https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5156

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA** **ELC APPEAL NO. E001 OF 2025** **MICHAEL EDWARD GICHOHI MUHINDI ...........................APPELLANT** **=VERSUS=** 1. **JOHN NGURE MUREKIO** 2. **COUNTY SURVEYOR, KIRINYAGA** 3. **LAND REGISTRAR, KIRINYAGA COUNTY** 4. **THE HONOURABLE ATTORNEY GENERAL………. RESPONDENTS** ***(Being an Appeal arising from the Ruling of Hon Stephen Munene Nyaga, Senior Principal Magistrate, delivered on 10/12/2024 in Baricho Law Courts E &L Case No E071 of 2023)*** **JUDGEMENT** **INTRODUCTION** 1. This appeal challenges the Ruling rendered by **Hon Stephen Munene Nyaga, Senior Principal Magistrate**, on **10th December 2024** in **Baricho SPMC E & L Case No. E071 of 2023.** The Appellant is the plaintiff in the lower court whereas the respondents are the defendants therein. 2. The dispute in the lower court concerns an alleged encroachment and trespass in respect to parcels**, title no. KIINE/KIANGAI/195 and KIINE/KIANGAI/2048,** owned by the **1st respondent and appellant respectively** 3. The appeal is premised on **eight (8) grounds** characterized on the **memorandum of appeal dated 6th January 2025 which are reproduced as follows**; - * 1. ***That the Learned trial Magistrate erred in law and in fact in allowing the Preliminary objection dated 7th June 2024 and failing to find that the Preliminary Objection filed by the Defendant was hinged on factual disposition and did not consist of pure points of law.*** 2. ***That the Learned Trial Magistrate erred in law and in fact by reducing the whole suit to a boundary dispute without recognizing the salient features of the plaintiff’s pleadings, the facts and the law in relation to Preliminary Objections.*** 3. ***That the Learned Trial Magistrate erred in law and in fact in holding that the plaintiff suit is res judicata yet there were new causes of action including trespass and violation of fundamental human rights of the plaintiff/appellant.*** 4. ***That the Learned trial Magistrate erred in law in failing to hold that the plaintiff suit was neither an appeal nor a review of the Baricho PMLDT 11 OF 2008 and Kerugoya ELCA 7 of 2015.*** 5. ***That the Learned Trial Magistrate erred in law and in fact in failing to appreciate the jurisdiction of the court granted by section 86 of the Land Registration Act.*** 6. ***That the Learned Magistrate erred in law and in fact by confounding the prayers in the suit with tenets of administration law.*** 7. ***That the Learned trial Magistrate erred in law and in fact by not appreciating the magnitude and implication of the mutation dated 18th October 2022 which was signed by the first and second defendants, way after the Baricho PMLDT 11 of 2008 and Kerugoya ELCA 7 of 2015 had been determined.*** 8. ***That the learned Trial Magistrate erred in law and in fact in delivering a superficial and simplistic ruling which does not analyze the plaintiff’s/appellants pleadings and submissions and the entire case in sufficient detail.*** 4. The appellant urged the court to favourably allow the appeal and grant the following orders and reliefs; - 5. ***The ruling and orders of the senior principal magistrate’s court at Baricho delivered on 10th December 2024 in BARICHO ELC NO.071 OF 2023 -MICHAEL EDWARDS GICHOHI MUHINDI VS JOHN NGURE MUREKIO be set aside*** 6. ***The honourable court do substitute the ruling delivered on 10th December 2024 with an order dismissing with costs the preliminary objection dated 7th June 2024 and reinstate the suit BARICHO ELC NO.071 OF 2023 - MICHAEL EDWARDS GICHOHI MUHINDI VS JOHN NGURE MUREKIO*** 7. ***That upon setting aside the ruling and reinstating the suit, the suit*** ***BARICHO ELC NO.071 OF 2023 -MICHAEL EDWARDS GICHOHI MUHINDI VS JOHN NGURE MUREKIO be transferred to KERUGOYA ENVIRONMENTAL AND LAND MAGISTRATES COURT for hearing and determination*** 8. ***The costs of this appeal and preliminary objection be dated 7th June 2024 in BARICHO ELC NO.071 OF 2023 -MICHAEL EDWARDS GICHOHI MUHINDI VS JOHN NGURE MUREKIO be awarded to the applicant*** **BACKGROUND** 1. Through **a plaint dated 7th December 2023**, the appellant instituted **Baricho SPMC E&L Case No. E71 of 2023** against the respondents, seeking for the following reliefs: * + 1. ***The court to commission a thorough survey by licensed surveyors(s) to ascertain the acreage, state of encroachment and trespass and state of the existing boundary between Land Titles Nos. Kiine/Kiangai/195 and Kiine/Kiangai/2048 and file the survey report(s) in court;*** 2. ***The court to render its opinion under Section 86(1) of the Land Registration Act 2012 on the case stated being whether in light of new evidence and entire circumstances of the matter, the Land Registrar’s report dated 25/9/2014 should be set aside and the Land Registrar be ordered to fix the boundary afresh in a lawful, fair and professional manner after considering the acreage in the title documents and the contents of the available maps;*** 3. ***An order of eviction against the 1st respondent from the entire section where he has encroached and trespassed on the appellant’s land title number Kiine/Kiangai/2048;*** 4. ***A permanent injunction against the 1st respondent, his agents, employees’ children or nominees from accessing, farming, using, constructing or in any way utilizing the contested, encroached and trespassed area and any part of land title number Kiine/Kiangai/2048;*** 5. ***Damages for trespass, encroachment and mesne profits;*** 6. ***Any other appropriate order that the court may see fit to grant;*** 7. ***Costs of the suit and interest.