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ELCPartially AllowedNot stated in the excerpt (Originating Summons dated 01/03/2022)

Kioko v Sammy (Sued as a Legal Representative of the Estate of Sammy Maitha – Deceased) & another (Enviromental and Land Originating Summons E006 of 2022) [2025] KEELC 7757 (KLR)

Environment and Land Court
11 November 2025
1,671 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a duplicate land claim, confirming you only get one chance to argue your case in court.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (A. Y. Koross, J) on a notice of motion dated 10/03/2025 by the 1st defendant seeking striking out of the plaintiff's originating summons dated 01/03/2022 on the ground of res judicata, with costs. The 1st defendant contended that the claim - adverse possession of Land Parcel No. Ndalani/Mavoloni/Block 1/357 - had already been litigated in Machakos ELC 220 of 2015, where the plaintiff, then defendant, had counterclaimed for adverse possession; that counterclaim was dismissed on 14/02/2022 and judgment was subsequently entered for the 1st defendant, declaring the plaintiff a trespasser. The plaintiff opposed, asserting the motion was frivolous and unmerited, but the court declined to entertain extraneous matters such as consolidation and the pending appeal. Framing a single issue - whether the suit is res judicata - the court applied Section 7 of the Civil Procedure Act and the tests in Makau v Syokimau Farm Limited: it found substantial identity of parties (Explanation 6), identity of subject matter, and identity of the claim, since the plaintiff's adverse possession claim could and should have been raised in the former suit (Explanation 4). Filing the new suit while the former was subsisting was an abuse of process and sub judice. The motion was allowed, the suit struck out with costs to the 1st defendant, and the file marked as closed.

Questions the Court framed

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

  1. 1.Whether the suit is res judicata, having regard to Machakos ELC 220 of 2015

Key legal issues

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01

Whether the originating summons dated 01/03/2022 is res judicata given the decision in Machakos ELC 220 of 2015

Holding

Yes - the parties (or those litigating under the same title), subject matter (suit property Ndalani/Mavoloni/Block 1/357) and cause of action (adverse possession claim) are the same; the former suit was decided by a competent court with finality on 14/02/2022

Reasoning

Applying Section 7 of the Civil Procedure Act and the tests in Makau v Syokimau Farm Limited, the court examined (a) identity of parties - the plaintiff here was defendant/counterclaimant in the former suit and the 1st defendant was the plaintiff there; (b) identity of subject matter - the same parcel of land; and (c) same title - both claims rested on adverse possession. Explanation (6) covers parties with a common interest, and Explanation (4) deems matters that could and should have been raised in the former defence as in issue. Filing the new suit while the former was subsisting was an abuse of process and sub judice.

p. 4

Legal principles established

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  • Res judicata under Section 7 bars re-litigation of matters directly and substantially in issue in a former suit between the same parties litigating under the same title, decided by a competent court
  • A party cannot split litigation; matters that could and should have been raised in a former suit, including by defence or counterclaim, are barred

Court orders

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  1. 1.The notice of motion dated 10/03/2025 is allowed
  2. 2.The suit (originating summons dated 01/03/2022) is struck out
  3. 3.Costs of the motion and the suit to the 1st defendant
  4. 4.The file marked as closed

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 7 of the Civil Procedure Act (res judicata); inherent jurisdiction to strike out an abuse of process

Relief refused

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Plaintiff's invitation to consider consolidation, pending appeal and directives in the former suit

Beyond the purview of deciding whether the suit is res judicata

p. 2

Costs

Costs to the 1st defendant - 'It therefore strikes out the suit with costs to the 1st defendant.'

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.

In the end, this court finds the instant suit is res judicata. The notice of motion dated 10/03/2025 is allowed. It therefore strikes out the suit with costs to the 1st defendant. This file is hereby effectively marked as closed. It is so ordered.
p. 4Disposition - striking out for res judicata
Her act of filing this suit while the former suit was subsisting was an abuse of the court process and amounted to sub judice.
p. 3Abuse of process / sub judice
The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry.
Purpose of res judicata (quoting Supreme Court in KCB v Muiri Coffee Estate)
when the doctrine of res judicata arises in a suit, the court is called to scrutinize the decision and pleadings and record of the former case that is claimed to have settled the issues in question
p. 3Methodology for assessing res judicata

Issues in the judgment

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minor

The case title and suit number of the present suit are not stated in the judgment text; only the former suit (Machakos ELC 220 of 2015) and a withdrawn matter (Machakos ELC No. 193 of 2015 (OS)) are named

minor

Text contains apparent OCR errors ('ofiending' for 'offending', 'plaintifi' for 'plaintiff', 'efiectively' for 'effectively')

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, "Kioko v Sammy (Sued as a Legal Representative of the Estate of Sammy Maitha – Deceased) & another (Enviromental and Land Originating Summons E006 of 2022) [2025] KEELC 7757 (KLR)", Case Analysis (2025). Not stated in the excerpt (Originating Summons dated 01/03/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7757/eng@2025-11-11

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