https://new.kenyalaw.org/akn/ke/judgment/keca/2026/908

Mbitha v Bromine Investments Limited & 5 others (Civil Appeal E002 of 2022) [2026] KECA 908 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 908 (KLR) Republic of Kenya In the Court of Appeal at Malindi Civil Appeal E002 of 2022 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 15, 2026 Between Kalume Karisa Mbitha Appellant and Bromine Investments Limited 1st Respondent The Director of Land Adjudication & Settlement 2nd Respondent District Land Adjudication & Settlement Officer – Kilifi 3rd Respondent Director Of Survey 4th Respondent Director Of Survey – Kilifi 5th Respondent The Attorney General 6th Respondent (Being an appeal from the Judgment and Decree of the Environment and Land Court of Kenya at Malindi (J. O. Olola, J.) delivered on 6th May 2020 in ELC Case No. 119 of 2016) Judgment 1.This is an appeal from the judgment of the Environment and Land Court at Malindi (Olola, J.) dated 6th May 2020 and rendered in Malindi ELC Case No. 119 of 2016 as consolidated with ELC Case No. 51 of 2015. 2.The dispute between the parties herein traces to Mombasa HCCC No. 606 of 2001 filed by the 1st respondent (Bromine Investments Limited) against the appellant (Kalume Karisa Mbitha) and the appellant’s wife (Nancy Khanjila Kalume) vide a plaint dated 4th December 2001 in which it claimed ownership, possession and entitlement to the property known as Plot No. Kilifi/Mtondia/61 (the suit property) measuring approximately 14 acres. 3.The 1st respondent’s case was that it lawfully purchased the plot aforesaid from one Zakaria Orwa Ogoye in the early 1990s and was duly registered as the proprietor thereof; that the appellant and his wife trespassed onto the land from around 1993, cultivated, erected structures and mined coral blocks thereon, thereby depriving the 1st respondent of the use and enjoyment of its property. By reason of the matters aforesaid, the 1st respondent sought an injunction to restrain the appellant and his wife from remaining on or continuing to occupy the suit parcel, as well as orders directing them to pull down their structures and remove all the debris. 4.By a defence and counterclaim dated 9th January 2002 and amended on 5th May 2005, the appellant and his wife denied the 1st respondent’s claim to ownership of the suit property and contended that the appellant lawfully purchased Plot No. 61 in Mtondia Settlement Scheme from Charo Randu Nzai sometime in 1990 and took possession and occupation thereof; and that the said Charo Randu Nzai was the original allottee of the suit property having been allocated by the Settlement Fund Trustees (SFT). 5.The appellant further alleged that the 1st respondent had purchased a different property described as Plot No. 61/D Tezo/Roka Settlement Scheme; and that, through fraud, error or misrepresentation, it procured registration in its name of Plot No. Kilifi/Mtondia/61. The particulars of fraud thereby pleaded included: the use of an allegedly wrong transfer form;misdescription of the land; and irregularities in the transfer documents. 6.In their counterclaim, the appellant and his wife sought rectification of the land register; a declaration that they were the lawful owners of the suit property; and an injunction restraining the 1st respondent from interfering with their occupation. 7.In the course of the proceedings in Mombasa HCCC No. 606 of 2001, it came to the 1st respondent’s knowledge that the appellant had filed Mombasa Constitutional Petition No. 57 of 2011 against the 2nd respondent (the Director of Land Adjudication) and the 3rd respondent (the Kilifi District Adjudication Officer) seeking, inter alia: a declaration that his constitutional rights to property had been breached; a declaration that he was the rightful owner of Plot No. 61 Mtondia Settlement Scheme; an order of mandamus to compel the 2nd and 3rd respondents to register the appellant as the rightful owner of Plot No. 61 Mtondia; compensation; and costs of the petition. 8.The 1st respondent drew the court’s attention to the appellant’s petition, whereupon it was placed before the court for directions. The court directed that the hearing of the 1st respondent suit would continue to completion as counsel sorted out their various positions in the said constitutional petition since the 1st respondent’s suit was already at an advanced stage, namely the hearing of the defence case. Accordingly, hearing of Mombasa HCCC No. 606 of 2001 resumed and proceeded to completion in September 2012 thereby paving way for delivery of judgment. 9.In its judgment dated 11th December 2012, the High Court (Mwera, J.) framed the determinant issue as whether Plot No. 61 Mtondia once belonged to Zakaria Orwa and was validly transferred to the 1st respondent, or whether it had been lawfully allotted to Charo Randu Nzai and subsequently sold to the appellant. 10.Upon consideration of the evidence on record, the High Court found that Plot No. 61 Mtondia was alienated by way of a Government lease to Zakaria Orwa on 11th September 1974, well before the area was declared a settlement scheme under the SFT in 1978; that, although there was confusion and certain administrative errors in the settlement records, those infractions did not displace Zakaria Orwa’s registered leasehold interest acquired in 1974; and that the plot could not and did not form part of the Mtondia Settlement Scheme declared in 1978. 11.With regard to the appellant’s claim, the court found that the appellant’s alleged purchase from Charo Randu Nzai conveyed no valid title to or interest in the suit property because Nzai had acquired no title to the plot allegedly purchased by the appellant, having defaulted in and failed to comply with the mandatory conditions for allocation of plots in the settlement scheme, and in view of the fact that one Nur Shire had been allocated the plot in his stead; and because the alleged transaction lacked Land Control Board consent. The court further found that, at the time the appellant purported to purchase the plot, the 1st respondent had already bought and obtained the leasehold interest from Orwa and acquired title to the suit property in its name, having presented a valid transfer and consent documents; and that the allegations of fraud against the 1st respondent were not proved. Accordingly, the Court entered judgment in the 1st respondent’s favour and dismissed the appellant’s counterclaim with costs. 12.Aggrieved by the learned Judge’s decision, the appellant and his wife filed an appeal to this Court in Malindi Civil Appeal No. 26 of 2013. In its judgment dated 17th July 2014, this Court (Okwengu, Asike-Makhandia & Sichale, JJA) upheld the trial court’s decision and dismissed the appellant’s appeal, holding that the 1st respondent had a valid title issued by the Ministry of Lands, which title was protected by sections 27 and 28 of the repealed Registered Land Act; and that the appellant and his wife had failed to demonstrate fraud or misrepresentation capable of impeaching the 1st respondent’s indefeasible title. 