Fredrick Wekesa Machasio & another v Wilson Webi & 7 others

by events in light of the sub-division by the registered owner of the land that was the subject of this appeal. This state of aairs was conrmed by learned counsel Mr. Wamalwa Simiyu, who appeared for the respondents. Both counsel subsequently relied on their respective written submissions dated 29th April 2021 and 7th April 2025 on the issue of res judicata. 2. Before we address the rather unusual circumstances giving rise to the appeal, we need to reiterate the law on res judicata, so as to better illustrate its application to the facts of this appeal. The elements of a plea of res judicata are set out in section 7 of the Civil Procedure Act, and were summarised by the Supreme Court of Kenya in John Florence Maritime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) as follows: “ We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated: a. There is a former Judgment or order which was nal; b. The Judgment or order was on merit; c. The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and d. There must be between the rst and the second action identical parties, subject matter and cause of action.” 3. The Supreme Court further claried in Dina Management Ltd vs County Government of Mombasa & 5 others [2023] KESC 30 (KLR) that the elements set out above are to be conjunctive rather than disjunctive, and it must be demonstrated that there was a former judgment which was nal, it was on merit and by a court having jurisdiction and have identical parties, subject and cause of action. The contextual underpinnings of this appeal in this regard are a suit and application led by the appellants in the Environment and Land Court at Bungoma (the “trial Court”) in Bungoma ELC No. E001 of 2020 - Fredrick Wekesa Machasio & another vs Wilson Webi & 7 others. The appeal is from the ruling made by the trial Court on the appellants’ application for a temporary injunction to restrain the respondents from registering, subdividing, or disposing of any interest in land parcel Ndivisi/ Muchi/2111, and an order to preserve the status quo with respect to the said parcel of land pending the hearing and determination of the suit. 4. The appellants deponed that their father, Gabriel Mumela Machasio, was the original owner of land parcel No. Ndivisi/Muchi/1202 measuring 42 acres, and on 22nd December 1974, their father convened a clan meeting and distributed the land among his children, and the distribution was reduced into writing. It was further averred that in 1984, the eldest son, George Wanyama Machasio (since deceased) caused land parcel No. Ndivisi/ Muchi/ 1202 to be subdivided into land parcels numbers Ndivisi/ Muchi/ 2109, 2110, 2111 and 2217, and that while land parcels numbers Ndivisi/ Muchi/ 2109, 2110 and 2217 were distributed among the family members, including George Wanyama Machasio, in accordance with the bequest contained in the agreement of 22nd December 1974, George Wanyama Machasio registered land parcel No. Ndivisi/ Muchi/ 2111, in his own name, contrary to the spirit of the distribution agreement and thereby enabling him to exceed his allocated share. 5. The dispute culminated in a suit led by Gabriel Mumela Machasio, the appellants’ father, in Bungoma High Court Civil Case No. 83 of 2010 to recover the parcel of land from George Wanyama Machasio, who was sued therein as the respondent. The matter proceeded to the Court of Appeal in Kisumu Civil Appeal No. 41 of 2017- Gabriel Mumela Machasio vs George Wanyama Machasio, which delivered https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2076/eng@2026-06-19 2

