https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4993

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELCA NO. E196 OF 2025** **AFRICA INLAND CHURCH OF KENYA** **[MUKURU KWA REUBEN- NAIROBI] - APPLICANT** **VS** **THE CHAIRMAN BOARD OF MANAGEMENT** **GATOTO COMMUNITY PRIMARY SCHOOL - 1ST RESPONDENT** **THE CHIEF LAND REGISTRAR - 2ND RESPONDENT** **RULING** 1. By a notice of motion dated 23/4/25, the Applicant moved this Court under Art 23, 47 and 48 of the Constitution, Section 1A, 1B and 3A of the Civil Procedure Act, Order 40 of the Civil Procedure Rules, and Sections 24, 25 and 26 of the Land Registration Act, and all other enabling provisions of the Law, seeking the following orders; 1. The Court be pleased to issue an order restraining the 1st Respondent, whether by itself, its agents, servants, employees, officials, or any other person acting on its behalf, from trespassing, encroaching, developing, alienating, transferring, and/or interfering with the parcel of land known as Mukuru Kwa Reuben 80983/X/57 pending the hearing and determination of the main suit. 2. The Court to issue an order compelling the 2nd Respondent to process and issue a title deed to the Applicant. 3. The Court to issue an eviction order against the 1st Respondent directing them to vacate and remove all structures, developments and/or obstructions they have placed on the suit property. 4. That the OCS Embakasi Police Station do ensure compliance of the orders therein 5. The costs of the supplication be provided for. 2. According to the grounds annexed thereto and the supporting affidavit sworn by Wilfred Mativo Mueke, the Applicant and the 1st Respondent were jointly allocated land, then known as Mukuru Kwa Reuben 80963/X/57, on 1/3/1996 [suit land]. See the letter of allotment dated 17/4/1996. That upon allocation, it paid the sum of Kshs 6040/- for the processing of the title. 3. It is averred that the Applicant has been in possession of the entire suit land since 1996 for religious purposes. That the 1st Respondent has forcibly taken over the property and has barred the Applicant from accessing or utilising the land for the construction of a church. The 1st Respondent therefore has occupied the suit land unlawfully through an act of trespass, thereby unjustly enriching itself at the Applicant's expense and in violation of the Applicant's property rights in the suit land. 4. That the 1st Respondent ought to be evicted from the suit land and that the 2nd Respondent is directed to process the title in the Applicant's name. 5. The application is opposed by the 1st Respondent. It averred that it has been in occupation of the suit land for over 20 years. There is a fully functioning school on the land, and therefore the claim for eviction is untenable given that there are school-going children. That the 1st Respondent was allocated the land in 2003 and a title was issued in the name of the Principal Secretary, The National Treasury. Prior to that, in 2002, the Applicant was informed of the cancellation and the withdrawal of the letter of allotment, vide the letter dated 11/6/2002, and was advised to identify alternative land for the church, which they failed to do, and never contested the said cancellation and withdrawal. 6. The Applicant has filed suits in respect of the suit land, which suits are pending before the Court, namely; 1. CMCC No 10571 of 2004 – African Inland Church of Kenya Vs The Chairman, Board of Management Gatoto Community Primary School. 2. ElC No 8948 of 2019 -African Inland Church of Kenya Vs The Chairman, Board of Management Gatoto Community Primary School. 7. In PET No E686 of 2024 - The Board of Management, Gatoto Primary School vs Nicholas Memusi and 6 others, the Court entered judgment in favour of the 1st Respondent, affirming that the 1st Respondent has been on the land for over 30 years. The Court was urged to dismiss the application. 8. The 1st Respondent filed a notice of preliminary objection dated the 13/10/2025 on the grounds that 1. The parties are litigating over the suit land, which is the subject of the current suit in CMCC No 10571 and ELC 8948 of 2019. Accordingly, the suit herein is sub judice. 2. Either the suit is res judicata in view of the above-cited suits, and in that event the Court has no jurisdiction to entertain the suit, and in that regard the instant suit should be struck out. 9. In its further response, the Applicant stated that the allotment to the 1st Applicant was marred by illegality and fraud, as it was issued at a time when there was an embargo or suspension on allotments. It denied that the school had been in occupation for over 30 years. 10. Parties have filed and exchanged written submissions which I have read and considered in the Ruling. 11. There are three issues for determination; 1. Whether the suit is resjudicata and or subjudice 2. Whether the Applicant is entitled to orders of temporary injunction as prayed in the notice of motion dated the 23/4/25. 3. Who meets the costs of the application and the preliminary objection. 12. With respect to resjudicata, section 7 of the Civil Procedure Act provides as follows; “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. 