Mcharo v Mcharo (Environment and Land Case E004 of 2026) [2026] KEELC 3781 (KLR) (Environment and Land) (19 June 2026) (Ruling)

Mcharo v Mcharo (Environment and Land Case E004 of 2026) [2026] KEELC 3781 (KLR) (Environment and Land) (19 June 2026) (Ruling) Neutral citation: [2026] KEELC 3781 (KLR) Republic of Kenya In the Environment and Land Court at Voi Environment and Land Environment and Land Case E004 of 2026 EK Wabwoto, J June 19, 2026 Between Mwaeghwa Mwadime Mcharo Plaintiff and Kaleb Munde Mcharo Defendant Ruling 1.Before the court for determination is the Defendant/Applicant’s Notice of Motion dated 9th April, 2026, expressed to be brought under Articles 40, 50 and 159 of the Constitution of Kenya, 2010, Sections 1A, 1B, 3A, 7 and 63(e) of the Civil Procedure Act, Cap 21, and Order 2 Rule 15 and Order 51 Rules 1 and 3 of the Civil Procedure Rules, 2010. the Applicant seeks the following substantive orders:that this Honourable Court be pleased to set aside, ex debito justitiae, the proceedings and orders made herein on 5th March, 2026; that this Honourable Court strikes out this suit on the ground that it is res judicata, the same issues having been heard and determined in Voi ELC No. 10 (E010) of 2023, Cosmas Ropaki Kisomba v Caleb Munde Mcharo; that this Honourable Court stays these proceedings pending the hearing and determination of the appeal lodged at the Court of Appeal, namely Mombasa Civil Appeal No. E231 of 2024, Caleb Munde Mcharo v Cosmas Ropaki Kisomba; and that the costs of the application be provided for. 2.The application is premised on the grounds set out on its face and is supported by the affidavit of the Applicant, Kaleb Munde Mcharo, sworn on 9th April, 2026, together with a further affidavit sworn on 8th May, 2026. The Applicant also filed written submissions dated 29th May, 2026. The application is opposed by the Plaintiff/Respondent through a replying affidavit sworn on 22nd April, 2026. The applicant’s case 3.The gravamen of the Applicant’s case is that this suit is, in his words, “textbook res judicata.” He deposes that the suit property herein Taita Taveta/Mwachabo Settlement Scheme Phase II/230 was the very subject of Voi ELC No. E010 of 2023, in which the Plaintiff herein testified as a witness (PW2) in support of the plaintiff in that suit, Cosmas Ropaki Kisomba. The Applicant contends that the Plaintiff herein, in his sworn testimony in the former suit, asserted that he had sold approximately 22½ acres of the parcel to the Applicant’s late mother, Stella Kafusi, for Kshs. 450,000 (and a further half-acre for a borehole at Kshs. 50,000) but had not been paid, and that he ought to be given back that portion. 4.It is the Applicant’s case that this very testimony formed a core plank of the judgment delivered on 8th November, 2024, by which the trial court declared Cosmas Ropaki the bona fide owner of 47½ acres of the parcel, ordered the excision and registration of that portion in his name, and directed that the remainder be registered in the Applicant’s name. The Applicant submits that the Plaintiff, having had the benefit of counsel and having advanced a claim of ownership in his evidence, ought to have applied to be enjoined as a co-plaintiff in the former suit; having failed to do so, he cannot now re-litigate the same subject matter afresh. He invokes Section 7 of the Civil Procedure Act. 5.The Applicant further deposes that he was never validly served with the summons to enter appearance and the Plaintiff’s pleadings. He states that the process server, one Timothy Mui, contacted him by telephone and was given his email address, but that the documents were transmitted to an address from which they bounced, as evidenced by a delivery-failure notice (annexed and marked “KMM-8”) showing that the message was not delivered because the address could not be found. He contends that he learnt of the proceedings, and of the hearing date of 13th May, 2026, only through the intervention of his counsel, and that the orders of 5th March, 2026 were therefore made in violation of his right to a fair hearing under Article 50 of the Constitution, and ought to be set aside as a matter of right. 6.Finally, the Applicant contends that this suit offends the proceedings pending before the Court of Appeal in Mombasa Civil Appeal No. E231 of 2024, in which he has appealed the judgment of 8th November, 2024, and in which a consent order was recorded on 21st January, 2025 maintaining the status quo over the suit property, staying execution of the judgment, and issuing an injunction. He argues that to allow this suit to proceed would risk conflicting decisions over the same parcel and embarrass the superior court. The Respondent’s case 7.The Plaintiff/Respondent opposes the application. He deposes that although the suit property is the same as that in Voi ELC No. E010 of 2023, the circumstances and cause of action are quite different as between himself and the Applicant. His claim, he says, relates solely to the portion measuring approximately 22½ acres which was the subject of the unpaid transaction with the late Stella Kafusi, and which he seeks to recover on the grounds of fraud, illegality and misrepresentation in its registration. 