Tabitha Atieno Omolo & 2 Others v Agnes Anyango Akumu & 2 Others

Introduction 1. The Plaintiffs/Applicants approached this Court by way of an Originating Summons dated 28th July 2026, brought pursuant to Section 38 of the Limitation of Actions Act and Order 37 Rule 7(1) of the Civil Procedure Rules. 2. The Applicants seek, inter alia, a determination that they have occupied, used, and enjoyed peacefully, openly, as of right, and without interruption the whole of the parcel of land known as West Kasipul/Konyango Kokal/2366, measuring approximately 0.02 hectares, for a period exceeding twelve (12) years, and have thereby acquired the same by way of adverse possession and ought to be registered as proprietors thereof. The Originating Summons is supported by an affidavit sworn by the 1st Applicant on her own behalf and with the authority of the 2nd and 3rd Applicants. Background Facts 3. The Applicants' case, in summary, is that they are co-wives of the late Zacharia Omollo, who sometime in or about 1969 purchased a portion of land parcel West Kasipul/Konyango Kokal/1303 from one Yoya Nyachur. 4. It is their case that in 1974 the deceased constructed a commercial building on the said portion comprising two shops and seven residential houses, supported by a valuation report and photographs demonstrating longevity. They contend that they have remained in continuous possession and occupation of the portion for over forty years, collecting rent from tenants since 1974. 5. Sometime in 2013, without the Applicants' knowledge, the Respondents allegedly caused parcel number West Kasipul/Konyango Kokal/1303 to be subdivided into parcels numbers 1478, 1479, and 1480, with parcel number 2|Page HOMA BAY ELC L OS E057 OF 2026 – RULING

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1478 subsequently subdivided to create the suit property, West Kasipul/Konyango Kokal/2366 (0.02 hectares). The Applicants argue that threats of recovery by the Respondents have extinguished the latter's right to recover the land by lapse of time. They also filed a Notice of Motion dated 24th July 2026 seeking injunctive orders. 6. Upon service, the Respondents filed a Notice of Preliminary Objection dated 1st September 2026, alongside Replying Affidavits sworn by the 1st Respondent, Agnes Anyango Akumu, on the same date. The Respondents assert that they are the registered proprietors of the suit property as beneficiaries under a grant from their grandfather, and are currently undertaking renovations thereon. Pleadings and Submissions i. The Respondents' Position: Learned Counsel for the Respondents submitted that the Preliminary Objection raises two principal issues: that the suit is res judicata because the claim for adverse possession had previously been litigated and determined through full trials with witnesses testifying and judgments delivered in Oyugis PMELC No. 24 of 2020 and Homa Bay ELCA No. E004 of 2025; and consequently, that this Court lacks jurisdiction to entertain the present suit, and proceedings cannot proceed until costs from previous proceedings are settled. ii. The Applicants' Position: Learned Counsel for the Applicants opposed the Preliminary Objection, submitting that it is misdirected. Counsel noted that while the matter was previously before the Magistrates' Court at Oyugis, the ensuing judgment was set aside on appeal because the lower court lacked jurisdiction, meaning the previous judgment could not stand or bar current proceedings. Counsel placed reliance on Richard Wefwafwa Songoi v Ben 3|Page HOMA BAY ELC L OS E057 OF 2026 – RULING

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Munyifwa Songoi, Civil Appeal No. 110 of 2016 [2020] eKLR, and Dina Management Limited v County Government of Mombasa & 5 Others, Petition No. 8 (E010) of 2021 [2023] KESC 30 (KLR). Issues for Determination 7. Having considered the Preliminary Objection, pleadings, affidavits, and submissions, the following issues arise for determination: 1) Whether the Preliminary Objection meets the threshold of a valid preliminary objection. 2) Whether the suit is res judicata within the meaning of Section 7 of the Civil Procedure Act. 3) Whether the suit discloses a reasonable cause of action and whether this Court has jurisdiction. 4) Who should bear the costs of the Preliminary Objection. Analysis and Determination 1. Whether the Preliminary Objection is Properly Before the Court 8. The locus classicus on preliminary objections remains Mukisa Biscuit Company v Westend Distributors Limited (1969) EA 696, where Sir Charles Newbold P. and Law JA established that a preliminary objection must raise a pure point of law argued on the assumption that all pleaded facts are correct, and cannot be raised if facts require ascertainment or evidence. 9. This principle finds strong regional echoes in neighboring jurisdictions: i) In Tanzania, the Court of Appeal in Karata Ernest & others v Attorney General (Civil Revision No. 10 of 2020) [2010] TZCA 30 emphasized that a 4|Page HOMA BAY ELC L OS E057 OF 2026 – RULING