*** 2. The case of the appellant was that he is the registered proprietor of land parcel ***Kiine/Kiangai/2048*** which **measures 3.04 HA** and the **1st respondent is the registered proprietor of land parcel no.** ***Kiine/Kiangai/195*** which **measures 2.51 HA**. 3. The appellant contended that there existed a boundary dispute between the appellant and the **1st respondent** that resulted in a case at the **Baricho** **Land Dispute** **Tribunal Case No.11 of 2008*,*** which was determined on **15th January 2015** and an appeal filed at **Kerugoya** **ELC Appeal No.7** of **2015**, which was also determined in favour of the **1st respondent.** 4. The appellant further contended that, after several years, the **2nd respondent,** in collusion with the **1st respondent**, drafted a mutation dated **18th October 2022** seeking to amend the **Registry Index Map** to reduce his land by **approximately half an acre (0.2 hectare)** and increase the **1st respondent's land** by the same amount. The appellant added that an attempt to have the court sign the mutation was thwarted when the **1st respondent's Application** dated **17th February 2023** in **Baricho LDT Case No.11 of 2008** was dismissed with costs on **17th November 2023.** 5. The appellant adds that the **1st respondent's land needs to be reduced or altered in the map** to align with the boundary that the **3rd respondent** fixed as per the report dated **25th September 2014.** Further, he contended that, the mutation casts doubt on the work done by the land registrar and county surveyor. 6. Additionally, it was his case that the ***1st respondent has recently trespassed and encroached his land and further violated the boundary already determined, regardless of whether it was correctly or incorrectly fixed in the first place. The appellant went further and enumerated the particulars of trespass alleging that the 1st respondent has with no colour of right, proceeded to utilize the land, planted grass and other shrubs in the area already determined to be his.*** 7. On his part, the **1st respondent** filed a **statement of defence dated 7th June 2024** wherein he denied the appellant's claim. The case of the 1st respondent is that he filed ***a boundary dispute vide Land Dispute Tribunal Case No. 8 of 2008*** at the **Baricho** **Tribunal Court, which was determined in his favour.** 8. The 1st respondent contended that he filed the award in ***Land Dispute Tribunal Case No.8 of 2008*** at the **Baricho** **Principal Magistrate’s Court** where the court adopted the award as the **judgement of the Court on 5th November 2008**. That in execution of the decree the**District Land Registrar and the District Land Surveyor** visited the disputed boundary on **18th October 2012 and** wrote to the court on **5th December 2013** to confirm that they had established the boundary. The court then directed them to revisit the site and mark the boundary which they did and a report filed on **25th September 2014** confirming the same. 9. **On 15th January 2015,** the **1st respondent** contended that, the court made a ruling having heard objections by the appellant, effectively bringing the matter to rest. Having been aggrieved by this ruling, the appellant filed an appeal before the **Environment and Land Court** vide **ELC APPEAL NO. 7 of 2015** which was subsequently dismissed on **3rd November 2017.** 10. Following the dismissal, the **1st respondent then** wrote to thecounty surveyor to have the **Registry Index Map** amended to reflect the boundaries marked as was decreed in**BARICHO RESIDENT MAGISTRATE COURT L.D.T CASE NO.11 of 2008,** which exercise was done vide the mutation form **S/NO. 04635338** 11. Further to this chronology, the **1st respondent** filed a **preliminary objection** dated **7th June 2024** where he argued that the court lacked jurisdiction to sit on appeal of matters determined in **Baricho *PMLDT 11 of 2008*** and **Kerugoya** ***ELCA 7 of 2015.*** The **1st respondent** contended that the issue of trespass on ***parcel no.******Kiine/Kiangai/2048*** *was* ***res judicata by virtue of the award of the land dispute tribunal which was adopted in Baricho PMLDT 11 of 2018.