https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5169

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAROK** **ELC CASE NO. E012 OF 2025** ***SAMUEL KIPLANGAT KIRUI,*** ***RICHARD KIPNGETICH BIWOTT*** ***& ROBERT KIPLANGAT*** ***Suing as the official of CHEPNYALILIET*** ***SELF HELP GROUP…………….………PLAINTIFFS/RESPONDENT*** ***VERSUS*** ***DAVID KAPOLONTO SHUNKUR.….1ST DEFENDANT/APPLICANT*** ***LAND REGISTRAR NAROK REGISTRY*** ***Sued as the Attorney General……….…………….2nd DEFENDANT*** **RULING** 1. The matter for determination is the ***Notice of Motion Application*** dated ***21st November 2025*** filed by the 1st Defendant/Applicant herein ***David Kapolonto Shunkur,*** and Supported by his Affidavit sworn on even date. The Application is brought under ***Sections 6*** ***and 7*** of the ***Civil Procedure Act***, and ***Order 51 Rule 1*** of the ***Civil Procedure Rules***. 2. The 1st Defendant/Applicant seeks the following order: 3. ***THAT this Court be pleased to strike out this suit with costs as the issues raised are Res Judicata and Sub judice as the dispute of ownership of L.R No. NAROK CIS MARA/OLUOLUNGA/134 was determined by a judgment delivered on 26th June, 2014 by Justice Sergon in Kericho ELC No. 9 of 1993, and as the Plaintiff’s were not satisfied, preferred Nakuru Civil Appeal No. 223 of 2014, which appeal was also*** ***dismissed with costs by Nambuye, Sichale and Kantai JJJA sitting at Nakuru; the appeal gave rise to the Court of Appeal Civil application No. 24 of 2014 pending hearing and determination at the court of appeal Nakuru.*** 4. ***THAT this court lacks jurisdiction to entertain the suit in view of the fact that the issues raised in this suit are before the Court of Appeal*** 5. ***THAT costs of this application be provided for*** 6. The application is premised on the grounds set on the face of the application. Among the grounds in support are; that the dispute over ***L.R. NAROK CIS-MARA/OLUOLUNGA/134*,** was the subject in dispute in ***Kericho ELC No. 9 of 1993,*** filed by the 1st Defendant/Applicant herein against ***Rigogo Chonjo, Joseph Kitur, Samwel Kiplagat and Ezekiel Soi,*** the Chairman, Treasurer and the secretary of ***Chepnyaliliet Self Group***. 7. Further, that the title of ***Chepnyaliliet Self Help Group*** over the suit land was ***recalled*** and ***nullified*** by Justice Sergon vide a judgment issued on ***26th June, 2014***. Consequently, the suit land was registered in the 1st Defendant/Applicant’s name **on *28th January 2015.*** The Applicant annexed the said judgment marked **DKS1.** 8. That the Plaintiff/Respondent herein being aggrieved with the above determination approached the ***Court of Appeal in Nakuru vide Civil Appeal No. 223 of 2014,***which Appeal was also dismissed by ***Nambuye, Sichale and Kantai JJA*.** The 1st Defendant/Applicant also annexed the Court of Appeal Judgment delivered on **27th March, 2019** and **marked DKS2.** 9. The Applicant further avers that the Plaintiff herein being dissatisfied with the Court of Appeal’s decision, filed a Notice of Appeal to the Supreme Court on ***24th March 2019,*** and later abandoned it**.** The Applicant annexedthe Notice of Appeal as **DKS3.** 10. That the Plaintiff/Respondent herein then mischievously drafted an ***erroneous decree,*** which deceitfully showed that the plaintiff’s appeal was successful, and used it to fraudulently register the suit land in their names. The Applicant also annexed this wrongful decree and marked it **DKS4**. 11. This prompted the Applicant herein to file application ***No. 13 of 2020,***before the ***Court of Appeal in Nakuru*** seeking the recall of the wrongfully drafted decree and setting aside of the same. Further, that a bench of **Ochieng, Achode and Korir JJJA** ordered for recalling of the wrongfully drafted decrees vide a ruling dated ***28th July, 2023,*** and ordered that a fresh decree be generated. The ruling is annexed and marked **DKS5.** 12. The Applicant’s Advocate prepared a ***proper decree*** and forwarded to the Plaintiff’s counsel who approved it, pursuant to which the Applicant herein registered the suit land in his names. The 1st Defendant/Applicant annexed the ***Court of Appeal’s Order*** issued on ***29th August, 2023,*** marked ***DKS6,*** and the title deed in his names marked ***DKS7****.* 13. That the Plaintiff’s/Respondents also filed a Notice of Motion Application dated ***23rd October 2023,*** at the Court of Appeal seeking review of its judgment delivered on ***27th March, 2019,*** in Civil Appeal ***No. 223 of 2014,*** which was pending as at the time of filing this suit. The same was also annexed and marked ***DKS8.*** 14. The Application is vehemently opposed by the Plaintiff, and in response, the Plaintiff/Respondent filed a Replying Affidavit sworn on ***31st March 2026,*** by one ***Richard Kipngetich Biwott,*** wherein he denies all the Applicant’s averments. 