Odongo & 11 others v Nyawire (Enviromental and Land Originating Summons E007 of 2024) [2026] KEELC 3285 (KLR)
The bottom line
#A Kenyan land dispute court refused to strike out one claim but stayed another because a similar case was already pending before a lower court.
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 suit filed by the 2nd plaintiff/respondent is res judicata
- 2.whether the claim filed by the 12th plaintiff/respondent is sub judice hence be stayed
- 3.who should bear the cost of the application
Key legal issues
#Whether the suit by the 2nd plaintiff/respondent is res judicata Migori CMCC Civil Suit No. 185 of 2019
Not res judicata; the earlier suit was a burial dispute seeking exhumation, while the instant suit claims adverse possession.
Applying the five-point test in Bernard Mugo Ndegwa v James Nderitu Githae (identity of issues, parties, title, jurisdiction, finality) as adopted by the Supreme Court in KCB v Muiri Coffee Estate, the court compared the pleadings and orders sought. The earlier suit sought exhumation of a body buried on the suit property; the instant suit seeks a declaration of adverse possession. The issues and reliefs differ significantly, so Section 7 of the Civil Procedure Act is not satisfied.
Whether the claim by the 12th plaintiff/respondent is sub judice and should be stayed
Yes; the suit is stayed pending determination of Migori SPMC Civil Suit No. 3 of 2010.
Section 6 of the Civil Procedure Act bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties or parties litigating under the same title. Migori Suit No. 3 of 2010 was filed earlier and is still pending after its judgment was set aside. Once the lower court sheds the irregular adverse-possession counterclaim for want of jurisdiction, the remaining trespass/eviction claim concerns the same land, occupation and title as the instant adverse-possession claim, so the parameters of Section 6 are met.
Whether the Magistrates' Court seized of Migori SPMC Civil Suit No. 3 of 2010 has jurisdiction over the adverse possession counterclaim, and whether that suit can be transferred
Magistrates' Courts lack jurisdiction over adverse-possession claims; a suit filed in a court without jurisdiction is a nullity and cannot be transferred.
Relying on the Court of Appeal decision in Sugawara v Kiruti, the court restated that Section 38 of the Limitation of Actions Act confines adverse-possession claims to the Environment and Land Court. It declined to determine the validity of the amended defence in the lower court, since that suit is not before it, and doubted whether a transfer application could succeed where the originating court lacked jurisdiction, since such proceedings are a nullity and there is no suit to transfer.
Who should bear the costs of the application
Each party to bear its own costs, since the application succeeded only in part.
Having found the res judicata limb to fail but the sub judice limb to succeed, the court exercised its discretion on costs in light of the partial success, ordering that each party bear its own costs.
Legal principles established
#- A difference in the relief sought does not by itself defeat res judicata or sub judice where the substratum, parties and title are the same; but a suit is not res judicata where the issues and orders sought in the prior suit are materially different.
- Where a previously instituted suit between parties litigating under the same title over the same land is pending, the subsequent suit must be stayed under Section 6 of the Civil Procedure Act.
- Magistrates' Courts lack jurisdiction to hear and determine claims of adverse possession, which are limited to the Environment and Land Court under Section 38 of the Limitation of Actions Act.
- Proceedings and purported transfers in a court without jurisdiction are a nullity; there is no suit to transfer in such a scenario.
Court orders
#- 1.The prayer to strike out or dismiss the suit by the 2nd plaintiff/respondent as res judica Migori CMCC Civil Suit No. 185 of 2019 is declined
- 2.The suit filed by the 2nd plaintiff/respondent is stayed pending the determination of Migori SPMC Civil Suit No. 3 of 2010
- 3.Each party will bear its own costs
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; application brought under Sections 6 and 7 of the Civil Procedure Act, Order 2 Rule 5 and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Relief refused
#Striking out and/or dismissal of the suit by the 2nd plaintiff/respondent as res judicata Migori CMCC Civil Suit No. 185 of 2019
The earlier suit concerned a burial dispute (exhumation orders), while the instant suit seeks adverse possession; the issues and orders sought differ significantly.
Costs
Each party will bear its own 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.
Thus, the application succeeds in part. For that reason, each party will bear its own costs.
Accordingly, it must be stayed pending the determination the earlier suit.
Accordingly, I find that the instant suit is not res judicata Migori CMCC Civil suit No. 185 of 2019.
Courts are not like octopuses which can stretch tentacles to cling to each and every issue fioating out there in the sea of litigation. They limit themselves to issues before them.
Where a court has no jurisdiction, the proceedings therein if done are a nullity. Courts have time and again held that there is no suit to transfer in such a scenario.
Issues in the judgment
#The cause/suit number of the matter before the court and its neutral citation are not stated in the judgment.
The judgment inconsistently refers to the earlier subordinate-court suit as both No. 3 of 2010 and No. 10 of 2010.
The judgment states the earlier suit in Migori was determined and a judgment given in the applicant's favour, yet elsewhere records that the judgment was set aside and the suit is pending; the court treats the latter as common ground.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odongo & 11 others v Nyawire (Enviromental and Land Originating Summons E007 of 2024) [2026] KEELC 3285 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3285/eng@2026-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.