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ELCAllowedNot stated in judgment (application dated 14th November 2025)

Wanami v Matayo (Enviromental and Land Originating Summons E001 of 2025) [2025] KEELC 8252 (KLR)

Environment and Land Court
28 November 2025
1,399 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kakamega protected a man who has lived on disputed land since 2003, stopping the owner from interfering until the case is decided.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Kakamega, delivered by A. Nyukuri J on 28th November 2025, determined a notice of motion dated 14th November 2025 by the plaintiff seeking a temporary injunction restraining the defendant, his agents, sons and relatives from dealing with land parcel No. North Kabras/Kivaywa/465 pending the hearing and determination of an adverse possession suit, with OCS Matete Police Station to assist in execution. The plaintiff asserted he purchased the suit property in 2003, built a home worth over Kshs. 5,000,000/= and occupies it, but the defendant's sons, agents and relatives have been cutting trees and tilling the land, and the defendant has been bringing scouts intending to sell it. The defendant opposed by a preliminary objection arguing the suit was res judicata following dismissal of Butali SPMC ELC Case No. 18 of 2020 for want of jurisdiction, that he is the registered proprietor, that the sale lacked Land Control Board and spousal consent, and that the originating summons disclosed no reasonable cause of action. The court applied the Mukisa Biscuits definition of a preliminary objection and section 7 of the Civil Procedure Act, holding that a dismissal for want of jurisdiction is not a determination on merit, so the suit is not res judicata; further, Land Control Board and spousal consents are not elements of adverse possession and cannot ground striking out the suit. Applying Giella v Cassman Brown, the court found a prima facie case, irreparable injury and balance of convenience in the applicant's favour, allowed the application, granted the temporary injunction, mandated the OCS Matete Police Station to execute the order, and awarded the applicant the costs of the application.

Questions the Court framed

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

  1. 1.Whether the preliminary objection dated 26th November 2025 is merited
  2. 2.Whether the applicant deserves an order of temporary injunction

Key legal issues

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01

Whether the suit is res judicata under section 7 of the Civil Procedure Act given the dismissal of Butali SPMC ELC Case No. 18 of 2020

Holding

The suit is not res judicata; the former suit was dismissed for want of jurisdiction, so the issues were never determined on merit.

Reasoning

Section 7 bars re-litigation of issues finally determined on merit by a competent court. The respondent himself asserted the Butali suit was dismissed for want of jurisdiction. A dismissal for want of jurisdiction means the adverse possession claim was not decided on its merits, so the threshold condition for res judicata is absent.

p. 2
02

Whether want of Land Control Board consent, want of spousal consent, and registration of the defendant as proprietor warrant striking out the adverse possession suit

Holding

They do not; such consents are not elements of adverse possession, so the preliminary objection fails.

Reasoning

An adverse possession claimant needs only to prove open, non-permissive and exclusive possession for 12 years. Questions of Land Control Board consent and spousal consent relate to the validity of the sale agreement, not to adverse possession elements, and cannot ground striking out the suit. The preliminary objection was accordingly dismissed.

p. 2
03

Whether the plaintiff met the Giella v Cassman Brown criteria for a temporary injunction

Holding

Yes - prima facie case, irreparable injury and balance of convenience were all demonstrated; the application was allowed.

Reasoning

The applicant claimed occupation since 2003, which was not denied by replying affidavit, and the respondent's own pleadings sought eviction, confirming the applicant is in possession. The investment in a home worth over Kshs. 5,000,000/= established irreparable injury, and the undisputed sale without LCB consent tipped the balance of convenience in favour of the injunction.

p. 3

Legal principles established

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  • A preliminary objection is a pure point of law, pleaded or arising by clear implication from the pleadings, capable of disposing of the suit.
  • A suit dismissed for want of jurisdiction is not res judicata because the issues were not determined on merit.
  • Spousal consent and Land Control Board consent are not elements of adverse possession and cannot justify striking out an adverse possession suit.
  • In adverse possession the claimant must show open, non-permissive, exclusive possession as of right for an uninterrupted period of 12 years.

Court orders

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  1. 1.Temporary injunction restraining the defendant by himself, his agents, sons and relatives and or representatives from interfering, trespassing into, and or any other form of dealing with land parcel No. North Kabras/Kivaywa/465 pending hearing and determination of the suit
  2. 2.The OCS Matete Police Station mandated to execute the order
  3. 3.The applicant awarded the costs of the application

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Not expressly invoked; Environment and Land Court civil jurisdiction (application before it on transfer from Butali SPMC ELC Case No. 18 of 2020)

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.

That means that the issue of adverse possession was not determined on merit by a competent court. That being the case, I find and hold that this suit is not res judicata.
p. 2Res judicata - dismissal for want of jurisdiction does not create res judicata
Spousal consent and Land Control Board consent are not elements to prove adverse possession and cannot be the basis for this court striking out this suit.
p. 2Adverse possession - consent requirements not elements
pending hearing and determination of this suit, a temporary injunction is hereby issued restraining the defendant by himself, his agents, sons and relatives and or representatives from interfering, trespassing into, and or any other form of dealing with land parcel No. North Kabras/Kivaywa/465.
p. 3Final orders - temporary injunction granted
The OCS Matete Police Station is hereby mandated to execute this order.
p. 3Final orders - police assistance in execution

Issues in the judgment

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minor

Parties are referred to only by role; the judgment nowhere states the parties' names, and the case number of the suit is not given.

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, "Wanami v Matayo (Enviromental and Land Originating Summons E001 of 2025) [2025] KEELC 8252 (KLR)", Case Analysis (2025). Not stated in judgment (application dated 14th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8252/eng@2025-11-28

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