https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5212

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT KWALE** **ELC NO. E079 OF 2025** **MLAI MREMA MLAI.........................................1ST PLAINTIFF** **MAMBO MREMA MWANDUMO..........................2ND PLAINTIFF** **NZUGA NZUKI WAMLAI ....................................3RD PLAINTIFF** * **VERSUS -** **TRANSLANTIC HAULIERS LIMITED................1ST DEFENDANT** **SOUTH SAMBURU GROUP RANCH................. 2ND DEFENDANT** **LAND REGISTRAR KWALE COUNTY...............3RD DEFENDANT** **THE DIRECTOR OF SURVEY. ........................4TH DEFENDANT** **RULING** 1. **Introduction** 2. Before the Honourable Court for its determination is the Notice of Motion application dated 15th June, 2026. It as filed by *Translantic Hauliers Limited*, the 1st Defendant/Applicant herein. The application sought for striking out of this suit on two grounds. First, offended “***the Doctrine of Res Judicata”*** and secondly, the Plaintiffs lacked the requisite “***locus standi***” to institute the suit. 3. The application was brought under the provisions of Sections 1A, 1B, 3A and 7 of the Civil Procedure Act, Cap. 21, Order 2 Rule 15[1][a], [b], [c] and [d] of the Civil Procedure Rules, 2010, the provision of Article 159 of the Constitution and all other enabling provisions of the law] 4. Despite of service, the application was unopposed. 5. **The case by the 1st Defendants/Applicants** 6. The 1st Defendants/Applicants sought for the following orders:- 7. ***Spent.*** 8. ***That the Plaintiffs' suit be struck out and dismissed on the ground that the issues raised therein are res judicata, having been previously heard and determined by a competent tribunal, namely, the National Land Commission.*** 9. ***That the Plaintiffs' suit be struck out on the ground that the Plaintiffs lack the requisite locus standi to institute and maintain the present proceedings.*** 10. ***That the costs of this Application and of the suit be awarded to the 1st Defendant.*** 11. The application was premised upon the following listed grounds that:- 1. The Plaintiffs hade failed to demonstrate any legally cognisable interest, proprietary entitlement, beneficial ownership, membership rights or enforceable claim in respect of the property forming the subject matter of these proceedings. 2. The Plaintiffs had instituted the present suit on the basis of a parent title allegedly relating to South Samburu Group Ranch, yet they neither hold title to nor possess any legally recognisable interest in the specific parcel registered in the name of the 1st Defendant. 3. The Plaintiffs had not established that they were members of South Samburu Group Ranch or that they derive any rights whatsoever from the Ranch capable of grounding the claims advanced herein. 4. The issues forming the subject matter of this suit were previously investigated, considered and determined by the National Land Commission pursuant to its constitutional and statutory mandate following complaints lodged concerning the sub - division, alienation, transfer and issuance of titles arising from South Samburu Group Ranch. 5. Upon conclusion of the said inquiry, the National Land Commission found and affirmed that the impugned transactions were lawful, valid and procedurally undertaken, that members of the Ranch were entitled to dispose of their respective interests and that titles issued pursuant thereto were lawfully acquired. 6. The findings, determinations and recommendations of the National Land Commission remained valid, binding and operative and had never been set aside, quashed, reviewed or otherwise invalidated by any court of competent jurisdiction. 7. The present suit constituted a collateral attack upon the findings and determinations of the National Land Commission and was therefore legally untenable. 8. Where a statutory body vested with lawful authority had rendered a decision within its jurisdiction, any challenge thereto can only be mounted through the procedures prescribed by law and not through collateral proceedings designed to reopen matters already determined. 9. If the Plaintiffs were dissatisfied with the findings, conclusions or recommendations of the National Land Commission, their remedy lay in proceedings directed against the said decision and not through the institution of a fresh suit against the 1st Defendant. 10. The Plaintiffs could not circumvent the law governing challenges to administrative and quasi-judicial decisions by disguising a challenge to the National Land Commission's determination as an ordinary land claim. 11. The matters raised in the Plaintiffs’ suit was directly and substantially the same as those previously investigated and determined by the National Land Commission and was therefore barred by “***the doctrine of Res Judicata”.*** 12. The Plaintiffs had neither pleaded nor established any actionable wrongdoing attributable to the 1st Defendant in relation to the suit property and had improperly joined the 1st Defendant to these proceedings notwithstanding that the matters forming the subject of the suit were previously investigated and determined by the National Land Commission. 13. The continued prosecution of these proceedings against the 1st Defendant would occasion substantial and unwarranted prejudice, subject the 1st Defendant to needless litigation over matters that have already been conclusively determined, and thereby constitute an abuse of the process of this Honourable Court. 