Orwa & 3 others v Angaga (Enviromental and Land Originating Summons E001 of 2026) [2026] KEELC 3865 (KLR)

i. Declaration that the Defendant's right to recover Zero decimal Six (0.6) HA portion of LR. NO. LR. No. North Sakwa/Kanyamgony/1098 is barred under the Limitation of Actions Act, Cap 22 of Laws of Kenya, and his title thereto extinguished on the grounds that the Plaintifis herein have openly, peacefully and continuously been in occupation and possession of the aforesaid parcels of land for a period exceeding 12 years. ii. There be an order that the Plaintifis be registered as the proprietor of the zero decimal Six (0.6) HA portion of LR. NO. LR. No. North Sakwa/Kanyamgony/1098, in place of the Defendant herein. iii. The defendant herein be ordered and/or directed to execute and/or sign all the necessary transfer instruments, to facilitate the transfer and registration of the suit property, in the name of the Plaintifis herein jointly and severally, and in default, the Deputy Registrar of this Honourable Court be allowed to execute the transfer instruments in favour of the Plaintifis. iv. There be an order restraining the Defendant either by himself, agents, servant and/or employees from interfering with the Plaintifis' peaceful possession and/or occupation of the said portion of the parcel of land measuring approximately Zero decimal Six (0.6) HA portion of LR. NO. LR. No. North Sakwa/Kanyamgony/1098, in any manner whatsoever and/or howsoever. v. Costs of this Originating Summons be borne by the Defendant. vi. Such further and/or other orders be made as the court may deem fit and expedient, in the circumstances of this case. 2. The Respondent opposed the Application by filing a Replying Afidavit sworn on 2nd January 2026 (sic). He acknowledged that he was the registered owner of the suit property. He denied the Applicants’ allegations of being in continuous, open and uninterrupted occupation of the said land for over twelve years. 3. Apart from disputing the alleged occupation of the suit property by the Applicants, the Respondent stated that the claim over his land was res judicata, the issues raised in the originating summons having been litigated before this Court in Migori Environment and Land Court Case No. 133 of 2018 (O.S.). He further stated that in the aforesaid case, the Applicants’ and/or their predecessor in title, who was their father, now deceased instituted a suit against him over the same parcel of land claiming adverse possession. That suit, the Respondent maintained, was dismissed and/or abated by operation of the law, following the death of the Applicants’ father who was never substituted within time. 4. By reason of the aforesaid abatement of the suit instituted by the Applicants and their father and the non-substitution of the Applicants’ deceased father, the Respondent contended that the Applicants extinguished their right to bring the same claim over the same claim for adverse possession. He added that there are no new facts pointing to the alleged continuous and uninterrupted occupation of the suit land, and the Applicants were only attempting to forum shop. The Respondent termed the instant claims as vexatious. He contended that it amounted to an abuse of court process. 5. Concerning the Applicants’ prayer for injunctive relief, the Respondent stated that they had not established the threshold set out in Giella v Cassman Brown [1973] EA 358 for the grant of orders. He urged the court to dismiss the case as failure to dismiss the same would occasion him prejudice. Finally, he concluded that the suit was misconceived, brought in bad faith and only intended to reopen concluded litigation. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3865/eng@2026-06-17 2

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The Preliminary Objection 6. The Respondent also filed a Preliminary Objection dated 11th March 2026. The basis of the Objection was that the present case ofiends Section 7 of the Civil Procedure Act since the issues raised in it were directly and substantially in issue in Migori Environment and Land Court case No. 133 of 2018 (OS) where the parties in both suits were similar and litigating under the same title before a court of competent jurisdiction. This latter suit, the Respondent submitted, abated by operation of the law following the death of the principal claimant who also happens to be the plaintifi/Applicants’ father who was never substituted. As such, the defendant/Respondent stated that the instant suit is res judicata and an abuse of the court process. The defendant/Respondent also contended that the instant suit is an attempt to circumvent the legal efiects of abatement of the former suit. He maintained that the court lacks jurisdiction to entertain the new claim and prayed that both the suit and the instant application be struck out. Submissions 7. The preliminary objection was canvassed by way of written submissions. The plaintifis/Applicants filed their submissions dated 17th March 2026. They raised two issues for determination: whether the preliminary objection raised by the defendant/Respondent meets the threshold founded in law and precedents and who should bear the costs of the application and the preliminary objection. 8. On whether the preliminary objection meets the threshold established in law, the plaintifis/Applicants relied on Mukisa Biscuit Manufacturing Co Ltd v. West End Distributors (1969) EA 696 as well as the Supreme Court decision in Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 Others [2015] eKLR to emphasize that a preliminary objection should address pure points of law. The pointed out that a preliminary objection should not raise points that must be ascertained from elsewhere or where the court is called upon to exercise its discretion. 9. The plaintifis/Applicant also referred this court to Section 7 of the civil procedure Act on the principle of res judicata. This principle, they submitted, applies where the issues in consideration were heard and determined with finality and relied on the south African South African High Court in the case of Outeniqua Skydivers CC - Versus – Stephanus Petrus Hartzner & Another Case No H264/2019 to support this position. 10. In addition to the foregoing the plaintifi/Applicants submitted they have already disputed the allegations that their suit is res judicata. They also stated that the court will be forced to look into facts so as to determined whether or not the matter is res judicata. Reliance was placed on Henry Wanyama Khaemba – Versus - Standard Chartered Bank Limited & another (2014) eKLR to buttress their submission that issues relating to res judicate call upon courts to examine evidence. 11. The plaintifi/Applicants invited the court to find that the preliminary objection does not meet the threshold of a preliminary objection set out in law since the facts are disputed and the court will need to look into evidence so as to determine whether the suit is res judicata. 12. On the issue of costs, the plaintifi/Applicants submitted that they are entitled to costs pursuant to section 27 of the Civil Procedure Act. 13. The defendant /Respondent did not file any written submissions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3865/eng@2026-06-17 3

