https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4460

Roge v Rotich & 3 others (Environment and Land Case E019 of 2024) [2026] KEELC 4460 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELC 4460 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Environment and Land Case E019 of 2024 CK Yano, J July 16, 2026 Between John Muhia Roge Plaintiff and Ezekiel Kipchirchir Rotich 1st Defendant Beatrice Jeruiyot Sawe 2nd Defendant Twiga Camp And Resort Limited 3rd Defendant Geofrey Keter 4th Defendant Ruling 1.The 4th Defendant moved this Court by way of Notice of Motion dated 17th April, 2026 seeking the following two orders:1.That the court be pleased to declare that the instant suit before this Honourable Court is Res judicata in that a suit over the subject matter herein and being Parcel No. Eldoret Municipality Block 14/1517 was heard and determined before the Environment and Land Court in Eldoret ELC Case No. E13 of 2019.2.That the suit be struck out.3.That the Costs of the suit be borne by the Plaintiff/Respondent. 2.The said prayers are premised on the grounds set out in the Motion as well as the 4th Defendant’s Supporting Affidavit of the same date. The 4th Defendant deponed that the suit herein is an abuse of court process and a waste of judicial time and resources. He faulted the Plaintiff for failing to disclose to the court that a previous suit, being ELC Case No. E13 of 2019 was heard and determined before the Environment and Land Court in Eldoret. According to the 4th Defendant, the Plaintiff in the previous suit is the same as the Plaintiff in this suit, whereas the Defendants are different. 3.The 4th Defendant also claims that the cause of action, issues for determination and prayers sought in this suit are the same as those sought, heard and determined in Eldoret ELC Case No. E13 of 2019. That moreover, the substance in issue in the instant suit were also directly and substantially in issue in the previous suit. The 4th Defendant deponed that in the previous suit, the Court gave the Plaintiff timelines for compliance with respect to orders granted therein, which are similar to those in this suit, and there is no proof of compliance therewith. He adds that the facts and legal issues to be proved and determined are the same. 4.Upon service of the Motion, the Plaintiff responded through a Replying Affidavit sworn on 23rd April, 2026. He termed the present application fatally defective, frivolous, vexatious, scandalous and an abuse of the court process as it raises no triable issues, and asked that it be dismissed in limine. He deponed that the Application did not meet the threshold of res judicata. The Plaintiff averred that the instant suit raises a different cause of action with what he had raised in Eldoret ELC Case No. E13 of 2019. The Plaintiff pointed out that this court already dealt with the issue of similarity of causes of action between this instant suit and Eldoret ELC Case No. E13 of 2019 in its ruling of 13.03.2025. Submissions: 5.When the matter was mentioned on 21st April, 2026, this court directed that the application be canvassed by way of written submission. The Court invited the parties to file their written submissions thereto. The 4th Defendant’s Submissions; 6.The 4th Defendant filed written submissions dated 15th May, 2026 in support of his application. In the said submissions, Counsel for the 4th Defendant submitted that the principle of res judicata promotes an end to litigation by preventing pleaders from filing multiple suits seeking a favourable outcome by merely adding parties or other causes of action. Counsel submitted that the Plaintiff did not disclose to the court that there was a previous suit over the same parcel of land that was heard and determined by a court of competent jurisdiction. Counsel argued that the substance in issue in this instant suit was directly and substantially in issue in the previous suit, as were the issues for determination and the prayers sought. 7.Counsel cited Section 7 of the Civil Procedure Act, and in particular, Explanation 4 thereunder, and argued that the cause of action herein should have been made a ground of attack in the previous suit, but this was not done. Counsel argued that the facts in this case, are the same ones relied on in the previous suit. Counsel claimed that the Plaintiff had crafted the present suit to seem different, yet the matters herein ought to have been raised in the previous suit. Counsel submitted that the present suit is res judicata, hence incompetent and fatally defective, and this court ought not to entertain it. 8.Counsel argued that the Plaintiff has not disclosed to this court whether he complied with the orders and timelines previously issued by the court. Counsel accused the Plaintiff of seeking similar orders as in the previous suit, by misleading this court through introduction of new parties and causes of action. Counsel asked the court to uphold the preliminary objection and strike out the suit with costs to the 4th Defendant/Applicant. In support of his submissions, Counsel cited the cases of Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696, Diocese of Eldoret Trustees (Registered) vs Attorney General (on behalf of Principal Secretary Treasury & Another (2020) eKLR and ET vs Attorney General & Another (2012) eKLR. The Plaintiff’s Submissions; 9.The Plaintiff’s submissions opposing the application are dated 23rd April, 2026. Counsel similarly cited Section 7 of the Civil Procedure Act as the law pertaining to res judicata. Counsel further cited the cases of Invesco Insurance Company limited & 2 Others vs Auctioneers Licensing Board & Another; Kinyanjui Njuguna & Company Advocates & Another (Interested Parties) (2020) eKLR and Kenya Commercial Bank Limited vs Benjoh Amalgamated Ltd (2017) eKLR as setting out the requirements for one to satisfy the doctrine of res judicata. 