14. The suit was frivolous, vexatious and devoid of any sustainable legal foundation. 15. There ought to be finality in litigation, and the Plaintiffs cannot be permitted to re-open, through the present suit, matters that were previously placed before and determined through the statutory mechanisms established under the law, thereby subjecting the 1st Defendant to duplicative and vexatious litigation. 16. The interests of justice, judicial economy and the principle of finality of litigation require that the suit be struck out and dismissed at the earliest opportunity. 17. The Plaintiffs’ suit was fundamentally incompetent, misconceived and constitutes an abuse of the process of this Honourable Court, thereby rendering it just, equitable and expedient that it be struck out and dismissed with costs to the 1st Defendant. 12. The application was further supported by an affidavit sworn by SAHAL AHMED DAHIR, a director of the Defendant/ Applicant herein, having been duly authorised and mandated by the Board of Directors to swear the Affidavit in support of the Notice of Motion application seeking to strike out and dismiss the Plaintiffs' suit. It averred as follows that:- 13. The suit was incompetent, misconceived, legally untenable and constituted an abuse of the process of this Honourable Court. 14. This was as the Plaintiffs had failed to demonstrate any legally cognisable interest, proprietary entitlement, beneficial ownership, membership rights or enforceable claim whatsoever in respect of the suit property. 15. The Plaintiffs' claim was predicated upon allegations relating to a parent title said to concern Samburu Ranch, yet the Plaintiffs neither hold title to nor possess any legally recognisable interest in the specific parcel registered in my name. 16. Further that the Plaintiffs had not exhibited any title document, allotment letter, membership record, shareholding record, trust instrument or other legally recognised document capable of conferring upon them any enforceable rights over the suit property. 17. The Plaintiffs had failed to establish that they are members of Samburu Ranch or that they derive any rights whatsoever therefrom capable of sustaining the claims advanced herein. 18. In the absence of any demonstrable proprietary or beneficial interest in the suit property, the Plaintiffs lacked the requisite ***“locus standi”*** to institute or sustain the present proceedings against the 1st Defendant. 19. Also that the Plaintiffs' pleadings disclose no legal nexus whatsoever between themselves and the suit property. 20. A party who neither owns nor demonstrates a legally protectable interest in land could not competently challenge the title of a registered proprietor. 21. The deponent stated the Plaintiffs had failed to plead or establish any actionable wrongdoing, fraud, illegality, misrepresentation, breach of trust or other legally sustainable cause of action attributable to him. 22. In or about the year 2018, complaints concerning the sub - division, alienation, transfer and issuance of titles arising from Samburu Ranch were formally lodged before the National Land Commission for investigation and determination. the National Land Commission, officials. 23. Upon receipt of the said complaints, from the Ministry of Lands and representatives of the security agencies conducted extensive investigations during which relevant stakeholders appeared, documentary evidence was received and the legality of the impugned transactions was comprehensively interrogated. 24. Upon conclusion of the inquiry, the National Land Commission found and affirmed that the transactions complained of were lawful, valid and procedurally undertaken, that members of the Ranch were entitled to dispose of their respective interests and that titles issued pursuant thereto had been lawfully and properly obtained. 25. The findings, determinations and recommendations arising from the said inquiry had never been set aside, quashed, reviewed or otherwise impugned by any court of competent jurisdiction and accordingly remained valid and binding. 26. The present proceedings constituted a collateral and impermissible attempts to appeal the decision of the National Land Commission, which was irregular. 27. Where a statutory body vested with lawful authority had rendered a determination within its jurisdiction, any challenge thereto must be mounted through the legally prescribed procedure and not through collateral proceedings against third parties. 28. If the Plaintiffs were dissatisfied with the findings, conclusions or recommendations of the National Land Commission, their recourse lay in appropriate proceedings directed against the said decision and not through the institution of a fresh suit against a private citizen. 29. The Plaintiffs could not circumvent the legal framework governing challenges to administrative and quasi-judicial action by disguising such challenge as an ordinary land claim. 30. The issues raised in the Plaintiffs' suit were directly and substantially identical to matters previously investigated, considered and determined by the National Land Commission and are therefore barred by “***the Doctrine of Res Judicata***” and the principle of finality of litigation. 