Perez Laura Oyugi & another v Titus Mukoh

application, brought by the Defendant, arose from that background. 3. The instant application is dated 8 th May 2026. It is not in dispute that the Applicant was the registered proprietor of the suit property, having been registered as such on 8 th May 1985. The facts of the case, as established from the pleadings and the application and Relying Affidavit are that the dispute over the suit property is, however, not new. It has a long history which is that, the Defendant herein sued the 2nd Respondent in Migori ELC Case No. 192 of 2017, and judgment was delivered therein on 12 th April 2018. In it, the Court declared him the lawful registered proprietor and ordered the 2nd Plaintiff’s eviction from the suit land. A formal eviction order was issued on 15 th June 2023. 4. The 2nd Respondent appealed against that judgment in Kisumu Civil Appeal No. 33 of 2019. Although the appeal has been heard and awaits judgment, several applications for stay of execution of the judgment have been made and dismissed. A further application dated 3 rd March 2026 was pending in ELC No. 192 of 2017 when the present proceedings were instituted on 11 th March 2026. It was RULING ELC NO. E006 OF 2026 2

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finally withdrawn on the basis that there was a similar one in the Court of Appeal. 5. The Applicant then filed the instant Notice of Motion dated 8th May 2026. He seeks, principally, the discharge or setting aside of the orders of status quo issued herein, and the striking out of the present suit on the grounds of it being res judicata, sub judice and abuse of the process of the Court. The Applicant's Case 6. The present application was brought under, inter alia, Order 2 Rule 15 and Order 40 Rule 7 of the Civil Procedure Rules, Sections 1A, 1B, 3, 3A, 6, 7 and 63(e) of the Civil Procedure Act, Sections 13(7), 19 and 26 of the Environment and Land Court Act, and Articles 27, 40(6), 47, 50(1) and 159(2)(d) of the Constitution. 7. The Applicant sought that the status quo orders issued on 12th March 2026 be discharged, varied and/or set aside. He also prayed that the Originating Summons and the proceedings herein be struck out for being res judicata, sub judice, frivolity, vexatiousness and abuse of the process of the Court. He also sought the costs of the application. RULING ELC NO. E006 OF 2026 3

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8. The substance of his case was that he was the registered proprietor of the suit property since 8 th May 1985. Further, that the 2nd Respondent's occupation of the suit land had previously resulted in the institution of Migori ELC No. 192 of 2017. That suit was heard and determined in his favour and an order for her eviction issued. Her attempts to obtain stay of execution were repeatedly unsuccessful. Her appeal therefrom remained pending as at the time of institution of this suit. 9. The Applicant contended that the present suit was instituted without disclosure of the previous proceedings, judgment, decree, an eviction order, the pending appeal and the unsuccessful applications for stay of execution. He argued that the Respondents thereby obtained the orders of 12 th March 2026 through concealment of material facts. He further contended that the present suit was an attempt to reopen matters already determined by the Court and to obtain, through a fresh suit, relief which the 2 nd Respondent had failed to obtain in the earlier proceedings. 10. The application was supported by his own affidavit sworn on 8th May 2026. He annexed to it, among other documents, RULING ELC NO. E006 OF 2026 4

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the copies of the title deed and certificate of official search, the pleadings in ELC No. 192 of 2017, the judgment and decree, the eviction order, the Memorandum of Appeal and the applications for stay of execution. 11. He deponed that the 2nd Respondent had been represented by counsel throughout the earlier proceedings, she had filed a defence and counterclaim, and had the opportunity to assert whatever rights she claimed over the suit property. 12. He deponed further that the present proceedings were barred by the doctrine of res judicata and constituted an abuse of the process of the Court. He contended further that any grievance concerning execution of the decree in ELC No. 192 of 2017 ought to be raised in that suit or before the Court of Appeal and not through a fresh suit. The Respondents' Case 13. The Respondents did not file a Replying Affidavit. Instead, they filed Grounds of Opposition dated 31 st May 2026 containing thirty grounds. Their substance may be summarized as follows. RULING ELC NO. E006 OF 2026 5