10.Counsel for the Plaintiff submitted that Eldoret ELC Case No. E13 of 2019 was between John Muhia Roge, and David Songok, Teresia Kemboi and County Government of Uasin Gishu. That in that suit, the cause of action was that the Defendants had trespassed onto the suit land, pulled own/flattened all his structures and chased away the Plaintiff’s tenants. Counsel for the Plaintiff submits that in this present suit, the Defendants are Ezekiel Kipchirchir Rotich, Beatrice Sawe, Twiga Camp and Resort Limited and Geofrey Keter. That the cause of action herein is that the said Defendants secretly moved and subdivided his parcel of land known as Eldoret Municipality/Block 14/1517, creating parcel nos. 2937, 2938, 2940, 2941, 2942, 2943, 2944, 2945 and 2946. 11.Counsel claimed that these are two separate causes of action, and the Defendants are also different and not claiming under those in the previous suit. Counsel asserts that for the above reasons, the present suit cannot be res judicata. Counsel pointed out that the difference in cause of action was correctly observed by this court in its ruling delivered on 13th March, 2025. Based on the foregoing, Counsel for the Plaintiff submitted that the instant suit is not res judicata. Counsel submitted that the 4th Defendant’s application lacks merit and asked that it be dismissed with costs. Analysis and Determination: 12.Having considered the application, the replying affidavit, the submissions of the parties and authorities cited thereunder, I am convinced that the following two issues arise for determination:-i.Whether the present suit is res judicata Eldoret ELC Case No. E013 of 2019 and ought to be struck out;ii.Who shall bear the costs of this application? Whether the present suit is res judicata Eldoret ELC Case No. E013 of 2019 and ought to be struck out; 13.It is a core principle of our jurisdiction that a person may not commence more than one action in respect of the same or a substantially similar cause of action. This principle is what forms the basis for the application of the doctrine of res judicata. The doctrine is extensively codified under Section 7 of the Civil Procedure Act, which provides as follows:-7.Res judicataNo 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.Explanation. — (1) The expression "former suit" means a suit which has been decided before the suit in question whether or not it was instituted before it.Explanation. — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.Explanation. — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. 14.The object of the doctrine of res judicata as provided for under Section 7 of the Civil Procedure Act is to bar multiplicity of suits and guarantee finality to litigation. It makes a final judgement between the same parties or their privies on the same issue by a court of competent jurisdiction in the subject matter of the suit conclusive and binding. 15.The rationale of the doctrine of res judicata was laid down by the Court of Appeal in the decision of Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others (2017) eKLR, as follows:-“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.” 16.Therefore, for a party to invoke or rely on the defence of res judicata, they must demonstrate the following:-i.The cause of action or issue was directly and substantially in issue in the former suit.ii.That former suit was between the same parties or parties under whom they or any of them claim, or those parties were litigating under the same title.iii.The issue was heard and finally determined in the former suit.iv.The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised. 17.There is no doubt that there exists a former suit, being Eldoret ELC Case No. E013 of 2019. The said suit was determined through a judgment delivered on 29th January, 2025 by the Environment and Land Court at Eldoret, which court had the requisite jurisdiction to hear and determine the matter. This therefore fully settles requirements (iii) and (iv) above. 18.What is left for this court to determine, therefore, is whether the cause of action or issues raised and determined in the former suit, are directly and substantially in issue in the former suit, and whether parties in the two suits are similar. 19.The 4th Defendant claims that the cause of action as well as the issues raised in the instant suit are similar to those raised and determined in Eldoret ELC Case No. E013 of 2019. The 4th Defendant has also claimed that even the prayers sought by the Plaintiff in the two suits are also similar. The 4th Defendant has annexed to his Supporting Affidavit a copy of the decree issued in Eldoret ELC Case No. E013 of 2019 and the Plaint filed in this suit as proof of his allegations. 