Felly Odongo Ogwori v Luis Odongo Ikaal & Sabensia Karani (Interested Party)

2. I have considered the pleadings and record in the present suit, the proceedings and judgment in ELC E014 of 2023 (OS), together with the respective submissions by the parties on the issue. 3. The material facts are largely undisputed. In ELC E014 of 2023 (OS), the Applicant was Joseph Abonyo Omodia, while Luis Okodoi Ikaal was the Respondent and Sabensia Omuse Karani was the Interested Party. The subject matter of that suit was L.R. No. South Teso/Amukura/2257. 4. The said suit was heard and determined by a court of competent jurisdiction and judgment was delivered on 20 th May 2026, dismissing the suit. 5. In the present proceedings, being ELC E022 of 2022 (OS), the Applicant is Felly Odongo Ogwori, while Luis Okodoi Ikaal remains the Respondent and Sabensia Karani remains the Interested Party. The subject property is similarly L.R. No. South Teso/Amukura/2257. 6. The issue therefore falls for determination as to whether, notwithstanding BUSIA ELC NO. E022 OF 2022 – RULING the difference in Page 2 of 11 the

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identity of the Applicant, the present suit is barred by the doctrine of res judicata. ANALYSIS AND DETERMINATION 7. The doctrine of res judicata is principally anchored in Section 7 of the Civil Procedure Act, which provides: “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.” 8. The doctrine is not merely a procedural technicality. It is founded upon the principle of finality of litigation and serves BUSIA ELC NO. E022 OF 2022 – RULING Page 3 of 11

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to prevent parties from being subjected to repeated litigation over matters which have already been conclusively determined by a competent court. 9. In Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, the Court of Appeal stated that res judicata is a statutory peremptory bar and identified the conditions that must all be satisfied before the doctrine can be invoked. The Court held that the following elements must be established: a) That the suit or issue was directly and substantially in issue in the former suit; b) That the former suit was between the same parties or parties under whom they or any of them claim; c) That those parties were litigating under the same title; d) That the issue was heard and finally determined in the former suit; and BUSIA ELC NO. E022 OF 2022 – RULING Page 4 of 11

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e) That the court which heard the former suit was competent to try the subsequent suit or the suit in which the issue is subsequently raised. 10. The Supreme Court subsequently restated the applicable test in John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2021] KESC 39 (KLR). The Court held that for res judicata to apply in a civil matter, it must be demonstrated that: a) There is a former judgment or order which was final; b) The judgment or order was on merit; c) The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and d) There were between the first and second actions identical parties, subject matter and cause of action. 11. The Supreme Court explained that the doctrine is founded on the principle of finality, which is a matter of public policy. It BUSIA ELC NO. E022 OF 2022 – RULING Page 5 of 11

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prevents multiplicity of suits, protects parties from repetitive litigation, promotes the economical use of judicial resources and ensures that litigation eventually comes to an end. 12. It is therefore necessary to apply those principles to the circumstances of the present case. a) Whether there was a former judgment which was final and on merit 13. The first requirement is satisfied. The Court has perused the judgment delivered on 20th May 2026 in ELC E014 of 2023 (OS). The former suit was heard and determined and judgment was rendered dismissing the suit. There is no indication before this Court that the judgment was merely interlocutory or that the matter was struck out for want of jurisdiction. 14. The judgment was therefore a final determination of the former proceedings for purposes of the doctrine of res judicata. b) Whether the subject matter is the same 15. The second consideration is the subject matter. The property in both proceedings BUSIA ELC NO. E022 OF 2022 – RULING is L.R. No. South Page 6 of 11

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Teso/Amukura/2257. There can therefore be no serious dispute that the subject property in the present suit is the very same property which was the subject matter of ELC E014 of 2023 (OS). This element consequently weighs in favour of the plea of res judicata. c) Whether the parties are the same or are litigating under the same title 16. The more difficult question is that concerning the identity of the parties. In the former proceedings, the Applicant was Joseph Abonyo Omodia. In the present proceedings, the Applicant is Felly Odongo Ogwori. The Respondent and Interested Party are, however, substantially the same in both proceedings, namely Luis Okodoi Ikaal and Sabensia Karani, respectively. The difference in the identity of the Applicants is material. Section 7 does not require merely that the property or Respondents be the same. It requires the former suit to have been between the same parties, or between parties under whom they or any of them claim, litigating under the same title. BUSIA ELC NO. E022 OF 2022 – RULING Page 7 of 11

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17. Consequently, the Court must determine whether Felly Odongo Ogwori is a party under whom Joseph Abonyo Omodia claimed, or whether the present Applicant claims under Joseph Abonyo Omodia and is therefore bound by the judgment in the former proceedings. 18. The expression “parties under whom they or any of them claim” is intended to extend the doctrine beyond persons whose names are literally identical in the two suits. It encompasses persons claiming through or deriving their interest from a party to the former litigation. It does not, however, mean that every person who subsequently litigates concerning the same property automatically becomes bound by a previous judgment. 19. In John Florence Maritime Services Limited (Supra), the Supreme Court underscored the importance of examining the identity of the parties and whether they were litigating under the same title before invoking the doctrine. 20. In the present case, the Court has not been shown sufficient material to establish that Felly Odongo Ogwori derives his or her claim or interest BUSIA ELC NO. E022 OF 2022 – RULING in L.R. No. South Page 8 of 11

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Teso/Amukura/2257 from Joseph Abonyo Omodia, or that the two litigated under the same title. 21. The mere fact that the two Applicants have litigated concerning the same parcel of land does not, without more, make them the same party or parties claiming under one another. This distinction is important because res judicata is a doctrine of finality, but its application must remain within the parameters prescribed by Section 7 of the Civil Procedure Act. The Court cannot dispense with the statutory requirement concerning the identity of parties merely because the subject property is identical. d) Whether the causes of action are the same 22. The Supreme Court in John Florence Maritime Services Limited (supra) further identified the identity of the cause of action as one of the considerations in determining whether a subsequent suit is barred by res judicata. 23. However, the doctrine cannot be invoked merely because two suits concern the same land. The Court must establish that the matter directly and substantially in issue in the BUSIA ELC NO. E022 OF 2022 – RULING Page 9 of 11

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subsequent proceedings was the same matter that was directly and substantially in issue in the former proceedings and that the parties are the same or are litigating under the same title. 24. In the present matter, although the subject property is identical, the Applicant is a different person. In the absence of evidence establishing that the present Applicant claims through, under or in privity with the Applicant in the former suit, the requisite identity of parties has not been established. 25. The distinction is particularly important in proceedings founded upon proprietary or possessory rights. A person's claim to land cannot automatically be extinguished merely because another person previously litigated concerning the same parcel unless the former litigation was between the same parties or the subsequent litigant is legally bound through the former party. CONCLUSION BUSIA ELC NO. E022 OF 2022 – RULING Page 10 of 11

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26. I therefore find that the plea of res judicata has not been established in the circumstances of this case. The suit shall therefore proceed to hearing and determination on its merits. 27. Orders accordingly. Ruling dated, signed and delivered in open Court on this 6th day of October 2026. C. MUGAMBI JUDGE 6TH OCTOBER 2026 BUSIA ELC NO. E022 OF 2022 – RULING Page 11 of 11

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