https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5277

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MALINDI** **ENVIRONMENT AND LAND CASE NO. E003 OF 2023** **NIMO AHMED ABDI** **ABDIRAHAMAN MUHUMED ABDI………………………………. PLAINTIFFS** **VERSUS** **ARVIC TOURS AND TRAVELS LTD (Changed to AINUSHMSI MULTIPLE AGENCIES LTD) …………………..………………………………1ST DEFENDANT** **ISAAC JUMA OBILA……………..…………………………….…2ND DEFENDANT** **RULING** 1. The Court is dealing with the 3rd Respondent’s Notice of Preliminary Objection dated 10th December, 2025; the 3rd Respondent’s Notice of Motion Application dated 10th December, 2025; and the Plaintiffs’ Notice of Preliminary Objection dated 21st January, 2026. 2. The motions were addressed through written submissions, with counsel for the 3rd Respondent emphasising his submissions on the 3rd of July, 2026. 3. Based on the materials and submissions by counsel for the parties, the issues I frame for the determination of this suit are whether the two POs should be upheld; whether this Court has the requisite jurisdiction to hear and determine the 2nd Defendant’s Counterclaim; whether, in any event, the 2nd Defendant’s Counterclaim can be conveniently tried with the Plaintiffs’ Suit or ought to be allowed; who bears the costs of the notices of PO.and the application; and whether the application dated 10th December 2025 should be sustained by striking out the 2nd Defendant's counter-claim. 4. On the PO, the Plaintiffs aver that they are not registered owners of the suit property. The suit property belongs to Ainushamsi Hospitality Group Limited, which is merely an Interested Party and not a substantial party for the purpose of seeking substantive orders against it. The Counterclaim offends the provisions of Order 7, Rule 8 of the Civil Procedure Rules, 2010, by failing to set out the names of the persons against whom the Counterclaim would be enforced by cross action. The matter is sub judice, as the suit is subject to active proceedings in Mombasa COACA/E019 of 2025, which emanates from Mombasa ELC 130 of 2020. 5. The 3rd Defendant, in the PO dated 10th December 2025 and the accompanying application filed on the same date, articulated the following grounds, which can be summarised as follows: that this Court lacks jurisdiction to hear the matter, as it pertains to a dispute concerning shareholding, directorship, and the transfer of shares in the Interested Party, rather than a dispute related to environmental and land issues, as stipulated by Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. The Counterclaim filed by the 2nd Defendant is *res judicata*, having been adjudicated in **Mombasa ELC No. 130 of 2020**, which is currently subject to a pending appeal in **Mombasa COACA/E019 of 2025**, thereby rendering it *sub judice.* 6. The Plaintiffs assert that substantive relief cannot be sought against an Interested Party. Their supplementary list of documents, dated 21st January 2026, includes an official search dated 4th August 2025, which identifies the Interested Party as the registered owner. Furthermore, the Plaintiffs contend that, as the Interested Party is neither a Plaintiff nor a Defendant, no relief can be sought against it. The core issue of the initial claim by the Plaintiff pertains to shares and directorship, matters that are within the jurisdiction of the High Court; therefore, this Court lacks the requisite jurisdiction to entertain such matters. Consequently, any dispute regarding ownership and proprietary rights must be resolved through a substantive suit in the Environment and Land Court, where the principal subject matter resides, and not within the realm of company law. 7. Plaintiff further avers that the 2nd Defendant's Statement of Defence and Counterclaim, dated 15th April 2025, does not meet the threshold set by the Provisions of Order 7, Rules 8 and 9 of the Civil Procedure Rules. The 2nd Defendant's counterclaim has not included a title similar to that of the plaint, setting out the names of all persons against whom a cross-action would be enforced. A counterclaim is essentially a cross-suit by the Defendant against the Plaintiff within the same proceedings. The drafters of the rules use the word shall. The Provisions are therefore mandatory and go to the root of the Court's jurisdiction to deal with the matter. With the Plaintiff's suit withdrawn, the counterclaim cannot stand on its own; it is therefore incurably defective and ought to be struck out. 8. On both *res judicata* and *sub judice*, the Plaintiff reiterates the submissions of the 2nd Defendant that the issues herein were fully and finally determined in **Mombasa ELC No. 130 of 2020** and *sub judice* in **Mombasa COACA/E019 of 2025.