Kipkirwa v Mele alias Kibet A Meli alias Kibet Mell (Enviromental and Land Originating Summons E017 of 2026) [2026] KEELC 5375 (KLR) (31 August 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT KAPSABET** **ELCLOS NO. E017 OF 2026** **LAZARUS KIRUI KIPKIRWA………………………………………...APPLICANT** **VERSUS** **KIBET ARAP MELE ALIAS KIBET A. MELI ALIAS KIBET MELL………………………………………………………………..RESPONDENT** **RULING** 1. The Respondent through Isiaho Sawe and Company Advocates filed the preliminary objection dated 13th July 2026 to the suit herein on the grounds that; 2. The suit herein is re judicata in view of the judgment dated 13th May 2025 delivered in Eldoret Environment and Land Court case number 598 of 2012 formerly Eldoret High Court Civil Suit No. 33 of 2010. It therefore contravenes the mandatory provisions of section 7 of the Civil Procedure Act Chapter 21 Laws of Kenya (The CPA herein). 3. The suit herein is sub judice the appeal lodged by the applicant against the ruling of **Jane Onyango, J delivered on 22nd April 2026.** 4. The Judgment/Decree delivered on 27th September 2006 and its subsequent **decree issued on 28th September 2006 in Kapsabet Principal Magistrate’s Court Civil suit number 400 of 2006** contravenes the mandatory provisions of **section 4 (4) of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya** (The LAA herein) for want of execution. 5. For the foregoing reasons, the suit is frivolous, vexatious and amounts to an abuse of the due process of this court hence the same ought to be struck out. 6. The applicant namely Lazarus Kirui Kipkirwa through Kipruto Mabalu Advocates generated the suit by way of an originating Summons dated 9th June 2026 under sections 17 and 18 of the LAA and Article 40 of the Constitution of Kenya 2010, among others, seeking orders, inter alia; 7. A declaration that the applicant is the lawful purchaser and beneficial owner of 9.2 acres comprised in land parcel number **Nandi/Cheptil/105** (The suit property herein) and/or its resultant subdivisions. 8. A declaration that upon purchase and payment of the full purchase price, the applicant took actual and physical possession of approximately 3.723 hectares being nine 9.2 acres in the suit property sometime in December 2007 after evicting the respondent’s brother one Jonah Cheruiyot Melly pursuant to a court order issued on 19th December 2007 by the **KAPSABET PRINCIPAL MAGISTRATE’S COURT vide CIVIL CASE NO. 400 OF 2006.** 9. Simultaneously, the applicant filed the application dated evenly seeking principally, that pending the hearing and determination of the Originating Summons, this Honourable Court be pleased to order the current status quo on the ground be maintained. In particular that the Respondent, his servants, agents or anyone acting on his behalf shall not enter the applicant’s approximately 3.723 hectares (9.2 acres) comprised in the suit property and/or its resultant subdivisions or cut trees, clear vegetation, sell, transfer, sub divide, damage, interfere with, or in any way alter the applicant’s occupation, possession and use of the portion of the land. 10. The respondent opposed the originating summons by way of the replying affidavit of Thirty Eight paragraphs sworn on 10th July 2026. He averred inter alia, that he is the legal owner of the suit property originally measuring approximately 21.5 acres having been registered on 17th September 1969 after purchasing the same for valuable consideration from one **Kipruto Arap Kogo** as revealed in the green card (KM 1) annexed to the affidavit. That in the year 2009, he discovered that the said land had been irregularly sub divided into **LR Numbers Nandi/Cheptil/479 to 482** without his knowledge by one **Irene Rop** who registered herself as proprietor of a sub division, **LR No. Nandi/Cheptil/480** and refused to return the illegal title thereof. That the respondent sued her in Eldoret ELCC No. 598 of 2012 formerly Eldoret High Court Civil Suit Number 33 of 2010 as per the plaint (KM4) annexed to the affidavit and judgement delivered on 13th May 2025 therein. That therefore, the applicants are attempting to deny him the fruits of the judgment. 11. Further, by his replying affidavit of thirteen paragraphs sworn on 20th August 2026, the respondent opposed the application. He averred in part, that in light of a valid judgment delivered by a court of concurrent jurisdiction on 13th May 2025 in Eldoret ELC Case number 598 of 2012, this court cannot sit on appeal over the said decision. 