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14. They contended that the application was misconceived and sought to deny them an opportunity to have the substantive of their claim for adverse possession determined on its merits. 15. They argued that the plea of res judicata did not apply because the former proceedings were commenced by way of a Plaint rather than Originating Summons and did not determine a claim for adverse possession. They further contended that the 1st Respondent was not a party to ELC No. 192 of 2017 and that her claim was therefore distinct. 16. They contended that the causes of action were different. The former proceedings concerned ownership, eviction and related reliefs, whereas the present proceedings concerned proprietary rights allegedly acquired through adverse possession under Section 38 of the Limitation of Actions Act. 17. They further contended that adverse possession was a special statutory claim which could only be commenced in the prescribed manner and that their alleged occupation had continued for more than thirty years, during which time permanent structures, cultivation and graves had been maintained on the suit property. RULING ELC NO. E006 OF 2026 6

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18. The Respondents also argued that the status quo orders were intended to preserve the property and prevent irreparable prejudice, particularly, in relation to graves and family remains. They contended that the balance of convenience favoured preservation of the existing position pending determination of the Originating Summons. 19. They contended further that the pending appeal had not finally determined the adverse possession issues and that the sub judice rule was therefore inapplicable. In the alternative, they suggested that any overlap should be addressed through case management, including consolidation or stay, rather than striking out the suit. Submissions 20. The application was disposed of by way of written submissions. Respondents’ Submissions 21. The Respondents filed written submissions on 19 th June 2026. The Applicant’s learned counsel objected to their admission on the ground that they had been filed out of time. The objection was upheld and the submissions were expunged from the record. RULING ELC NO. E006 OF 2026 7

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22. The Respondents were subsequently given an opportunity to file fresh submissions within three days from 30 th June 2026. They did not do so. Their failure to file submissions, however, is neither a concession to the application nor fatal to their response to the application. As will be emphasized below, submissions are neither pleadings nor evidence, and the Grounds of Opposition remain on record. Therefore, they have been considered. Applicant’s submissions 23. The Applicant’s submissions, dated 27 th June 2026, filed through his counsel identified three broad questions for determination. These whether the orders of 12 th March 2026 should be discharged, whether the suit was res judicata and/or sub judice and whether it constituted an abuse of the process of the Court. 24. On non-disclosure, learned counsel relied on Francis Mugo & 22 others v James Bress Muthee & 3 others [2005] KEHC 1430 (KLR) and Gabriel Kariuki Gitonga & 2 others v Redken Wells Ltd & 11 others [2021] KEHC 12892 (KLR), applying the principle in The King v The General Commissioners for the Purposes of RULING ELC NO. E006 OF 2026 8

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the Income Tax Acts for the District of Kensington, ex parte Princess Edmond de Polignac [1917] 1 KB 486, that a party seeking ex parte relief must make full and frank disclosure of material facts. 25. On res judicata, counsel relied on Section 7 of the Civil Procedure Act and authorities including Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR), John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), and Bank of Africa Kenya Limited & another v TSS Investment Limited & 2 others [2024] KECA 410 (KLR). 26. Counsel further submitted that the 2 nd Respondent ought to have raised any claim based on adverse possession in the former proceedings. Reliance was placed on the principle of constructive res judicata and, in particular, the recent Court of Appeal decision in Kosgei v Mugun [2025] KECA 1507 (KLR), which confirmed that a claim for adverse possession may be raised by way of defence or counterclaim and was not restricted to an Originating Summons. RULING ELC NO. E006 OF 2026 9