** 9. The 2nd Defendant asserts that, in the 3rd Defendant’s Supplementary Affidavit, the issues and reliefs sought and determined by the Court in ELC Case No. 130 of 2020 are set out In Paragraph 17 of the said Supplementary Affidavit, it is manifest that all the issues raised and reliefs sought in the present Suit were raised, sought, and determined in ELC Case No. 130 of 2020. 10. It is contended that it has been demonstrated that all the issues in the 2nd Defendant’s Counterclaim were in issue in ELC Case No. 130 of 2020; the parties in that case are the same parties to this Counterclaim; the parties were litigating under the same title; the issues were heard and finally determined; and the Court determining the former suit was competent to determine the issues. 11. That in determining this objection, the Court should essentially ask itself a fundamental question, namely, if the 2nd Defendant’s Counterclaim were to be allowed to proceed for determination, what would be the overarching issue whose determination would be necessary for the Court to do justice to the case? And was that overarching issue determined in the former suit? 12. It is stated that the overarching issue for determination in this Suit will eventually boil down to whether the LR Nos. 10173 and 10174 still exist or were extinguished, and whether there was any fraud in the creation of LR No.28432, LR No. 28432/1, and LR No. 28432/2 and should therefore be cancelled/annulled. These two issues are central to the Counterclaim. If they are not determined, there would be no need to proceed to consider the other issues. 13. All other issues are secondary and flow from these two central issues. The question is whether they were determined by Naikuni J. The answer is yes. The judge framed and decided the issues, as can be seen from his judgment. 14. The 2nd defendant contends that, in paragraph 111 of the judgment, Naikuni J. found that the 3rd Defendant was *‘a bona fide purchaser of value without notice and the registered and legal owner of the suit property, with all the indefeasible title, rights, and interests vested in them by law.’* 15. The 2nd Defendant asserts that, in accordance with the Plaintiffs’ objection and the 3rd Defendant’s association, the Counterclaim is incompetent and unsustainable because it introduces a new cause of action that is completely unrelated to the Plaintiffs’ suit. 29. The Court’s power to allow a counterclaim is discretionary, subject to the discretion being exercised judiciously in accordance with the provisions of Order 3 rule 7 of the Civil Procedure Rules. 16. The 2nd Defendant further asserts that, from the foregoing, the Court can strike out the counterclaim if *“it cannot be conveniently disposed of in the pending suit”* or *“ought not to be allowed.”* These two tests have been the subject of various judicial interpretations; see County Government of **Kilifi v Mombasa Cement Limited [2017] KECA 633 (KLR**) and **Sol Electronics Kenya & 2 others v Raikundalia & another [2025] KECA 970 (KLR).** 17. The 2nd Defendant concludes that, from the facts of the Plaintiffs’ withdrawn suit, the Plaintiffs’ claim is for breach of deed relating to the relinquishment of interests in the company, shareholding, directorship, and the transfer of shares in the Interested Party Company. By contrast, the Counterclaim is for alleged fraud in the amalgamation of LR Nos. 10173 and 10174 into LR No. 28432 and the subsequent subdivision into LR Nos. 28432/1 and 28342/2. The two claims are therefore unrelated, and, by parity of reason, the 2nd Defendant’s Counterclaim cannot conveniently be tried in the Plaintiffs’ suit. It is further submitted that the Court ought not allow the 2nd Defendant’s Counterclaim for various reasons, including the potential for the Counterclaim to occasion multiplicity of suits and the possibility of arriving at an outcome that could contradict the findings of the Court in **Mombasa ELC Case No. 130 of 2020**, no longer pending determination in **Mombasa COACA/E019 of 2025**, thus occasioning embarrassment to the administration of justice. 18. The 2nd Defendant, on the other hand, asserts that all three POs on *res judicata* and *sub judice* are fact-dependent. A proper determination cannot be made without examining the timing of events, the joinder of parties, the court's discretion, and the consent order entered by the parties in this suit. To rule on the objections without considering these facts would be legally and practically unsound. 19. The 2nd Defendant contends that the objections in the present matter are heavily dependent on contested facts relating to the ownership, consolidation, subdivision, and subsequent dealings in LR Nos. 10173, 10174 and 28432, as set out in the background facts as deposed in the affidavits in opposition. Such matters cannot properly be determined at the stage of a preliminary objection and ought instead to be determined after the Court has heard the parties on the merits of the Counterclaim. 