31. The present suit was frivolous, vexatious, misconceived and wholly devoid of any legal or factual foundation. Unless the suit was struck out at this stage, the 1st Defendant shall suffer prejudice, unnecessary expense and continued litigation founded upon matters already conclusively determined. 32. The continuation of these proceedings would amount to an abuse of the process of this Honourable Court and it was in the interests of justice, judicial economy and finality of litigation that the Plaintiffs' suit be struck out and dismissed with costs. 33. **Submissions** 34. On 6th July, 2026 while all the parties were present in Court they were directed to dispose off the application by way of written submissions. 35. Unfortunately, by the time of penning down this Ruling, there were no submissions on record (both the Judiciary CTS Portal nor the ELC Registry) by either of the parties herein. 36. Thus, the Honourable Court proceeded to deliver the Ruling as scheduled on 31st July, 2026 on its own merit accordingly. 37. **Analysis and determination.** 38. The Honourable Court has considered the pleadings on record, the relevant provisions of the Constitution of Kenya, 2010 and the statutes. 39. It postulates that in order to reach an informed, reasonable and just decision in the subject matter, the following are the three ( 3 ) salient issues for its determination: - 40. ***What are the legal parameters for granting orders for striking out suits?*** 41. ***Whether the Notice of Motion application dated 15th June, 2026 by the 1st Respondent had any merit or not?*** 42. ***Whether the parties were entitled to the reliefs sought?*** 43. ***Who ought to bear the costs of the motion?*** ***ISSUE No. a). What are the legal parameters for granting orders for striking out suits?*** 1. Under this sub – heading the Honourable Court shall be examining the main substratum of the application – whether to strike out the suit instituted by the Plaintiff or not. It is trite that the power of the Court to strike out pleadings is provided for Order 2 Rule 15 ( 1 ) ( a ), ( b ), ( c ) and ( d ) of the Civil Procedure Rules, 2010 deals with striking out of pleadings and provides as follows:- **“Rule 15. (1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—** 1. **It discloses no reasonable cause of action or defence in law; or** 2. **It is scandalous, frivolous or vexatious; or** **(c) It may prejudice, embarrass or delay the fair trial of the action; or** **(d) It is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”** 1. From the above provisions of law, it is clear that Order 2 rule 15 (2) guides the applications seeking to strike out pleadings for not disclosing a reasonable cause of action or a defence that is not supported by any evidence. The court should therefore be keen in examining pleadings in order to ascertain whether the impugned pleading raises a reasonable cause of action or defence. 2. The High Court has expansively deliberated on this legal issue. For instance, I will cite a few cases thus:- In the case of “***Sunday Principal Newspaper Limited [1961] 2ALL E.R. 758”,*** the principles for striking out were expressed thus: - ***“It is established that the drastic remedy of striking out a pleading or part of a pleading, cannot be resorted to unless it is quite clear that the pleading objected to, discloses no arguable case. Indeed, it has been conceded before us that the rule is applicable only in plain and obvious cases....”*** 1. Further, in the now famous case of:- *“****DT Dobie & Co (K) Limited – Versus - Muchina, [1982] KLR”****,* the Court of Appeal defined the term:- **“reasonable cause of action” to mean** “***an action with some chance of success when allegations in the Plaint only are considered. A cause of action will not be considered reasonable if it does not state such facts as to support the claim prayer”*** 1. Additionally, the Court of Appeal in the case of:- *“****Co - operative Merchant Bank Limited – Versus - George Fredrick Wekesa Civil Appeal No. 54 of 1999”*** as cited with approval in the case of:- “***Jubilee Insurance Co. Limited – Versus - Grace Anyona Mbinda [2016] eKLR”***, rendered that: ***“The power of the court to strike out pleadings under Order 6 Rule 13 (1) (b) (c) & (d) is discretionary …. Striking out a pleading is a draconian act, which may only be resorted to, in plain cases. Whether or not a case is plain is a matter of fact….” See also Kivanga Estates Limited v National Bank of Kenya Limited [2017] eKLR.*** 1. Further, the Court of Appeal in the case of:- *“****Crescent Construction Limited – Versus - Kenya Commercial Bank Limited [2019] eKLR”***, stated as follows: ***“However, one thing remains clear, and that is that the power to strike out a pleading is a discretionary one. It is to be exercised with the greatest care and caution. This comes from the realization that the rules of natural justice require that the court must not drive away any litigant however weak his case may be from the seat of justice. This is a time-honoured legal principle. At the same time, it is unfair to drag a person to the seat of justice when the case purportedly brought against him is a non-starter.”