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27. On abuse of process, learned counsel relied on Gitau Kamau v Ndungu Kamau & another [2017] KEELC 3431 (KLR), MUCHANGA INVESTMENTS LTD v SAFARIS UNLIMITED (AFRICA) LTD & 2 others [2009] KECA 453 (KLR) and Bellevue Development Company Ltd v Gikonyo & 3 others; Kenya Commercial Bank & 3 others (Interested Parties) [2018] KECA 330 (KLR). Issues For Determination 28. Having considered the Application, the Supporting Affidavit and annexures, the Grounds of Opposition, the Submissions on record and particularly the existence of pleadings and proceedings in ELC No. 192 of 2017 and the pendency of the appeal from the judgment therein, I find the following issues arise: i. Whether the present suit is res judicata; ii. Whether the proceedings constitute an abuse of the process of the Court; iii. Whether the status quo orders issued on 12th March 2026 should be discharged, varied or set aside; and iv. Who should bear the costs. RULING ELC NO. E006 OF 2026 10

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Analysis and Determination 29. I now set to determine sequentially the issues that commend themselves for determination. However, as I do so, I begin with discussing two preliminary questions which are fairly minor in this matter although one of them, the latter of the two, is intertwined with and runs through the determination of the merits of the issues singled out, except that of costs of the application. 30. I mentioned above, at paragraph 22, that the Respondent was given chance to submit but did not, after the first set of submissions they filed late was struck out. I have stated further that of itself did not preclude the court from considering the merits of the application. This is because submissions constitute neither pleadings nor evidence of parties. I have often noted, sadly though, some courts dismiss parties’ cases or claims or allow the adverse parties’ prayers or reliefs sought for reason of a party’s failure to file submissions. I need not mention or list examples here since court decisions are public documents and can be accessed freely. This also stretches into even cases where an application or even claim is filed but not responded to yet it RULING ELC NO. E006 OF 2026 11

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is not automatic or obvious that such pleadings or clams or prayers are merited for want of challenge. This is a fallacy. Every allegation ought to be weighed against or tested to the required standard of proof. Failure to submit only means that the court is not given persuasive arguments or marketing content in the circumstances and that should not prejudice a party’s case. 31. In Mutwol v Mutwol & 4 others (Environment and Land Case 37 of 2020) [2026] KEELC 1876 (KLR) (17 March 2026) (Judgment), this court held, “The position of the law submissions neither constitute participating nor are they evidence they are only a language it is used to convince the court to then onto their proposed view in the dispute before the court. Simply put, … they are a marketing language of the parties.” 32. In Rowa & 2 others v K’Obil (Environment and Land Appeal E032 of 2024) [2026] KEELC 1708 (KLR) (18 March 2026) (Judgment), this court held, further that, “It is worth noting and repeating in this appeal just as in many other decisions this court has made that RULING ELC NO. E006 OF 2026 12

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submissions do not constitute pleadings or evidence. This is because some of the arguments by the Respondent amounted to raising evidence.” 33. Also, in General v Ouma (Suing on behalf of Jesus cares Centre Ministry Intl of the Redeemed Gospel Church Inc) (Environment and Land Appeal E017 of 2023) [2025] KEELC 3231 (KLR) (7 April 2025) (Judgment), it was held, “Further to the above, parties cannot rely on submissions to do that which should have been done by pleadings and evidence, …” 34. Put clearly, the Court of Appeal, in Moi v Muriithi & another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR) (9 May 2014) (Judgment), held: “Submissions are generally parties’ “marketing language”, each side endeavoring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.” RULING ELC NO. E006 OF 2026 13

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35. It is thus succinctly clear that the fact that a party does not file submissions or tender any orally does not mean that they have thrown in the towel in their case or position in litigation. They could as well have left, or leave, it to Court to decide the issue, as many always do. By way of analogy, in the economic filed, the failure of a business person to advertise their goods or services should not be used by the authorities to deny them a licence. Their wares for sale may be too good to be advertised, thereby selling without any need for value addition by way of advertisement. So, it is regarding the requirement of parties to file submissions or orally make them. A party should not be penalized or prejudiced by their failure to submit on any issue. Courts should do their work: analyze pleadings and evidence to determine the merits thereof. The only exception the law expressly provides for where a party ought to file submissions in opposition to a matter failure of which he is deemed to have not prosecuted his position is in relation to appeals, as provided for under Order 42 Rule 16(1) and Order 42 Rule 20 of the Civil Procedure Rules. The first of the provisions, that is Order 42 Rule 16(1) stipulates that, RULING ELC NO. E006 OF 2026 14

