REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT BUSIA
ELC LOS NO. E047 OF 2025
LAWRENCE OJENA OSOKIT ………………………… 1ST APPLICANT
DISMAS ETYANG OSOKIT ……………….….......…. 2ND APPLICANT
= VERSUS =
JAMES NYANGWARA KEDI ………………………. 1ST RESPONDENT
STEPHEN KEDI ……………………………….……. 2ND RESPONDENT
JANEROSE INGELECH ETORI ………….……… 3RD RESPONDENT
OMUSE KEDI …………………….…….…………… 4TH RESPONDENT
R U L I N G
1. Before this Honourable Court for determination is the Notice of Preliminary Objection dated 6th March 2026 and the Notice of Motion dated 19th November 2025.
2. I will deal first with the Notice of Preliminary Objection dated the 6th of March 2026 before the Application.
3. From the Notice of Preliminary Objection, the Defendants contend that the suit is res judicata under section 7 of the Civil Procedure Act because the dispute over Land Parcel NO SOUTH TESO/CHAKOL/496 was allegedly conclusively determined in Busia ELC Case NO E024 of 2022 by a consent judgment adopted on 5th June 2024, and that the Plaintiffs claim through a party to those earlier proceedings.
4. The sole issue raised is whether the present suit is res judicata by virtue of section 7 of the Civil Procedure Act.
5. The substantive law on Res Judicata is found in Section 7 of the Civil Procedure Act Cap 21 which provides that:
“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, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”
6. For a plea of res judicata to succeed, the court must be satisfied that the former suit involved the same parties or parties litigating under the same title, the same subject matter, the same issues, and that the former suit was finally determined by a court of competent jurisdiction.
7. In the case of Kennedy Mokua Ongiri -v- John Nyasende Mosioma & Florence Nyamoita Nyasende [2022] KEELC 1631 (KLR) the court provided that:
“A person may not commence more than one action in respect of the same or a substantially similar cause of action and the Court must attempt to resolve multiple actions involving a party and determine all matters in dispute in an action so as to avoid multiplicity of actions. In order therefore to decide as to whether an issue in a subsequent Application is res judicata, a court of law should always look at the Decision claimed to have settled the issues in question and the entire Application and the instant Application to ascertain; i) what issues were really determined in the previous Application; ii) whether they are the same in the subsequent Application and were covered by the Decision, iii) whether the parties are the same or are litigating under the same Title and that the previous Application was determined by a court of competent jurisdiction.”
8. In the instant case, the issue of res judicata has been brought through a Notice of Preliminary Objection. The law on preliminary objections is now settled. A preliminary objection must raise a pure point of law capable of disposing of the suit without the court having to ascertain contested facts or evaluate evidence.
9. The question as to whether the Plaintiffs are litigating through Dennis Thomas Emojel and are therefore bound by the earlier consent judgment is a factual issue that cannot be determined merely from the pleadings. It requires the court to examine the previous proceedings, the consent judgment, the alleged sale transaction, and the relationship between the parties. None of the above has been attached to the Notice of Preliminary, so that this court can verify the same.
10. Similarly, determining whether the issues in the present suit are directly and substantially the same as those in Busia ELC Case NO E024 of 2022 necessitates a comparison of the pleadings, issues and judgment in the previous suit, an exercise that goes beyond a pure point of law.
11. Consequently, the Notice of Preliminary Objection dated 6th March 2026 does not meet the threshold set in Mukisa Biscuit Manufacturing Co. Ltd -v- West End Distributors Ltd (1969) EA 696, because its determination depends on contested facts and the examination of evidence rather than on a pure point of law.
12. The upshot is that the Preliminary Objection dated 6th March 2026 is therefore unmerited and is dismissed with costs.
THE NOTICE OF MOTION DATED 19TH NOVEMBER 2025
13. The application before the Court is the Notice of Motion dated 19th November 2025. Through the application, the Applicants seek temporary injunctive orders restraining the Respondents, their agents or anyone acting under them from interfering with, cultivating, constructing upon, transferring, or evicting the Applicants from the disputed portion pending the hearing and determination of both the application and the main suit.
14. The application is premised on the grounds set out therein and supported by the affidavits of LAWRENCE OJENA OSOKIT sworn on 19th November 2025 and 16th December 2025.
15. The Applicants aver that the Respondents are the registered proprietors or administrators of the suit property measuring approximately 15 hectares (37 acres).
16. They depose that a portion measuring 6½ acres was initially sold in 1986 by the late SANTULINO KEDI to one THOMAS EMOJEL, who took possession and occupied the land until 10th June 2009, when he sold 5.5 acres thereof to the Applicants.
17. The Applicants contend that they have since remained in open, peaceful, continuous and exclusive occupation of the disputed portion to the exclusion of the Respondents.
18. The Applicants further state that in September 2025, the Respondents became hostile and began threatening to evict them from the land. According to the Applicants, the Respondents forcefully entered portions of the land, attempted to cultivate it, uprooted crops, cut down trees, introduced prospective purchasers with a view to selling the disputed portion, demanded that the Applicants vacate the land and threatened them with violence. They assert that unless restrained by the Court, the Respondents’ actions will occasion irreparable loss and render the pending claim for adverse possession nugatory.