20. Regarding whether the counterclaim violates Order 7 Rule 8 of the Civil Procedure Rules, 2010, on the basis that the parties have not been listed in the counterclaim in the same manner as they are presented in the Plaint, the 2nd Defendant asserts that the rule must be understood within its proper procedural context. It does not impose a rigid requirement that the counterclaim must reproduce the exact arrangement or sequence of parties appearing in the Plaint, nor does it suggest that any deviation in form automatically renders the counterclaim incompetent. 21. The 2nd Defendant affirms that, in the present matter, the Counterclaim dated 15th April 2025 clearly indicates that the 2nd Defendant is submitting a counterclaim and delineates the factual background giving rise to the dispute concerning LR Nos. 10173 and 10174, the alleged consolidation into LR No. 28432, and the subsequent subdivision into LR Nos. 28432/1 and 28432/2. The Counterclaim further identifies the parties involved in those transactions and seeks substantive relief from this Court. It therefore cannot be seriously contended that the Counterclaim fails to disclose either the nature of the claim or the parties against whom relief is sought. Refer to **Daniel Lemomo Matunge v Joseph C. Supeyo Tumpes [2014] KEHC 1930 (KLR)** and **Bridge-Up Container Services Ltd v C.F.C. Stanbic Bank Ltd [2011] KEHC 690 (KLR),** where the High Court underscored that defects affecting only the form of a pleading should ordinarily be rectified by amendment rather than by striking out the pleading entirely. That any defects cannot be used to defeat a legitimate claim by a party. 22. The 2nd Defendant asserts that the circumstances of this case further demonstrate why such an approach is appropriate. None of the parties has filed a defence to the counterclaim. Under the Civil Procedure Rules, pleadings may be amended before they are deemed closed, and such amendments may be made without leave of the Court. Indeed, in an abundance of caution, the 2nd Defendant has already amended the counterclaim, thereby clarifying the parties' positions and addressing the concern raised by the objectors. In those circumstances, it would be wholly disproportionate to strike out the Counterclaim on the basis of a procedural point that is not only curable but has in fact already been remedied. 23. Regarding *res judicata*, the 2nd Defendant asserts that the previous lawsuit did not establish ownership of LR No. 28432/2. The judgment in Mombasa **ELC No. 130 of 2020** simply dismissed the claim and did not allocate or confirm the parcel to any party. A dismissal of a case without adjudicating the substantive rights of the parties does not resolve the issues now presented in the current Counterclaim. Therefore, the matters presently before this Court were not conclusively determined in the earlier litigation. 24. Secondly, the 3rd Defendant was not originally a party to these proceedings. He voluntarily applied to be joined to this suit and, after obtaining leave of the Court to participate in the proceedings, now raises a plea of res judicata on the basis that he was a party to the former suit. Such a position is untenable. A party cannot first seek joinder in a matter and thereafter rely on that joinder to argue that the suit is barred by res judicata. The doctrine is meant to prevent the re-litigation of matters between the same parties, not to be used by a party who has voluntarily entered the proceedings to defeat the adjudication of the dispute. 25. Thirdly, even assuming that joinder of the 3rd Defendant could satisfy the requirement of identity of parties, the doctrine would still not apply because the Plaintiff in this suit and the 3rd Defendant in the former suit are not claiming under the same title or the same party. The Plaintiff claims ownership of LR No. 28432 and alleges that the parcel was irregularly subdivided into LR Nos. 28432/1 and 28432/2. The 3rd Defendant, by contrast, claims ownership of LR No. 28432/2 as an independent purchaser. Their claims arise from different sources and are directly adverse to each other. Accordingly, they cannot be regarded as litigating under the same title within the meaning of Section 7 of the Civil Procedure Act. 26. Fourthly, several parties in the present proceedings were not parties to the former suit. The Plaintiffs herein, as well as Ainushamsi Hospitality Group Limited, Isaac Juma Obila, and Juma, were not parties to Mombasa **ELC No. 130 of 2020**. Under Section 7 of the Civil Procedure Act, the doctrine of res judicata applies only where the former suit involved the same parties or parties claiming under them. In the absence of such identity of parties, the doctrine cannot apply. The objectors have not shown that these parties claim under the same title as those in the former suit. 27. Fifthly, the subject matter of the present dispute is broader than the issues raised in the former proceedings. The present