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“Any party to an appeal who does not intend to appear in person or by advocate at the hearing of the appeal may file a declaration in writing to that effect and lodge written submissions of the arguments in support of or in opposition to the appeal, as the case may be and shall, within seven days after lodging the submission serve a copy thereof on the other party or on each other party appearing in person or separately represented.” 36. Amplifying on the effect of the failure to file submissions after filing the declaration and not attending at the hearing after doing so, Order 42 Rule 21 provides as follows; “(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, and has not filed a declaration under rule 16, the court may make an order that the appeal be dismissed. (2) Where the appellant appears, and the respondent does not appear and has not filed a declaration under rule 16(3), the appeal may be heard ex parte.” RULING ELC NO. E006 OF 2026 15

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37. Therefore, in the instant case, failure to submit did not prejudice the Respondent. The second issue is that, instead of filing a Replying Affidavit to respond to the factual issues raised in the Supporting Affidavit, the Respondent filed grounds of opposition. It means in the legal sense that regarding the facts deposed to and there is no response thereto by way of an Affidavit by the opponent adverse party, they basically are not controverted. As a matter of fact, there are matters which are the preserve of a response by way of a Replying Affidavit while others fall under the realm of grounds of opposition. However, it is my considered opinion that failure to controvert factual issues by a Replying Affidavit does not of itself mean that this court need not consider the merits of the application, and if the facts presented satisfy the legal standard of sufficiency, and thereby proceed to allow the application as prayed. Indeed, the legal position is that where evidence is presented by way of an affidavit, the factual content ought to be replied to by way of another affidavit. This has been echoed in a number of decisions such as the Court of Appeal ruling in Habo Agencies Ltd v Musingo (Civil Appeal 124 of 2004) RULING ELC NO. E006 OF 2026 16

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[2015] KECA 597 (KLR) (3 July 2015) (Ruling). In it the Court held; “The applicant deponed that he became aware of the dismissal of the appeal in or about March 2014. As the respondent did not file a replying affidavit, that fact was not controverted. There were no facts to show otherwise.” 38. However, the above position notwithstanding, the court bears the legal obligation to satisfy itself that a party alleging a fact and whose pleadings are not responded to has discharged the evidentiary burden placed on him by the law, to the required standard. Put differently, the failure by the adverse party to file pleadings in response to the alleged position does not in any way remove or do away with the legal requirement on a party to prove the existence or non existence of a fact to the required standard or lower the standard of proof. That has to be discharged fully. On this basis the court proceeds to determine the instant application. 39. Whether the Originating Summons is res judicata The doctrine of res judicata has the legal basis, and is RULING ELC NO. E006 OF 2026 17

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anchored, in Section 7 of the Civil Procedure Act. It 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.” 40. The Explanation 4 to the provision further provides that: “Any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.” 41. The doctrine serves the important public policy objective of finality of litigation, prevention of multiplicity of suits and protection of parties from repeated litigation over the same subject matter. The Supreme Court in John Florence Maritime Services Ltd & another v Cabinet Secretary, RULING ELC NO. E006 OF 2026 18

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Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) reaffirmed that res judicata extends not only to matters actually determined but, through Explanation 4, to matters which properly belonged to the earlier litigation and which a party exercising reasonable diligence might and ought to have brought forward. 42. The elements of the doctrine are conjunctive hence the presence or absence thereof is looked as a whole. The Court must determine whether the matter was directly and substantially in issue in the former suit, whether the former suit was between the same parties or parties claiming under them, whether they litigated under the same title, whether the former court was competent, and whether the matter was heard and finally determined. The Court of Appeal decision in IEBC v Kiai & 5 others [2017] KECA 477 (KLR) remains instructive on these requirements. Absence of one renders the subsequent matter not res judicata. 43. In the instant matter, there is no dispute that the 2 nd Respondent herein was the defendant in ELC No. 192 of 2017. She was represented by counsel, filed a defence and RULING ELC NO. E006 OF 2026 19