*** The **1st respondent** further asserted that the appellant has not established a cause of action against him. 12. The **2nd,3rd and 4th respondents** filed their **joint defence dated 14th June 2024** where they denied the appellant's claim and supported the plea of lack of jurisdiction 13. Upon receiving evidence and submissions, the trial court reached a finding that, indeed, ***the court lacked jurisdiction to interfere with the decisions on record. The trial court allowed the preliminary objection and dismissed the appellant’s suit with no orders as to costs.*** **SUBMISSIONS** 1. Aggrieved by the findings and decree of the trial court, the appellant filed this appeal which was canvassed by way of written submissions. 2. The appellant filed his submissions dated **18th July 2025** through **M/s Macharia Githu Advocates** wherehe extensively submitted on the following grounds; - 3. ***On whether the preliminary objection was hinged on factual disposition and not pure point of law,*** counsel submitted that the preliminary objection was grounded on disputed facts concerning the recent **e*ncroachment of the appellant's land despite the 1st respondent confirming that the boundary was fixed and successfully marked.*** 4. Counsel further argued that the preliminary objection contended that the issue of trespass was res judicata, a position he denied, stating that the trespass pleaded was a fresh issue not determined, in previous proceedings. 5. ***To support his arguments, the appellant*** relied on the pronouncements made in the case of ***Mukhisa Biscuits Manufacturing Co. Ltd vs West End Distributors (1969) E.A 696, Sohanlal Durgadass Rajput & another v Divisional Integrated Development Programmes Co. Ltd (2021) eKLR and George Oraro vs Barak Eston Mbaja Civil No.85 of (1992) eKLR.*** 6. ***On whether, the court erred in holding the suit to be res judicata,*** counsel submitted that the preceding cases only dealt with the issue of boundaries. Subsequently the 1st respondent encroached on his land, adding that he also caused the drafting of the mutation in 2022, seeking to reduce the appellant’s land and increase the respondent’s land. Counsel contended that the suit was not res judicata since the Land Dispute Tribunal could not have contemplated the trespass. Counsel relied on **Section *7*** of the ***Civil Procedure Act to muscle up his argument***. 7. ***On whether the trial magistrate erred in holding that the suit was neither an appeal nor a review of Baricho PMLDT 11 of 2008 and Kerugoya ELCA No.7 of 2015,*** counsel argued that a look at the prayers in the dismissed suit demonstrates that it was neither a review nor an appeal. 8. ***On whether the court erred in its application of section 86 of the Land Registration Act,*** counsel argued that the court did not appreciate the mandate granted to courts by **Section 86 (1) of the Land Registration Act which directs the court to render its opinion.** 9. ***On whether the court erred in compounding the prayers with tenets of administrative law,*** Counsel submitted that no party sought for the decision to be quashed. Counsel further submitted that the magistrate introduced matters which were not pleaded. 10. ***On whether the trial court finding was sound,*** Counsel submitted that the court failed to consider the pleadings and the submissions raised by the appellant in totality thus urged for the ruling to be set aside, and the appeal, to be allowed as prayed. 11. On behalf of the **1st respondent**, submissions dated **10th July 2025** were filed by ***M/s Magee Law LLP*** where the following arguments were advanced; 12. ***On Whether the Preliminary objection raises pure points of law,*** *c*ounsel submitted that the issue of res judicata was demonstrated by the previous decisions contained in the ***1st respondent's pleadings and which were not opposed by the appellant.*** Counsel added that those decisions were not facts that required to be ascertained by the court since they are undisputed facts. 13. ***On whether the Appellant’s suit raises a new cause of action,*** Counsel submitted that the appellant’s suit is a boundary dispute couched as a claim for trespass. Counsel further submitted that the **boundary dispute was determined in Land Dispute Tribunal** and the award was adopted as a judgement of the court in **Baricho PM LDT Case No.11 of 2008.** Counsel added that the appellant filed an appeal in **ELC Appeal No.7 of 2015 which was later dismissed on 3rd November 2017.** 14. ***On whether or not, the mutation*** constituted new evidence which raises a new cause of action, counsel argued that the appellant’s claim is anchored on the mutation prepared by the **2nd respondent** pursuant to the orders of the court in ***Baricho PM LDT Case No.11 of 2008.*** Counsel added that the mutation form prepared by the **2nd respondent** was prepared in execution of the orders of court where the **2nd respondent and 3rd respondent** were ordered to mark the boundaries between parcel ***Kiine/Kiangai/2048*** and ***Kiine/Kiangai/195***. Counsel relied on ***Section 19 (2) of the Land Registration Act.