13.Soon thereafter, the appellant filed suit against the 1st respondent in Mombasa ELC Case No. 272 of 2014 vide a plaint dated 31st October 2014. The appellant’s case was that he was the registered owner of the parcel of land known as Kilifi/Mtondia/48; that he was in occupation of the said parcel; that the 1st respondent had obtained eviction orders in respect of Kilifi/Mtondia/61, emanating from Mombasa HCCC No. 606 of 2001; that the 1st respondent was threatening to wrongfully evict him from Kilifi/Mtondia/48 in an attempt to enforce the eviction orders aforesaid; that he would be greatly prejudiced if the 1st respondent was not restrained from evicting him from Kilifi/Mtondia/48 owing to the massive developments he had undertaken on the property; and that the previous suit between the parties to wit Mombasa HCCC No. 606 of 2001 had been heard and determined, but that it related to a different property. The appellant therefore sought the following orders:“a.A declaration that the plaintiff is not in occupation of Plot No. Kilifi/Mtondia/ 61.b.A declaration that the plaintiff is in occupation of Plot No. Kilifi/Mtondia/48.c.An injunction restraining the defendant by itself, agents or his authorized persons from evicting the plaintiffs from Plot No. Kilifi/Mtondia/48.d.Costs of this suit.b.Any other relief this court may deem fit to grant in the circumstances.” 14.When served with the appellant’s suit in Mombasa ELC Case No. 272 of 2014, the 1st respondent filed a Notice of Motion dated 9th December 2014 in the appellant’s pending petition, to wit Mombasa Constitutional Petition No. 57 of 2011 seeking to be joined as a respondent/cross-petitioner and to have its Cross- Petition and Affidavit filed in support thereof deemed as duly filed with leave of the court. Its Motion was allowed. 15.Mombasa Constitutional Petition No. 57 of 2011 came up for hearing before the ELC (Anyara-Emekule, J.) on 16th March 2015 when the appellant informed the court that he did not intend to proceed with the petition as the matter had been settled when he was granted orders compelling the 2nd and 3rd respondents to register him as the rightful owner of Plot No. 61 Mtondia. The court accordingly marked the petition as withdrawn and ordered that the 1st respondent’s Cross-Petition be treated as a civil suit and be heard and determined together with the appellant’s suit in Mombasa ELC Case No. 272 of 2014. The 1st respondent’s Cross- Petition joined the 2nd to 6th respondents (Director of Land Adjudication & Settlement, Kilifi District Land Adjudication & Settlement Officer, Director of Survey, Kilifi District Surveyor and Kilifi District Land Registrar) as defendants/respondents. 16.Thereafter, the parties agreed by consent to have the Cross- Petition consolidated with Mombasa ELC Case No. 272 of 2014. On 11th May 2016, the parties recorded a further consent to transfer the consolidated suit to the ELC at Malindi for hearing and determination. The consolidated suit was consequently renumbered as Malindi ELC Case No. 119 of 2016 and consolidated with ELC Case No. 51 of 2015. 17.According to its Cross-Petition and Supporting Affidavit dated 9th December 2014 as well as an undated statement by its director (Shreenal Bharat) filed together with an Additional List of Documents dated 29th September 2016, the 1st respondent’s case was that the dispute over land parcel Kilifi/Mtondia/61 was conclusively determined in Mombasa HCCC No. 606 of 2001 and subsequently affirmed by the Court of Appeal in Malindi Civil Appeal No. 26 of 2013; that the proceedings in the appellant’s suit amounted to an unlawful attempt to re-litigate the same subject matter; and that the appellant had, together with the 2nd to 6th respondents, acted in collusion to defeat the course of justice despite full knowledge of the concluded litigation. 18.It was the 1st respondent’s further case that, after evaluating the evidence and testimony in Mombasa HCCC No. 606 of 2001, the High Court (Mwera, J.) entered judgment dated 11th December 2012 in favour of the 1st respondent; that the judgment was upheld by the Court of Appeal in its judgment dated 17th July 2014; that, while the litigation and subsequent appeal were pending, and later during execution proceedings, the appellant, in collusion with officers of the Ministry of Lands, unlawfully altered registry maps and mutation records to interchange Plot No. 61 with Plot No. 48 without the 1st respondent’s notice, knowledge or involvement; and that this process resulted in the issuance of an illegal title to the appellant for what was formerly Plot No. 61, now falsely described as Plot No. 48. 19.The 1st respondent further contended that the unlawful alterations were intended to legitimize the appellant’s occupation of the suit property, and to defeat the 1st respondent’s proprietary rights; that the withdrawal of Mombasa Constitutional Petition No. 57 of 2011 after filing of its Cross-Petition was demonstrative of bad faith on the part of the appellant; and that the appellant’s suit was an attempt to benefit from an illegality and undermine final court judgments. Accordingly, the 1st respondent urged the court to grant the prayers in the Cross-Petition and dismiss the appellant’s suit with costs. 20.Subsequently, the appellant filed a Supplementary Statement dated 8th November 2017 in which he stated that he was allocated Kilifi/Mtondia/48 after due process, and that he was issued with a letter of offer dated 27th November 2013; that he paid all the requisite charges in respect of the disputed parcel on 10th December 2013; that the charge by the SFT was discharged on 22nd July 2014; that the land was transferred to him by the SFT vide a Transfer dated 22nd July 2014; and that he was registered as the absolute proprietor thereof on 20th August 2014 and a title deed issued to him. 21.The appellant stated that, even though he was issued with the title deed on 20th August 2014, he had been in occupation of the parcel since 1990; that the Lands registry commenced a process of re-parcellation of the land within the settlement scheme from 2008 following complaints by other people settled thereon; that, sometime in July 2013, the 3rd respondent (the District Land Adjudication & Settlement Officer) made a ground visit to confirm the physical occupation of the various parcels of land within the scheme; that the officer confirmed that the appellant was indeed in occupation of Kilifi/Mtondia/48 as reflected in the ground status reports dated 25th July 2013 and 16th October 2013. 22.The appellant further stated that, to the best of his knowledge, Kilifi/Mtondia/61 was occupied by the family of the late Katana Kalama as evidenced by the ground status report dated 16th October 2013; that the 1st respondent had claimed in 2001 that they purchased Parcel No. 61/D Tezo Roka Settlement Scheme from one Zakaria Orwa Ogoye; that Tezo Roka Settlement Scheme was situated on a different location, and was a separate and distinct scheme from Mtondia Settlement Scheme; that the appellant had indeed claimed in Mombasa HCCC No. 606 of 2001 that he had bought Kilifi/Mtondia/61 from one Charo Randu Nzai, who had been allocated the said parcel; that the 1st respondent did not purchase Kilifi Mtondia/48 or Kilifi/Mtondia/61; that Zakaria Orwa Ogoye was not a settler within Mtondia Settlement Scheme; and that the land tenure for Kilifi/Mtondia/48 was freehold and not leasehold. 