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

a. The suit against the applicant herein by the 2nd plaintifi/respondent be struck out and /or dismissed for being res judicata Migori CMC Civil Suit no. 185 of 2019 (Richard Oyugi Nyawire & 4 others which is pending before Honourable Mathias Okuche pursuant to Section 6 of the Civil Procedure Act. b. The suit as against the defendant/applicant herein by the 12th respondent /plaintifi be stayed pending the determination of Migori SPMC Civil Suit No. 3 of 2010, Richard Oyugi Nyawire v Cyprian Oketch Nyawire & 4 others which is pending before Honourable Mathias Okuche pursuant to section 6 of the Civil Procedure Act. c. The costs of this application be provided for. 2. The defendant/applicant stated that maintaining the suit would constitute abuse of the court process and prayed that the prayers sought in his application be granted. 3. The application is supported by the Afidavit of Richard Oyugi Nyawire, the defendant/applicant herein. He deponed that he had previously sued the 2nd defendant/respondent in MIGORI CMC CIVIL SUIT NO. 185 of 2019, which was fully heard and determined by the trial court on 21st October 2021, and judgment entered in his favour. He annexed to the afidavit, a copy of the proceedings and the judgment of the case as annexures marked RON 1 and RON 2 respectively. 4. The defendant/applicant deponed that the issues raised by the 2nd plaintifi/respondent were substantially the same as the issues determined in MIGORI CMC CIVIL SUIT NO 185 OF 2019. He also added that the parties in the two matter were the same parties or they claimed under the same title. 5. On the basis of the aforesaid, the defendant/applicant concluded that the suit against the 2nd plaintifi/ Respondent was res judicata pursuant to the provisions of Section 7 of the Civil Procedure Act. 6. Equally, the defendant /applicant deponed that he instituted a suit against the 12th plaintifi/ respondent, being Migori SPMC Civil Suit no. 3 of 2010, which was actively before the Honourable Senior Principal Magistrate. He annexed to the afidavit, a screenshot of the activities in the said matter as refiected in the Case Tracking System (CTS) in annexure marked RON 3. 7. The defendant/applicant deponed that the issues in the two matters were directly and substantially the same and involve the same parties. He therefore concluded that the instant suit ofiended Section 6 of the Civil Procedure Act as it was sub judice. He prayed that it be dismissed. The plaintifi/respondents’ replying afidavit 8. The 12th plaintifi/respondent herein, Cyprian Oketch Nyawire swore a replying afidavit on 12th January 2026. He stated that he had the full authority of the other plaintifi/ respondents to swear the said afidavit. 9. He deponed that in Migori CMC NO. 185 of 2019, the dispute before the court related to a burial dispute and not adverse possession. He annexed a copy of the judgment and marked it as CON-01. He added that the judgment neither declared the 2nd plaintifi/respondent a trespasser not was an eviction order issued against the said 2nd plaintifi/respondent. 10. On the question of Migori SPMC case No. 3 of 2010 being res sub judice, the 12th plaintifi/respondent deponed that it was still pending for hearing and determination before Honourable Senior Principal Magistrate. He, however, clarified that trial court does not have jurisdiction to hear and determine mattes relating to adverse possession. He stated that the plaintifis/applicants had since instructed their https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3285/eng@2026-05-25 2