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counterclaim and participated in a full hearing which culminated in judgment on 12th April 2018. 44. There is, equally, no dispute that the former proceedings concerned the same parcel of land, namely LR No. KAMAGAMBO/KABUORO/1251, and that the Applicant's claim to ownership and possession was directly contested and fully adjudicated upon on merits. A challenge by way of appeal lies therefrom as at the present time. But as things are, and for this level or hierarchy of court, there is no longer any issue that is pending as between the two parties. The court has pronounced itself on the merits on the ownership and occupation of the suit land. 45. The present claim herein is not, strictly speaking, identical in form to the cause of action determined in ELC No. 192 of 2017. The earlier proceedings did not expressly determine a claim for adverse possession. That, however, does not conclude the inquiry. Instead, in that previous matter, they determined who the owner was and the position of the other party who was not the owner: she was a trespasser who was ordered to be evicted therefrom. Put differently, the Defendant (and her successors and or assigns and agents) RULING ELC NO. E006 OF 2026 20

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who raised the claim for specific performance was found to have no right to be on the disputed land hence liable for eviction. A party who has acquired land by way of adverse possession cannot be legally evicted therefrom. In any event, her occupation and use of the land which the court declared untenable is the same claim she has clothed as adverse possession. It is not acceptable and valid to do so here. 46.The question is whether the adverse-possession claim now advanced was a matter which, on the Applicant’s own case, had accrued and properly belonged to the subject matter of the former litigation and which the 2nd Respondent, exercising reasonable diligence, might and ought to have raised at that time in that case, whether as a defence or counterclaim or both. The Counterclaim the 2 nd Respondent raised was that she was a lawful buyer whose right had crystalized. That was not found tenable. The Claimants contend that the suit No. 192 of 2017 was founded on a Plaint while the instant one is founded on Originating Summons hence the causes of action are different. What a fallacy! In my humble view, the format of pleadings does not RULING ELC NO. E006 OF 2026 21

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change the issues in controversy. In the former, it could have been sufficient for the 2nd Respondent to have raised the Defence of the limitation period under Sections 7, 13 and 17 of the Limitation of Actions Act, for recovery of the suit land if, indeed, her claim was sustainable. Such a defence is intricately intertwined with adverse possession. 47.So, did adverse possession properly belong to the questions for determination in the former suit? On the material before the Court, the answer is in the affirmative. The Respondents' present case is that their occupation of the property has continued for more than thirty years. The 1 st Plaintiff pleaded that she was born on the land. Further, on the pleadings, the Respondents' alleged period of occupation had already exceeded the statutory period before ELC No. 192 of 2017 was instituted. 48. The 2nd Respondent was not merely an occupant defending an eviction claim. She was a party represented who filed a counterclaim in the former proceedings seeking specific performance of a sale agreement and transfer of the property to her upon payment of the alleged balance of the purchase price. Her claim to the property was therefore RULING ELC NO. E006 OF 2026 22

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directly before the Court and it cannot be brought now again. If, as she now contends, she had already acquired the property by adverse possession for more than twelve years, that was a matter which properly belonged to the subject matter of the former litigation 49.The Respondents' contention that an adverse-possession claim could only have been brought through an Originating Summons does not avail them. In Kosgei v Mugun (Civil Appeal E121 of 2021) [2025] KECA 1507 (KLR), the Court of Appeal considered the very argument that a claim for adverse possession could not be raised by a defendant in an existing suit because Order 37 Rule 7 prescribes an Originating Summons. The Court held as follows: “We entirely associate ourselves with the above holding. Perhaps to understand the intention of the drafters of the rules, we would hold that the procedure established under Order 37 rule 7 is meant for instituting a fresh and independent suit. However, where there is an already filed suit, and the defendant is desirous of asserting his right of adverse possession, such a defendant is allowed to assert such right RULING ELC NO. E006 OF 2026 23