23.The appellant denied colluding with Lands officers to change the layout of his parcel in the Registry Index Map so as to defeat the judgment in Mombasa HCCC No. 606 of 2001 as alleged by the 1st respondent; and that the process to correct the positioning of the parcels within Mtondia Settlement Scheme was not done at his instigation or participation. The appellant urged the court to dismiss the 1st respondent’s claim and enter judgment in his favour as prayed in his plaint. 24.Notably, the 2nd to 6th respondents did not file any pleadings in response to the consolidated suit, but participated in the hearing of the matter on 15th October 2018 and 14th February 2019 through the 7th respondent (the Attorney General). 25.In its judgment dated 6th May 2020, the ELC (Olola, J.) reviewed the history of the dispute and found that the dispute before it concerned the same parcel of land that had already been conclusively litigated between the same parties in Mombasa HCCC No. 606 of 2001 and Malindi Civil Appeal No. 26 of 2013, wherein the 1st respondent was declared the lawful holder of a valid lease over Kilifi/Mtondia/61; and that, having fully litigated and asserted his claim in the earlier proceedings, the appellant was therefore barred from re-opening and re-litigating the dispute by filing the present suit. 26.The trial court further found that the re-parcellation and renumbering of the land from Plot No. 61 to Plot No. 48 was unlawful, having been carried out without involving the 1st respondent, being the registered owner; and that this was intended to defeat the 1st respondent’s rights. Accordingly, the court held that the appellant’s suit was an abuse of the court process since the issues in contention had already been conclusively determined in the earlier proceedings and, therefore, barred from re-litigation by the doctrine of res judicata. Consequently, the court dismissed the appellant’s suit in its entirety with costs to the 1st respondent. 27.With regard to the 1st respondent’s cross-petition, the court found that the appellant’s actions and those of the land administration officers in altering the records and in issuing a new title document to the appellant violated the 1st respondent’s proprietary rights, and were unconstitutional; and that the appellant’s continued occupation of the contested parcel of land amounted to trespass. The court allowed the 1st respondent’s Cross- Petition with costs, nullified the alterations to the land records, and awarded the 1st respondent general damages in the sum of Kshs.1,500,000. 28.Aggrieved by the trial court’s judgment, the appellant moved to this Court on appeal vide the amended Memorandum of Appeal dated 10th November 2022 setting out a legion of 41 grounds of appeal against the grain of rule 88 of this Court’s Rules, which mandates appellants to “… concisely set forth under distinct heads, without argument or narrative, the grounds of objection to the decision appealed against …”. On scrutinising the 41 closely related grounds advanced by the appellant, we form the view that they may be condensed into the following four substantive grounds, namely:i.that the learned Judge erred in holding that the appellant’s suit was res judicata Mombasa HCCC No. 606 of 2001 and Malindi Civil Appeal No. 26 of 2013;ii.that the learned Judge erred in finding that the process of re- parcellation and the alteration of the maps for the area, renumbering of Plot No. 61 to Plot No. 48 and issuance of a title deed to the appellant was unlawful and an abuse of court process;iii.that the learned Judge erred in assessing and awarding the 1st respondent general damages of Kshs. 1,500,000 without any evidence in support thereof; andiv.that the learned Judge made final orders incapable of execution. 29.In support of the appeal, learned counsel for the appellant, M/s. Matemu Katasi & Associates, filed written submissions and a list of authorities dated 11th August 2025, which we have taken to mind. 30.Opposing the appeal, learned Counsel for the 1st respondent, M/s. Mogaka Omwenga & Mabeya, filed written submissions and a list of authorities dated 5th September 2025 as well as a supplementary list of authorities dated 8th December 2025, which we have considered. 31.The 2nd to 7th respondents did not file any written submissions, and neither did they submit orally when the appeal came for hearing on the Court’s virtual platform. 32.It is noteworthy that counsel for the appellant singled out and identified five issues for determination drawn from three of the four substantive grounds aforesaid and proceeded to submit thereon in their written submissions and oral highlights when the appeal came up for hearing. The issues identified and canvassed by counsel were:a.Whether the trial Judge was required to frame issues for determination.b.Whether the procedure for allocating land owned by the Settlement Fund Trustee (SFT) was followed.c.Whether the Appellant's suit in Malindi ELC Case No.119 of 2016 was res judicata.d.Whether the re-parcellation and amendment of the Registry Index Map for the suit land was unlawful.e.Whether the 1st Respondent is entitled to the award of Kshs 1.5 million as general damages.” 33.We also take to mind the fact that counsel made no written or oral submissions on the fourth issue arising from the grounds of appeal, namely that the learned Judge made final orders incapable of execution. Accordingly, this issue ought to be considered as having been abandoned. In our considered view, and based on the three main grounds identified as aforesaid, the issues that fall for our determination are: (i) whether the learned Judge erred in holding that the appellant’s suit was res judicata Mombasa HCCC No. 606 of 2001 and Malindi Civil Appeal No. 26 of 2013; (ii) whether the learned Judge erred in finding that the process of re- parcellation and amendment of the maps for the area, renumbering of Plot No. 61 to Plot No. 48 and issuance of a title deed to the appellant was unlawful and an abuse of court process; and (iii) whether the learned Judge erred in assessing and awarding the 1st respondent general damages in the sum of Kshs. 1,500,000. 34.On the 1st issue as to whether the appellant’s suit was res judicata Mombasa HCCC No. 606 of 2001 and Malindi Civil Appeal No. 26 of 2013, the learned Judge had this to say in a dicta which we take the liberty to recite in extenso:“30.As it turned out, the Defendant does not deny seeking to evict the Plaintiff from the suit land. It is its case that it is doing so in execution of a Valid Court decree arising from Mombasa HCCC No. 606 of 2001 which it had filed against the Plaintiff and wherein Judgment was delivered in its favour ….36.