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judgment in favour of Gabriel Mumela Machasio, and ordered that parcel No. Ndivisi/ Muchi/ 2111 revert to Gabriel Mumela Machasio. The appellants claimed that the said parcel of land was thereafter subdivided into three portions, namely Nos. Ndivisi/ Muchi/ 10442, 10443 and 10444, with a view to restoring parity in accordance with the bequest made on 22nd December 1974. However, in a fraudulent scheme intended to revise or defeat the clan decision of 22nd December 1974, the 1st respondent, who was the presumed chairman of the Babichachi Clan, connived with the other respondents and purported to subdivide parcel No. Ndivisi/Muchi/2111 into eleven portions for distribution among themselves, as reected in the mutation forms, and that unless conservatory orders were granted, the transfers would be registered to the detriment of the appellants. 6. In opposition to the application, the respondent argued that the application was an abuse of the court process and that the matter was res judicata, having been determined in the Court of Appeal in Kisumu Civil Appeal No. 41 of 2017, whereby land parcel No. Ndivisi/Muchi/2111 was registered in the name of Gabriel Mumela Machasio. They further stated that the registered proprietor of the suit land was Gabriel Mumela Machasio, who subdivided the land himself, not the Respondents, and consequently, that no cause of action lay against them since they were not the registered proprietor of the land in dispute. The respondents further averred that the appellants had fraudulently caused subdivision of the suit land and came up with new numbers, Ndivisi/Muchi/10442, 10443, and 10444, which were cancelled after discovery of the said fraud. 7. After hearing the appellants and respondents, the trial Court (B. N. Olao J.) delivered a ruling on 28th January 2021, in which it found that the appellants had not established a prima facie case to justify the grant of the orders sought, and even if such a case existed, the suit could not be sustained against the respondents, and the appellants’ application accordingly lacked merit. The trial Court further found that the appellants’ suit was res judicata and consequently struck it out together with the application. 8. The appellants were aggrieved by the said ruling and raised four grounds of appeal in their Memorandum of Appeal dated 26th February 2021, which, as indicated at the beginning of this judgment, they abandoned, save for the ground that the learned trial Judge erred in dismissing the suit as being res judicata, whereas the parameters that dene the doctrine were lacking. We heard this Appeal on this Court’s virtual Platform on 22nd April 2026. Learned Counsel, Mr. Kapten, appeared holding brief for Learned Counsel, Mr. Wasilwa for the Appellants while Learned Counsel, Mr. Wamalwa appeared for the Respondents. The parties highlighted their submissions dated 29th April 2021 and 7th April 2025, respectively. 9. In commencing the determination of this appeal, we are mindful of the duty of this Court as a rst appellate court, which was reiterated and set out in the decision of Selle and Another vs Associated Motor Boat Co. Ltd & Others (1968) EA 123. Our duty is to reconsider the evidence, evaluate it, and draw our conclusion of facts and law, and we will only depart from the ndings by the trial Court if they were not based on evidence on record; where the said Court is shown to have acted on the wrong principles of law as was held in Jabane vs Olenja (1986) KLR 661, or where its discretion was exercised injudiciously as was held in Mbogo & Another vs Shah (1968) EA 93. 10. The appellants’ counsel submitted that the trial Court disposed of the entire suit without giving the parties a hearing on the ground that the matter was res judicata, and the issues had been settled by the Court of Appeal in Kisumu Civil Appeal No. 41 of 2017. It was his position that in Bungoma High Court Civil Case No 83 of 2010 and subsequently Kisumu Civil Appeal No. 41 of 2017 the appellant therein, Gabriel Mumela Machasio, sought orders for a declaration that George Wanyama Machasio held the title to Ndivisi/Muchi/2111 in trust for the appellant and his family, and in the alternative the respondent’s title had been extinguished via adverse possession. The Court of Appeal found that https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2076/eng@2026-06-19 3

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the respondent held land parcel Ndivisi/Muchi/2111 in trust for the appellant and ordered that the trust be terminated and the suit property be registered in the appellant’s name as proprietor. 11. On the other hand, Bungoma ELC No. E001 of 2020 challenged the resolutions of a Babichachi Clan meeting held in June 2020. According to the appellants, the clan had purported to redistribute land parcel Ndivisi/Muchi/2111 among all the living children and grandchildren of Gabriel Mumela Machasio, notwithstanding that the land had already been distributed under the clan’s 1974 distribution scheme. Therefore, unlike in Bungoma High Court Civil Case No. 83 of 2010, and in Kisumu Civil Appeal No. 41 of 2017, which concerned a father seeking to enforce a trust against his rstborn son and recover title to land held in trust, the suit in Bungoma ELC No. E001 of 2020 concerned the distribution of land parcel Ndivisi/Muchi/2111. 12. Counsel contended that on the face of the pleadings, the matter did not involve the re-litigation of a claim that had already been conclusively determined by a court of competent jurisdiction, and therefore the nding that the suit was barred by res judicata was erroneous, and while citing the decision of this Court in Kibogy vs Chemweno [1981] eKLR, counsel submitted that that there remained unresolved issues concerning the question of how parcel Ndivisi/Muchi/2111 was to be distributed among some or all of the children of Gabriel Mumela Machasio, which had not been nally determined by any court. Consequently, that the learned trial Judge erred in nding that the matter was res judicata. 13. The respondents’ counsel on his part relied on section 7 of the Civil Procedure Act for the elements that must be established to sustain a plea of res judicata, and submitted that as regards whether the former suit involved the same parties, the trial Court cited with approval the decision of the Court of Appeal of Tanzania in Lotta vs Tanaki & Others (2003) EA 556 and the principle that the doctrine of res judicata renders a nal judgment conclusive and binding upon the same parties or their privies. Counsel submitted that the appellants were privies to the parties in the earlier suit, and that their participation in the present proceedings did not alter the application of the doctrine of res judicata. Counsel also contended that the land in dispute in the earlier appeal before the Court of Appeal in Kisumu Civil Appeal No. 41 of 2017, namely parcel No. Ndivisi/Muchi/2111 is the same property that forms the subject matter of the present appeal. 14. We have considered the arguments made by counsel for the appellants and respondents. As indicated earlier in this judgment, for a plea of res judicata to be successful, it must be demonstrated that there was a former judgment which was nal, it was on the merits and by a court having jurisdiction, and the parties, subject matter, and cause of action were the same. In the present appeal, it is not in contest that there is a former judgment by the Court of Appeal in Kisumu Civil Appeal No. 41 of 2017 (which is reported as Gabriel Mumela Machasio vs George Wanyama Machasio (2018) eKLR), in which the subject matter was the proprietorship of the land parcel title No. Ndivisi/Muchi/2111. 15. It was settled by the judgment of the Court of Appeal (E.M. Githinji, H. Okwengu &J. Mohammed JJA) in Kisumu Civil Appeal No. 41 of 2017 that the proprietor of the land parcel was Gabriel Mumela Machasio on the following terms: 15. From the evidence, the appellant proved by preponderance of evidence that the respondent was registered as proprietor of original land title No. Ndivisi/Muchi/1202 and the sub-division thereof title No Ndivisi/Muchi/2111 as a trustee for the appellant. In nding that the suit was not based on trust but on an O.S for adverse possession, the ELC clearly, but inadvertently, erred in ignoring the order of 7th February, 2013 which converted the O.S into a plaint and the fact that the determination of the trust was the main relief sought in the plaint. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2076/eng@2026-06-19 4

