Biwott & 2 others (Suing as the Official of Chepnyaliliet Self Help Group) v Shunkur & another (Environment and Land Case E012 of 2025) [2026] KEELC 5169 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a land suit as an abuse of process because it re-fought a dispute already decided decades earlier.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is barred by res judicata
Yes - the suit is res judicata as the parties, subject matter and issues were directly and substantially in issue in Kericho Civil Suit No. 9 of 1993 and Civil Appeal No. 223 of 2014.
The court found that the parties in the earlier suit and the present suit are the same for all material purposes despite cosmetic alteration of party composition. The parent parcel and its subdivisions constitute the same subject matter. The issue of proprietorship over the suit property was conclusively determined in the earlier proceedings and affirmed on appeal, and the present suit seeks to re-litigate the same factual matrix under a different cause of action.
Whether the High Court at Kericho had jurisdiction over the earlier suit
Yes - the High Court at Kericho was a court of competent jurisdiction before the Constitution of Kenya 2010, and its jurisdiction was not retrospectively divested by the creation of the ELC.
Prior to the 2010 Constitution, land disputes were determined by the High Court based on pecuniary value and territorial jurisdiction. The ELC was established under Article 162(2)(b) and operationalized under Section 13 of the Environment and Land Court Act, but this did not retrospectively divest the High Court of jurisdiction it validly exercised before 2010.
Whether the present suit is sub judice
Yes - the suit was sub judice as an application for review of the Court of Appeal judgment remained pending before the Court of Appeal at Nakuru at the time of filing.
The Plaintiffs/Respondents did not deny filing an application dated 23rd October 2023 seeking review of the Court of Appeal judgment in Civil Appeal No. 223 of 2014, and failed to disclose its fate. The inevitable inference is that both proceedings were simultaneously pending, offending the doctrine of sub judice which prevents concurrent litigation of substantially the same issues.
Legal principles established
#- The mere subdivision of a parent parcel of land does not alter the identity of the subject matter for purposes of the doctrine of res judicata.
- Addition or omission of parties in a subsequent suit does not necessarily render res judicata inapplicable where the parties claim under the same title.
- A court of equal status cannot sit on appeal over the decision of another court of concurrent jurisdiction; finality in litigation must be respected.
Court orders
#- 1.The Notice of Motion application dated 21st November 2025 is allowed entirely with costs to the 1st Defendant/Applicant
- 2.The Plaintiffs/Respondents are declared frivolous litigants and in abuse of the court process
- 3.The entire suit is struck out with costs to the 1st Defendant/Applicant
- Jurisdiction invoked
- Sections 6 and 7 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Biwott & 2 others (Suing as the Official of Chepnyaliliet Self Help Group) v Shunkur & another (Environment and Land Case E012 of 2025) [2026] KEELC 5169 (KLR)", Case Analysis (2026). NAROK ELC LC NO. E012 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5169/eng@2026-08-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.