8.On res judicata, the Plaintiff sets out the five conjunctive elements of the doctrine and contends that they are not all satisfied. In particular, he stresses that he was merely a witness, and not a party, in the former suit; that the dispute between himself and the Applicant specifically was never heard, determined, or even framed for determination in that suit; and that the bar of res judicata cannot be raised against a party whose interests were never adjudicated in the former proceedings. 9.On service, the Plaintiff deposes and relies on the Affidavit of Service of the process server, Timothy Mutinda Mui that the summons and pleadings were duly served by electronic mail to the Applicant’s correct email address, k_munda@yahoo.co.uk, that address having been furnished by the Applicant himself, in accordance with Order 5 Rule 22B of the Civil Procedure Rules. He annexes a copy of the transmitting email of 9th February, 2026 enclosing the mention notice and the plaint. He notes that the Applicant himself confirms that k_munda@yahoo.co.uk is his correct address, and urges that the delivery failure relied upon relates to a different, erroneous address. 10.The Plaintiff accordingly prays that the application be dismissed as frivolous, vexatious and an abuse of the process of the court. Issues for determination 11.Having considered the application, the affidavits, the annextures and the rival submissions, the following issues fall for determination;i.Whether the suit is res judicata and ought to be struck out; whether the proceedings and orders of 5th March, 2026 ought to be set aside for want of service;ii.Whether these proceedings ought to be stayed pending the determination of Mombasa Civil Appeal No. E231 of 2024; andiii.Who should bear the costs of the application. Analysis and determination Issue (i): Whether the suit is res judicata 12.The doctrine of res judicata is anchored in Section 7 of the Civil Procedure Act, Cap 21, 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 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.” 13.The Applicant rightly relied on Kenya Commercial Bank Limited v Benjoh Amalgamated Limited [2017] eKLR, in which the Court of Appeal restated that the elements of res judicata are conjunctive and not disjunctive, such that all of them must co-exist before a suit or issue can be shut out. Those elements are:(a)that the matter in issue in the subsequent suit was directly and substantially in issue in the former suit;(b)that the former suit was between the same parties, or parties under whom they or any of them claim;(c)that the parties were litigating under the same title;(d)that the issue was heard and finally determined in the former suit; and(e)that the court which determined the former suit was competent to try the subsequent suit. 14.I have carefully considered whether each of these conjunctive elements is satisfied on the facts before me. 15.There is no contest that the suit property Taita Taveta/Mwachabo Settlement Scheme Phase II/230 is one and the same parcel that was the subject of Voi ELC No. E010 of 2023. To that extent the res is common to both suits. Equally, there is no dispute that the trial court which delivered the judgment of 8th November, 2024 was a court of competent jurisdiction. Elements (a), in part, and (e) may therefore be taken as established. 16.The difficulty for the Applicant lies in elements (b) and (c) the requirement that the former suit be between the same parties (or their privies) litigating under the same title. The former suit, Voi ELC No. E010 of 2023, was prosecuted by Cosmas Ropaki Kisomba as plaintiff against the Applicant as defendant. The present suit is prosecuted by Mwaeghwa Mwadime Mcharo as plaintiff against the same Applicant as defendant. While the Defendant is common to both suits, the plaintiffs are different persons asserting, on the material before me, different and indeed competing claims: in the former suit Cosmas Ropaki laid claim to 47½ acres of the parcel, whereas in the present suit the Plaintiff lays claim to a distinct portion of approximately 22½ acres said to have been the subject of an unpaid sale to the Applicant’s late mother. 17.The Applicant urges that the Plaintiff is nonetheless caught by the doctrine because he testified as a witness in the former suit, asserted ownership of the 22½ acres in his evidence, and having had the benefit of counsel ought to have sought to be enjoined as a co-plaintiff but did not. In support, the Applicant invoked the rule in Henderson v Henderson (1843) 67 ER 313, as applied in Mburu Kinyua v Gachini Tutu [1978] KLR 69 and Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, to the effect that res judicata bars not only matters actually decided but every point which properly belonged to the litigation and which the parties, exercising reasonable diligence, might have raised. 18.The principle in Henderson v Henderson is firmly part of our law and I accept its force. It is, however, important to be precise about whom it binds. The rule operates to require the parties to litigation to bring forward their whole case, and to preclude those same parties from re-opening, in a later suit, matters they could and ought to have advanced in the earlier one. It is, in other words, a rule directed at parties and their privies. A witness, however material his testimony, is not a party to the suit in which he testifies. He has no carriage of the proceedings, files no pleadings, seeks no relief, and is bound by no decree. The Plaintiff herein was a witness in Voi ELC No. E010 of 2023; he was not a party, and he was not a privy of the plaintiff in that suit, for he claimed no interest through or under Cosmas Ropaki but asserted an independent and to a degree adverse interest of his own. 19.It follows that the Plaintiff cannot be visited with the consequences of a failure to do that which the law did not require him to do. The omission of counsel in the former suit to apply to enjoin him does not convert the Plaintiff into a party bound by the resulting judgment, nor does it estop him from asserting, in his own name and in proceedings to which he is a party, a claim that was never the subject of adjudication as between himself and the Applicant. 