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As to the costs of the suit, the ELC did not award costs of the suit. The respondent did not participate in this appeal and the parties are father and son. It is just that each party bears his own costs of the appeal. 15. 16. 17. For the above reasons: i. The appeal is allowed. ii. The order dismissing the suit is set aside. iii. In substitution therefor judgment is entered for the appelJant against the respondent in terms that the respondent is registered as proprietor of tide No. Ndivisi/Muchi/2111 in trust for the appellant. iv. The trust is determined and the suit land to be registered in the name of the appellant as proprietor. v. Each party to bear his own costs of the appeal. It is so ordered.” The appellants in this regard sought the following orders in the suit they led in Bungoma ELC No. E001 of 2020: a. A declaration that the purported clan meeting of June 2020 that purported to share the proprietor’s title No. Ndivisi/Muchi/2111 among all the children of the proprietor was void. b. A declaration that the proprietor’s 42 acres of land were exhaustively and clearly distributed to all the would-be beneciaries, and there was no surplus land for distribution in June 2020. c. A declaration that the title No. Ndivisi/Muchi/2111 be registered in favor of the plaintis to the extend (sic) of the portions bequeathed to them in the 1974 distribution scheme. The subject matter of the suit was clearly the ownership of the land parcel title No. Ndivisi/ Muchi/2111, a matter which had been conclusively resolved on merit by the Court of Appeal in Kisumu Civil Appeal No. 41 of 2017. It is also notable that the land parcel title No. Ndivisi/ Muchi/2111 was at the time of ling of the suit in Bungoma ELC No. E001 of 2020 registered in the name of Gabriel Mumela Machasio, who was alive at the time, and was not made a party to the suit. The suit in Bungoma ELC No. E001 of 2020 was, to this extent, also incompetent. We in this respect agree with the following reasons set out by the trial Judge, in nding that the appellants had not demonstrated a prima facie case: “ However, no meaningful trial can be held in this matter unless the owner of the property in dispute is a party. If any rights of the plaintis have been or are threatened with violation with respect to the suit land, it is doubtful if such violation can properly be remedied without the involvement of Gabriel Mumela Machasio in these proceedings. I do not see what prima facie case the plaintis have established to warrant the grant of the orders sought. And if they had any such case, it certainly cannot be against the defendants herein.” 18. As regards whether the parties in Kisumu Civil Appeal No. 41 of 2017 and Bungoma ELC No. E001 of 2020 were the same, it is notable that section 7 of the Civil Procedure Act provides as follows: “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2076/eng@2026-06-19 5

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competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and nally decided by such court.” Explanation (6) of the said section further provides that: “ where persons litigate bona de in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.” 19. It is pertinent to point out at this juncture that it was expressly pleaded and admitted by the appellants that, other than the 1st respondent, who was the chairman of their clan, all the other parties in Bungoma ELC No. E001 of 2020, including the appellants and the other respondents, were either children or grandchildren of Gabriel Mumela Machasio. The common right among all the parties was their shares in the land parcel title No. Ndivisi/Muchi/2111, which, as we have already found, had been determined by the Court of Appeal to belong to Gabriel Mumela Machasio. The appellants and respondents were to this extent litigating under the same title as that of the respondent in Kisumu Civil Appeal No. 41 of 2017, insofar as their interest in land parcel title No. Ndivisi/Muchi/2111 was concerned. 20. We therefore nd no reason to fault the nding by the trial Judge that the suit in Bungoma ELC No. E001 of 2020 was res judicata the ndings of the judgment of the Court of Appeal in Kisumu Civil Appeal No. 41 of 2017, and there was no error made in striking out both the appellants’ application and suit in Bungoma ELC No. E001 of 2020. This appeal is accordingly found to have no merit and is hereby dismissed. Given the circumstances giving rise to the appeal, we are constrained to order that the appellants do meet the costs of the appeal. 21. Orders accordingly. DATED AND DELIVERED AT KAKAMEGA THIS 19TH DAY OF JUNE 2026. P. NYAMWEYA ………………………………… JUDGE OF APPEAL R. NGETICH ……………………………… JUDGE OF APPEAL RADIDO S.OKIYO ……………………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2076/eng@2026-06-19 6

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