12. The preliminary objection was heard by way of written submissions pursuant to the directions of the court given on 18th August 2026 as envisioned under Article 159 (2) (b) of the Constitution of Kenya 2010 and section 3 of the Environment and Land Court Act 2015 (2011). 13. In the submissions dated 20th August 2026, learned counsel for the respondent set out brief facts of the case including the suit namely Eldoret ELCC No. 598 of 2012 formerly Eldoret High Court Civil Case No. 33 of 2010 by the respondent against the applicant’s estranged wife, Rose Rop over **LR No. Nandi/Cheptil/480** a subdivision of **LR No. Nandi/Cheptil/105**. That the court delivered Judgment and subsequent ruling which provoked an appeal which is currently pending. Counsel was of the position that that the issue for determination is whether the preliminary objection as drawn qualifies as such in light of the landmark decision in the case of Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors (1969) EA 696 and the nature, formulation and service of the preliminary points of law as noted in **Bashir Haji Abdullahi vs Adan Mohammed Nooru & 3 others (2004) eKLR.** 14. Further, it was submitted that the suit is res judicata pursuant to section 7 of **the CPA** as it is premised on the Judgment delivered on 27th September 20o6 and its subsequent decree issued on 28th September 2006 in Kapsabet Principal Magistrate’s Court Civil Suit number 400 of 2006. That the applicant failed to enforce or execute the decree hence, the judgment suffers from laches doctrine. That on that score, the suit contravenes section 4 (4) of the **LAA** that an action cannot be brought upon a judgment after 12 years from the date it was delivered and that arrears of interest on a judgment debt cannot be recovered after six years. That the suit is **sub judice** from the perusal of annexture (KM-10)’ to the replying affidavit in opposition to the Originating Summons thus it is not in dispute that the applicant has lodged an appeal against the dismissal of his application dated 25th October 2024 and that the appeal is yet to be heard and determined. 15. Furthermore, it was submitted that the suit is frivolous as it lacks any serious legal or factual basis. That the suit is also vexatious as it is brought primarily to harass, annoy or financially drain the opponent namely the respondent herein. That the issue of ownership has been determined by a court of competent jurisdiction, the applicant having been aware of the proceedings and participated in the same and an appeal still pending determination hence, the suit is an abuse of the court process. That therefore, the preliminary objection is meritorious and that it be upheld with costs to be borne by the applicant. 16. By the submissions dated 26th August 2026, learned counsel for the applicants referred to the parties’ respective cases as captured in the Originating Summons alongside the application, the replying affidavit to the Originating Summons, Judgment delivered on 27th September 2006 in Kapsabet PMCC No. 400 of 2006, the Judgment delivered on 13th May 2025 and the ruling delivered on 22nd April 2026 in Eldoret Environment and Land Court case number 598 of 2012 and that there is the appeal therefrom pursuant to the Notice of Appeal dated 7th February 2025 therein. Counsel identified four issues for determination which include whether the present suit is res judicata and sub judice as raised in the preliminary objection. The analysis of the issues is in the negative in view of sections 6 and 7 of the CPA. 17. Also, it was submitted that the applicant was the interested party while the respondent herein was the respondent in Eldoret ELCC No. 578 of 2012 where judgment was delivered in favour of the respondent. That the notice of preliminary objection is without merit and should fail with costs to the applicant pursuant to section 27 of the CPA. Reliance was made on the case of **M’Ikiara M’rinkanya & another vs Gilbert Kabeere M’mbijiwe {2007} eKLR** cited in J**ames Maina Kinya vs Gerald Kwendaka {2018] KEELC 3155 (KLR)** on enforcement of judgment and 12 years timeframe and the case of **Ngovi (Suing as GuardianAd Litem for the Estate of EstherWairimu) vs Muchiri (Sued as the Administrator of the Estate of Joseph Muchiri Muriuki) (20250 KEELC 4195 (KLR)** to fortify the submissions. 