15. The Plaintiff/ Respondent argues that the present matter is not ***res judicata*** as the proceedings in ***Kericho ELC No. 9 of 1993,*** and ***Nakuru Civil Appeal No. 223 of 2014,*** have distinct parties, cause of action and subject matter. 16. The Plaintiff/Respondent further averred that ***ELC No. 9 of 1993,*** was initiated by the Applicant’s father ***Ole Pushati*** (Deceased) against ***Rigogo Chonjo Company,*** and the dispute was strictly around alleged non-payment of consideration arising from the sale of the suit land herein, while the present suit is against the Applicant in his personal capacity for his acts of ***fraud in altering*** the land register. 17. In response, the 1st Defendant/Applicant filed a Further Sworn on 7th May 2026, wherein he reiterated the contents of his his further supporting Affidavit, and also averred that the Plaintiff/Respondent deliberately concealed and failed to disclose material facts to this court, being existence of the Civil Application No 24 of 2014, dated 23rd October 2024, at the Court of Appeal at Nakuru, filed by the Plaintiff/Respondent herein, seeking for review, varying and/ or setting aside of the judgment and decree in Civil Appeal No 223 of 2014, which application is pending hearing and determination. 18. He urged the court to allow the instant application by holding that the same is ***res-judicata.*** 19. The Application was canvased by way of written submissions. The 1st Defendant/Applicant filed his written submissions dated ***22nd June 2026***, through ***N.O Migiro & Co Advocates*** wherein he set out three issues for determination being; ***a) Whether the suit is barred by res judicata;*** ***b) Whether the suit is an abuse of the court process as it is sub judice;*** ***c) Whether the court has jurisdiction to entertain the suit.*** 1. The Plaintiffs/Respondents filed their written submissions dated 30th June 2026, through ***Njeri Njagua& Co Advocates,*** wherein they set out four issues for determination being; a***) Whether the present suit is in breach of the doctrine of res-judicata in light of Kericho ELC No 9 of 1993, and the subsequent Appeal,*** ***b) Whether the suit is sub-judice and an abuse of the court process;*** ***c) Whether this court lacks jurisdiction;*** ***d) Whether the Plaint should be struck out.*** 1. The Plaintiffs/Respondents urged the court to dismiss, the instant notice of motion with costs. 1. The Court has carefully read and considered both the Applicant’s written submissions dated ***22nd June 2026*** and the Respondent’s rival written submissions dated ***30th June 2026,*** and finds the issues for determination are as follows: 2. ***Whether the Plaintiffs/ Respondents case is res judicata and/ or sub-judice*** 3. ***Who bears the costs of these proceedings?*** **ANALYSIS** 1. ***Whether the Plaintiffs/ Respondents case is res judicata and/ or sub-judice*** 2. The 1st Defendant/Applicant averred that the suit herein is ***res judicata*** and/or ***sub judice***, and at paragraph 28 of his submissions summarized his position as follows 3. ***The parties in Kericho ELC No. 9 of 1993, Nakuru Civil Appeal No. 223 of 2014 and the present suit are identical*** 4. ***The subject matter being L.R NO. NAROK CIS- MARA/OLUOLUNGA/134, is the same.*** 5. ***The ownership of the suit land was finally determined by Justice Sergon on 26th June 2014 and affirmed by the court of appeal on 27th March, 2019.*** 6. ***The matter was determined by an Environment and Land Court which has jurisdiction***. 7. On the issue of *sub-judice*, the 1st Defendant/Applicant at paragraph 32 of his submissions submitted and argued that upon recall of the wrongful decree in ***Civil Application No.13 of 2020*** at the Court of Appeal at Nakuru, the Plaintiffs/Respondents filed another Application at Nakuru Court of Appeal being Civil Application No. seeking for ***review*** of the Court of Appeal Judgment in ***Civil Appeal No. 223 of 2014,*** and which is pending hearing. 8. Further, at paragraph 36, the 1st Defendant/ Applicant submitted and argued that there was an application dated ***28th April,*** ***2025*** in ***Kericho ELC No.9 of 1993,*** while the instant suit was filed on ***4th April 2025.*** 9. The Plaintiffs/Respondents in their submissions rebutted the argument advanced by the Applicant by submitting that ***Kericho ELC No. 1993,*** concerned the alleged failure by ***Rigogo Chonjo Company Limited*** to fully pay the purchase price agreed upon with the late ***Ole Pushati***. They further argued that the present suit challenges the fraudulent alteration of the Land Register, and ***cancellation*** of the Respondents’ titles of the ***58 parcels*** of land namely **Narok/Cis-Mara/Ololunga/1904-1961’.