Nyabando & 11 others v District Land Registrar Kisii County & 7 others
The bottom line
#Kenya's Court of Appeal confirmed you cannot relitigate a settled land dispute by simply renaming it as judicial review or adding new parties.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial judge erred in sustaining a preliminary objection that the judicial review application was res judicata Kisii HCCC No. 120 of 2004
- 2.Whether the preliminary objection raised matters that were not pure points of law
- 3.Whether the judicial review proceedings constituted a stratagem to defeat the doctrine of res judicata
Key legal issues
#Whether the judicial review application was res judicata Kisii HCCC No. 120 of 2004
Yes. The central question the appellants sought to cure in the judicial review was resolved in the 2004 suit; the proceedings were a contrived stratagem to defeat res judicata.
The 2004 suit, heard and finally determined by a court of competent jurisdiction, decided the existence of parcel 557 and upheld eviction from parcel 558. The judicial review sought effectively to recreate parcel 557 and extinguish parcel 558, which would alter the earlier judgment. Adding new parties and reframing as judicial review cannot evade section 7 of the Civil Procedure Act; the only challenge to the 2004 judgment lay by appeal.
Whether the preliminary objection involved contested facts unsuitable for determination as a pure point of law
The appellants' argument on this point was not pleaded in the memorandum of appeal and was raised only in submissions, so the court declined to interrogate it.
The court reiterated that parties are bound by their pleadings and a court is restricted to issues raised in the pleadings. The complaint that the preliminary objection involved heavily contested factual probing appeared for the first time in the appellants' written submissions and was therefore beyond the court's interrogation on appeal.
Identity of parties for res judicata purposes
Although the parties appeared different, the record strongly suggested the appellants claim through persons who were defendants in the 2004 suit, satisfying the same-parties element.
Counsel for the respondents asserted the plaintiff in the 2004 case was the late father of the current appellants, who were 'wearing a different garment'. While the appellants denied formal participation, the court found they claim through persons who were defendants in that suit, and that altering parties does not defeat res judicata.
Legal principles established
#- The mere addition, alteration or modification of parties to a suit does not defeat the doctrine of res judicata.
- A court cannot be permitted to sit on appeal over a decision of a court of concurrent jurisdiction through a fresh suit framed as judicial review.
- Parties are bound by their pleadings; issues not anchored on pleadings cannot be interrogated by a court.
- Res judicata extends to all issues which, by reasonable diligence, parties ought to have raised in the first suit.
Court orders
#- 1.Appeal dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court at Kisii
- ELC JR. Application No. 4 of 2019
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 31(1) of the Court of Appeal Rules 2022 (appeal from a superior court acting in its original jurisdiction)
Relief refused
#Restoration of the Judicial Review proceedings before the ELC for final determination
The judicial review proceedings were res judicata Kisii HCCC No. 120 of 2004; the gravamen was to reopen issues already finally determined
Costs
The appeal is dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Like the trial court, we are satis ed that the addition of new parties and causes of action as well as the framing of the new suit as a judicial review is nothing short of a poorly contrived stratagem to defeat the doctrine of res judicata
That issue is plainly and simply settled and closed, and is therefore res judicata. The only challenge that can be lodged against the decision passed in Kisii HCC No. 120 of 2004 is vide an appeal.
The trial court would have thus been sitting on appeal of a court of concurrent jurisdiction which is untenable in law.
Accordingly, the appeal fails and is dismissed with costs.
Issues in the judgment
#Conflicting case numbers for the 2004 suit
Notice of Appeal predates the judgment it appeals
Preliminary objection attributed to 1st respondent though raised by 3rd respondent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyabando & 11 others v District Land Registrar Kisii County & 7 others", Case Analysis (2026). Civil Appeal 90 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1951/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.