… In his Judgment delivered on 11th December 2012, the learned Judge allowed the Defendant’s claim and dismissed the Defence and Counter-claim as filed by the Plaintiff and Nancy ….37.Aggrieved by that determination, the Plaintiff herein and Nancy lodged Civil Appeal No. 26 of 2013 at the Court of Appeal at Malindi. In a Judgment delivered on 17th July 2014, the learned Judges of Appeal (H.M. Okwengu, Asike-Makhandia and Fatuma Sichale JJAs) dismissed the Appeal ….38.It is apparent that the conclusion of the Appeal is what precipitated this suit before me. When the Defendant proceeded to execute the Judgment delivered on 11th December 2012, the Plaintiff came to this Court seeking a declaration that the Plot he occupies is Kilifi/Mtondia/48 and not the Kilifi/Mtondia/61 that was the subject matter of Mombasa HCCC No. 606 of 2001.39.…. As it turned out, while Mombasa HCCC No. 606 of 2001 was pending determination, the Plaintiff filed Mombasa High Court Constitutional Petition No. 57 of 2011 on 13th September 2011 ….42.From a perusal thereof the said Petition was clearly in respect of the parcel of land known as Kilifi/Mtondia/61 which land the Plaintiff claimed to have bought from Charo Randu Nzai in 1990. It is the very same suit property that was in contention in Mombasa HCCC No. 606 of 2001 which was still then pending between the Plaintiff and Nancy on the one part and the Defendant on the other….51.It was otherwise plain to me that the issues raised by the Plaintiff herein are the very same ones that were the subject matter of the dispute in Mombasa HCCC No. 606 of 2001 ….” 35.As the learned Judge went on to find and conclude:“53.In the matter before me, it is clear beyond per-adventure that the Plaintiff herein has had his day litigating his case in a Court of competent jurisdiction. I will not grant him the luxury to continue vexing, haunting and hounding the Defendant with issues that have been properly and effectively determined by a Court of competent jurisdiction.54.Accordingly, I find and hold that the Plaintiff’s suit as pleaded in the Plaint dated 31st October 2014 is an abuse of the Court process. The same is dismissed with Costs.” 36.Faulting the learned Judge’s decision, counsel for the appellant submitted that the plea of res judicata was inapplicable to the appellant’s case owing to the fact that the 2nd to 7th respondents were not party to either Mombasa HCCC No. 606 of 2001 or Malindi Civil Appeal No. 26 of 2013. 37.To buttress their submissions, counsel cited the case of John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), which sets out the elements that must be proved for a court to conclude that a matter is res judicata; and the case of Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR) for the proposition that where res judicata is pleaded by way of estoppel to an entire cause of action, rather than to a single matter in issue, it amounts to an allegation that all the legal rights and obligations of the parties were concluded by the earlier judgment, which may have involved the determination of questions of law as well as findings of fact. 38.Counsel submitted that, in the instant case, the 1st respondent pleaded action estoppel; that the trial Judge failed to satisfy himself that all the rights and obligations of the parties had been concluded by previous judgments of the High Court and the Court of Appeal; that in Mombasa HCCC No. 606 of 2001, the two issues for determination were whether Plot No. 61 Mtondia once belonged to Zakaria Orwa, who then transferred his lease to the 1st respondent; and whether Charo Nzai was allotted Plot No. 61, which he sold to the appellant and his wife; and that none of the previous judgements made determinations of law or findings of fact pertaining to Plot No. 61/D Tezo Roka allegedly leased to Zakaria Orwa by the Government of Kenya. 39.Counsel further submitted that the key issues in Malindi ELC Case No. 119 of 2016 were as to who was in occupation of Plot No. 61 in Mtondia Settlement Scheme; who was in actual possession of Plot No. 48 in Mtondia Settlement Scheme; and whether the re- parcellation resulting in the renumbering of the land as Plot No. 48 Mtondia was lawful; and whether the 1st respondent’s right to property was violated. 40.In addition to the foregoing, counsel cited the case of Chandaria v Njeri [1982] KECA 8 (KLR) where this Court, in setting aside the impugned judgment and remitting the suit to the High Court for retrial, faulted the trial Judge therein for failing to frame issues as required by the Civil Procedure Rules, and thereby failing to deal with many of the issues which he should have determined. 41.According to counsel, the Court of Appeal in Malindi Civil Appeal No. 26 of 2013 noted that the parties did not file any agreed issues, and that the trial court did not frame the issues before the hearing. Counsel contended that, by failing to frame issues in the appellant’s suit in the manner required by Order 15 rule 2 of the Civil Procedure Rules, and as augmented by Order 21 Rules 4 and 5, the court left critical issues undetermined. 42.Counsel further contended that the central issue which, according to them, has never been determined, is whether the 1st respondent was allocated Plot No. 61/D Tezo Roka Settlement Scheme or Plot No. Kilifi/Mtondia/61 in Mtondia Settlement Scheme; that, in his judgment in Mombasa HCCC No. 606 of 2001, Mwera J., acknowledged a mixture of errors and omissions in the records at the Settlement Fund Trustees and land registries, but never resolved these issues; that the issue regarding Plot No. 61/D in Tezo Roka Settlement Scheme was also raised by the appellant in Malindi Civil Appeal No. 26 of 2013; and that the Court of Appeal focused on unproven fraud allegations and did not resolve the controversy surrounding the said parcel of land. 43.On their part, counsel for the 1st respondent submitted that this Court was being invited to sit on appeal against its own decision dated 17th July 2014 in Malindi Civil Appeal No. 26 of 2013; that it is common ground that the 1st respondent filed Mombasa HCCC No. 606 of 2001 against the appellant and his wife over and concerning the alleged trespass on Kilifi/Mtondia/61, contending that it was the registered owner and entitled to the possession and occupation of Kilifi/Mtondia/61; and that the appellant and his wife filed a defence and counterclaim asserting ownership of the same parcel on the basis of an alleged purchase from one Charo Randu Nzai. 44.Counsel drew our attention to the judgment of the High Court rendered in favour of the 1st respondent after a full trial, and in accordance with which the trial court dismissed the appellant’s defence and counterclaim and ordered the appellant and his wife to vacate the property. Soon thereafter, the appellant lodged an appeal in Malindi Civil Appeal No. 26 of 2013 in which this Court (differently constituted) considered and determined the issue as to the ownership of Kilifi/Mtondia/61 as well as the contention that the 1st respondent’s property was actually Plot No. 61/D Tezo Roka Settlement Scheme. In its judgment, the Court of Appeal upheld the 1st respondent’s ownership/title to Kilifi/Mtondia/61. 45.Counsel further submitted that the appellant’s subsequent suits were merely a strategy to evade the earlier binding decisions and scuttle the impending execution of the decree in Mombasa HCCC No. 606 of 2001. 