*** 15. Additionally, the **1st respondent counsel** submitted that the appellant was dissatisfied with the preparation of the mutation form by the **2nd respondent** and had sought for the trial court to review the decisions, upon which the court ruled it lacked jurisdiction to do so, particularly, to review the actions of the **2nd and 3rd respondents which he submitted could only be reviewed through judicial review.** Counsel adds that the appellant seeks to have the boundaries determined again to escape the doctrine of res judicata, and on this he relied on the findings in the case of ***E.T v Attorney General & Another (2012)* KEHC 5506.** 16. ***On whether the court in Baricho PM ELC 71 OF 2023 had jurisdiction to hear and determine an application for review under Section 86 of the Land Registration Act,*** counsel submitted that the trial court had no jurisdiction to entertain a matter under **Section 86 of the Land Registration Act,** which is a preserve of the Environment and Land Court. Counsel relied on the case of ***Republic v District Land Registrar, Bondo & 2 Others; Kayongo Owala (2024)KLR.*** 17. Counsel proposed to have the appeal dismissed with costs. **ANALYSIS AND DETERMINATION** 1. I have read through the original record of the trial court, the record filed in this appeal, the grounds of appeal and the parties’ respective submissions. The key question to be determined in this Judgement is whether or not, the trial court exercised its jurisdiction appropriately in upholding the preliminary objection. 2. Before I analyse and dispose of the issue, I will briefly outline the principle that guides this court when exercising appellate jurisdiction. 3. The task of a first appellate court was summarized by the Court of Appeal in the case of ***Susan Munyi v Keshar Shiani (2013) eKLR*** where the court observedas follows: ***“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions.”*** 1. The principle was similarly outlined in ***Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR***where the court stated: ***“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”*** 1. In the present case, the **1st respondent** filed a preliminary objection on three grounds, the first being that***, the trial court did not have jurisdiction to sit on appeal of matters determined in*** ***Baricho PMLDT 11*** of ***2008*** and ***Kerugoya ELCA No.7 of 2015***. The second issue was***, the alleged trespass on parcel Kiine/Kiangai/2048 was res judicata*** and thirdly, ***the appellant had not established a cause of action against the 1st respondent.*** 2. The appellant argued in his submission that the preliminary objection was based on disputed facts that needed to be ascertained, thus did not meet the threshold of a preliminary objection. 3. The law on what issues can be disposed of on the platform of a preliminary objection is well settled. **Law J A outlined the relevant principle** on this in the case of ***Mukhisa Biscuit Manufacturers Company Ltd v West End Distributors Ltd (1969) EA 696***where he opined as follows: “***So far as I am aware, 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. Examples are an objection to the jurisdiction of the Court, or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”*** 1. On his part, ***Justice Charles Newbold*** restatedthe principle as below: ***“The first matter related to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection.*** ***A preliminary objection is in the nature of what used to be demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and on occasion confuse issues. This improper practice must stop***.” 1. ***Ojwang*** **J** [as he then was] outlined the principle in [***Oraro v Mbaja***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/kehc/2005/731)**[2005] eKLR**as follows: “**I think the principle is abundantly clear.** ***A “preliminary objection,” correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed.”*** 1. The **1st respondent** pleaded that the trial court ***had no jurisdiction to sit on appeal of matters determined in Baricho PMLDT 11 of 2008 and Kerugoya ELCA 7 of 2015*** as prayed in the plaint. 2. The approach which our courts take when disposing of questions relating to jurisdiction is well settled. In [***Owners of Motor Vessel ‘Lilian S’ v Caltex Oil (Kenya) Ltd***](http://kenyalaw.org/caselaw/cases/view/45265/)**(1989) 1 KLR, Nyarangi JA** outlined the guiding principle on disposal of jurisdictional questions as follows: ***“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it at the moment it holds the opinion that it is without Jurisdiction.”*** 1. In [***Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others***](http://kenyalaw.org/caselaw/cases/view/82994)**(2012) eKLR** the Supreme Court of Kenya outlined the following jurisprudential principle on the source and scope of jurisdiction of a court: “**A court’s jurisdiction flows from either**[***the Constitution***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution)**or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by**[***the constitution***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution)**or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”** 1. From the record, it is crystal clear that the boundary issue was conclusively determined and the boundary marked pursuant to the court decree that resulted from **BARICHO PRINCIPAL MAGISTRATE COURT L.D.T CASE NO.11 of 2008.