20.Notably, the subject matter in the two suits is the same as they both relate to the parcel of land known as Eldoret Municipality/Block 14/1517. Nevertheless, the Plaintiff has denied the 4th Defendant’s allegations on the alleged similarities of the cause of action and issues in the two suits. The Plaintiff maintains that the cause of action in the previous suit was trespass, while in this suit, the cause of action is the alleged secret subdivision of his land known as Eldoret Municipality/Block 14/1517, to create parcel nos. 2937, 2938, 2940, 2941, 2942, 2943, 2944, 2945 and 2946. 21.I have taken time to read the Plaint and Amended Plaint filed in Eldoret ELC Case No. E013 of 2019 and also compared it with the Plaint filed herein. It is my finding that indeed, the suit known as ELC Case No. E013 of 2019 arose out of the then Defendant’s acts of trespassing into the Plaintiffs land, being the suit property herein, and destroying his property in the process. The present suit on the other hand, arose out of the purported secret subdivision of the land by the Defendants herein. Pursuant to this, the Plaintiff now claims new Certificates of Leases have been issued to the Defendants herein in contravention of his rights and interests as the owner of the land. 22.The Plaintiff has pointed the court towards its ruling delivered on 13th March, 2026 and states that the court already dealt with the issue of similarity of the cause of action. I do agree with the Plaintiff on this, and note that this court did in fact deal with the issue of similarity of cause of action in its ruling delivered on 13th March, 2025 where it held as follows:-“ 31.My decision is bolstered by the fact that the Plaintiff’s rights over the suit property were already determined in Eldoret ELC No. 13 of 2019 through a judgment delivered on 29th January, 2025. Although the 4th Defendant claims that the Plaintiff is agitating his rights piecemeal, I have taken time to read the annexed Plaint, Eldoret ELC No. 13 of 2019. I note that the said suit was between the Plaintiff herein and David Songok, Teresa Kemboi and the County Government of Uasin Gishu. 32.Despite the fact that the case is over the suit property herein, it was clearly with regards to invasion by the said Defendants in that suit, which resulted in destruction of property, as opposed to the alleged attempted subdivision by the Defendants herein. Evidently, although the two suits involve the same subject matter, they arose from two very distinct causes of action. This explains why the Defendants in this case were not sued in ELC 13 of 2019. Therefore, there can be no allegation that the Plaintiff is agitating his claim piecemeal.” 23.The sentiments of this court have therefore not changed in this regard, and the finding remains that the cause of action in the two suits are very distinct. As to the allegation that the prayers in the two suits are the same, from my reading of the Decree issued in the previous suit and annexed Amended Plaint filed therein, I do find that this is incorrect. The prayers sought against the Defendants in Eldoret ELC Case No. E13 of 2019 were as follows:-a.A permanent injunction to restrain the Defendants, their agents, servants and whomsoever acts for them from interfering with land parcel Eldoret Municipality Block 14/1517.b.An order that the 2nd Defendant and her co-administrators do execute transfer of the land to the Plaintiff in default the Court execution officer to do so and have the land transferred to the Plaintiff. a declaration that the Plaintiff is the bona fide owner of that parcel of land known as Eldoret Municipality Block 14/1517 and the acts of the Defendants amount to trespass.c.General damages.d.Compensation as per clause 11A (loss and destruction of property).e.Compensation as per clause 11B (lost income).f.Costs of the suit.g.Any other relief as the Court may deem fir and just to grant. 24.Meanwhile, in this instant suit, the prayers that the Plaintiff seeks as against the Defendants herein are as follows:-a.An order of permanent injunction restraining the 1st to 4th Defendants by themselves, their agents, servants and/or whomsoever acts from them from entering, remaining in and/or interfering with the quiet possession of the Plaintiff’s parcel of land known as Eldoret Municipality/Block 14/1517.b.An order of declaration declaring the Plaintiff as the absolute owner of the whole of that parcel of land known as Eldoret Municipality/Block 14/1517.c.An order do issue directing the Land Registrar Uasin Gishu county to cancel all the certificates of lease issued to the 1st to 4th Defendants together with all instruments that were used to register the 1st to 4th Defendants as proprietors of that parcel of land known as Eldoret Municipality/Block 14/1517.d.An order do issue to Director of Survey to cancel all subdivisions Registered as a resultant of subdivision of that parcel of land known as Eldoret Municipality/Block 14/1517.e.General damages and exemplary damages.f.Costs of the suit.g.Any other further relief this Honourable court deems fit and just to grant. 