Counterclaim concerns LR Nos. 10173, 10174, and LR No. 28432, including the legality of the alleged consolidation and subdivision of these parcels. By contrast, the former suit related only to LR No. 28432/2, a portion of LR No. 28432. The issues presently before the Court therefore extend beyond the limited question addressed in the former proceedings and cannot be said to have been directly and substantially determined. In light of the foregoing, the essential elements required to sustain a plea of res judicata have not been established. The former suit did not determine the substantive rights now in dispute; the parties are not the same; several parties in the present proceedings were not involved in the former suit; and the Plaintiff and the 3rd Defendant are not litigating under the same title. Accordingly, the objection based on res judicata is misconceived and legally untenable, and should be dismissed with costs, allowing the Counterclaim to proceed to hearing on its merits. 28. On *sub judice*, the 2nd Defendant asserts that, for the plea to succeed, the prior suit must involve the same parties (or parties under whom they claim), the matter in issue must be substantially identical, and the parties must be litigating under the same title. Courts have consistently held that where parties have adverse or conflicting claims, they cannot be regarded as litigating under the same title, and the doctrine of *sub judice* cannot apply. 29. 2nd Defendant states that, in the present matter, the Plaintiff claims ownership of LR No. 28432, asserting that it was irregularly subdivided into LR Nos. 28432/1 and 28432/2, whereas the 3rd Defendant claims ownership of LR No. 28432/2, the portion that is the subject of the Court of Appeal proceedings. These claims are directly conflicting: The Plaintiff seeks a declaration over the entire parcel, while the 3rd Defendant asserts ownership over a portion. Because the Plaintiff and the 3rd Defendant have adverse interests, they cannot be said to be litigating under the same title, and the plea of sub judice cannot lawfully apply in these circumstances. 30. Secondly, even in isolation, the subject matter of the two proceedings is materially different. The present proceedings concern LR Nos. 10173, 10174, and LR No. 28432, whereas the Court of Appeal proceedings were limited to LR No. 28432/2. Sub judice applies only where the matters in issue are directly and substantially the same, which is clearly not the case here. Thirdly, LR No. 28432/2, relied upon by the 3rd Defendant, was revoked by a consent order of this Court on 16th February 2023, well before the judgment in the Court of Appeal proceedings was delivered on 17th December 2024. The consent order nullified the subdivision and effectively removed LR No. 28432/2 from the subject matter of the former suit, eliminating any basis for a *sub judice* objection. Kenyan courts have consistently recognised the binding force of consent orders, which are treated as having the same effect as a judgment. 31. Further, the point raised on *sub judice* is not a pure point of law, as held in **Wenyong & Another v Barasa (Civil Suit E047 of 2022) [2023] КЕНС 19161 (KLR).** In considering an objection of *sub judice* and res judicata, the Court held that where a preliminary objection requires examining pleadings, evaluating evidential material, or considering judicial discretion, it is procedurally incompetent. The Court observed that a Defendant who has not filed any pleadings cannot properly raise a PO *in vacuo*, as this would require the Court to determine factual and discretionary matters without the context of a full trial record. 32. As submitted by counsel, to succeed in raising a PO under Kenyan law, the objection must satisfy stringent, well-defined thresholds established by extensive jurisprudence. The leading authority on POs in Kenya is the case of **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**. In this landmark case, the court defined a PO and set out the conditions for its sustainment. Based on the precedent set by **Mukisa Biscuit Manufacturing Co. Ltd** (supra) and subsequent jurisprudence, the fundamental conditions include: the objection must be strictly grounded in a pure point of law, either explicitly pleaded or clearly implied from the pleadings, assuming all facts presented by the opposing party are correct. The objection cannot be raised if it involves facts that require evidence to be ascertained, or if there are disputed factual issues that necessitate proof (**Oraro v Mbajja [2005] eKLR and Omondi v. National Bank of Kenya [2001] eKLR)**. The argument must have the potential to dispose of the suit or a major part of it (such as issues of jurisdiction, limitation of time, res judicata, or lack of locus standi). A PO cannot invite the court to exercise its judicial discretion. 