** The matter had been heard by the ***Land Dispute Tribunal, vide case No.8 of 2008*** and the award adopted as a judgement of the court in **Baricho case No.11 of 2008.** Having been dissatisfied by this decision, the appellant went ahead and filed an appeal before the Environment and Land Court vide **ELC APPEAL NO. 7 of 2015** which was subsequently dismissed on **3rd November 2017. *In my view, I totally agree with the trial court that the issue of boundary can not be re-litigated especially noting that the same was heard exhaustively, from the land dispute tribunal where a determination was reached, which gave way to the award to be adopted in* Baricho PM LDT case No.11 of 2008** and finally decided on appeal, **at Kerugoya ELC Appeal no. 7 of 2015** 2. Based on this background it is therefore correct that the trial court ***would not be clothed with jurisdiction to review, and/or determine this specific boundary on account of res judicata***. 3. This notwithstanding, my attention has been drawn to **Paragraph 12 of the plaint,** and for systemic flow and structure, i will reproduce the same for ease of reference; ***12. Further, notwithstanding whether the boundary was correctly or incorrectly fixed, the 1st defendant has recently proceeded to trespass and encroach the plaintiff’s land and violated the boundary so determined. He has proceeded to utilize the land, plant grass and other shrubs even in the area that the land registrar determined to be plaintiff’s land*** 1. The Appellant went further and outlined the ***particulars of the alleged trespass by the 1st respondent and his agents.*** 2. A look at this paragraph, clearly demonstrates that ***these are fresh allegations of trespass levelled against the 1st respondent***, which the plaintiff, ***the appellant in these proceedings,*** contends are against the new marked boundary arising from the decree issued in **Baricho Principal Magistrate Court L.D.T CASE NO.11 of 2008.** 3. From the pleadings, the appellant observes that, regardless of ***whether the boundary was correct or not correctly marked***, the ***1st respondent has gone further to encroach and trespass on the same.*** 4. This contestation in my view, discredits the **1st respondent argument** that the appellant claim is the same boundary dispute that had been litigated upon, all the way to the appellate jurisdiction of **Kerugoya ELC Appeal No.7 of 2015** where it was dismissed on **3rd November 2017** 5. In my view, this is not the case. The appellant claim is ***based on trespass and encroachment of the new marked boundary***, arising from the award in **BARICHO PRINCIPAL MAGISTRATE COURT L.D.T CASE NO.11 of 2008** whether or not he agreed with the correctness of the same. 6. With this understanding, it goes without saying that the issue before the trial court ***was not res judicata as had been adjudged*** by the honourable trial magistrate. The issue is novel, and the ***doctrine of res judicata*** cannot apply 7. At this point, I find it critical to pose and remind ourselves of what the doctrine of res judicata is all about. 8. The common law doctrine of *res judicata* has been enacted as part of Kenya’s statute law under **Section 7** of the **Civil Procedure Act** which provides: ***“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in use in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”*** 1. Kenya’s Parliament legislated ***explanatory notes*** defining the doctrine in details. From the substantive framework and explanatory notes, a party, pleading *Res Judicata* must demonstrate the following essential elements. 2. ***There exists, previous existence of a suit relating to the same cause of action in a court of competent jurisdiction;*** 3. ***There exists, previous determination of the same cause of action or the same issue by a court of competent jurisdiction; and*** 4. ***There is privity to the previous suit by the parties or legally recognized representatives of the parties in the offending suit.*** 5. Commenting on the application of the doctrine of *res Judicata* in civil proceedings in Kenya, the Supreme Court of Kenya outlined the following as the ***essential elements of Res Judicata in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC KLR***: ***“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; and (d) There must be between the first and the second action identical parties, subject matter and cause of action. (See Uhuru Highway Developers Limited v Central Bank of Kenya & others [1999] eKLR and see the decision of the Court of Appeal in Nicholas Njeru v Attorney General & 8 others Civil Appeal 110 of 2011 (2013)eKLR.”