46.On the issue as to the re-naming of Kilifi/Mtondia/61 to Kilifi/Mtondia/48, counsel submitted that it was done through an unlawful re-parcellation and alteration of maps and land records carried out during and after the earlier litigation, and without the involvement or consent of the 1st respondent as the registered proprietor; and that, at the trial, the appellant conceded that the land dispute over Kilifi/Mtondia/61 was the subject of determination before two superior courts in the earlier suits aforesaid. 47.Counsel cited the cases of Muiruri v Credit Bank Limited & 2 others [2008] KECA 263 (KLR); Ngugi v Kinyanjui and 3 others [1989] KECA 54 (KLR); and Theresa Costabir v Alka Roshanlal Harbanslal Sharma & another [2015] KECA 154 (KLR) to bolster their submission that it is trite that a judgment of a competent court that has not been reviewed or reversed on appeal sweeps away every defence raised or should have been raised against the suit, and for the purpose of every subsequent suit whether founded upon the same or different cause. 48.In conclusion, counsel submitted that the learned Judge cannot be faulted for holding that the appellant’s claim was res judicata in the face of a clear admission on oath by the appellant in Malindi ELC Case No. 119 of 2016, namely that Kilifi/Mtondia/48 was the same subject matter as Kilifi/Mtondia/61 in the previously determined suits. 49.We take to mind the doctrine of res judicata as set out in section 7 of the Civil Procedure Act, which provides in mandatory terms 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.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 suitshall 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. 50.In Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR), this Court held that:“… for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms:a.The suit or issue was directly and substantially in issue in the former suit.b.That former suit was between the same parties or parties under whom they or any of them claim.c.Those parties were litigating under the same title.d.The issue was heard and finally determined in the former suit.e.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 ….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 ….The practical effect of the res judicata doctrine is that it is a complete estoppel against any suit that runs afoul of it, and there is no way of going around it – not even by consent of the parties –because it is the court itself that is debarred by a jurisdictional injunct, from entertaining such suit.” 51.The Supreme Court in John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) further elucidated on the doctrine as follows:82.We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated:a.There is 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 must be between the first and the second action identical parties, subject matter and cause of action.” 52.To our mind, the recent case culminating in the impugned judgment, namely the appellant’s suit in Malindi ELC Case No. 119 of 2016 was against the 1st respondent while the 1st respondent’s earlier suit in Mombasa HCCC No. 606 of 2001 was against the appellant and his wife. In substance, the two suits were between the same parties despite the fact of the involvement of the appellant’s wife in the earlier suit did not substantially alter the identity of the principal litigants. It must also be noted that the 2nd to the 7th respondents were party to the 1st respondent’s Cross- Petition, which was subsequently consolidated with the appellant’s suit. 53.It is not lost on us that Mombasa HCCC No. 606 of 2001, which concerned a dispute over ownership of Kilifi/Mtondia/61, was heard and determined vide the trial court’s judgment dated 11th December 2012. Having considered the issues raised therein, the High Court entered judgment in the 1st respondent’s favour. On appeal in Malindi Civil Appeal No. 26 of 2013, this Court, in its judgment dated 17th July 2014, upheld the High Court’s decision and affirmed that the 1st respondent was the lawful proprietor of Kilifi/Mtondia/61, which parcel had never been part of Mtondia Settlement Scheme. 54.In addition to the foregoing, it is noteworthy that the appellant’s suit in Malindi ELC Case No. 119 of 2016 likewise related to ownership of the same property to wit Kilifi/Mtondia/61, which was later re-designated as Kilifi/Mtondia/48 following a process of re-parcellation and renumbering undertaken after the High Court’s judgment in 2012 and prior to the issuance of a title to the renamed property to the appellant shortly after delivery of this Court’s judgment in 2014. 55.It is equally instructive that, during the hearing of Malindi ELC Case No. 119 of 2016, the appellant had the following to say during cross-examination:“There was a case filed in Mombasa in 2001. It was about Kilifi/Mtondia/61. I bought from a person who was then living there and proceeded to occupy the same. It is the same plot I live in to- date …. The case was finalized after hearing on 11th December 2012. I then appealed the decision in Civil Appeal No. 26/2013, Malindi. We also lost the decision in the Court of Appeal. That is what gave rise to eviction orders against me. At that time, I had no title for the land. Even Charo Randu Nzai from whom I bought had no title. The land whose dispute went up to the Court of Appeal is the same one I live in to-date. The houses that the Court directed to be demolished are the ones I occupy to-date. That same plot is the one whose title I was given as No. 48 …. With the re-arrangement, the plot I now occupy became No. 48. Before then it was Plot No. 61.” 56.It becomes clear to us that, on receiving a title for the same property which was the subject of the earlier suit and appeal both of which had been conclusively determined by the High Court and this Court respectively, the appellant proceeded to withdraw his constitutional petition and, thereafter, filed Malindi ELC Case No. 119 of 2016 seeking, inter alia: a declaration that he was in occupation of Kilifi/Mtondia/48 and not Kilifi/Mtondia/61; and injunctive orders against the 1st respondent. 57.In his new suit, the appellant purported to dangle his title to the same property renamed as Kilifi/Mtondia/48 as a red herring notwithstanding that the inescapable fact remained that the suit concerned the same central issue as the earlier suits, namely the ownership of the suit property which the appellant had previously claimed to have purchased from Charo Nzai. The appellant simply reframed the same issue in his pleadings by referring to the same suit property by its new title number and by pointing to a different parcel wittingly and purportedly renamed as Kilifi/Mtondia/61. 