page 2 of 11

advocate to file an application seeking the transfer of the said suit to a court of competent jurisdiction. He annexed the copy of the application for transfer as the annexure marked as CON-3. 11. Further to the above, the 12th plaintifi/respondent deponed that the instant suit is not sub judice for the reasons that the prayers sought in SPMC NO 3 of 2010 were on trespass and eviction whereas the prayers sought in the instant matter were on adverse possession. He also deponed that there were five parties in SPMC civil case no. 10 of 2010 while there were 12 parties in the instant matter, some of whom were not parties in SPMC Civil case no. 10 of 2010. 12. The 12th plaintifi/respondent finally deponed that the matters in question were not duplication of each other and the two were distinct, with difierent causes of action, difierent parties and difierent jurisdictions. The defendant/applicant’s further afidavit 13. The defendant/applicant filed a Further Afidavit sworn on 3rd February 2026. He stated that the 2nd plaintifi/respondent was sued in Migori CMCC Suit No. 185 of 2019 over the unlawful burial of her husband’s body at the suit property. He further stated that the said suit was fully determined and judgment rendered in his favour 14. In addition to the above stated, the defendant/applicant deponed that the judgment in Migori CMCC Civil Case No. 185 of 2019 had never been set aside and, as such, the 2nd plaintifi/respondent was barred by the doctrine of res judicata from relitigating the touching on the occupation, possession and ownership of the suit property through the adverse possession claim raised by the said 2nd plaintifi/ respondent. 15. The defendant /applicant deponed that he had previously filed Migori CMCC civil suit No. 3 of 2010 against Joseph Miruka Ayieko, who was the husband to the 2nd plaintifi/ respondent. He stated that the court rendered its judgment in his four in the latter suit and issued a decree, which he has annexed to the Further Afidavit. The said judgment and decree of the court, he deponed, was never challenged, appealed against, reviews or set aside by Joseph Miruka during his life time or by his wife, the 2nd plaintifi/respondent herein. 16. The defendant applicant further deponed that Migori CMCC Civil Case No. 3 of 2010 was later re-opened on allegations that the 12th defendant/respondent had not been heard. He stated that the matter was still pending hearing and determination hence sub judice. 17. Furthermore, the defendant/applicant deponed that the defence of adverse possession was not properly raised before court as it was filed without leave of the court. Hence, the Amended Defence filed in Migori CMCC No. 3 of 2010 was irregular, incompetent and not properly on record. He maintained that such a document did not constitute a lawful claim or defence in law. 18. On the issue of the trial court being deprived of jurisdiction to entertain a claim on adverse possession, the defendant/applicant termed such allegations as misleading since the plaintifi/respondents were actively still involved in Migori CMCC Civil Case No. 10 of 2010 which was before the trial court. 19. The defendant/applicant also stated that Migori CMCC No. 10 of 2010 concerned trespass and eviction while the instant suit related to adverse possession, with both claims arising from the same property and alleged occupation. As such, he deponed that a difierence in the reliefs sought did not negate the application of the doctrines of res judicata and sub judice, since the substratum of the same remained identical. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3285/eng@2026-05-25 3

page 3 of 11

20. As to the parties in the respective suits not being identical, the defendant/applicant deponed the plaintifi/ respondents were just but additional relatives of the original judgment debtors who were litigating /or under the judgment debtors. 21. Lastly, the defendant/respondent concluded that the instant suit was res judicata and sub judice and that the same amounted to abuse of the court process. Submissions 22. The application was canvassed by way of written submissions. The plaintifis/respondents did not file their submissions. The defendant/applicant filed his submissions dated 3rd February 2026. He framed three issues for determination, that is, whether the suit by the 2nd plaintifi/respondent was res judicata; whether the claim by the 12th plaintifi/respondent was sub judice and whether the present suit amounts to abuse of court process. 23. As to whether the suit by the 2nd plaintifi/respondent is res judicata, the defendant/applicant submitted that the 2nd plaintifi/respondent was sued in Migori CMCC No. 185 of 2019 where she was sued over the burial of her husband on the suit property. He also submitted that the court rendered a final judgment afirming his proprietary rights over the suit property. 24. The defendant/applicant maintained that the above stated judgment had never been set aside, reviewed or varied and added that the allegation that the matter was heard ex-parte does not invalidate the said judgment since a judgment remains valid and binding until set aside. He relied on the E.T v Attorney General & another [2012] eKLR to submit that a judgment, ex parte or otherwise, remained valid and binding until the same is set aside. 25. The defendant/applicant also relied on the Supreme Court decision in John Florence Maritime Services Ltd v Cabinet Secretary for Transport & others [2015] eKLR to submit that the res judicata applies not only to the precise issues litigated by the parties but also to issues which ought o have been raised earlier. 26. The defendant/applicant concluded his submission on this matter by stating that the 2nd plaintifi/ respondent was barred from re-litigating on the ownership, occupation or possession of the suit property in the guise of claiming the land through adverse possession. 27. On the issue of the claim filed by the 12th plaintifi/respondent being sub judice, the defendant/ applicant relied on Section 6 of the Civil Procedure Act to submit that a suit was sub judice where the matter in issue was directly and substantially in issue in suit previously instituted between parties who were litigating under the same title, and the suit which was previously filed in pending before a court of competent jurisdiction. He submitted that the suit filed by the 12th plaintifi/respondent was sub judice for the reason that he had filed a Migori CMCC Case No. 3 of 2010 which was heard and determined by the trial court in his favour. However, the said suit was later re-opened for purposes of hearing the 12th plaintifi/respondent 28. The defendant/ applicant submitted that the plaintifis/ respondents had admitted that MIGORI CMCC no. 3 of 2010 was still pending before court. He added that the substratum of both suits was the same parcel of land, over same alleged occupation and claims emanating from the same judgment debtors. He also submitted that the plaintifi/respondents’ attempt to introduce a claim of adverse possession through an amended defence which was filed without leave of court amounted to the said Defence not being properly on record. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3285/eng@2026-05-25 4

