Juma Takidiri Mwachiti v Omar Awadh Madhesh & Salim Abdalla Basawadh

6. That the Plaintiffs attempt to sustain the instant suit after the said judgment amounts to re-litigation of issues already determined and is barred by section 7 of the Civil Procedure Act. 7. According to the Applicant, the instant suit is res judicata and allowing the suit to proceed would amount to abuse of court process. 8. Juma Takidiri Mwachiti, the Plaintiff, filed a Replying Affidavit sworn on 5th June 2026. He depones that the Applicants filed a similar application dated 23rd October 2025, however for reasons known to them they elected to withdraw it. 9. He avers that he was never served with Pleadings, Hearing Notices or Applications to MCCC No. 938 of 2012 Awadh Omar & Another v Juma Takdiri which is being referred to by the Applicant. 10. He avers he has been informed by his advocate on record that the matter was at some point suspended by the Law Society of Kenya for reasons unknown to him which suspension he was never informed about. Consequently, he did not participate in the proceedings leading to the judgment of the lower court. 11. According to the Applicant, the issue in the lower court matter revolved around trespass while the present matter raises issues of adverse possession. That the magistrates court lacks jurisdiction to hear and determine matters pertaining adverse possession. 12. That the Applicant has not met the threshold for grant of the orders sought. He asked the court to dismiss the Applicants Notice of Motion application with costs. 13. In the supplementary affidavit, the Applicant avers that since the Respondent became aware of the decree, he has not filed any Appeal or Application for stay of execution. That the action on both the lower court and the instant suit evolve on the same plots No. MS/11/13693 and MN/11/13691 and the Respondent was the defendant on the lower court case and if the application is not allowed there shall be no end to this suit. Applicants’ Submissions 14. The Applicant submits that the doctrine of Res Judicata exists to protect the authority of judicial decisions, prevent multiplicity of suits and ensure finality in litigation. That the Plaintiffs argument of the instant suit being different from the suit in the lower court in the sense that the former pertains adverse position and the latter involved trespass ignores the true test of res judicata. 15. According to the Applicant the underlying subject matter in both suits involves ownership and occupation of Plots No.s MS/11/13693 and MN/11/13691 and the parties are substantially the same. The rights asserted arise from same occupation of the same parcels. 16. He submits that the plaintiff cannot escape res judicata on the strength of changed procedural positions. He relies on the case of Florence Maritime Services Ltd & another v Cabinet Secretary for Transport and Infrastructure & 3 Others (Civil Appeal No. 42 of 2014) [2015] KECA 472(KLR)931 July 2015 (Judgment). The Judiciary of Kenya Doc IDENTITY: 1084345305860741552725814890 Tracking Number:OO4KK92026 2/5

page 2 of 7

17. The Applicant contends that if the Respondent indeed acquired rights over the The Judiciary of Kenya Doc IDENTITY: 1084345305860741552725814890 Tracking Number:OO4KK92026 3/5

page 3 of 7

properties by adverse possession it should have been raised at the earliest opportunity. According to the Applicant the Respondent is estopped from inviting this court to revisit matters touching his occupation and entitlement to the suit property as those matters have already been litigated. Respondents Submissions 18. The Respondent submits that the doctrine of res judicata is not automatic. It is only triggered upon strict proof. The Respondent relies on the case of Kenya Commercial Bank Ltd & Another v Muiri Coffee Estate & 3 Others [2016] KESC 6(KLR). 19. According to the Respondent while the aspect of finality in Res Judicata can only arise where there has been prior judicial determination between competent parties on the same issues, it cannot be invoked to shut out a litigant from invoking a live dispute. He contends that res judicata is not a matter of assumption or inference, it must be strictly established on basis of identical parties, issues and prior final determination by a competent court. 20. The Respondent further relies on the case of Dina Management Ltd v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR) in submitting that elements of res judicata must coexist conjunctively and not disjunctively, in that the absence of any of one element renders it fatal. He contends that the case being referred to by the Applicant in support of the application relates to trespass while the instant case has to do with adverse possession. That the findings arising from the proceedings cannot constitute a final determination on ownership capable of grounding a plea of res judicata. 21. According to the Respondent the reliance on the proceedings of the lower court is misconceived and the objection must fail. Analysis and Determination 22. I have considered the application, replying affidavit and supplementary affidavit and the submissions thereto and issue for determination is whether the instant suit is res judicata; 23. The substantive law on res judicata is found in Section 7 of the Civil Procedure Act Cap 21 which provides that: “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” 24. The Black’s law Dictionary 10th Edition defines “res judicata” as“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…” 25. Kuloba J., in the case of Njangu v Wambugu and another Nairobi HCCC No.2340 of 1991 (unreported), held that:“If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift on every occasion he comes to court, The Judiciary of Kenya Doc IDENTITY: 1084345305860741552725814890 Tracking Number:OO4KK92026 4/5