58.Pronouncing himself on the need for court’s vigilance to ward off litigants’ attempt to evade the doctrine of res judicata, the late Majanja, J. had this to say in E.T. v Attorney General & another [2012] KEHC 5506 (KLR):“ 57.The courts must always be vigilant to guard against litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff is in the second suit is trying to bring before the court in another way and in a form a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi v National Bank of Kenya Limited and Others [2001] EA 177 the court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the court quoted Kuloba J., in the case of Njangu v Wambugu and Another Nairobi HCCC No. 2340 of 1991 (Unreported) where he stated, ‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata ….’” 59.Indeed, the issue concerning the actual plot alienated to Zakaria Orwa, which the appellant contends remains undetermined, was addressed in the High Court’s judgement in Mombasa HCCC No. 606 of 2001 wherein Mwera, J. (as he then was) held that:“From the evidence …, Plot No. 61 Mtondia was given by way of a government lease to Zakaria Orwa on 11th September, 1974 and that is in the green card. Later in 1978 the area was declared a settlement scheme under SFT. SFT could deal with other plots of land in the area but not plot No. 61 ….The court was told that Orwa’s lease was not produced here. But the records at the lands office had all the required information. And that Ken Oburu, Orwa’s agent did not testify here. The court did not discern what more he could add to the case …. Or that Orwa paid some money to SFT in 1992 regarding plot No. 61 Mtondia. That could have been out of ignorance or error. Plot No. 61 was alienated to him in 1974 by the Commissioner of Lands. It could not and did not form part of Mtondia Settlement Scheme declared in 1978.” 60.The issue as to the legality of the re-parcellation process by the 2nd to 6th respondents, and which culminated in the subsequent issuance of a title deed to the appellant was a distinct and new issue raised by the 1st respondent in his Cross-Petition and not in the appellant’s suit. From the foregoing, it is evident that the appellant’s suit in Malindi ELC Case No. 119 of 2016 was clearly res judicata Mombasa HCCC No. 606 of 2001 and Malindi Civil Appeal No. 26 of 2013. Accordingly, the learned Judge cannot be faulted for reaching that conclusion. 61.Turning to the 2nd issue as to whether the learned Judge was at fault in finding that the process of re-parcellation and alteration of the maps for the area, the renumbering of Plot No. 61 to Plot No. 48, and the issuance of a title deed to the appellant was unlawful and an abuse of court process, we take note of the Judge’s finding in the following words:“45.As it turned out, while the Petition was pending for hearing, the Respondents in the Cross-Petition would proceed to change and amend the map for the Mtondia area as a result whereof Plot No. 61 was converted to become Plot No. 48. These changes were done without the involvement of the Defendant who was then the registered owner and in total disregard of the fact that there was a dispute over the subject parcel of land pending in Court.46.To crown their obviously illegal actions, the Respondents proceeded to allocate the purportedly new Plot No. 48 to the Plaintiff and issued him with a Title Deed in his name on 26th August 2014, one month after the Court of Appeal dismissed the Plaintiff’s appeal in Malindi Civil Appeal No. 26 of 2013. When the Defendant herein sought to be enjoined in Petition No. 57 of 2011 and filed his Cross- Petition, the Plaintiff withdrew his Petition confirming that the Respondents in his Petition had already complied and registered him as the proprietor of the land.47.As it were, this was the very same parcel of land that had been the subject of the dispute that had gone all the way to the Court of Appeal. During his Cross-examination herein by Mr. Mogaka, Learned Counsel for the Defendant, the Plaintiff confirmed as much. He conceded that the subject matter of this suit is the same parcel of land he had said he bought from Charo Nzai in 1990 and for which the Defendant had sued him with his wife Nancy ….” 62.As the learned Judge proceeded to conclude:“49.In the premises, it was clear to me that the amendments to the area map and the accompanying re-numbering of the suit land were unlawful and aimed at assisting the Plaintiff herein to steal a match and defeat the Defendant’s rights and interests over the subject property. The amendments were aimed at vesting the subject land upon the Plaintiff without due process and thereby render the Court process that was ongoing a mere academic exercise.50.Unfortunately for the Plaintiff, that is the furthest that his mischief shall take him. His claim to the suit land had already been heard and determined in a trial in which he not only participated by filing pleadings but also called witnesses including representatives of the Respondents to the Cross Petition who purported to aid him in illegally acquiring title to the same. Those officers must have been aware that under Sections 142 and 143 of the Registered Land Act (now repealed) there could have been no such rectification of the register without the involvement of the registered owner- the Defendant herein.” 63.Taking issue with the learned Judge’s decision, counsel for the appellant faulted the learned Judge for allegedly failing to take into account the mutation forms produced by the Attorney General on behalf of the 2nd to 7th respondents, and which showed that the re- parcellation process for Plots Nos. 48 - 73 Kilifi/Mtondia Settlement Scheme was commenced way back in June 2008 by the Government in order to match the plot numbers with actual occupation on the ground. 64.Counsel further submitted that the 7th respondent produced letters from the District Land Adjudication & Settlement Officer Kilifi (the 3rd respondent) indicating that he had conducted a site visit on 13th September 2013 to confirm the physical occupation of Plot Nos. 46, 47, 48, 49, 50 and 61 within Mtondia Settlement Scheme; that the ground verification exercise revealed that most of the settlers in the scheme were in occupation of different plots from those appearing in the records; that the appellant was in actual occupation of Kilifi/Mtondia/48 since 1990; and that Kilifi/Mtondia/61 was occupied by the surviving family members of Katana Kalama. 65.According to counsel, the re-parcellation process did not concern only the appellant’s parcel, but affected many other plots whose actual occupation did not match the records held by the Settlement Fund Trustee (SFT). Counsel faulted the learned Judge for allegedly ignoring that the letter of allotment, transfer and discharge of charge by the SFT were issued to the appellant after re- parcellation by the Ministry of Lands. Counsel lamented that, even though it was not disputed that the suit land was at the material time vested in and managed by the SFT, the role of the SFT in this dispute has never been taken into account or made an issue for determination. 66.Counsel cited the cases of Eliud Nyongesa Lusenaka & another v Nathan Wekesa Omocha [1994] KECA 101 (KLR); and Medline Wanjeri Njuguna v Fredrick Njuguna Ndoro & 2 others [2014] KECA 803 (KLR) for the proposition that the SFT is a body corporate with a perpetual succession and can acquire and own property on its own right and can sue and be sued; and that the interest of the SFT is really that of a charge, as it lends money for development to persons to whom it has allocated land, and that the repayment of such money is secured by a charge upon the property. 