page 4 of 11

29. The defendant/ applicant further submitted that the rationale behind the doctrine of sub judice was the prevention of parallel litigation and as well as the reduction of confiicting decisions. 30. The defendant/applicant submitted on the question of additional parties and the alleged difierence in causes of actions. He stated that the additional plaintifi/respondents were close relatives of the original judgment debtors who were litigating under the same title and interest. As such he concluded that the claim that the suit was not sub judice on account of these additional parties was not tenable. The defendant/applicant relied on Henderson v Henderson [1843] 67 ER 313 to underscore the principle that parties but bring forward their whole case at once and that parties cannot escape finality by introducing new parties or new causes of action. He submitted that the said principle has been upheld in Kenya. 31. Further, the defendant/applicant submitted that filing several suits over the same subject matter over the same subject matter amounts to abuse of court process. He placed reliance on the Court of Appeal decision in Muchanga Investments limited v Safaris Unlimited (Africa) limited (2009) eKLR to buttress this position. 32. Finally, the defendant/applicant submitted that a mere change of form of relief sought by parties did not defeat sub judice and res judicata where parties are litigating under the same title. Issues, analysis and determination 33. Upon considering the originating summon, the application, the responses thereto and the submissions filed by the defendant/applicant, I am of the view that the relevant issues for determination are: whether the suit filed by the 2nd plaintifi/respondent is res judicata; whether the claim filed by the 12th plaintifi/respondent is sub judice hence be stayed; and who should bear the cost of the application. 34. The defendant applicant maintained that the suit filed by the 2nd plaintifi/respondent is res judicata Migori CMCC Civil Suit No. 185 of 2019. He annexed a page of the judgment to his supporting afidavit. The 12th plaintifi/ respondent in his replying afidavit deponed that the said suit did not render the instant suit res judicata. He maintained that the Migori CMCC No. 185 of 2019 related to a burial dispute while the instant one was on adverse possession. He annexed the judgment in Migori CMCC NO. 185 of 2019. 35. Section 7 of the civil procedure Act provides as follows concerning the res judicata rule: 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 competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court 36. The Supreme Court in Kenya Commercial Bank Ltd & another v Muiri Cofiee Estate Ltd & 3 others (Motion 42 & 43 of 2014 (Consolidated)) [2016] KESC 6 (KLR) (19 May 2016) (Ruling) expounded on the res judicata rule in the following terms: ‘‘52. Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights... https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3285/eng@2026-05-25 5