*** 1. The Court of Appeal in ***Kenya Commercial Bank Limited v Benjoh Amalgamated Limited [2017] eKLR*** stated that the ***elements of Res Judicata are conjunctive rather than disjunctive.*** The Court of Appeal emphasized that for a suit to be deemed as *Res Judicata* on account of a former suit, the following ***five elements must be established:*** 2. ***The suit or issue was directly or substantially in issue in the former suit;*** 3. ***That former suit was between the same parties or parties under whom they or any of them claim;*** 4. ***Those parties were litigating under the same title;*** 5. ***The issue was heard and finally determined in the former suit; and*** 6. ***The court that formerly heard and determined the issues was competent to try the subsequent suit or the suit in which the issue is raised.*** 7. The court in the English Case of ***Henderson v Henderson (1843) 67 ER 313*** emphasized that the ***doctrine of Res Judicata applies not only to issues on which the court was actually required by parties to make pronouncements, but also to every issue which properly belonged to the subject of litigation (cause of action) in the previous suit and which the parties, exercising reasonable diligence, might have canvassed in the preceding suit.*** 8. The court opined: ***“Where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case and will not (except in special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertence, or even accident omitted part of their case. The plea of res judicata applies except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce judgment but to every point which properly belonged to the subject of litigation, and which parties exercising reasonable diligence, might have brought forward at the time.”*** 1. On the ***policy rationale of the doctrine of Res Judicata****,* the Supreme Court of Kenya, in ***John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 Others [supra]*** observed; ***“We affirm our position as in the Muiri Coffee case that the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party conclusively”.*** 1. On its part, the Court of Appeal outlined the rationale of the doctrine of *Res Judicata* in ***Independent Electoral & Boundaries Commission v 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 for a, 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.”*** 1. In the present context, the critical issue that was to be determined in the lower court proceedings, was whether or not, there was trespass and encroachment as envisaged under **paragraph 12 of the appellant’s plaint.** The appellant, being convinced that this is the case, sought, amongst other reliefs;- * + 1. ***An order of eviction against the 1st respondent from the entire section where he has encroached and trespassed on the appellant’s land title number Kiine/Kiangai/2048;*** 2. ***A permanent injunction against the 1st respondent, his agents, employees’ children or nominees from accessing, farming, using, constructing or in any way utilizing the contested, encroached and trespassed area and any part of land title number Kiine/Kiangai/2048;*** 3. ***Damages for trespass, encroachment and mesne profits;*** 2. In my view, these prayers would not have been sought had the appellant not been convinced that indeed a cause of action, in form of trespass and encroachment existed. 3. It would therefore be wrong, for the appellant ***to be denied his day in court, to ventilate his case on account of res judicata whereas the issue raised under paragraph 12 of his plaint is not only recent, but it is novel.*** 4. Cascading from the foregoing, I do not find, or better still, do not agree with the **1st respondent contestations** that, ***the alleged trespass on parcel Kiine/Kiangai/2048 was res judicata*** and that the appellant has ***no cause of action against the 1st respondent.*** Both issues as raised in the preliminary objection are held to nought. 5. For the foregoing reasons and taking cognizant, the appellant constitutional right to fair hearing as envisaged under **Article 50 of the Constitution** as well as standing on the shoulders of **Sections 1A and 1B of the Civil Procedure Act,** where the duty of the court is pivoted on ***just determination of civil disputes,*** I find favour in the appellant’s case and proceed to allow the appeal in the following terms: 6. **The ruling and orders of the Senior Principal Magistrate’s Court at Baricho delivered on 10th December 2024 in BARICHO ELC NO.071 OF 2023 -MICHAEL EDWARDS GICHOHI MUHINDI VS JOHN NGURE MUREKIO are hereby set aside and substituted with an order REINSTATING THE SUIT for immediate hearing and determination ON MERIT ON PRIORITY BASIS** 7. **Each party to bear their own costs of this appeal and preliminary objection dated 7th June 2024** **DATED, SIGNED AND DELIVERED VIRTUALY THIS 16H DAY OF JULY, 2026** **HON. LADY JUSTICE L.T. LEWA** **ENVIRONMENT AND LAND COURT JUDGE** **IN THE PRESENCE OF:** **APPELLANT: Ms. Kamau Holding brief for Mr. Macharia** **RESPONDENT: Ms. Muturi Holding brief for Mr. Magee** **COURT ASSISTANT: Mr. Musyimi**