** 10. Further, the Plaintiffs/Respondents argued that the parties in the two suits are different, as the former proceedings were between ***Ole Pushati and Rigogo Chonjo Company Limited*** while the present one is against ***David Kapolonto Shunkur*** personally, and the ***Land Registrar Narok,*** and that the subject matter is different since the current suit concerns land parcels numbers ***Narok/Cis-Mara/Ololunga/1904-1961.*** 11. The court has considered ***Section 7*** of the ***Civil Procedure Act*** which states 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.”*** 1. From the above provisions of law, the ingredients of **res judicata**are; firstly, that the issue in dispute in the former suit between the parties must be directly or substantially be in dispute between the parties in the suit where the **doctrine** is pleaded as a bar. Secondly, that the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title and lastly that the court or tribunal before which the former suit was litigated was competent and determined the suit finally. see the case of **Independent Electoral and Boundaries Commission v Kiai & 5 others [2017]**. 2. The Court of Appeal rendered itself in the case of **John Florence Maritime Services Ltd & another v Cabinet Secretary for Transport and Infrastructure & 3 others (Civil Appeal 42 of 2014) [2015] KECA 472 (KLR) (31 July 2015) (Judgement)** as follows: ***“The doctrine of*res judicata*has two main dimensions: cause of action*resjudicata*and issue*res judicata*.*Res judicata*based on a cause of action, arises where the cause of action in the latter proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. Cause of action*res judicata*extends to a point which might have been made but was not raised and decided in the earlier proceedings.”*** 1. The Court has considered the above decision, and while applying the holding thereon to the present case, by just looking at the caption of the judgment in ***Kericho Civil Suit No. 9 of 1993,*** as annexed by the 1st Defendant/ Applicant at **paragraph 5 of his Supporting Affidavit marked DKS1**, it is clear that the 1st Plaintiff is one ***Pushati Ole Shungur*** and the 2nd Plaintiff is the 1st Defendant/ Applicant herein. The Defendants are ***Rigogo Chonjo Framers Co. LTD and Chepnyaliliet Self Help Group.*** 2. While considering the above caption alone, it is clear that the Plaintiff herein participated as a 2nd Defendant, while the 1st Defendant Applicant herein participated as a 2nd Plaintiff. 3. The only difference in the present matter is that the custodians/trustees or parties suing on behalf of the Plaintiffs are different. Further, the plaintiffs/Respondent omitted ***Pushati Ole*** ***Shungur(deceased,***) and merely included the ***Land Registrar Narok*** ***County*** in the present matter. This does not change the fact that the parties remain the same in ***Kericho Civil Suit No. 9 of 1993 and Civil Appeal No. 223 of 2014*** as seen from the Applicant’s annextures ***DKSI and DKS2*.** 4. This Court concurs with the holding in the case of ***Gandhi v Director of Public Prosecutions & 3 Others [2018] KEHC 6100 (KLR)*** where ***Mativo J*** stated thus: [Para 19] ***“However, it is trite that the mere addition of parties in a subsequent suit or omission of a party or party's as has happened in this case does not necessarily render the doctrine of res judicata inapplicable since a party cannot escape the said doctrine by simply undertaking a cosmetic surgery to his pleadings. If the added parties peg their claim under the same title as the parties in the earlier suit, the doctrine will still be invoked since the addition of the party would in that case be for the sole purpose of decoration and dressing and nothing else.”*** 1. Being persuaded as above, this court finds and holds, that the parties **in *Kericho Civil Suit No. 9 of 1993,*** and the parties in the present suit are, for all material purposes, the same. The Plaintiff's attempt to alter the description or composition of the parties is merely cosmetic, and appears calculated to circumvent the doctrine of res judicata. Such superficial modifications cannot disguise the identity of the parties or defeat the application of that doctrine. 2. The second limb is whether both cases concern the same subject matter. As it is, the Plaintiffs/Respondents argued and submitted that the subject matter herein are land parcels No. ***Narok/Cis/Mara/Ololunga 1904-1961,*** being subdivisions of **L.R *NO. NAROK CIS- MARA/OLUOLUNGA/134,*** and therefore the subject matter is different from the previous suits. 3. However, this court has considered everything in totality and the fact that ***L.R. No. Narok/Cis-Mara/Ololunga/134,*** was subsequently subdivided to create ***Land Parcel Nos. Narok/Cis-Mara/Ololunga/1904–1961,*** does not alter the identity of the subject matter for purposes of the doctrine of res judicata. The subdivisions derive their existence and title from the parent parcel of land, and the mere fragmentation of the original land into several resultant parcels of land, cannot be invoked to defeat the application of the doctrine. 