67.According to counsel, there existed two conflicting land registers, one for Kilifi/Mtondia/61 opened on 1st January 1974 and leased on the same day by the Government to Zakaria Orwa; and another register opened on 8th September 1980 for Kilifi/Mtondia/48 registered on the same day in the name of the SFT with land tenure recorded as absolute. In counsel’s submission, the issue of these conflicting registers has never been resolved. 68.In rebuttal, counsel for the 1st respondent submitted that it was clear from the record that it was fully within the appellant’s and the 2nd to 6th respondents’ knowledge that a certificate of lease was issued in favour of Zakaria Orwa in respect of Kilifi/Mtondia/61 by the Commissioner of Land by 11th September 1974, long before Mtondia Settlement Scheme was declared, and that the said interest was transferred on 21st February 1992 to the 1st respondent who became its’ registered leasehold interest owner; that there was no evidence on record to show that the 1st respondent was involved in or consented to process of the re-parcellation and amendment of the survey map for the Mtondia Plots that affected their leasehold interest in Kilifi/Mtondia/61; and that failure to involve the 1st respondent infringed on its constitutional rights under Articles 40, 47 and 50. 69.Counsel cited the case of Tarak Khawaja & 5 Others v Registrar of Societies & 9 others [2017] KECA 599 (KLR) for the proposition that violation of the right to be heard renders a decision ultimately arrived at null and void. According to counsel, the issuance of the allotment letter and title deed in favour of the appellant for the suit land purportedly as new plot No. Kilifi/Mtondia/48 without the 1st respondent’s involvement was intended to defeat its rights as upheld by the two courts aforesaid in the earlier judicial decisions. 70.Counsel cited the case of Macfoy v United Africa Co. Ltd [1961] 3 All ER for the proposition that, if an act is void, then it is in law a nullity; that the act is not only bad, but incurably bad and there is no need for an order of the court to set it aside, as it is automatically null and void without much ado. 71.It is instructive that the applicable statute law when the 2nd to 6th respondents undertook the re-parcellation process resulting in the renaming of the suit property from Kilifi/Mtondia/61 to Kilifi/Mtondia/48 was the Registered Land Act (now repealed), which provided for re-parcellation under section 26 as follows:26.Re-parcellation(1)The Registrar may, on the application of the proprietors of contiguous parcels who are desirous of changing the layout of their parcels, and with the consent in writing of all other persons in whose names any right or interest in the parcels is registered and of any cautioner, cancel the registers relating to those parcels and prepare new registers in accordance with the revised layout:Provided that, where in the opinion of the Registrar a proposed re-parcellation involves substantial changes of ownership which should be effected by transfers without invoking this section, he may in his discretion refuse to effect the re-parcellation. 72.Section 142 of the repealed Act also provided for circumstances under which the Registrar could rectify the register and reads:142.Rectification by Registrar1.The Registrar may rectify the register or any instrument presented for registration in the following cases -a.in formal matters and in the case of errors or omissions not materially affecting the interests of any proprietor;b.in any case and at any time with the consent of all persons interested;c.where, upon resurvey, a dimension or area shown in the register is found to be incorrect, but in such case the Registrar shall first give notice to all persons appearing by the register to be interested or affected of his intention so to rectify.2.Upon proof of the change of the name or address of any proprietor, the Registrar shall, on the written application of the proprietor, make an entry in the register to record the change. 73.Sections 26 and 142 of the repealed Act were explicit that the notification, involvement and/or consent of the registered proprietors were mandatory prerequisites before the Registrar could lawfully undertake a re-parcellation or rectification process. No evidence was adduced to demonstrate that the 2nd to 6th respondents notified and involved the 1st respondent of the re- parcellation conducted in relation to parcel Nos. Kilifi/Mtondia/48- 73, which began as early as 2008 while the 1st respondent was at all material times the registered proprietor of Kilifi/Mtondia/61. 74.It is worth noting that the earliest documentation of the re- parcellation appears in the form of a mutation form dated 27th June 2008 relating to parcel Nos. Kilifi/Mtondia/48-73, which sought to renumber the parcels in accordance with a ground occupation record, and a letter by the Kilifi District Land Adjudication & Settlement Officer (the 3rd respondent) Ref No. DLAS/KFI/111/Vol II/54. 75.It is also noteworthy that the section of the mutation form where the names and signatures of the registered proprietors was left blank. It follows that the process was conducted on the erroneous assumption that all of the affected parcels were part of the Mtondia Settlement Scheme. However, it is unclear when the mutation was registered, but its effect was to renumber the affected parcels, including the suit parcel, namely Kilifi/Mtondia/61, which was re-designated as Kilifi/Mtondia/48. 76.It is not lost on us that the renumbering of the suit parcel was undertaken without the notification, involvement and/or consent of the 1st respondent as the registered proprietor, and in contravention of sections 26 and 143 of the repealed Act. Accordingly, that process was null and void, and violated the 1st respondent’s right to property as well as the right to fair administrative action. 77.We also take to mind the fact that the High Court’s decision of 11th December 2012 was unequivocal that the suit parcel was alienated long before the area became a settlement scheme and, therefore, did not form part of the scheme. Notwithstanding, or in disregard of, that judgment, the 3rd respondent proceeded with ground visits on 15th July 2013 and 13th September 2013, which confirmed that the appellant was in occupation of Kilifi/Mtondia/48, the parcel that was in fact the suit property, as acknowledged by the appellant at the trial. Any legitimate scrutiny of the occupation status within the settlement scheme ought not to have included the suit parcel. 78.Our reading of the letter by the 3rd respondent dated 16th October 2013 addressed to the Director Land Adjudication & Settlement (the 2nd respondent) discloses that a title deed for Kilifi/Mtondia/48 had been issued to Donald Gambo Makutubu (deceased) in 2006 before it later emerged during the ground visits that the deceased was actually in occupation of Plot No. 47, and that the appellant was the one in occupation of Kilifi/Mtondia/48. Accordingly, the 3rd respondent recommended that the deceased’s famil/y surrender the title deed and that the appellant be documented as the proprietor of Kilifi/Mtondia/48. 