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Issues, analysis and determination 14. After careful analysis of the preliminary objection, the pleadings filed by the parties, the submissions filed by the plaintifis/Applicants as well as the applicable law, it is my considered view that the following issues should be determined: a. Whether the preliminary objection is merited; and b. Who should bear the costs of the application 15. The law governing preliminary objections was set out in the locus classicus, Mukisa Biscuits Manufacturing Company Ltd vs West-end Distributor Ltd (1969) EA 696, which provided inter alia as follows:- ‘‘The first matter related to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion confuse issues. This improper practice should stop.” 16. The court in the same Mukisa case went on to state that: .... a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if urged as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 17. The preliminary objection raised by the defendant Respondent is to efiect that the current suit ofiends the principle of res judicata provided under section 7 of the civil procedure Act. The said section provides that: 7. Res judicata 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. 18. The Court of Appeal in Mwikali & another v Mutungi & 3 others (Civil Appeal 189 of 2019) [2026] KECA 231 (KLR) (13 February 2026) (Judgment) laid down the qualifications necessary for finding a suit res judicata. Accordingly, the court held: 23. Regarding the elements of res judicata, in Independent Electoral & Boundaries Commission v. Maina Kiai & 5 Others [2017] eKLR, this Court identified the following elements of the doctrine: “…for the bar of res judicata to be efiectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms; a. the suit or issue was directly and substantially in issue in the former suit; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3865/eng@2026-06-17 4

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b. that former suit was between the same parties or parties under whom they or any of them claim; c. those parties were litigating under the same title; d. the issue was heard and finally determined in the former suit; and e. the court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” 19. I have considered the pleadings of the parties. The Plaintifi /Applicants seek to lay claim over a portion of land measuring Zero decimal Six (0.6) hectares that parcel of land known as LR. No. North Sakwa/ Kanyamgony/1098. The defendant Respondent stated that the plaintifis were claiming in the earlier suit (through their deceased father) the same parcel of land, the claim in question being one of adverse possession. However, the suit abated when their father died and was never substituted. He annexed to his replying afidavit a copy of a ruling in Migori Environment and Land Court Case No. 133 of 2018 (OS). In this matter one Herman Orwa Onyango is indicated as the plaintifi/Respondent and the matter, as pleaded by the defendant/ Respondent herein, abated as per the ruling of the court delivered on 28th March 2023. 20. Despite the allegation that the suit was res judicata, the plaintifis/Applicants never controverted these allegations. They never denied the existence of the suit alleged by the defendant/Respondent to be similar to the current suit being prosecuted by the same parties, in this case, the Plaintifis/Applicants’ father who is not deceased. In their submissions, the plaintifis/Applicants did not deny the existence of the alleged suit; they submitted that the said suit was never heard to its logical conclusion and maintained that the doctrine of res judicata could not apply in such a scenario. 21. It is not disputed by the parties that Migori Environment and Land Court Case No. 133 of 2018 (OS) abated. Thus, the Applicants or indeed any other person claiming the land were barred by law from filing a fresh suit granted the prevailing circumstances. Order 24 Rule 7 of the Civil Procedure Act provides that once a suit abated, the plaintifi’s /Applicants could not bring another suit founded on the same cause of actions. Hence Order 24 rule 7 provides as follows: 7. Efiect of abatement or dismissal (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. 22. In the instant case, the applicants moved the court after abatement of their father’s case. They cannot claim to be properly before the court in their individual capacity because the same parcel of land was claimed by their father hence it was alleged to be part of his Estate and no one can claim it individually but through a claim as heir in the Estate. For them to now claim the land individually it is simply to subtly ‘baptize’ or rebrand themselves as difierent parties over the same subject. The upshot of the foregoing is that the plaintifi/Applicants’ suit is barred by law, as a result of abatement of suit. Thus, the defendant/Respondent’s preliminary objection is merited. 23. On the issue of costs, the same follow events. Accordingly, the plaintifis/Applicants shall bear the costs of the Objection and the entire suit. Final Disposition 24. The suit and the application made by the plaintifi /Applicants are stuck out with costs to the Respondent. The file is closed, subject to the payment of the costs ordered. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3865/eng@2026-06-17 5

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25. It is so ordered. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 17TH DAY OF JUNE 2026. HON. DR. IUR NYAGAKA, JUDGE In Presence of ; Ms. Ogutu Advocate for Mboya for the Applicants R. Ogwe Advocate for the Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3865/eng@2026-06-17 6

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