18. In that regard, the issues for determination boil down to whether the preliminary objection is tenable founded upon res judicata and sub judice, among other grounds stated on its face. 19. It is noteworthy that the principle of Re Judicata is founded upon **section 7 of the Civil Procedure Act (Cap 21 Laws of Kenya** which provides that courts cannot try any new suit or issue that has already been decided in a previous suit. The key elements of the principle are; the same matter, same parties, same title, competent court entertained the matter and there is a final decision or judgment on the same; see also **Black’s Law Dictionary 10th Edition at page 1504.** 20. This Honourable court subscribes to the case of **PIL Kenya Limited vs Oppong (2009) KLR at 494 where** the Court of Appeal observed; *‘……It is also clear that the issues were between the same parties or parties litigating under the same title. Consequently HCCC No. 446 of 2001 was clearly res judicata. Alternatively, ……….caught by judicial estoppel…….…the earlier case is deemed to have dealt with all the critical issues. The suit ……..was therefore not sustainable in law…..dismissed on this ground…..’* 1. Clearly, the applicant herein was the interested party and the respondent herein was also the respondent in Eldoret ELCC No.598 of 2012. That judgment was entered in favour of the respondent therein. That the claim related to title in respect of the suit property and its sub division 2. On that score, the cardinal principle is that litigation has to come to an end; see **Halsburys’ Laws of England 4th Edition Volume 22 at page 273.** 3. Concerning sub judice principle, it is rooted in **Section 6 of the CPA.** The key elements are related to res judicata save that the matter is active or pending before a court for determination. 4. The revelation herein is that a ruling was delivered in Eldoret ELCC No. 598 of 2012 in the presence of Mr. Kiboi learned counsel for the applicant and Ms Isiaho learned counsel for the respondent. An appeal is pending therefrom. 5. As regards section 4 (4) of the LAA, an action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered or where the judgment or a subsequent order directs any payment or debt. Judgment was delivered on 27th Sept 20026 against defendant who is the respondent, Jonah Meli in favour of the plaintiff, Lazarus Kipkirwa who is the applicant herein. So, any arrears of interest on the judgment debt as sought on the face of the Originating Summons cannot be recovered in view of the lapsed time frame. 6. It is established law that courts have to guard their processes against simultaneous, vexatious or improper litigation tactics; see **Energy Regulatory Commission vs John Sigura Otido {2021} KECA 1060 (KLR).** 7. Multiple simultaneous suits duly filed before different forums and such incompetent sub judice matters, amount to abuse of the due process of the court. It is crystal clear that the instant suit is frivolous, vexatious, an abuse of the court process and must fail in order to protect the administration of justice. 8. The present preliminary objection contains points of law, inter alia, res judicata and sub judice, which are prima facie on the parties’ respective pleadings. In the case of **Aviation & Allied Workers Union Kenya versus Kenya Airways Ltd & 3 others (Application 50 of 2014) [2015] KESC 23 (KLR),** the Supreme Court of Kenya noted; *“to discern such a point of law, the Court has to be satisfied that (…) the* ***facts are deemed agreed, as they are prima facie presented in the pleadings on record*** *(emphasis added). “* 1. It is the considered view of this Honourable Court that the preliminary objection meets the threshold in **Mukisa Bisquit case** (supra) where the Court of Appeal observed; “*A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.”* 1. The final upshot is that the preliminary objection dated 13th July 2026 is upheld accordingly. The instant suit is not sustainable in law and the same is hereby dismissed in entirety with costs to the respondent. 2. It is so ordered. **Dated** and **Delivered Virtually** this **31st day of August 2026** **HON. G M A ONGONDO** **JUDGE** **In the presence of;** 1. Ms Mabalu learned counsel for the applicant 2. Ms L. Isiaho learned counsel for the respondent 3. Mr Kariuki, Court Assistant