Likhanga & another v Wisayi (Environment and Land Appeal E002 of 2024) [2025] KEELC 6707 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a land buyer's fresh lawsuit because the same dispute had already been decided, but denied the seller costs for acting mischievously.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether suit before the trial court was res judicata
- 2.Whether the respondent's claim was time barred
- 3.Whether the trial court was right in granting orders made in favour of the respondent
Key legal issues
#Whether the respondent's suit in Kakamega MC ELC No. 45 of 2023 was res judicata
Yes - the suit was res judicata because the same parties litigating under the same title had had the same subject matter (the land sale agreements and occupation) finally determined in Kakamega MC ELC Case No. 932 of 2018 and Kakamega ELC Appeal No. E002 of 2022
The respondent had counterclaimed against the 1st appellant in the former suit over the same sale agreements and occupation of the same land; that counterclaim was heard and dismissed and the dismissal upheld on appeal. The parties were effectively the same, the courts competent, and the determinations were merit-based. Addition of the wife and Land Registrar was cosmetic.
Whether the trial court erred in failing to address res judicata
Yes - the trial court erred by not addressing an issue touching on its jurisdiction which had been raised in the pleadings
The court held that issues raised in pleadings must be addressed in the judgment and that jurisdiction must be settled first. Having found the suit res judicata, the trial court had no jurisdiction and ought to have downed its tools from the moment the matter was filed.
Legal principles established
#- Jurisdiction is the first issue a court must address before delving into the merits of a matter, and issues raised in the pleadings must be addressed in the judgment
- A litigant cannot make two separate claims against the same person regarding the same subject matter, as litigation in instalments is frowned upon
- Addition of parties to defeat res judicata is immaterial where those parties raise no independent claim
- On a first appeal the court must re-evaluate the record and determine whether the trial court's conclusions should stand, giving reasons either way
Court orders
#- 1.The appeal is allowed
- 2.The findings and judgment of the trial court are set aside
- 3.The respondent's suit in the lower court is substituted with an order that it is res judicata and is hereby dismissed
- 4.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Kakamega
- Kakamega MC ELC Case No. 45 of 2023
- Jurisdiction invoked
- First appeal from the Chief Magistrate's Court under the Environment and Land Court Act / Civil Procedure Act
Relief refused
#Costs of the appeal to the appellants
The court found the 1st appellant had acted mischievously in structuring the succession so his share fell outside the land the respondent occupied, so the appellants do not deserve costs
Costs
No orders as to costs
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.
I therefore find and hold that the trial court was wrong in not addressing its mind to the question of res judicata and in proceeding to determine a matter in which it had by operation of the law been barred to try.
In the premises, I allow this appeal, set aside the findings and judgment of the trial court and substitute them with an order that the respondent's suit in the lower court is res judicata and therefore hereby dismissed. I make no orders as to costs.
he cannot lawfully make two seperate claims against the same person in regard to the same subject matter as that would amount to litigation in instalments which the law frowns upon
It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation
Issues in the judgment
#The judgment describes the subject parcel inconsistently: the pleadings and trial court orders refer to Isukha/Virhembe/1821, but the analysis states the sale agreements concerned land excised from parcel Isukha/Virhembe/1167
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Pwani Maoni v Sosplashed Ltd & 2 others (Land Case E029 of 2024) [2026] KEELC 4689 (KLR)[2026] KEELC 4689 (KLR)23 Jul 2026applied
- Republic v Paris (Criminal Case E021 of 2026) [2026] KEMC 101 (KLR)[2026] KEMC 101 (KLR)25 May 2026applied
- Kariuki & another (Suing on Behalf of Mpeketoni Plot Owners) v County Government of Lamu & 4 others (Environment and Land Petition E013 of 2025) [2025] KEELC 5031 (KLR)[2025] KEELC 5031 (KLR)3 Jul 2025distinguished
Cite this brief
#Cite this brief
Caselaw, "Likhanga & another v Wisayi (Environment and Land Appeal E002 of 2024) [2025] KEELC 6707 (KLR)", Case Analysis (2025). Kakamega ELC Appeal No. 2 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6707/eng@2025-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.