4. Whether the parent parcel of land has been subdivided once or several times is of no legal consequence. The dispute in both the previous suit and the present proceedings ultimately revolves around the same original parcel of land, being ***Narok/Cis Mara/Ololunga/134,*** and the rights flowing therefrom. Accordingly, this court finds and holds that the subject matter in both suits is substantially one and the same. 5. The next essential consideration is whether the issues in dispute were heard and finally determined in the previous proceedings. The Plaintiffs/Respondents contend that ***Kericho High Court Civil Suit* *No. 9 of 1993,*** was confined to the question of purchasers' rights, whereas the present suit raises the distinct issue of the 1st Defendant/ Applicant's alleged ***fraudulent subdivision*** of the suit property. However, this court is not persuaded by that distinction. 6. A careful examination of the pleadings, the judgment delivered on ***26th June 2014,*** in ***Kericho High Court Civil Suit No. 9 of* *1993,*** and the parties' respective written submissions demonstrate that the issues now raised either were directly in issue or ought properly to have been raised in the earlier proceedings. 7. In the earlier suit ***Pushati Ole Shughur*** and ***David Kapolonto Shunkur,*** the Applicant herein, sued ***Rigogo Chonjo Farmers Co. Ltd*** and ***Chepnyaliliet,*** the Plaintiffs/Respondents herein. The dispute arose from the intended sale of the suit property by ***Pushati Ole Shughur*** to ***Rigogo Chonjo Farmers Co. Ltd.*** 8. In the Kericho High Court case, the Court found that although ***Pushati Ole Shughur***, had received part of the purchase price, the transaction was never completed, and no written agreement for sale, as required by law, had been executed. Notwithstanding those shortcomings, ***Rigogo Chonjo Farmers Co. Ltd*** proceeded to procure registration of the suit property in its favour before subsequently transferring it to the Plaintiffs/Respondents herein. The Court held that those transactions were irregular, unlawful and incapable of conferring a valid title. It further found that ***Rigogo Chonjo Farmers Co. Ltd*** acquired no lawful interest in the property and, consequently, could not pass a valid title to the Plaintiffs/Respondents. 9. Further, the Kericho High Court also found that the transfer to the Plaintiffs/Respondents was tainted by fraud, and effected in contravention of an existing prohibitory order. Consequently, the Court ordered the ***rectification*** of the Land Register by restoring the property to the names of the late ***Pushati Ole Shughur,*** and the 1st Defendant/Applicant herein. 10. Therefore, it is beyond any dispute that the issue of proprietorship over the suit property ***was conclusively*** determined in the previous proceedings. Indeed, the Court expressly found that the Respondent's claim to title was founded on fraudulent and unlawful transactions. *That determination remains valid and binding unless and until it is set aside by a court of competent appellate jurisdiction.* 11. The Plaintiffs/Respondents cannot circumvent that judgment by recasting the dispute under a different cause of action or by instituting fresh proceedings founded upon the same factual matrix. Such an approach amounts to an impermissible ***attempt to re-open*** issues that have already been finally adjudicated upon. See the case of ***Mwikali and Another vs Mutungi & 3 Others (2016) KECA 231 (KLR)*** and ***Dokhole and another vs Usinfecha and 5 Others (2025) KEELC 3266(KLR),*** where the court held that courts must remain vigilant against litigants who add new parties to escape ***res judicata***. 12. Having found that the issues raised in the present suit are the same issued raised in the previous suit, which was determined by a court of competent jurisdiction, it is clear that the Plaintiffs/ Respondents have no sustainable claim against the 1st Defendant/Applicant in respect of the suit property. 13. Further, the Plaintiffs/Respondents Appeal was dismissed by the Court of Appeal on ***27th March 2019,*** as evidenced by the 1st Defendant/Applicant’s annexure **DKS2,** being the Court of Appeal’s judgment. The Respondent’s remedy therefore lies at the ***Supreme Court of Kenya,*** and not this court. This court cannot entertain a matter that has already been determined by a Superior Court, and in this instance the Court of Appeal at Nakuru. 14. The next issue is whether the High Court in Kericho had jurisdiction to handle the matter in dispute. Prior to the promulgation of the Constitution of Kenya, 2010, disputes relating to land were instituted before the courts of competent jurisdiction, the choice of forum being determined by the pecuniary value of the subject matter and the applicable territorial jurisdiction. At the material time in ***1993,*** the ***High Court at Kericho*** was properly seized of jurisdiction to determine the dispute between the parties. 