page 4 of 7

then I do not see The Judiciary of Kenya Doc IDENTITY: 1084345305860741552725814890 Tracking Number:OO4KK92026 5/5

page 5 of 7

the use of the doctrine of res judicata. ”What issues were really determined in the previous Application; ii. Whether they are the same in the subsequent Application and were covered by the Decision iii whether the parties are the same or are litigating under the same Title and that the previous Application was determined by a court of competent jurisdiction. 26. In determining whether matters are similar, the court does not confine itself to the manner in which parties have framed their respective causes of action but must consider the substance in issue and the matters that were directly and substantially in issue. 27. In the Court of Appeal case of Siri Ram Kaura v M.J.E. Morgan, CA 71/1960 (1961) EA 462 the then EACA stated that: -“The mere discovery of fresh evidence (as distinguished from the development of fresh circumstances) on matters which have been open for controversy in the earlier proceedings is no answer to a defense of res judicata...The law with regard to res judicata is that it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up the same relief which I asked for before, but it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. The only way in which that could possibly be admitted would be if the litigant were prepared to say, I will show that this is a fact which entirely changes, the aspect of the case, and I will show you further that it was not, and could not by reasonable diligence have ascertained by me before The point is not whether the respondent was badly advised in bringing the first application prematurely; but whether he has since discovered a fact which entirely changes the aspect of the case and which could not have been discovered with reasonable diligence when he made his first application. It is therefore not permissible for parties to evade the application of res judicata by simply conjuring up parties or issues with a view to giving the case a different complexion from the one that was given in the former suit.” 28. The foregoing principle is applicable in the present case. The doctrine of res judicata cannot be circumvented by the plaintiff by characterizing the former proceedings as trespass and the instant one as adverse possession. It is not lost to this court that adverse possession and trespass are distinct causes of action, however, both are founded on possession and occupation of land. The change in description of the claim does not create a new dispute. 29. Judicial determinations must be final, binding and conclusive. There is injustice if a party is required to litigate afresh matters which have already been determined by the court. In the instant case, the court notes that the subject matter in both proceedings is similar being Plot No. MS/11/13691, and the Plaintiff was party to the proceedings in the lower court and the lower court considered the issues and ordered that he vacates. Therefore, the issue of occupation of the suit property and entitlement to remain on the suit The Judiciary of Kenya Doc IDENTITY: 1084345305860741552725814890 Tracking Number:OO4KK92026 6/5

page 6 of 7

property is not coming up for the first time. 30. I do find that the suit is res judicata as the issues raised by the plaintiffs have been determined in Mombasa MCCC No. 938 of 2012 Awadh Omar & Barka Omar v Juma Takadirii. The Plaintiff’s interest in the matter was taken care of, or ought to have been taken care of in the former proceedings. The judgment by the court was elaborate and the Plaintiff ought to first successfully challenge the judgment that gave rise to the order to vacate before laying a fresh claim, if any, on the suit property. Permitting the present suit to reopen would amount to relitigating matters already determined by a competent court. 31. The upshot of the above is that whole suit is res judicata and therefore struck out with costs to the Applicant. SIGNED BY/FOR: ★ TH E JUDICIAR Y O F KENY A ★ HON. JUSTICE ANTONY O. OMBWAYO Mombasa Environment and Land Court Environment and Land Court Date: 2026-09-24 10:15:51 The Judiciary of Kenya Doc IDENTITY: 1084345305860741552725814890 Tracking Number:OO4KK92026 7/5

page 7 of 7