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ELCStruck OutSiaya ELC Case (number not stated in judgment; successor to Siaya ELCLOS No. 005 of 2022 referenced)

Chunga & another v Amolo & 3 others (Environment and Land Case E026 of 2024) [2025] KEELC 6403 (KLR)

Environment and Land Court
25 September 2025
2,331 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Siaya court struck out a land dispute as res judicata, ruling you cannot relitigate issues a court has already finally decided.

What this practically means

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Executive summary

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The plaintiffs, claiming to be beneficiaries of the estate of Romanus Chunga in occupation of North Sakwa/Maranda/40, filed a plaint dated 30/10/2024 seeking an injunction against the defendants and an order directing the District Land Registrar to delete titles issued pursuant to a succession cause. The defendants filed a defence pleading res judicata and a Notice of Motion dated 16/01/2025 seeking striking out of the suit as res judicata and an abuse of process, additionally alleging the Verifying Affidavit was commissioned by a deceased advocate. The court canvassed both applications by written submissions. Applying section 7 of the Civil Procedure Act and the conjunctive elements in IEBC v Maina Kiai, the court compared the decree, pleadings and judgment in Siaya ELCLOS No. 005 of 2022, which it summoned of its own motion. It found the same parcel was in issue; the current defendants had been plaintiffs in the former suit, where they claimed adverse possession and customary trust over 4 HA of the parcel, and the 1st plaintiff had been the 1st defendant there. The addition of the 2nd plaintiff, the 1st plaintiff's sibling, did not defeat the plea since siblings cannot be delinked as estate beneficiaries. The former suit was heard on merits and finally determined by judgment dated 16/02/2023, by a court of competent jurisdiction. The court held the plaintiffs' claim of non-participation was no defence to res judicata, that reopening determined issues was an abuse of process, and that the prayer to cancel titles issued in succession proceedings was outside the court's jurisdiction. The suit was struck out with costs to the defendants; the plaintiffs' injunction application collapsed with it.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the defendants' application dated 16/01/2025 to strike out the suit as res judicata and an abuse of process should be upheld
  2. 2.Whether the former suit (Siaya ELCLOS No. 005 of 2022) was between the same parties or parties under whom they claim, litigating under the same title
  3. 3.Whether the issues in the present suit were directly and substantially in issue in the former suit
  4. 4.Whether those issues were heard and finally determined by a court of competent jurisdiction
  5. 5.Whether theplaintiffs' Notice of Motion dated 30/10/2024 for injunction should be determined

Key legal issues

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01

Res judicata - identity of parties and title

Holding

The former suit involved the same parties or parties under whom they claim; the 1st plaintiff was the 1st defendant in the former suit and the addition of his sibling as 2nd plaintiff does not defeat res judicata

Reasoning

The decree in Siaya ELCLOS No. 005 of 2022 shows the current defendants were plaintiffs and the 1st plaintiff was a defendant there. The court held that siblings sharing a deceased father's estate cannot be delinked, so the 2nd plaintiff is deemed a member of the same clan and the same-title requirement is met notwithstanding the new party.

p. 3
02

Res judicata - issues directly and substantially in issue and finally determined

Holding

The subject matter (North Sakwa/Maranda/40) and the issues, including beneficial interest under customary trust, were directly and substantially in issue, heard and finally decided on merits in the former suit

Reasoning

The court called for and perused the former suit's pleadings and judgment under section 3A. The former suit was heard on merits with witnesses cross-examined and a judgment of 16/02/2023 delivered, declaring the current defendants entitled to 4 HA of the suit property under customary trust. The current claim reopens the same issues before the same court.

p. 5
03

Defendant's striking-out application based on defective Verifying Affidavit commissioned by a deceased advocate

Holding

The court did not rule on this ground, striking the suit out solely on res judicata

Reasoning

The court focused on section 7 of the Civil Procedure Act and, having found the suit res judicata, ordered it struck out without making any finding on the defective Verifying Affidavit ground raised in the application.

p. 5

Legal principles established

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  • A party who alleges he did not participate in a former suit cannot relitigate the same issues by filing a fresh suit; res judicata still applies
  • Siblings of a party cannot be delinked from him as co-beneficiaries of their father's estate, so joinder of a new sibling-plaintiff does not defeat a plea of res judicata
  • Relitigating matters already finally determined before the same court is an abuse of the court process and will be struck out

Court orders

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  1. 1.The suit is struck out as res judicata under section 7 of the Civil Procedure Act
  2. 2.The plaintiffs' Notice of Motion application dated 30/10/2024 collapses with the suit and is not determined
  3. 3.Costs of the suit awarded to the Defendants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court); section 7, Civil Procedure Act (res judicata bar to entertaining the suit)

Relief refused

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Injunction restraining the defendants from subdividing, advertising for sale, charging or disposing of North Sakwa/Maranda/40

The suit is res judicata; the injunction application collapses with the struck-out suit

p. 5

Order for cancellation/deletion of titles issued pursuant to succession cause

Outside the jurisdiction of the ELC

p. 5

Costs

The costs of the suit shall be awarded to the Defendants.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of the foregoing is that the present suit is resjudicata and the court cannot entertain it by dint of the provisions of section 7 of the Civil Procedure Act. The suit must be struck out.
p. 5Final order striking out suit
In view of the above finding I see no need to make a determination of the Notice of Motion application dated 30/10/2024. The application collapses with the suit.
p. 5Fate of the injunction application
The costs of the suit shall be awarded to the Defendants.
p. 5Costs order
my view is that siblings cannot be delinked as beneficiaries of the estate of their deceased father since it is the estate that cojoins them
p. 3Joinder of sibling does not defeat res judicata
What I see is a party who wants to reopen issues and litigate them afresh before the same court. This must be frowned upon. It is also an abuse of the court process.
p. 5Abuse of process

Issues in the judgment

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minor

The judgment header describes itself as a 'Ruling' delivered virtually ('DELIVERED AND DATED AT SIAYA THIS 25TH DAY OF SEPTEMBER 2025... Ruling delivered virtually') though it disposes of the suit by striking it out, i.e. it operates as a judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Chunga & another v Amolo & 3 others (Environment and Land Case E026 of 2024) [2025] KEELC 6403 (KLR)", Case Analysis (2025). Siaya ELC Case (number not stated in judgment; successor to Siaya ELCLOS No. 005 of 2022 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6403/eng@2025-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.