15. The constitutional dispensation ushered in by the Constitution of Kenya, 2010 subsequently established the Environment and Land Court as a superior court of record with specialized jurisdiction over disputes relating to the environment and the use, occupation of, and title to land, pursuant to Article 162(2)(b) of the Constitution and as operationalized under Section 13 of the Environment and Land Court Act. The creation of that specialized court did not retrospectively divest the High Court of the jurisdiction it validly exercised before the ***Constitution 2010*** came into force. 16. Accordingly, this court finds and holds that the *High Court at Kericho was a court of competent jurisdiction to hear and determine the dispute as it then stood.* This Court, being a court of equal status, cannot be converted into a forum for relitigating issues that were conclusively determined by a court of competent jurisdiction, nor can it purport to sit on ***appeal over the decision of a court of concurrent*** jurisdiction. To countenance such an approach would offend the doctrine of res judicata and undermine the cardinal principle of finality in litigation. 17. The last issue is whether the present matter is ***sub judice.*** **Section 6 of the Civil Procedure Act** states that: ***“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. The 1st Defendant/Applicant submitted that following the dismissal of ***Civil Appeal No. 24 of 2014,*** and the recall of the erroneously drawn decree in ***Civil Application No. 13 of 2010,*** by the Court of Appeal, the Plaintiffs/Respondents instituted ***Nakuru Civil Application No. 223 of 2014,*** through an application dated ***23rd October 2023,*** seeking a review of the judgment of the Court of Appeal. 2. Significantly, the Plaintiffs/Respondents did not deny that the said application was filed, or that it remained pending at the time the present suit was instituted. Rather, the Plaintiff/ Respondent contended and argued that the application for review was overtaken by events after ***Rigogo Chonjo Farmers Co. Ltd,*** allegedly took lawful possession of the suit property and procured its registration in its favour. 3. That explanation does not answer the issue before this Court. The Plaintiffs/Respondents have failed to disclose the fate of the application for review, including whether it was heard and determined, withdrawn, or remains pending. No material has been placed before this Court to demonstrate that the said application had been conclusively disposed of before the institution of these proceedings. The Plaintiffs/Respondents silence on this crucial issue is telling. 4. The inevitable inference is that, at the time this suit was commenced, the application for review before the Court of Appeal and the present proceedings were simultaneously pending, and both sought reliefs whose ultimate effect was to determine or vindicate the Respondents claim to title over the suit property. Such parallel proceedings offend the doctrine of **sub judice,** whose very purpose is to prevent the concurrent litigation of substantially the same issues before courts of competent jurisdiction, thereby avoiding the risk of conflicting decisions and an abuse of the court process. 5. Accordingly, this court finds ***merit*** in the 1st Defendant/ Applicant's contention that, at the time of its institution, the present suit was caught by the doctrine of sub judice. 6. ***Who bears the costs of these proceedings?*** 7. **Section 27(1) of the Civil Procedure Act** states that provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. Bearing in mind the above provisions of law, and given that the 1st Defendant/Applicant is the successful litigant, then he deserves costs of these proceedings. 8. Having considered the instant ***Notice of Motion*** application, and the rival written submissions, and the relevant provisions of law, this court finds and holds that the application dated ***21st November 2025,*** is ***merited,*** and accordingly, the same is hereby allowed entirely with costs to the 1st Defendant/Applicant. 9. For the above reasons the Plaintiffs/Respondents are declared ***frivolous litigants***, and being ***in abuse of the Court process*** for filing multiplicity of suits, while still litigating before the Court of Appeal in ***NAKURU.*** For avoidance of doubt, the entire suit herein is ***struck out*** with costs to the 1st Defendant/Applicant. ***It is so Ordered.*** ***Dated, Signed and Delivered virtually, this 6th day of August 2026.*** ***L. GACHERU*** ***JUDGE*.** ***06/08/2026*** ***Delivered online in the presence of:*** ***Boniface Maluki – Court Assistant*** ***Ms Njeri Njagua for the Plaintiff/Respondent*** ***Mr. Mokua for the 1st Defendant/Applicant*** ***No appearance for 2nd Defendant*** ***L. GACHERU*** ***JUDGE*.** ***06/08/2026***