page 5 of 11

54. The doctrine of res judicata, in efiect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to Court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and eficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively. 58. Hence, whenever the question of res judicata is raised, a Court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case¾to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The Court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a Court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v. James Nderitu Githae & 2 Others, (2010) eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.’’ 37. After considering the pleadings and issues in the two suits referred to herein, I am of the humble opinion that that Migori CMCC Civil suit 185 of 2019 is not similar to the instant suit. The two suits difier significantly in the issues that were for litigation before the courts. As stated by the parties, the Migori Civil Suit No. 185 of 2019 was a cause if action on a burial dispute. The orders sought therein were an order for the exhumation of the body of Joseph Ayieko Miruka from the suit property, the costs of the suit and any other relief that the court deemed fit and just to grant. On the converse, the instant suit seeks an order of adverse possession. This is completely difierent from the order sought in the aforementioned suit. 38. The defendant/applicant submitted that the 2nd plaintifi/respondent was barred from re-litigating the issue of the ownership, occupation, possession and title of the suit property through a claim of adverse possession. It is my considered view that the two matters being difierent considering the orders sought by the parties in each yield difierent results regarding a conclusion on the claim of res judicata. Accordingly, I find that the instant suit is not res judicata Migori CMCC Civil suit No. 185 of 2019. 39. Having so determined, I now proceed to analyze whether the instant suit is sub judice in relation to the case, Migori SPMC No. 3 of 2010. The defendant/applicant stated that he filed the afiorested suit against Joseph Ayieko Miruka, who was the husband of the 2nd plaintifi/respondent herein. He further stated that the court rendered its judgment it his favour and annexed a decree of the court. However, the suit was re-opened to allow the 12th plaintifi/respondent to be heard. He stated that the suit by the 12th plaintifi/respondent ofiended the rule on sub judice since the issues to be litigated therein are directly and substantially in issue with the issues raised in Migori SPMC Civil Case No. 3 of 2010. He also added that the parties were the same as they were close relatives of the judgment debtors in Migori SPMC Civil Suit No. 3 of 2010 and the parties were litigating over the same title. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3285/eng@2026-05-25 6

page 6 of 11

40. On his part, the 12th plaintifi/respondent stated that his suit is not sub judice. His main arguments were that the suit herein raised an issue of adverse possession. He added that the trial court did not have jurisdiction to hear and determine matters of adverse possession. He also emphasized that the matters were not similar since his suit had additional parties. 41. I must also note that the applicant herein stated that the issue of adverse possession was not properly brought on record in Migori SPMC Civil Suit No. 3 of 2010 since the Amended Claim, which introduced the issue of adverse possession vide a Counterclaim, was filed without leave of the court. 42. Section 6 of the Civil Procedure Act provides as follows concerning the sub judice rule: No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed. 43. In Republic v Kariuki & 3 others; Law Society of Kenya (Ex parte Applicant) (Judicial Review E045 of 2020) [2020] KEHC 10142 (KLR) (Judicial Review) (8 October 2020) (Ruling), Mativo J. determined as hereunder concerning the meaning, rationale and application of the sub judice rule: ‘‘17. With a large number of pending cases, the judiciary is overburdened and faces a stark lack of resources. In a situation like this, when two suits arising out of the same issues between the same parties are brought before the courts, there is bound to be wastage of resources and frivolous litigation. In order to correct this redundancy, there exists the doctrine of sub judice which is captured in section 6 of the Civil Procedure Act. In a humble attempt to understand the principle and reasoning behind this doctrine and its application, I will attempt to analyse some salient features of the rule of sub judice. 18. Both suits challenge the same decision. The prayers sought in both suits are the same. Since both the suits cite similar issues, the decision of the first suit should be binding on those issues and it need not be tried again. If the plea in the first suit succeeds, then it will render the second case res judicata. In fact, a favourable decision would not only benefit the Nairobi Branch, but the entire bar in the country. This truth renders the second suit useless and of no utilitarian value. A second trial on the same issues would entail duplication of work as evidence required to prove those issues in the first suit would be similar to those in the second suit (read instant suit). Thus, it is desirable that such issues be resolved or adjudicated by one court only. It will avoid confiicting decisions or complications arising therefrom. 19. In order to check this very problem, there exists the concept of sub judice which in Latin means “under Judgement.” It denotes that a matter is being considered by a court or judge. The concept of sub judice that where an issue is pending in a court of law for adjudication between the same parties, any other court is barred from trying that issue so long as the first suit goes on. In such a situation, order is passed by the subsequent court to stay the proceeding and such order can be made at any stage. 20. In this regard, section 6 of the Civil Procedure Act expressly provides that no court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3285/eng@2026-05-25 7