33. On the Plaintiff's PO concerning the form of the counter-claim, it does not specify to whom it is directed. The 2nd Defendant failed to name the persons to whom relief was sought. The counter-claim has levelled the parties against whom it seeks relief, but not as originally levelled by the Plaintiff. This anomaly can easily be remedied by an amendment rather than striking out the entire suit. See **Bridge-Up Container Services Ltd v C.F.C. Stanbic Bank Ltd [2011] KEHC 690 (KLR),** as cited by the 2nd Defendant. 34. Regarding whether the counterclaim is inappropriate and the fact that the Plaintiff withdrew the original lawsuit concerning the relinquishment of shares in a company, an examination of the materials submitted by the parties, the nature of the lawsuit, and the titles claimed by the parties indicates that the matter does not solely pertain to the relinquishment of shares. Instead, it primarily involves issues of extinction, resultant amalgamations, subdivisions, and the acquisition of various land titles. Furthermore, the lawsuit involves multiple parties, leading to various subdivisions in contention. That is why the ELC (Naikuni J.) was in a position to handle the former suit, namely **Mombasa ELC No. 130 of 2020**. As such, this Court has jurisdiction to handle the matter. 35. Concerning the primary jurisdictional issue relating to *res judicata*, as presented by counsel for the parties, the doctrine of *res judicata*, which denotes *"a matter already judged,"* functions to prevent parties from re-litigating a dispute or issue that has been definitively resolved by a competent court. 36. The substantive law governing *res judicata* in Kenya is articulated in Section 7 of the Civil Procedure Act (Chapter 21 Laws of Kenya). For a plea of *res judicata* to be successful raised in Kenya, a party must satisfy five fundamental conditions established under Section 7: the issue in question must be directly and substantially identical to that in the previous suit; the suits must involve the same parties or those claiming under them; litigants must act under the same title or capacity in both proceedings; the prior court must possess the appropriate jurisdiction; and the matter must have been heard and finally adjudicated on its merits. Furthermore, Constructive res judicata (Explanation 4 to Section 7) prevents parties from raising claims or defences that could have been properly presented in the initial litigation through reasonable diligence. 37. Kenyan jurisprudence relies on several key cases to interpret and apply the doctrine: In **Karia and Another v The Attorney General and Others [2005] 1 EA 83,** the court established the foundational East African standards, requiring precise alignment of issues, parties, and competent final adjudication, and affirming that a party cannot be vexed twice. In the **Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR),** the decision addressed *res judicata* in constitutional petitions, noting that it applies but should be used sparingly to avoid precluding legitimate claims of rights violations. The English decision of **Henderson v Henderson [1843] 67 E.R. 313** is a classic common law authority adopted locally to anchor the doctrine of *constructive res judicata*. It holds that once a party has had an opportunity to ventilate an issue and fails to do so, they cannot raise it in a subsequent suit. In **John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR**), the Supreme Court warned against repackaging ordinary civil disputes as constitutional petitions to circumvent *res judicata*. 38. In Kenya, the *sub judice rule* is a vital legal principle that safeguards the integrity of ongoing judicial proceedings by preventing concurrent trials and restricting public commentary that could prejudice a case in progress. The principal statutory provision regulating *res sub judice* in civil matters is Section 6 of the Civil Procedure Act (Cap 21). 39. To secure a stay of proceedings under Section 6, litigants are required to demonstrate conditions including the existence of multiple active suits, chronological precedence, parties and legal titles being claimed under identical issues of a substantially similar nature, and prior adjudication by a court having appropriate jurisdiction. 40. In **Kenya National Commission on Human Rights v. Attorney General [2020] eKLR**, the Supreme Court of Kenya determined that the rule prevents conflicting judgments by concurrent courts and safeguards judicial integrity. In **Republic v Paul Kihara Kariuki Ex parte LSK [2020] eKLR**, the High Court confirmed that fulfilling these statutory prerequisites eliminates judicial discretion, thus necessitating an immediate stay of the subsequent matter. In **Nkamasiai & another v Juhudi Kilimo Co. Limited [2026] KEHC 1834**, the court underscored that the *sub judice* principle constitutes a fundamental jurisdictional issue that enables courts to examine subsequent filings of suits for potential abuse. In **Rono v Ngetich [2026] KEELC 710**, the court elucidated that evaluating the *sub judice* condition requires a factual investigation into the pleadings, rather than considering it merely as a preliminary legal issue. 