*** 1. The court has also come across the dictum inthe case of:- **“*Charles Mugane Njonjo & Another – Versus - Gucokaniria Kihato Traders and Farmers Company Limited & Another [2016] eKLR”***where the court held that:- ***“…it is an established practice that the courts should strive to maintain suits rather than strike out or dismiss the same….”*** ***ISSUE No. b).*** ***ISSUE No. a). Whether the Notice of Motion application dated 15th June, 2026 by the 1st Respondent had any merit or not?*** 1. The application dated 15th June, 2026 is predicated upon the provision of Sections 1A, 1B, 3A and 7 of the Civil Procedure Act, Cap. 21; Order 2 Rule 15 ( 1 ) ( a ), ( b ), ( c ) and ( d ) of the Rules. It seeks to strike out and dismissal of the suit by the Plaintiffs on two broad grounds. Firstly, the suit offends “***the Doctrine of Res Judicata”*** by virtue of the prior determination of the said subject matter by the National land Commissions (NLC); and Secondly, that the Plaintiffs lack the requisite ‘***locus standi***” to institute and maintain these proceedings. 2. It is the 1st Defendant/Applicant’s case that the instant suit offends the provisions of Section 7 of the Civil Procedure Act. Section 7 of the Civil Procedure Act, Cap. 21provides as hereunder:- **“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**.” 1. The **Black’s law Dictionary 10th Edition defines “res judicata”** as ***“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”*** 1. From the filed pleadings, the Plaint instituting this suit the Plaintiffs have pleaded that they are the representatives of Samburu Ranch members. The Plaintiffs have are the beneficial owners of clan land held under LR Nos Kwale/South Samburu/ 125 and 128 the suit properties herein. It is stated that the land is held by the south Samburu Group Ranch in trust for the clan members. That the registration of the suit properties in the name of the 1st Defendant is fraudulent and which necessitated the instant suit. 2. The said notion is vehemently denied by the 1st Defendant and who stated that issues surrounding ownership of the suit properties were already conclusively dealt with by the National Land Commission. They hold that the Plaintiffs have not exhibited any documentations of registration such as Certificate of Title Deed, Letter of Allotment, Membership cards/record; Shareholding records, trust instruments or any other document capable of conferring upon them any enforceable rights over the suit property to that effect. 3. I have perused the annextures by the Applicant herein. From it, I have managed to get a copy of the letter dated 20th March, 2019 by the National Land Commission indicating that a in the year 2018 there was a complaint regarding sub – division, alienation, transfer and issuance of titles arising from the Samburu Ranch. Investigation were undertaken and a hearing was held on 28th November, 2018 at Samburu social hall in Kwale. That determination of the issues raised during the hearing was made vide a letter dated 24th January, 2019 which the court has further managed to peruse. Its determination was tat the transactions complained of were lawful, valid and procedurally undertaken. 4. From the determination of the commission, and with regards to the suit properties herein, the commission stated that the documents for the parcels had been presented, that both the committee members and the sellers agree that the transactions over the parcels were legitimate. The title deeds were thus upheld. 5. Based on the above, it is clear that a determination was made by the National Land Commission over the suit parcels a fact that was not disclosed by the Plaintiff. The NLC is a constitutionally established body under the provision of Article 67 ( 1 ) of the Constitution, 2010. It has jurisdiction under Article 67 ( 2 ) ( e ) and ( f ) and Section 5 ( e ) and ( f ) of the National Land Commission Act, 2012 to investigate and determine disputes relating to land. Thus, its determination pursuant to a public hearing are akin to decisions of a Judicial or Quasi – Judicial body. 6. In the instant case, the issues of contention were pertaining to the parcel of land – LR. No. Kwale/South 125 and 128 respectively. Complaints on fraud and illegalities were made and a public hearing was conducted on 28th November, 2018 at Samburu Social Hall, County of Kwale. After an elaborate session involving examining of documents and hearing oral evidence a determination was arrived at. 7. In the interest of justice, the court finds it prudent to mention that the Plaintiffs would have filed an appeal to this court to challenge the decision of the National Land Commission which is a quasi-judicial tribunal. **(*See “Pentagon Communications Limited – Versus - National Land Commission [2025] KECA 1304 (KLR*)”**. 8. I am further guided by the provisions of Section 16A of the Environment and [Land Act](https://kenyalaw.org/akn/ke/act/2012/6), 2011 which provides that:- **1.All appeals from subordinate courts and local tribunals shall be filed within a period of thirty days from the date of the decree or order appealed against in matters in respect of disputes falling within the jurisdiction set out in section 13(2) of the**[**Environment and Land Court Act**](https://kenyalaw.org/akn/ke/act/2011/19)**(Cap. 8D), provided that in computing time within which the appeal is to be instituted, there shall be excluded such time that the subordinate court or tribunal may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.