Chunga & another v Amolo & 3 others (Environment and Land Case E026 of 2024) [2025] KEELC 6403 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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.Whether the issues in the present suit were directly and substantially in issue in the former suit
- 4.Whether those issues were heard and finally determined by a court of competent jurisdiction
- 5.Whether theplaintiffs' Notice of Motion dated 30/10/2024 for injunction should be determined
Key legal issues
#Res judicata - identity of parties and title
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
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.
Res judicata - issues directly and substantially in issue and finally determined
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
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.
Defendant's striking-out application based on defective Verifying Affidavit commissioned by a deceased advocate
The court did not rule on this ground, striking the suit out solely on res judicata
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.
Legal principles established
#- 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
#- 1.The suit is struck out as res judicata under section 7 of the Civil Procedure Act
- 2.The plaintiffs' Notice of Motion application dated 30/10/2024 collapses with the suit and is not determined
- 3.Costs of the suit awarded to the Defendants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Order for cancellation/deletion of titles issued pursuant to succession cause
Outside the jurisdiction of the ELC
Costs
The costs of the suit shall be awarded to the Defendants.
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.
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.
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.
The costs of the suit shall be awarded to the Defendants.
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
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.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.