page 7 of 11

such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed. 44. The 12th defendant/respondent raised the issue of jurisdiction of the trial court on matters touching on adverse possession. As earlier noted, the applicant stated that the issue of adverse possession was introduced vide an irregular amendment and as such, the same is not properly before the trial court. I must note that the issue of whether or not the amended statement of claim is properly before the trial court is an issue that is to be determined by the said court, and not this one. In my view, this is not an issue this court can take up since that other suit No. 3 of 2010 is not before me. Parties would do well to always raise issues in matters which are before the courts where their disputes are. Courts are not like octopuses which can stretch tentacles to cling to each and every issue fioating out there in the sea of litigation. They limit themselves to issues before them. 45. Be that as it may, the question as to whether the trial court has or does not have jurisdiction on adverse possession claims is a matter of law, as provided for under Section 38 of the Limitation of Actions Act. In Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment), the court emphasized on the importance of determining the question of jurisdiction on priority and held that: ‘‘30. With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction... 31. It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court. A party who fails to question the jurisdiction of a court may not be heard to raise the issue after the matter is heard and determined. 32. I can see no grounds why a question of jurisdiction could not be raised during the proceedings. As soon as that is done, the court should hear and dispose of that issue without further ado.’’ 46. Thus, the 12th plaintifi/respondent raised the issue of the trial courts jurisdiction to hear and determine a claim of adverse possession places the issue the Respondent argues about an application pending before this court for its transfer to this court directly in issue. The applicant agues that the suit by the 12th Respondent is sub judice. The 12th Respondent thinks otherwise. He argues that in any event the said suit is for transfer to this court on account of a Counterclaim of adverse possession having been raised therein. Why then, other than abusing the court process, did the said applicant file another claim for adverse possession in this court in this suit? Did and does the said lower court have jurisdiction on adverse claims? 47. This court is aware of the Court of Appeal decision in Sugawara v Kiruti (Sued in her capacity as the administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others (Civil Appeal E141 of 2022) [2024] KECA 1417 (KLR) (11 October 2024) (Judgment) which clarified that Magistrates courts do not have jurisdiction to hear and determine claims of adverse possession and held that: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3285/eng@2026-05-25 8

page 8 of 11

‘‘48. It is our view that, if it was intended that claims for adverse possession be determined by the Magistrates’ Court, nothing would have been easier than for Parliament to have expressly enacted such a provision. So that in view of the express provisions of the law, a strict interpretation of section 38 would mean that hearing and determination of such matters is specifically limited to the Environment and Land Court to the exclusion of Magistrates’ Court. 49. We come to this conclusion also bearing in mind that the jurisdiction of Magistrates’ Courts is largely determined by the pecuniary interest designated for determination by each level of the Magistracy specified in the hierarchy of courts, in terms of section 7 of the Magistrates Courts Act. In claims for adverse possession where the value of the land in question may be unknown, as in the instant case, it could be that by the time of filing, the value of the land subject of determination may be far in excess of the particular Magistrates’ Court’s pecuniary jurisdiction, which for all intents and purposes was not what was intended by the Act. 50. In the circumstances, in view of the express provisions of section 38 of the Limitation of Actions Act, as did the Environment and Land Court, we find that Magistrates’ Courts do not have jurisdiction to determine the claims of adverse possession. As a consequence, the trial magistrate in the instant case rightly disregarded hearing and determining it. In the result, this ground is without merit and is accordingly dismissed.’’ 48. Although the plaintifi/ respondent purported to have instructed an advocate to file an application to transfer Migori SPMC Civil Suit no. 3 of 2010 to this court for determination, this Court doubts whether such an application can be meritorious unless there is enough material to be placed before the Court to demonstrate that the matter sought to be transferred was filed in the first place in a court with competent jurisdiction. Such a transfer cannot be done where a court does not have jurisdiction to hear and determine the matter in question. 49. A matter filed in a court without jurisdiction subjects itself to proceedings which are a nullity if ever they take place. Similarly, a transfer of such a matter would be irregular and clothing an illegality with legitimacy. Even then, based on the material to be placed before the court asked to grant an application for transfer, that definitely would be an issue of merit in that application based on the facts of the case. Either a court has or not have jurisdiction. Where a court has no jurisdiction, the proceedings therein if done are a nullity. Courts have time and again held that there is no suit to transfer in such a scenario. (see Joseph Muulu Mbai & 2 others v Muoka Matheka & another [2021] KEHC 5962 (KLR)). That is all this Court can state regarding that application which too is not before me as of now. 50. Having said that then the question that remains regarding the second prayer is: is the instant suit sub judice? The starting point in answering the question is the recognition that the Migori Suit No. 3 of 2010 was filed much earlier than the instant suit. Although there was an argument that it was determined and a judgment given in it, it is common ground that the judgment was set aside and now the suit is still pending. It is in the said suit that there is a counterclaim on adverse possession pending as it is herein. But as stated, it does not require to use rocket science to deduce the point that the lower court does not have jurisdiction to hear such a counterclaim. That is why the Respondent frantically craves for opportunity to transfer the suit to this court. That being so, since it is left of that court to declare that it does not have jurisdiction to determine the counterclaim, then it means once it does so it will remain with the suit by the Plaintifi on the reliefs of trespass and eviction. What that means is that the issue before that court will remain that the Plaintifi will be claiming that he is he owner of the suit land and the Defendant is unlawfully occupying it and should be evicted therefrom. How does that claim and suit relate to the instant one? Herein the 12th Plaintifi is claiming that she is in occupation of the same suit land which the plaintifi owns, and is claiming to be declared the owner by way of adverse https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3285/eng@2026-05-25 9