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through a counterclaim pursuant to Order 7 Rule 3 of the Civil Procedure Rules. It would not make sense to ask a defendant who wants to lay claim to the plaintiff's land through adverse possession to go and file a separate suit commenced through an originating summons against the defendant. Not only will such a course of action be untidy, it will also be wasteful of scarce judicial resources. It would amount to paying homage to procedural requirements at the expense of substantive justice and common sense.” 50. It follows that the 2nd Respondent had a procedural avenue through which the alleged adverse-possession claim could have been placed before the Court in ELC No. 192 of 2017. I therefore reject the submission that the earlier Court lacked jurisdiction to consider such a claim merely because the former proceedings were commenced by plaint. 51.The distinction between the former and present causes of action does not assist the Respondents. The present claim falls squarely within Explanation 4 to Section 7 of the Civil Procedure Act. It was a matter which, on their own pleaded case, had accrued before the former litigation, it related to RULING ELC NO. E006 OF 2026 24

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the same land and the same registered proprietor and it could reasonably have been raised in the former proceedings. The claim is accordingly deemed, by operation of Explanation 4 to section 7, to have been directly and substantially in issue in the former suit. 52. There was a claim by the Respondents that the introduction of the 1st Respondent as a party herein changes the nature and character of the claim and brings new issues and dimension. It is not in dispute that the 1 st Respondent was not a party to ELC No. 192 of 2017. However, the mere fact that she was not one in the previous suit or proceedings does not automatically settle the question of res judicata by an implication that she is a different individual as to institute new a suit over the same subject. Her position has to be keenly analyzed. Section 7 of the Civil Procedure Act expressly extends the doctrine to parties under whom the parties to the former suit claimed. 53. At the same time, privity must be established from the circumstances of the case. It cannot be inferred merely because two persons claim an interest in the same land. RULING ELC NO. E006 OF 2026 25

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54. In the present case, the Originating Summons and Supporting Affidavit do not disclose an independent root of possession on the part of the 1st Respondent as compared with that of the 2nd Respondent. The Respondents plead a joint and undivided occupation of the same parcel which the 2nd Respondent was sued over as owner and lost. The developments, cultivation and graves relied upon are pleaded as part of the same occupation. 55. The question is, what is the relationship between the 1 st and 2nd Respondent? This Court has very keenly perused the two Respondents’ pleadings. There is totally none that is pleaded. All that the 1st Respondent who has been given written authority to plead by the 2 nd Respondent pleads is that she was born on the suit land. She does not even plead her age. That notwithstanding, the pleadings bare it that she is younger than the 2 nd Respondent. In any event, the 2 nd Respondent is the one who claims to have bought the land. That must have been before th 1st Respondent was borne. 56. There is no pleaded date of commencement of occupation by the 1st Respondent independently as an adverse possessor against the Applicant. Nor is there a pleaded basis RULING ELC NO. E006 OF 2026 26

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upon which her alleged possession was adverse to that of the Applicant independent of the 2nd Respondent, whose occupation is pleaded at paragraph three (3) of the Supporting Affidavit to have begun in 1991. Again, if as pleaded at paragraph four (4) of the Affidavit the 1 st Respondent was born on the suit land and lived on it for over thirty (30) years, and all that she pleads all through between paragraphs five (5) to nine (9) of the Affidavit is the adverse possession claim of the 2nd Respondent, it means, by deduction, that the 1st Respondent began living on the land by virtue of birth, and thus her claim cannot run parallel to and independent of that of the parents who allegedly began residing on the land before she was born. She can only be regarded as a beneficiary of the Estate of her parents, if deceased, and not an independent adverse possessor. It means further that if her parents failed to prove adverse possession of the suit land she cannot go around it to found an independent claim thereto. 57. Whereas the 1st respondent subtly avoided to plead that she was a daughter or a proxy of the 2 nd Respondent, the pleadings, in response to the Respondents’ Originating RULING ELC NO. E006 OF 2026 27