1. In the case of **HENDERSON V HENDERSON (1843) 67 ER 313** as it summarizes res judicata: ‘’ … where a given matter becomes the subject of litigation in, and adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” 1. The plea of res judicata and subjudice has not been controverted by the Applicant. The preliminary objection therefore is undefended. Having said that, the Court will determine the same for completeness of the record. 2. In CMCC No 8948 of 2019, the parties are the African Inland Church and the 1st Respondent. The cause of action is trespass, and the prayer sought therein is word for word with the instant suit. The Applicant herein filed a similar application dated 4/12/2019 seeking similar orders to the current application filed on 23/4/25. This application was determined by the Court on 29/10/2021, where it was dismissed. To that extent, I find that the instant suit is sub judice and the application herein is res judicata, having been determined by a Court of competent jurisdiction. It is noted that the Applicant did not explain to the Court the fate of the suit in the lower Court, and in the absence of any evidence, the Court infers that it is still pending. 3. With respect to CMCC No 10571 of 2004, unchallenged evidence was also led that this suit is pending in the lower Court. The parties are the same as in the instant suit. The subject matter and the cause of action are the same. 4. From the documents filed before the Court, it is undisputed that the Applicant has filed several cases in the lower Court as well as this Court raising the same cause of action, suing the same party and seeking similar prayers. 5. Section 6 of the Civil Procedure Act provides as follows; ”No Court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed. 1. This brings this Court to inquire whether the conduct of the Applicant in filing several suits in different forums amounts to an abuse of the process of the Court? Black's Law Dictionary defines abuse of the process of the Court as anything contrary to the good order established by usage, amounting to a complete departure from reasonable use. An abuse occurs when one makes an excessive or improper use of a thing, or employs it in a manner contrary to the natural legal rules for its use. 2. In the case of Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR the Court held that ; “The concept of abuse of Court/judicial process is imprecise. It involves circumstances and situation of infinite variety and conditions. It is recognized that the abuse of process may lie in either proper or improper use of the judicial process in litigation. However, the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponents. 1. The situations that may give rise to an abuse of Court process are indeed exhaustive; they involve situations where the process of the Court has not been or resorted to fairly, properly, or honestly to the detriment of the other party. However, abuse of Court process in addition to the above arises in the following situations: - 2. Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action. 3. Instituting different actions between the same parties simultaneously in different Court even though on different grounds. 4. Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and Respondent notice. 5. Where an application for adjournment is sought by a party to an action to bring another application to Court for leave to raise issue of fact already decided by Court below. 6. Where there no iota of law supporting a Court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action. 7. Where a party has adopted the system of forum-shopping in the enforcement of a conceived right. 8. Where an appellant files an application at the trial Court in respect of a matter which is already subject of an earlier application by the Respondent at the Court of Appeal. 9. Where two actions are commenced, the second asking for a relief which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the irritation or annoyance of an opponent. 10. According to the evidence placed before the Court and having held that the suits are but a multiplicity in the system, it is clear that the Applicant is employing a scorched earth policy in filing suits in a multiplicity of forums with the hope that his chances of success will increase. 11. Sections 1A, 1B and 3A of the Civil Procedure Act clothe this Court with inherent powers, exercisable solely to arrest a situation where a party has run amok with conduct geared to abusing the process of the Court, the result of which will create conflicting decisions of the Court, thus bringing the Court into disrepute and lowering its confidence in the eyes of the citizenry. This Court shall not countenance this state of affairs. 12. To prevent the abuse of the Court process, I have no hesitation in dismissing the suit in its entirety to allow the parties to prosecute their claims in the lower Court. They will still have the chance to approach this Court but on appeal. 13. Having dismissed the entire suit, the Notice of Motion dated 23/4/25 is deemed moot and stands dismissed as well. 14. The costs of the preliminary objection are in favour of the 1st Respondent 15. Orders accordingly **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 30TH DAY OF JULY 2026 VIA MICROSOFT TEAMS.** **J G KEMEI** **JUDGE** **Delivered Online in the presence of:** 1. Ms. Ogola H/B for Mr. Katunga for the Applicant 2. Mr. Maruja for the Respondent 3. CA – Mr. Amos