https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/243

Khabule v Kirui & another (Environment and Land Case E018 of 2025) [2026] KEMC 243 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEMC 243 (KLR) Republic of Kenya In the Port Victoria Law Courts Environment and Land Case E018 of 2025 AK Njeru, SRM June 18, 2026 Between Auriela Ayienga Khabule Plaintiff and Alex Kirui & another & another Defendant Ruling 1.Vide the application dated 2nd April 2026, the applicant seeks to strike out the plaintiff’s suit dated 10th June 2025 on the grounds that it is res judicata pursuant to section 7 of the Civil Procedure Act . The applicant relies on prior proceedings and judgments concerning the parcel of land known as Bunyala/Bulemia/2534, including the Budalangi District Land Tribunal award of 14th July 2010 and its adoption as a court order on 6th September 2011. The defendant asserts that the issue of ownership was conclusively determined in those proceedings. 2.The plaintiff, in her replying affidavit dated 28th April 2026, claims to be the registered owner of the suit land and contends that the tribunal lacked jurisdiction to determine ownership as provided for under Section 3 of the Land Disputes Tribunal Act, 1990 (now repealed) It is contended that the Tribunal acted outside its statutory mandate when it purported to order cancellation of the Plaintiff’s title and redistribution of the land. The plaintiff relied on the case of Republic VS Butula Land Disputes Tribunal (2013) eKLR, Republic VS Olenguruone Land Disputes Tribunal (2008) eKLR. She argues that the orders are null and void ab initio and raises further issues regarding the defendants’ continued occupation and capacity. She relied on the provisions of section 4(4) of the Limitation of Actions Act which provides that “An action may not be brought upon a judgement after the end of twelve years from the date on which the judgement was delivered, or (where the judgement or subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgement debt may be recovered after the expiration of six years from the date on which the interest became due.” 3.Both parties filed submissions which I have taken into consideration as well as the case law cited. The plaintiff submits that the tribunal award is unenforceable by operation of law due to lapse of time, and that the tribunal lacked jurisdiction over registered land. The defendant relies on Section 7 of the Civil Procedure Act and submits that the suit is res judicata, the issue of ownership having already been determined. 4.Upon consideration of the pleadings, evidence, and submissions, the principal issue for determination is whether the plaintiff’s suit is res judicata. 5.In John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), The Supreme Court pronounced itself thus:“For res judicata to be invoked in a civil matter the following elements had to be demonstrated:a.there was a former judgment or order which was final;b.the judgment or order was on merit;c.the judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; andd.there had to be between the first and the second action identical parties, subject matter and cause of action. 6.The purpose of this principle, as stated in the above case, was to give cases finality.“The doctrine of res judicata was based on the principle of finality which was a matter of public policy. The principle of finality was one of the pillars upon which the judicial system was founded and the doctrine of res judicata prevented a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensured that litigation came to an end, and the verdict duly translated into fruit for one party, and liability for another party, conclusively.” 7.It is not in dispute that the issue of ownership of the suit property was heard and determined by the tribunal and subsequently adopted as an order of the court. This was way back in the year 2011. No appeal was filed, conclusively heard, and determined in respect of the issue of jurisdiction of the tribunal, in line with Section 8 of the Land Dispute Tribunals Act. The plaintiff participated in all these proceedings and subsequent applications with no appeal or review against the 2011 order. This matter has now been filed 14 years later. 8.Whether or not the tribunal or court had jurisdiction is immaterial at this stage. 9.The plaintiff had every opportunity to appeal but failed to do so. The present suit is, in effect, a disguised appeal which this court has no jurisdiction to entertain. To do otherwise would undermine the doctrine of finality in litigation and the principle of res judicata as codified under Section 7 of the Civil Procedure Act. 10.In light of the above, I find that the plaintiff’s suit is res judicata and cannot be entertained by this court. The application dated 2nd April 2026 to strike out the plaintiff’s suit is hereby allowed. To bring this matter to finality, the suit is hereby dismissed with costs to the defendant.Orders accordingly.Right of appeal within 30 days DATED AT PORT VICTORIA THIS 18TH DAY OF JUNE 2026 IN THE PRESENCE OF :PlaintiffDefendantCourt AssistantHON. ANNE NJERUSENIOR RESIDENT MAGISTRATE