Too v Teleposta Pension Scheme Registered Trustees (Land Originating Summons E051 of 2025) [2026] KEELC 2346 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out an adverse possession claim because the same property ownership dispute had already been decided between the same parties.
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 Applicant's Originating Summons dated 1st September 2025 and the applications dated 1st September 2025 and 26th/29th September 2025 should be struck out as res judicata under Section 7 of the Civil Procedure Act
Key legal issues
#Whether the Originating Summons seeking a declaration of ownership by adverse possession is barred by res judicata under Section 7 of the Civil Procedure Act
The suit is res judicata because ownership of the suit property was directly and substantially in issue and finally decided in ELC Case No. 1321 of 2013 between the same parties litigating under the same title; the judgment in that suit was on the merits, not a dismissal on a technicality.
The Court examined the judgment of Angote J in ELC 1321 of 2013, which found the plaintiffs (including the Applicant) in fundamental breach of the sale agreements for non-payment of purchase price and rent, and dismissed the suit with costs. The Applicant's contention that the dismissal was for want of locus standi and thus not on the merits was rejected: the extracts show the dispute over ownership was exhaustively determined. Since the former suit was dismissed, the properties remained the Respondent's. An adverse possession claim founded on the same sale agreement is a fresh attempt to relitigate the same ownership issue.
Whether a claim previously framed in contract/specific performance can thereafter be brought as adverse possession based on occupation under the same agreement
No. The claim cannot be recharacterised as adverse possession where occupation arises from the same impugned sale agreement already adjudicated upon.
The Court held that the adverse possession claim still revolves around ownership of the suit property, which had already been determined. Litigation must come to an end and a party cannot bring a fresh suit on the same title under a different legal guise. The applications filed in support of the struck-out suit could not stand once the suit was found res judicata.
Legal principles established
#- It is not possible in law to pursue a claim over immovable property on alleged breach of contract and later by way of adverse possession arising from occupation pursuant to the same sale agreement
Court orders
#- 1.The Applicant's Originating Summons dated 1st September 2025 is struck out as res judicata
- 2.The applications dated 1st September 2025 and 26th September 2025 are struck out as there is no suit
- 3.Costs of the Notice of Motion dated 3rd October 2025 awarded to the Respondent
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 under Article 162(2)(b) of the Constitution (land disputes); the judgment does not expressly cite the provision
Relief refused
#Applicant's claim to be declared owner of Nairobi Block 69/117/Unit No. 35 by adverse possession
The claim is res judicata; ownership of the suit property was already determined in ELC Case No. 1321 of 2013
Costs
Costs of the Notice of Motion dated 3rd October 2025 awarded to the Respondent
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.
In the circumstances, I find the Notice of Motion application dated the 3rd October 2025 merited and will proceed to strike out the instant Originating Summons including the Applications dated 1st September 2025 and 26th September 2025, with costs to the Respondent.
In my view it is not possible in law to pursue a claim over immovable property on alleged breach of contract and later by way of adverse possession arising from occupation pursuant to the same sale agreement.
It is my trite that Litigation must come to an end and the Applicant should not be allowed to bring forth another suit on the same title, whose validity had been dealt with.
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title
Issues in the judgment
#Internal inconsistency in the date of the second supporting application: the Notice of Motion seeks striking out of applications dated '1st September 2025 and 29th September 2025', but the analysis and disposition refer to '26th September 2025'.
The judgment is undated internally as to case number and the Applicant's name is not expressly stated in the judgment text; only the Respondent's supporting affidavit names the former case (Mary Lwande & 66 others v Teleposta Pension Scheme) and the coram bears only the judge's name.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Too v Teleposta Pension Scheme Registered Trustees (Land Originating Summons E051 of 2025) [2026] KEELC 2346 (KLR)", Case Analysis (2026). ELC Case (Originating Summons dated 1st September 2025) – Respondent's Notice of Motion dated 3rd October 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2346/eng@2026-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.