & another (Environment and Land Appeal E003 of 2023) [2026] KEELC 4737 (KLR)

The court compared the 1994 plaint and the lower court plaint, finding the same parties litigating under the same title, same subject matter and same reliefs. But dismissal for want of prosecution means the former suit was not heard and finally determined on merits, an essential element of res judicata per the Maina Kiai elements and John Florence Maritime. Nonetheless, the Appellant's proper remedy was to seek reinstatement of, or appeal against, the 1994 dismissal, not to file a fresh suit.

The first agreement bore no visible thumbprint of the deceased vendor, only words indicating where the thumbprint ought to have been placed; the second was not signed by the deceased at all, made no reference to any parcel of land, and neither document was translated from Dholuo. Both documents failed the writing, signature and attestation requirements of Section 3(3) of the Law of Contract Act, both in its current and pre-2003 forms, so the trial court's finding was upheld.

The claim was one founded on contract to enforce agreements of 1978/1979, so the six-year period ran from 1979. Section 27 of the Act permitting enlargement applies to tort, not contract, and courts have no inherent jurisdiction to extend statutory limitation periods where the statute does not allow it. No prayer for extension of time was made in the lower court or on appeal.

The Respondents produced a title deed issued in their joint names in 2020, and the Appellant having failed to prove his purchase, their title stood undefeated. As registered owners they were entitled to vacant possession. Mesne profits were properly denied for want of a basis, but general damages of KShs 100,000 for trespass were upheld since trespass is actionable per se.