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Summons and Supporting Affidavit show it clearly so. It is not in dispute that the Applicant in response to the Applicants’ claim filed a Replying Affidavit he swore on 8 th May 2026. At paragraph 27 he deponed, and it is not controverted, that the 1st Respondent is the proxy (who in this case is the 2nd Respondent’s daughter by way of deduction from both Respondents’ pleadings and annextures to the supporting Affidavit to the Originating Summons, showing the certificates of death of two of the 2 nd Respondent’s deceased children, whose surname is similar to the 1st Respondent's, and also her age, i.e. from birth 30 years she claims as being on the suit land which is the period the 2nd Respondent claims to have been on it). Further, by virtue of the 2nd Defendant giving authority to the 1st Respondent to plead but the 1st Respondent pleading the claim on occupation and structures on the ground to be of the 2nd Respondent. 58. In terms of the Habo Agencies decision (supra) of the Court of Appeal, failure to controvert this fact by way of Affidavit means that it is admitted that, indeed, the 1 st Respondent is a poxy of the 2nd Respondent. This is because RULING ELC NO. E006 OF 2026 28

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in Migori ELC No. 192 or 2017, the 2nd Respondent herein deponed She is thus estopped from laying a claim of adverse possession independent of her mother (the 2 nd Respondent) who allegedly lays the claim (but which is already determined in a prior suit). That fact is not, standing alone, determinative of privity. It is relevant because it accords with their own pleading that their occupation and claim are joint rather than independent. 59. Accordingly, I find that, on the parties’ pleadings, the 1 st Respondent does not advance an independent possessory claim arising from a separate root of possession. Her claim is derivative of and inseparable from the possession one asserted by the 2nd Respondent against the same registered proprietor. In those circumstances, the addition of the 1 st Respondent does not create a new and independent controversy capable of defeating the former judgment. One bold undisputed fact is, the 2nd Respondent was a party to the former proceedings. 60. The Court must examine the substance of the claim rather than permit the doctrine of res judicata to be defeated by the addition of a person whose asserted right is founded RULING ELC NO. E006 OF 2026 29

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upon the very possession already relied upon by the party bound by the previous judgment. 61. This approach finds support in Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & 3 others [2013] KECA 336 (KLR), where the Court of Appeal affirmed that; “Parties cannot evade the doctrine of res-judicata by merely adding other parties or causes of action in a subsequent suit.” The Court further observed that “a person does not have to be formally enjoined in a suit, but he will be deemed to claim under the person litigating on the basis of a common interest in the subject matter of the suit.” 62. Similarly, in Alexander Gitonga & 2 others v Registrar of Political Parties & another; Chama Cha Uzalendo (Interested Party) [2022] KEHC 12505 (KLR) the Court held that; “However, it is trite that the mere addition of parties in a subsequent suit does not necessarily render the doctrine of res judicata inapplicable since a party cannot escape the said doctrine by RULING ELC NO. E006 OF 2026 30

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simply undertaking a cosmetic surgery to his pleadings. If the added parties peg their claim under the same title as the parties in the earlier suit, the doctrine will still be invoked since the addition of the party would in that case be for the sole purpose of decoration and dressing and nothing else.” 63.Having settled on the issue whether the parties herein, particularly the 1st Respondent is viewed as being the ‘same’ or one as the 2nd Respondent, then the court proceeds to consider the other conjunctive facts that lay the basis of res judicata in any proceedings. The former and present suits or proceedings concern, in addition, the same registered proprietor, the same parcel of land and same competing claims to possession and proprietary rights over that land. In the former suit, the 2nd Respondent resisted the Applicant's claim to possession and counterclaimed for specific performance and transfer of the property. She did not, but ought to have raised, the claim of adverse possession, if at all. It, nevertheless, was subsumed in that previous suit. In the present proceedings, she and the 1st Respondent seek RULING ELC NO. E006 OF 2026 31