25.The reliefs sought in the two suits are therefore different, especially bearing in mind that they are motivated by different circumstances and causes of action. Being that the issues in a suit arise from the pleadings and the reliefs sought therein, due to the varying and distinct causes of action and the reliefs sought in the two suits, it is clear that the issues arising in the two suits cannot be similar. Therefore, the requirement of similarity of issues and cause of action is clearly not met. 26.Turning to the element of similarity of the Parties, the Plaintiff in the present suit is John Muhia Roge. He has brought the suit in his own capacity, claiming ownership of the property known as Eldoret Municipality/Block 14/1517, the suit property herein. The Plaintiff claims that the suit property was hived off of what was known as L.R. No. 8746, which he purchased from the late Paul K. Kemboi on 23rd February, 1976, and was later issued an allotment letter Ref. No. 134568/3. 27.The same John Muhia Roge was the Plaintiff in Eldoret ELC Case No. E013 of 2019. He also sued as the owner of the parcel of land that has been described as the suit property herein. He also claimed in the previous suit that he purchased the said parcel from the late Paul K. Kemboi, and it was hived off of L.R. No. 134568/3. There is no doubt therefore, that the Plaintiffs in the two cases is one and the same person. 28.The Defendants in this suit, however, are Ezekiel Kipchirchir Rotich, Beatrice Jeruiyot Sawe, Twiga Camp & Resort Limited and Geofrey Keter. The Defendants in the previous suit were David Songok, Teresa Kemboi, who was sued as the personal representative of the estate of Paul Kemboi, and the County Government of Uasin Gishu, as well as Rodah Mweka, who was an interested party. 29.I note that the 4th Defendant accused the Plaintiff of substituting the names of the Defendants in an attempt to defeat the doctrine of res judicata. Indeed, the mere addition or substitution of parties in a subsequent suit does not necessarily render the doctrine of res judicata inapplicable. Courts have repeatedly held that a party cannot escape the said doctrine by simply undertaking a cosmetic surgery to his pleadings. 30.By virtue, Explanation 6 to Section 7 of the Civil Procedure Act, where persons litigate bona fide in respect of a public or private right claimed in common by themselves and others, all persons interested in such right shall be deemed to claim under the persons litigating. Therefore, for the doctrine to be invoked in such a case, the court must be satisfied that the added parties were joined into the suit under the same title as the parties in the earlier suit. 31.In this case, however, none of the Defendants in the present suit were parties in the previous suit in any way. The Defendants have been sued in their own capacities, and no evidence has been produced showing that they are in any way connected to the Defendants in the previous suit. It has also not been shown that they have been sued under the previous Defendants, or under the same title as the Defendants in the previous suit. Not even the 4th Defendant who is the Applicant in this instant Motion, has claimed any connection to any of the Defendants in the previous suit. Accordingly, I do find that the limb of similarity of parties has not been met. 32.The 4th Defendant has therefore failed to establish that the cause of action, issues and parties in Eldoret ELC Case No. E013 of 2019 are the same as those in this present case. That being the case, I hereby find that the 4th Defendant’s claim that the suit is res judicata is unfounded and therefore fails. Who shall bear the costs of this application? 33.As regards the issue of costs of this application, Section 27 of the Civil Procedure Act (Cap. 21) Laws of Kenya governs the award of costs in civil proceedings. The guiding principle under Section 27 is that costs follow the event, meaning that the successful party is ordinarily entitled to recover the costs of litigation from the unsuccessful party. However, the award of costs is a discretionary matter, and the court may depart from this general rule where there is a good reason to do so. 34.In the present case, the 4th Defendant has failed to prove that this instant suit is res judicata Eldoret ELC Case No. E013 of 2019. The result is that the Plaintiff, having successfully defended the 4th Defendant’s Motion, is the successful party herein. The Plaintiff is therefore entitled to the costs of the instant Application, and I see no justifiable reason to deny him his said costs. Orders:- 35.The upshot is that the 4th Defendant’s Notice of Motion application is without merit and is hereby dismissed. The Plaintiff shall have the costs of the application to be borne by the 4th Defendant. 36.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET ON THIS 16TH DAY OF JULY, 2026 VIDE MICROSOFT TEAMS.HON. C. K. YANOELC, JUDGEIn the virtual presence of:-Mr. Rotich holding brief for Mr. Mathai for the Plaintiff/ Respondent.Mr. Momanyi & Ms. Tirop holding brief Ms. Tum for 4th Defendants/Applicant.No appearance for1st -3rd Defendants.Court Assistant - Laban.