page 9 of 11

possession. Clearly, the issues and parties are the same and litigating under the same title before two courts of competent jurisdiction regarding the specific claims. Since that is the case, then these issues satisfy the parameters of Section 6 of the Civil Procedure Act. 51. I will not wish to venture into determining whether filing claims of adverse possession at the same time in two difierent courts is an abuse of the process of the court, but the parties know what it is. If I were to be called upon to decide on the same I would be persuaded by the decision in Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR) where it was held that: 22. The concept of abuse of court/judicial process is imprecise. It involves circumstances and situation of infinite variety and conditions. It is recognized that the abuse of process may lie in either proper or improper use of the judicial process in litigation. However, the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponents. 23. The situation that may give rise to an abuse of court process are indeed in exhaustive, it involves situations where the process of court has not been or resorted to fairly, properly, honestly to the detriment of the other party. However, abuse of court process in addition to the above arises in the following situations: - 24. a. Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action. b. Instituting difierent actions between the same parties simultaneously in difierent court even though on difierent grounds. c. Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and respondent notice. d. Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below. e. Where there no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action. f. Where a party has adopted the system of forum-shopping in the enforcement of a conceived right. g. Where an appellant file an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal. h. Where two actions are commenced, the second asking for a relief which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the irritation or annoyance of an opponent. In the words of Oputa J.SC (as he then was) In the Nigerian case of Amaefule & other Vs The State. (stated that) abuse of judicial process is: “A term generally applied to a proceeding which is wanting in bona fides and is frivolous vexations and oppressive. In his words abuse of process can also mean abuse of legal procedure or improper use of the legal process.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3285/eng@2026-05-25 10

page 10 of 11

25. Justice Niki Tobi JSC in Agwusin vs Ojichie observed: “that abuse of court process create a factual scenario where appellants are pursuing the same matter by two court process. In other words, the appellants by the two-court process were involved in some gamble a game of chance to get the best in the judicial process.’’ 52. For now, I leave it at this point and state that the upshot of the foregoing is that the instant suit filed 2nd plaintifi/respondent sub judice in relation to Migori SPMC Civil Suit No. 3 of 2010. Accordingly, it must be stayed pending the determination the earlier suit. Thus, the application succeeds in part. For that reason, each party will bear its own costs. 53. Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 25TH DAY OF MAY 2026. HON. DR. IUR NYAGAKA JUDGE In The Presence Of Mr. Mboya Advocate for the Applicants/ Respondents Mr. Kisia Advocate for the Respondent/ Applicant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3285/eng@2026-05-25 11

page 11 of 11