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preliminary objection cannot be entertained if mixed facts and law require testing through evidence. ii) Across East Africa, comparative jurisprudence consistently guards against the premature truncation of suits where factual inquiries—such as examining past court records or establishing the factual matrix of continuous possession— remain indispensable. While a plea of res judicata is a point of law, its validation depends on undisputed factual material. 2. Whether the Suit is Res Judicata and the Interplay with Jurisdiction 10.Section 7 of the Civil Procedure Act bars the trial of any suit or issue directly and substantially in issue in a former suit between the same parties under the same title in a competent court. The constituent elements of res judicata were reiterated by the Kenyan Court of Appeal in Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, and further underscored by the Supreme Court in Kenya Commercial Bank Limited & Another v Muiri Coffee Estate Limited & Another [2016] KESC 6 (KLR), requiring strict examination of the entire pleadings and records of previous cases. 11.In this case, the Respondents referenced Oyugis PMELC No. 24 of 2020 and Homa Bay ELCA No. E004 of 2025, but failed to place the actual judgments, decrees, or final orders before this Court. Furthermore, the Applicants' assertion that the lower court's judgment was set aside on appeal for want of jurisdiction highlights a vital legal truth derived from comparative Commonwealth jurisprudence: a decision rendered by a court lacking jurisdiction is a nullity and cannot ground a plea of res judicata. Without inspecting the primary records and judgments, this Court cannot speculate or definitively establish whether the matters were heard and finally determined 5|Page HOMA BAY ELC L OS E057 OF 2026 – RULING

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by a competent court. Consequently, the plea of res judicata fails at this preliminary stage. 3. Disclosure of a Cause of Action and Comparative Standards 12.The Respondents have contended that the Originating Summons fails to disclose a cause of action. From law and practice across common law jurisdictions in East and Southern Africa, a cause of action is defined as the factual nexus (a bundle of all essential material facts that a plaintiff must allege and prove to entitle them to a judicial remedy) and the legal elements (coexistence of a legal right, a corresponding duty, a wrongful breach, and resulting harm). 13.Courts across Kenya, Uganda, Tanzania, and Malawi share common historical roots in English common law, interpreting a cause of action through uniform foundational tenets: a) Kenya: A cause of action consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support their right to the judgment of the court (adopting classical principles from Cooke v. Gill and Read v. Brown). In land disputes, a cause of action for adverse possession crystallizes upon demonstrating open, continuous, and peaceful physical occupation inconsistent with the owner's title for the requisite statutory period under Section 38 of the Limitation of Actions Act. b) Uganda: Ugandan civil procedure maintains that a suit must be anchored on a complete factual matrix giving immediate rise to a legal claim, accruing the moment a legal injury is inflicted or a breach occurs. The East African Court of Justice (EACJ) defines it as "a set of facts or circumstances that in law give rise 6|Page HOMA BAY ELC L OS E057 OF 2026 – RULING

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to a right to sue or to take out an action in court for redress or remedy" (Prof. Peter Anyang' Nyong'o & 10 Others v. Attorney General of Kenya). c) Tanzania: Tanzanian courts emphasize that a cause of action represents the entire set of material facts that must be established to obtain a remedy, and must be complete before the filing of the suit. d) Malawi: Malawian civil practice requires that pleadings explicitly detail the precise legal right invoked, the nature of the breach, and the specific relief claimed, ensuring the defendant is placed on clear notice of the case they have to meet. 14.In the present matter, the Applicants invoke Section 38 of the Limitation of Actions Act and Order 37 Rule 7 of the Civil Procedure Rules. Under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, this Court possesses exclusive jurisdiction over land title, use, occupation, and adverse possession disputes. The Applicants have pleaded open, peaceful, continuous, and exclusive physical occupation for over twelve years, coupled with the assertion that the true owner's right to recover has been extinguished. These averments constitute a complete and recognizable cause of action. Whether the Applicants will successfully prove these elements is an evidentiary question for trial, not a defect on the face of the pleadings. Orders 15.In the result, the Court makes the following orders: a) The Notice of Preliminary Objection dated 1st September 2026 is hereby dismissed. b) The Originating Summons dated 28th July 2026 shall proceed to a hearing on its merits. 7|Page HOMA BAY ELC L OS E057 OF 2026 – RULING

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c) The Notice of Motion dated 24th July 2026 shall be dealt with separately in accordance with the directions of the Court. d) Costs of the Preliminary Objection shall be in the cause. JUSTICE J. WANYONYI – JUDGE ENVIRONMENT AND LAND COURT AT HOMA BAY DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 28TH DAY OF SEPTEMBER , 2026. In the Presence; 1. P. D Onyango for the plaintiff. 2. Mogusu for the defendant 3. Court Assistant, Mercy. 8|Page HOMA BAY ELC L OS E057 OF 2026 – RULING

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