20.I am fortified in this view by the conjunctive nature of the test. Even if I were persuaded and I am not that the matter now in issue was directly and substantially in issue in the former suit as between these parties, the plain fact that the present Plaintiff was not a party (or privy) to the former suit, and was not litigating under the same title as Cosmas Ropaki, is fatal to the plea. Where one of the conjunctive elements is absent, the doctrine cannot avail the party invoking it: see Benjoh Amalgamated (supra). 21.For completeness, I have not lost sight of the Applicant’s reliance on Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR and Karia v Attorney General [2005] 1 EA 83. Those authorities are sound statements of the doctrine, but they do not dispense with the requirement of identity of parties; if anything, they reaffirm it. 22.For these reasons, I find and hold that the present suit is not res judicata, and the prayer to strike it out on that ground must fail. I would add that the striking out of a suit is a draconian remedy to be employed sparingly and only in plain and obvious cases. This is not such a case. The Plaintiff has raised an arguable claim, peculiar to himself, which deserves to be heard on its merits. Issue (ii): Whether the orders of 5th March, 2026 should be set aside for want of service 23.The Applicant seeks to set aside, ex debito justitiae, the proceedings and orders made on 5th March, 2026, on the ground that he was never served with the summons to enter appearance and the Plaintiff’s pleadings. He relies on James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR for the proposition that a judgment entered against a party who has not been properly served is irregular and liable to be set aside as a matter of right, the court not being concerned, in such a case, with whether the intended defence raises triable issues. 24.Two matters fall to be observed. First, there is a material distinction between the address to which the bounced message was directed “kmunda@yahoo.co.uk”, without the underscore and the address to which the process server deposes the documents were ultimately transmitted “k_munda@yahoo.co.uk”, with the underscore. The latter is the address that the Applicant himself confirms, in his own affidavit, to be his correct email address, and it is the address that appears on the transmitting email of 9th February, 2026 annexed to the Affidavit of Service. On the material before me, the delivery failure relied upon by the Applicant relates to an erroneous rendition of the address; it does not establish that the transmission to the correct address also failed. The evidential burden of demonstrating that the corrected transmission did not reach him lay on the Applicant, and it has not been discharged. 25.Second, and in any event, the principle in James Kanyiita Nderitu is concerned with the setting aside of a default judgment irregularly entered against an unserved party. No default judgment has been entered in this suit. What transpired on 5th March, 2026 was that the matter, having been listed for mention, was given directions and a hearing date. Those are interlocutory directions, not a judgment determining the rights of the parties. The remedy of setting aside ex debito justitiae, which restores to a condemned party a right of which he was deprived without a hearing, is therefore not strictly engaged. 26.That said, the right to be heard is a cardinal principle of natural justice and of our constitutional order under Article 50 of the Constitution. A court will always lean towards affording a litigant his day in court where this can be done without injustice to the opposite party. Although I am not satisfied that the orders of 5th March, 2026 were irregularly made, I am alive to the Applicant’s protestation that he was unaware of the proceedings, and I am conscious that, by the present application, he has demonstrated a clear intention to participate and to defend the suit. In the exercise of the court’s discretion, and the more so as the suit will, upon the expiry or lifting of the stay granted below, proceed to be heard on its merits, I am minded to preserve the Applicant’s right to defend rather than to shut him out on a procedural footing. The prayer to set aside the orders of 5th March, 2026 ex debito justitiae is declined; but the Applicant will be granted leave to enter appearance and to file his defence, once the stay granted below is lifted, in the terms set out in the disposition below. Issue (iii): Whether the proceedings should be stayed pending the appeal 27.It is common ground that the judgment of 8th November, 2024 in Voi ELC No. E010 of 2023 is the subject of a pending appeal, Mombasa Civil Appeal No. E231 of 2024, Caleb Munde Mcharo v Cosmas Ropaki Kisomba, and that the Court of Appeal, by a consent order recorded on 21st January, 2025 by Murgor, Laibuta and Ngenye-Macharia, JJ.A. allowed the Notice of Motion dated 5th December, 2024, directed that the status quo over the suit property be maintained pending the outcome of the appeal, stayed execution of the judgment, and ordered that the costs of the application abide the outcome of the appeal. 