** 1. On the issue of whether the Plaintiffs had “***the Locus Standi”*** to institute this suit. The Locus Standi is the right to appear and be heard in a given forum. It is reiterated that as alleged the Plaintiffs being representatives of the Wachanda - Clan Ndana family ought to have filed a written consent/authority from the rest of the clan members indicating that they had the authority to institute suit on behalf of the rest of the clan. Furthermore, in a accordance to the provision of Sections 7 & 13 of the Land (Group Representatives) Act, Cap, 287 and the Community Land Act, No. 27 of 2016 Group Ranches are body corporate entities with perpetual succession rights to sue and be sued in their own names through the duly appointed Group Representatives. Individuals members of the Group Ranch have no capacity to institute any suit on its behalf as the Plaintiff seem to be doing herein. 2. From the pleadings on record, the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Plaintiffs indeed filed a Plaint dated 21st August, 2025 accompanied by a Verifying Affidavit sworn and signed by all the Plaintiffs herein. Further to this, they took out Summons to Enter Appearance. It was stated that the suit had been instituted on behalf of the Wachanda-Clan Ndana family. Under Paragraph Number 1 of the Plaint states as follows:- ***“The Plaintiffs are male adults of sound mind and disposition residing and working for gain at Samburu Area in Kwale County and bring this Suit in their capacity as appointed representatives of Wachanda – Ndana Family who are the beneficial/legal/owners of Clan land held under Title Deed LR No. Kwale/South Samburu/125 & 128……..”*** 1. Further to the above, the contents of Paragraphs 1 of the Verifying Affidavit dated even dated holds as follows: ***“That we are the Plaintiffs herein duly authorised by Wachanda – Ndana Family who are the beneficial/legal/owners of Clan land held under Title Deed LR No. Kwale/South Samburu/125 & 128 to make this Affidavit on our own behalf and on their behalf thus able and competent to make this affidavit..…..”*** 1. Suffice to say, despite of all these, it was noted that there was no written authority from members of the said clan authorising the Plaintiffs herein to institute suit on behalf of the clan members, Thus, by that stand alone reason, notwithstanding of the provision of Article 159 ( 2 ) ( d ) of the Constitution of Kenya, 2010 as this is not a procedural technicality, it makes the pleadings fatally defective and null and void. 2. For all purposes and intent therefore, I discern that the Plaintiffs have failed to demonstrate there existed such a legal entity known as Samburu Group ranch in form of a Certificate of Incorporation; Membership Register, that they were its registered members and that they bore the authority to take any legal l action on its behalf including instituting this suit. Hence, I hold that the application by the 1st Respondent has to succeed. ***ISSUE No. c). Who ought to bear the costs of the Notice of Motion application?*** 1. It is now well settled that the issue of costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of legal action and proceedings in any litigation. See the Halsbury’s Laws of England; 4th Edition (Re-issue), [2010], Vol.10. para 16 that: **“The court has discretion as to whether costs are payable by one party to another, the amount of those costs, and when they are to be paid. Where costs are in the discretion of the court, a party has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them. This discretion must be exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice”** 1. The proviso of Section 27 (1) of the Civil Procedure Act, Cap. 21 provides that the award of costs follow the event. It provides:- ***“*Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and give all the necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of those powers;** **Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise direct.”** 1. By the event it means the result of the legal action or proceedings. 2. In the present case, given the peculiar circumstances of the case, the court opines that it will be reasonable, fair and proper for each party to bear its own costs. 3. **Conclusion and Disposition** 4. Consequently, from the indepth analysis of the framed issues herein, the Honourable Court based on the Principles of Preponderance of Probabilities and the balance of Convenience, it proceeds to grant the following specific orders:- 5. **THAT the Notice of Motion application dated 15th June, 2026 to strike out the Plaint justified and hence be and is found to be merited.** 6. **THAT the suit by the Plaintiffs be hereby strike out.** 7. **THAT each party to bear its own costs** **IT IS ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS** **VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS …….30TH …….DAY OF……. JULY……… 2026** **………………………………** **HON. MR. JUSTICE L.L NAIKUNI,** **ENVIRONMENT & LAND COURT** **AT** **KWALE** **Ruling delivered in the presence of: -** 1. Mr. Daniel Disii, the Court Assistant. 2. Mr. Ondabu Advocate for the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Plaintiffs. 3. Mr. Omwenga Advocate for the 1st Defendant. 4. M/s. Kiti Advocate for the 3rd & 4th Defendants. 5. No appearance for the 2nd Defendant.