https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4779

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT KAPSABET** **ELCL OS NO. E009 OF 2026** **​CHRISTINE CHEMOSBEI CHERUS .................PLAINTIFF/RESPONDENT** **JOSEPH KIPLETING KOSGEI ..........................PLAINTIFF/RESPONDENT** **ELIUD LEL ....................................................PLAINTIFF/RESPONDENT** **JULIUS KIPTOO SAINA .................................PLAINTIFF/RESPONDENT** **​VERSUS** **​JENIFFER JELAGAT CHOGE (Being sued as the administrator of the Estate of the late Taprogoei W/O Mutwal Alias Jepkemboi Mutwol being the Administrator of the Estate of the late Kipchoge Arap Mutwol) ...................................................................... DEFENDANT/APPLICANT** **RULING** 1. The defendant/respondent through Cheruiyot Lagat and Partners Advocates filed a preliminary objection dated 24th April 2026, seeking to have this suit struck out on seven grounds, inter alia; 2. ​That the suit is *sub judice* and offends the mandatory provisions of **Section 6 of the Civil Procedure Act (Cap 21, Laws of Kenya);** there being a previously instituted and currently pending suit between the same parties (and/or persons litigating under the same title and interest) over the same suit land, namely **Kapsabet ELC O.S. No. E007 of 2025 (Paulina Cheptanui Buses vs Jeniffer Jelagat Choge),** in which the Plaintiff therein seeks adverse possession over the very same parcel **Nandi/Ndalat/281**, over the very same alleged 9.5 acres, founded on the very same alleged 1968 transaction, the said pending suit being directly and substantially in issue with the matter herein. 3. ​That the suit is *res judicata*, or in the alternative constructively *res judicata*, and an abuse of the process of this Honourable Court by virtue of **Section 7 of the Civil Procedure Act (Cap 21, Laws of Kenya)**; the subject matter herein, namely the claim by the Plaintiffs and/or persons litigating under the same family interest to a portion measuring 9.5 acres of land parcel **Nandi/Ndalat/281** premised on an alleged 1968 transaction, having been previously litigated, heard and finally determined between persons litigating under the same title and interest as the present Plaintiffs and over the same suit land in **Kabiyet Principal Magistrate's Court ELC Case No. E005 of 2024** (struck out with costs by Hon. B. Bartoo (PM) on 29th August 2024) and the resultant **Kapsabet ELC Appeal No. ELCLA E010 of 2024** (dismissed with costs by this Honourable Court on 21st January 2026), neither of which decisions has been appealed against, reviewed or otherwise impeached, and the present Plaintiffs being matters which ought to have been raised in the said earlier proceedings. 4. That the suit as framed is a vexatious, calculated and impermissible attempt to relitigate a settled controversy and to circumvent the pending **Kapsabet ELC O.S. No. E007 of 2025** through changing fronts and shifting procedural devices, and this Honourable Court is invited to strike it out in *limine* with costs to the Defendant/Applicant. 5. It is notable that the plaintiffs through Rotich, Langat and Partners Advocates, originated this suit by an originating summons dated 17th March 2026 against the defendant claiming to have acquired an interest in land parcel number **Nandi/Ndalat/281, *the suit property herein*.** 6. The defendant/respondent opposed the originating summons by a replying affidavit of 68 paragraphs sworn on 7th April 2026, and is seeking that the same be struck out on the strength that the plaintiffs/applicants are trespassers thereon. 7. Learned counsel for the defendant and learned counsel for the Plaintiffs filed submissions dated 3rd June 2026 and 16th June 2026 respectively. In the rival submissions, reliance was made on Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd (1969) EA 696, among other authoritative pronouncements and Kapsabet ELCOS NO. E007 of 2025 set for 23rd September 2026 as its next activity date, prominently featured therein. 8. It is crystal clear that issues inclusive of sub judice are raised on the face of the two suits which are related and can be evaluated together; see also **Saleh vs Osano & another (2025) eKLR.** 9. The two suits share the same foundation relating to the suit property, parties and challenge based on res judicata and sub judice. Bearing in mind Mukisa Biscuit case (supra) and to maintain consistent outcomes, both suits can be handled together essentially to accomplish the same goal. 10. The possible hearing together of the related preliminary objections in the two matters is a procedural tool tied to the existence of proceedings even noted in matters of joinder. It is designed to enable the court to determine fully the questions in dispute, by bringing before it all those whose participation is necessary to that end; see **Everton Coal Enterprises Ltd vs Karanja & 5 others {2023} KESC 98 (KLR)** 11. The issues contained in the pending preliminary objections in both suits can be heard together or managed jointly taking into account judicial economy including streamlining judicial time, case management and prevention of conflicting decisions. This is in consonant with sections 1A, 1B 3 and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya, sections 3 and 19 of the Environment and Land Court Act 2015 (2011) and Order 11 of the Civil Procedure Rules 2010 which envision that two or more related suits can be heard together for fair, just and expeditious disposal of the same. 12. Wherefore, I hereby direct that this suit inclusive of the preliminary objection dated 24th April 2026 be handled alongside or together with **Kapsabet ELC O.S. No. E007 of 2025; Paulina Cheptanui Buses vs Jeniffer Jelagat Choge** on 23rd September 2026 in the best interest of justice and counsel for the respective parties be notified accordingly. 13. It is so ordered. **Dated** and **Delivered** at **Kapsabet** this **22nd day of July 2026.** **HON. G M A ONGONDO** **JUDGE** **In the presence of;** Mr. Walter Kipkorir, Court Assistant