28.On the strength of that pending appeal, and of the consent order of the Court of Appeal, the Applicant urges the court to stay these proceedings so as to avert the risk of conflicting decisions over the suit property. I have given the prayer anxious consideration, and I am persuaded that a stay, properly confined in time, ought to be granted, for the reasons that follow. 29.First, I remain alive to the overriding objective of this court, enshrined in Sections 1A and 1B of the Civil Procedure Act, namely the just, expeditious, proportionate and affordable resolution of disputes, and to the settled disinclination of the courts to grant open-ended stays, which are apt to clog the wheels of justice, occasion inordinate delay, and defer rather than determine a dispute. That salutary principle, however, militates against an indefinite stay; it does not preclude a measured and time-bound stay where the wider interests of justice plainly call for one. The two considerations are reconciled, in the present case, by confining the stay to a defined period rather than tying it to the uncertain conclusion of the appeal. 30.Second, although the Plaintiff is not a party to Mombasa Civil Appeal No. E231 of 2024, the subject matter of that appeal and of this suit is one and the same parcel, Taita Taveta/Mwachabo Settlement Scheme Phase II/230. By its consent order of 21st January, 2025 the Court of Appeal has directed that the status quo over that very parcel be maintained, has stayed execution of the judgment of 8th November, 2024, and has placed the parcel under the protective umbrella of an injunction pending the outcome of the appeal. For this court to permit a full trial to run its course, and potentially to make orders touching the same parcel, while title to it remains sub judice on appeal and while it lies under the protective orders of the superior court, would risk both conflicting decisions over the same res and an unseemly collision with the orders of the Court of Appeal. Comity, and the orderly administration of justice between courts, counsel against such a course. 31.Third, I am conscious that the Plaintiff’s claim to approximately 22½ acres is distinct from the contest between Cosmas Ropaki and the Applicant over the 47½ acres, and that, as I have already held, he is not bound by the findings made in the former proceedings. His constitutional right of access to justice under Article 48, and to a fair hearing within a reasonable time, is not lightly to be displaced. These considerations are met, however, not by refusing a stay altogether, but by limiting it to a fixed and reasonable period. A stay of twelve (12) months strikes the proper balance: it accords due respect to the appellate process and preserves the integrity of the suit property pending the determination of the appeal, while ensuring that the Plaintiff’s suit is not consigned to the indefinite limbo that the authorities rightly deprecate. Should the appeal be determined sooner, either party shall be at liberty to apply to have the suit restored for further directions. 32.For these reasons, and in view of the consent order of the Court of Appeal of 21st January, 2025, I find it just to grant a stay of these proceedings for a period of twelve (12) months from the date of this ruling, or until the determination of Mombasa Civil Appeal No. E231 of 2024, whichever shall first occur. Upon the expiry or earlier lifting of the stay, the suit shall proceed to be heard and determined on its own merits. Issue (iv): Costs 33.Costs are in the discretion of the court under Section 27 of the Civil Procedure Act, and ordinarily follow the event. The application has met with mixed success: the prayers to strike out the suit on the ground of res judicata and to set aside the orders of 5th March, 2026 have not succeeded, but the prayer for a stay of proceedings has been granted. In these circumstances, and given that the suit is not at an end but merely held in abeyance pending the appeal, the justice of the case is best met by directing that the costs of the application be in the cause. Disposition 34.In the result, and for the reasons given above, I make the following orders:i.The prayer to strike out the suit on the ground of res judicata is declined.ii.The prayer to set aside, ex debito justitiae, the proceedings and orders of 5th March, 2026 is declined.iii.A stay of these proceedings is hereby granted for a period of twelve (12) months from the date of this ruling, or until the determination of Mombasa Civil Appeal No. E231 of 2024, whichever shall first occur, in view of the consent order of the Court of Appeal recorded on 21st January, 2025 maintaining the status quo over the suit property.iv.The costs of the application shall be costs in the cause.Orders accordingly. DATED, SIGNED AND DELIVERED AT VOI THIS 19TH DAY OF JUNE 2026.E.K. WABWOTOJUDGEIn the presence of:-Ms. Wambura for the Plaintiff/Respondent.Mr. Kamau for the Defendant/Applicant.Court Assistants: Mary Ngoira and David Ngoosa.