Facts:

The parties had a long history of litigations between them over the same of parcel of land and this culminated in a consent judgment entered on the 19th of October 1972 in the consolidated. Suits Nos. UCH/43/71 / UCH/50/71 and UCH/70/71. In the consent judgment, it was agreed that the family of the Appellant, Benuku Family, was one of the seven families making up the Umusadege Family or Quarters of Utagba-Ogbe and that the parcel of land in dispute formed part and parcel of the Umusadege land and that it was jointly owned by the seven families. It was further agreed in the consent judgment that Umusadege family land was deemed vested in the Okpala-Uku of Umusadege Quarters for and on behalf of the seven families, with the Okpala-Uku being the eldest male among the seven families and who must be an Okwa. It was agreed in the consent judgment that all the compensation falling to be paid in respect of any portion of Umusadege land, including by the fourth Respondent, shall be shared equally amongst the seven families.

In April, 1975, the Appellants commenced an action against the Respondents in the High Court in Ughelli as Suit No. UCH/26/76 over the same parcel of land claiming, amongst others, for an order setting aside the consent judgment entered in the consolidated suits and for declaration that their family, the Benuku Family, was the exclusive owner of the land in dispute. The suit was transferred to the Kwale Division of the High Court and rechristened as Suit No HCK/26/76. The matter proceeded to hearing and at the conclusion of which the trial Court dismissed the action. Again, in 1981, the Appellants commenced another action against the Respondents as Suit No HCK/20/81 over the same parcel of land and claiming, amongst others, for an order setting aside the consent judgment entered in the consolidated suits and for declaration that their family, the Benuku Family, was the exclusive owner of the land in dispute. The Respondents challenged the action on the ground that it was caught by estoppel per rem judicatam and the trial Court agreed and dismissed the action on the 12th of April, 1983.