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registration as proprietors on the basis of alleged adverse possession. Although the legal basis of the present claim differs from the contractual claim previously advanced, both claims concern their asserted right to remain upon and ultimately acquire the same property as against the same registered proprietor. 64. The former proceedings were heard and determined by this Court on 12th April 2018. A decree was issued, extracted and a formal eviction order was made on 15 th June 2023. The law is clear that the existence of an appeal does not, without an order of stay, operate as a stay of execution. Order 42 Rule 6(1) of the Civil Procedure Rules expressly provides that an appeal does not operate as a stay unless the Court so orders. The instant suit, though, is not an appeal against the judgment in the previous suit. Even then, the pendency of an appeal does not, in the absence of an order of stay or setting aside, deprive the judgment of its character as a former judgment for purposes of Section 7 because the same determined he merits of the competing claims of the parties herein. Regarding any and all the issues between the parties herein, the Court became functus officio in that matter. It RULING ELC NO. E006 OF 2026 32

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was deponed by the applicant herein, and not controverted by the 2nd Respondent that the latter has in fact made several unsuccessful applications for stay of execution, the further application dated 3rd March 2026 having been pending when the present proceedings were commenced. I therefore find that the former judgment remains unreversed and unstayed and constitutes a former judgment for purposes of Section 7. 65.For those reasons, I find that the requirements of Section 7, read together with Explanation 4 thereto, are satisfied. i. Whether the proceedings constitute an abuse of the process of the Court 66. The conclusion on res judicata is sufficient to dispose of the suit. The circumstances in which the present proceedings were instituted, however, also demonstrate an abuse of the process of the Court. This is because the fresh institution of another suit over the same parcel of land was a “multiplication” or a split of a claim by the Applicants to subtly paint a different picture over already determined issues. RULING ELC NO. E006 OF 2026 33

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67.Judgment in ELC No. 192 of 2017 was delivered on 12th April 2018. An eviction order was issued on 15 th June 2023. Several applications for stay of execution were unsuccessful. A further application for stay was filed on 3 rd March 2026. Eight 11th days later, on proceedings were instituted March 2026, the present and interim orders were obtained on 12th March 2026. 68. The practical effect of the interim orders was to restrain interference with the suit property and thereby impede execution of the decree whose stay had been unsuccessfully sought in the earlier proceedings. This step by he applicants/ claimants shows that they have resorted to using the process of the court to defeat justice, and that is the clear sign of abuse of the process. The suit must, without much ado, be declared as such. 69. In Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] KECA 453 (KLR), the Court of Appeal recognised that abuse of process may arise where the process of the Court is employed for a purpose other than the proper and bona fide determination of a dispute. RULING ELC NO. E006 OF 2026 34

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70. I have considered the Respondents' alternative proposal that the proceedings be consolidated, stayed or otherwise managed. That course is not appropriate where the subsequent suit is itself barred by Section 7. Simply put, there is no suit pending before this court, which this instant one can be consolidated with. A suit which the Court is prohibited from trying cannot properly be preserved merely through case-management directions. I therefore find that the present proceedings also constitute an abuse of the process of the Court. The instant suit is res judicata and an abuse of the process of the Court. It must be and is hereby struck out. ii. Whether the orders of 12 th March 2026 should be discharged, varied or set aside 71.The orders issued on 12th March 2026 restrained interference with the suit property, its structures and graves and had the practical effect of preventing execution of the decree in ELC No. 192 of 2017. Since the suit has been struck out, all the orders issued in it during its pendency cannot continue to subsist. They are therefore discharged or set aside, accordingly. RULING ELC NO. E006 OF 2026 35

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Costs 72.Section 27 of the Civil Procedure Act provides that costs follow the event unless the Court, for good reason, orders otherwise. The Applicant has succeeded in the application. I see no sufficient reason to depart from the general rule. The Respondents shall therefore bear the costs of both the application and the entire suit that has been struck out. 73. Orders accordingly. Ruling Dated, Signed and Delivered virtually via the Teams Platform this 30th day of September 2026. HON. DR. IUR NYAGAKA JUDGE In the presence of: M/s Obiero Advocate for the Plaintiff’s Applicants/Respondents M/s Trevor Molo for the Respondent/Applicant Ms. Lola, Court Assistant RULING ELC NO. E006 OF 2026 36

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