79.Despite having full knowledge of the High Court’s determination in Mombasa HCCC No. 606 of 2001, the appellant thereafter applied for a settlement plot, which application was approved by way of a letter from the 2nd respondent dated 27th November 2013. The appellant proceeded to make the requested payment of outright purchase of Kshs. 32,600 on 10th December 2013 and was issued with a Discharge of Charge and a Transfer by the SFT. The appellant was ultimately issued with a title deed for Kilifi/Mtondia/48 on 26th August 2014. 80.Notably, the re-parcellation, renumbering and eventual issuance of a title deed to the appellant was a nullity ab initio, as the entire process was erroneously premised on the assumption that the suit parcel formed part of Mtondia Settlement Scheme under the ownership and control of the SFT. To the contrary, the judgments of the High Court and this Court in 2012 and 2014 were unequivocal that the 1st respondent was at all material times the registered proprietor of the suit property and ought to have been notified of and involved in the impugned process. However, the 2nd to 6th respondents failed to do so. Consequently, the appellant’s title deed could not confer any rights over the suit property having been procured illegally or irregularly. 81.In Funzi Island Development Limited & 2 others v County Council of Kwale & 2 others [2014] KECA 882 (KLR), this Court held that:39.… a registered proprietor acquires an absolute and indefeasible title if and only if the allocation was legal, proper and regular. A court of law cannot, on the basis of indefeasibility of title, sanction an illegality or give its seal of approval to an illegal or irregularly obtained title.” 82.In the same vein, in Dina Management Ltd v County Government of Mombasa & 5 others (supra), the Supreme Court held that:“110.Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible.” 83.In view of the foregoing, we can only conclude that the learned Judge correctly found that the process of re-parcellation and amendment or alteration of the maps for the area, the renumbering of the suit parcel from Plot No. 61 to Plot No. 48, and that the issuance of a title deed to the appellant was unlawful; and that, accordingly, his suit was an abuse of court process. 84.Finally, we turn to the 3rd issue as to whether the learned Judge erred in assessing and awarding the 1st respondent general damages in the sum of Kshs. 1,500,000. In the impugned judgment, the learned Judge held that:“55.On the other hand, I am persuaded that the Defendant’s Counterclaim as contained in the Cross-Petition dated 9th December 2014 has merit. In my considered view, when he filed this suit, the Plaintiff was aware that there was a Court Judgment decreeing that he vacates the suit property. This suit was clearly filed in abuse of the court process and his continued stay in the suit property in my view amounts to an act of trespass and an unlawful deprivation of the Defendant of its property.56.In the circumstances, I am in agreement with the Defendant that he is entitled to damages for breach of its right to property. In that respect, and considering the facts around this case, I am of the view that an award of Kshs 1.5 Million should suffice to compensate the Defendant in this regard. The Defendant’s Counterclaim is accordingly allowed as prayed with general damages assessed at Kshs 1.5 million.” 85.Counsel for the appellant faulted the learned Judge for awarding the 1st respondent damages in the sum of Kshs. 1.5 million for breach of its right to property “… without any proof of the manner in which the violation had occurred.” Counsel cited the case of Dina Management Ltd v County Government of Mombasa & 5 others (supra) in support of the submission that the right to property does not extend to property found to have been unlawfully acquired. 86.On their part, learned counsel for the 1st respondent submitted that the learned Judge was not at fault in granting the reliefs sought in the Cross-Petition. 87.We take to mind the fact that the appellant continued in occupation of the suit property notwithstanding that injunctive orders had been issued against him vide the High Court’s 2012 judgment delivered in Mombasa HCCC No. 606 of 2001. Those restraining orders were affirmed by this Court in 2014. Further, the appellant filed Malindi ELC Case No 119 of 2016 after irregularly procuring a title deed to the suit property, the conduct of which amounted to abuse of court process. 88.To our mind, the appellant’s action could not have been characterised as anything other than actionable trespass, an unjustifiable and wrongful entry into the 1st respondent’s property (see Muthiora vs. Marion Muthama Kiara (Suing on behalf of the Estate of Erastus Muthamia Kiara – Deceased) [2022] KECA 28 (KLR)). By so doing, he impeded the 1st respondent’s quiet enjoyment and occupation of the suit property since the parties’ initial litigation came to a conclusive end in 2014. The question is whether the appellant has shown cause to persuade us to disturb the learned Judge’s decision to award the 1st respondent damages in the contested amount. 89.In Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini vs. A.m. Lubia and Olive Lubia [1982 –88] 1 KAR 727 at p. 730 Kneller, J.A. stated thus:The principles to be observed by an appellate court in deciding whether it is justified in disturbing quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be that either that the judge, in assessing the damages, took into account an irrelevant factor or left out of account a relevant one, or that short of this, the amount is so inordinately low or so inordinately high that it must be wholly erroneous estimate of the damage.” [Emphasis added] (see also Butt vs. Khan, [1978] eKLR). 90.We find nothing on record to suggest that the learned Judge took into consideration any irrelevant factors or failed to consider relevant factors in assessing damages in the 1st respondent’s favour. Neither do we find anything to suggest that the amount awarded was inordinately high. Accordingly, the learned Judge cannot be faulted for assessing and awarding general damages for trespass in the contested sum of Kshs 1,500,000. 91.Having carefully considered the record of appeal, the grounds on which it was anchored, the rival submissions of respective counsel, the cited authorities and the law, we reach the inescapable conclusion that the appeal fails and is hereby dismissed with costs to the 1st respondent. Consequently, the Judgment and Decree of the Environment and Land Court at Malindi (J. O. Olola, J.) delivered on 6th May 2020 is hereby upheld. Orders accordingly. DATED AND DELIVERED AT MALINDI THIS 15TH DAY OF MAY, 2026.A. K. MURGOR…………………………………JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.……………………………………JUDGE OF APPEALG. W. NGENYE-MACHARIA………………………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR