Evangelical Church of Christ in Africa (Hera Mar Adier) (Suing through Bishop & Secretary) & another v Church of Christ Africa CCA (Kwogo) (Being Sued through Its Officials) & 3 others (Environment and Land Case E010 of 2024) [2026] KEELC 390 (KLR)
The bottom line
#A Siaya court allowed a church land dispute to proceed, ruling that 'res judicata' only applies when the same issue was truly decided before.
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 present suit is res judicata in respect of Kisumu HCC No. 121 of 2005
- 2.Whether the present suit is res judicata in respect of Bondo CMELC E014 of 2023
Key legal issues
#Whether the suit over parcel SIAYA/USIGU/4444 is res judicata Kisumu HCC No. 121 of 2005
No. The parcel was not directly and substantially in issue in the 2005 suit; ECCA did not exist when that suit was filed and the parties differ.
The court compared the parties in the 2005 suit with the present parties and found no overlap: ECCA's registration certificate dates from 2011, after the 2005 suit was filed, and none of the present defendants feature among the 12 defendants in the 2005 case. The plaint in the 2005 suit did not refer to the parcel, and paragraph 35 of Aburili J's judgment, listing seven properties, did not include SIAYA/USIGU/4444 or its mother title. The ownership of the parcel was therefore neither litigated nor determined.
Whether the suit is res judicata Bondo CMELC E014 of 2023
No. That suit was struck out as res judicata and was not heard and finally determined on its merits.
The Bondo ruling by J.P. Nandi struck out the adverse possession suit as res judicata the Kisumu HCC No. 121 of 2005 judgment. Since theBondosuit was never heard on its merits and no determination was made on ownership by adverse possession, it cannot satisfy the requirement that the issue was heard and finally determined in the former suit. The present adverse possession claim over Siaya/Usigu/4444 was thus never determined on merit.
Legal principles established
#- A suit struck out as res judicata without a determination on the merits cannot found a plea of res judicata in a subsequent suit
- The elements of res judicata under Section 7 of the Civil Procedure Act must be satisfied conjunctively
Court orders
#- 1.The Notice of Motion dated 5/9/2025 seeking to strike out the suit as res judicata is dismissed
- 2.Each party to bear their own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the parcel SIAYA/USIGU/4444; application brought under Section 7 of the Civil Procedure Act (res judicata)
Relief refused
#Striking out of the suit for being res judicata
The parcel SIAYA/USIGU/4444 was neither litigated nor determined in Kisumu HCC No. 121 of 2005, and the Bondo CMELC E014 of 2023 ruling was not a determination on the merits
Costs
Parties to bear their own costs of the application
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 think I have said enough to show that the application dated 5/9/2025 is for dismissal as it has no merits. It is hereby dismissed.
Noting that the suit involves matters of faith involving churches, I will make an order that parties bear their own costs of this application.
the ownership of the SIAYA /USIGU/4444 nor its mother title parcel LR. No. Siaya/Usigu/1238 was not litigated upon neither was it determined in the judgement delivered in Kisumu HCC No. 121 of 2005.
The present suit cannot therefore be rendered res-judicata on the basis of the Bondo MCELC/014/2023 which though orders of adverse possession were sought a determination was never made on the ownership by dint of adverse possession.
The rationale behind res-judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter.
Issues in the judgment
#The application date appears as both '5/9/025' in the opening paragraph and '5/9/2025' later, an apparent typographical error
The case number of the present suit is not stated anywhere in the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evangelical Church of Christ in Africa (Hera Mar Adier) (Suing through Bishop & Secretary) & another v Church of Christ Africa CCA (Kwogo) (Being Sued through Its Officials) & 3 others (Environment and Land Case E010 of 2024) [2026] KEELC 390 (KLR)", Case Analysis (2026). Not stated in judgment (Siaya Environment and Land Court suit; Notice of Motion dated 5/9/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/390/eng@2026-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.