19. The Applicants also rely on a supplementary affidavit in which they aver that after the Court initially declined to certify the application as urgent and issued directions for inter partes hearing, the Respondents, upon being served with the court directions, allegedly descended upon the suit property, uprooted crops and intensified their acts of interference, thereby escalating the dispute and necessitating the grant of interim injunctive relief.
20. In their written submissions, the Applicants contend that they have satisfied the principles governing the grant of interlocutory injunctions as set out in Giella -v- Cassman Brown (1973) EA 358. They submit that they have established a prima facie case by demonstrating long, continuous and uninterrupted occupation of the disputed land, thereby laying a sustainable claim for adverse possession under the Limitation of Actions Act.
21. They further argue that they stand to suffer irreparable harm if evicted or dispossessed before the determination of the suit, and that the balance of convenience favours preserving the prevailing status quo by maintaining them in possession pending the hearing and determination of the suit.
22. Although the Respondents filed written submissions in support of their Preliminary Objection, and in opposition to the Notice of Motion dated 19th November 2025, they did not file any replying affidavit, grounds of opposition or other substantive response to controvert the factual averments contained in the application and the supporting affidavits.
23. Their opposition rested entirely on the Preliminary Objection, which has since been determined by this Court. Consequently, the application now falls for determination on the basis of the uncontroverted factual material placed before the Court and the applicable law.
ANALYSIS AND DETERMINATION
24. Since this court has already determined the preliminary objection, the only issue remaining is whether the Applicants have met the threshold for the grant of a temporary injunction pending the hearing and determination of the suit.
25. The principles governing the grant of interlocutory injunctions are now firmly settled. In Giella v Cassman Brown & Co. Ltd [1973] EA 358, as restated by the Court of Appeal in Nguruman Limited -v- Jan Bonde Nielsen & 2 Others [2014] eKLR, an applicant must sequentially establish a prima facie case with a probability of success, demonstrate that he stands to suffer irreparable injury incapable of compensation by an award of damages if the injunction is withheld, and where the court is in doubt, the application shall be determined on a balance of convenience.
26. In the present case, the Applicants contend that they have been in open, peaceful, continuous and uninterrupted occupation of the disputed portion of land since 2009, following its purchase from Thomas Emojel, who had himself been in possession from 1986.
27. They aver that the Respondents have only recently become hostile by threatening to evict them, uprooting their crops, cutting trees, invading the suit property and attempting to dispose of the disputed portion to third parties. These averments are contained in the supporting and supplementary affidavits filed by the Applicants.
28. This court has noted significantly that, although the Respondents participated in these proceedings by raising a Preliminary Objection, they did not file a replying affidavit or any other substantive pleading to controvert the factual depositions made by the Applicants.
29. The Preliminary Objection, which constituted the sole basis of their opposition, has since been determined by this Court. Consequently, the factual averments contained in the Applicants’ affidavits remain uncontroverted.
30. On the material presently before the Court, the Applicants have demonstrated that they are in actual occupation of the disputed portion of land and have placed before the Court evidence showing the basis of their claim for adverse possession. Without making definitive findings on the merits of that claim, which is reserved for the full hearing, I am satisfied that the Applicants have disclosed a genuine and arguable case deserving judicial interrogation. Accordingly, the Court is persuaded that the Applicants have established a prima facie case with a probability of success.
31. On whether the Applicants stand to suffer irreparable injury, the Applicants have deponed that the Respondents have threatened to evict them, uprooted their crops, cut down trees and continue to interfere with their occupation of the suit property.
32. The subject matter of this dispute is land over which the Applicants claim to have been in occupation for a considerable period. If the alleged acts of interference continue pending the hearing of the suit, there is a real likelihood that the Applicants may be dispossessed or the character of the suit property materially altered. Such injury cannot adequately be remedied by an award of damages, particularly where the very substratum of the suit is the Applicants’ claim to title by adverse possession.
33. Even if there were any doubt, which I do not find, the balance of convenience would nonetheless favour preserving the prevailing status quo.
34. The Applicants assert that they are the ones in occupation of the disputed portion, and this assertion has not been rebutted by any affidavit evidence from the Respondents. It is therefore in the interests of justice that the status quo on the ground be maintained pending the hearing and determination of the suit so as to preserve the subject matter and avoid rendering the proceedings nugatory.
35. Having carefully considered the Notice of Motion, the supporting and supplementary affidavits, the written submissions filed by the Applicants, the Respondents’ submissions, and the applicable law, I am satisfied that the Applicants have met the threshold for the grant of a temporary injunction.
36. Accordingly, the Notice of Motion dated 19th November 2025 is allowed on the following terms:
1) A temporary injunction is hereby issued restraining the Respondents, whether by themselves, their agents, servants, employees, family members or any other person acting under their authority, from interfering with, entering upon, cultivating, ploughing, planting, constructing on, transferring, alienating, evicting the Applicants from, or in any other manner dealing with the Applicants’ claimed portion measuring approximately 6½ acres comprised in Land Parcel No. SOUTH TESO/CHAKOL/496, pending the hearing and determination of this suit.
2) The Applicants shall have the costs of the Notice of Motion dated 19th November 2025.
Ruling dated, signed and delivered in open Court on this 23rd day of July 2026.
C. MUGAMBI
JUDGE
23RD JULY 2026
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