41. After thoroughly examining the materials and submissions presented before me, concerning *res judicata* and *sub judice*, and having reviewed the entire decision in **Mombasa ELC No. 130 of 2020**, reported as **Kilifi Hotels Limited v Ibrahim & another [2025] KEELC 7059 (KLR)**, it is noted that the preceding suit concerns a property dispute between Kilifi Hotels Limited (Plaintiff) and Omar Guma Ibrahim (1st Defendant), as well as the Chief Land Registrar (2nd Defendant). The primary property in question is land registered as Plot Number 28432/2, Kilifi (Land Title Number CR. 70282). The Plaintiff asserted that the land comprised two separate plots, designated as L.R. No. 10173 and L.R. No. 10174. Naikuni J. delivered the primary judgment. The court dismissed the suit filed by Kilifi Hotels Limited. The 1st Defendant, Omar Guma Ibrahim, successfully argued that he had legally acquired the property from Arvic Tours & Travels Limited after conducting proper due diligence and official registry searches. The court ordered the plaintiff to bear the costs of the proceedings. The plaintiff attempted to establish ownership through a Certificate of Title and a historic Sale of Shares agreement. However, the 2nd Defendant held a valid title register (CR. 70282), which effectively countered the Plaintiff's claims. Omar Guma Ibrahim demonstrated his standing as an innocent purchaser by providing evidence that he relied on official Land Registry documentation and exercised due diligence, hence an innocent purchaser for value. The court dismissed the Plaintiff’s suit, provoking an appeal in **Mombasa COACA/E019 of 2025**. 42. Meanwhile, unknown to the Mombasa ELC in the Former Suit and to the litigating parties, the current suit already existed. 43. Nimo Ahmed Abdi and Abdirahman Muhumed had sued Isaac Juma Obila as the Defendant, with Arvic Tours and Travels Limited and Ainushamsi Hospitality Group Limited as Interested Parties. Ms. Arvic Tours & Travels Limited entered into a consent on 16th February 2023, revoking the subdivisions of LR No. 28432/1 and LR No. 28432/2. That consent was adopted as an order of the Court, thereby revoking the subdivisions, including LR No. 28432/2, which had been the subject matter of the Former Suit. 44. Unknown to the Court in the Former Suit, the learned Judge on 17th December 2024 delivered a judgment dismissing the 2nd Defendant's suit in respect of LR No. 28432/2, which parcel had earlier been the subject of the consent order dated 16th February 2023 revoking the subdivisions of LR No. 28432/1 and LR No. 28432/2. 45. On 5th March 2025, the 2nd Defendant became aware of the existence of these proceedings and promptly filed an Application for Joinder as the 2nd Defendant, which application was allowed by this Court. Subsequently, the 3rd Defendant also applied to be joined as a party to these proceedings, and the Court allowed that application on 10th December 2025. 46. At the same time, this Court on 14th of May 2025 set aside the consent, paving the way for the hearing of this matter on merit. 47. From the judgment in the prior case, the following excerpts and paragraphs are pertinent to assessing the sustainability of the PO on the grounds of *res judicata* and *sub judice*. In paragraphs 89 and 90, the judge stated that: ***“ 89. In this case, through, the 1st Defendant has contended that the Plaintiff’s title had been extinguished through consolidation of the suit properties to the property that he held in his name. Surprisingly, this very significant legal aspect with very severe consequences to the Plaintiff’s property was never addressed at all by the Plaintiff. As far as the Court is concerned, the Plaintiff has only proved that they owned L.R No.10173 Grant No. CR 19906 and L.R No. 10174 Grant No.CR 19907. Through any empirical oral or documentary evidence, the Plaintiff never demonstrated that they own Plot Number 28432/2 Kilifi (Land Title Number CR. 70282). As of the date of purchase of Land Reference Number 28432/2, on 18th July 2017, by the 1st Defendant, the sub - division of the parent parcels of land had already been undertaken and finalized.*** ***90. Therefore, based on the above legal and factual inferences, I discern, and rightfully so, that the property known as L.R No. 10173- Grant No. CR 19906 and L.R No. 10174- Grant No.CR 19907 ceased to exist. In a nutshell, the rights of the Plaintiff stopped existing immediately after there was the consolidation of the two title deeds and which they failed, neglected and/or refused to challenge legally****.* 1. At paragraph 100 the judge held: ***“100. The Plaintiff never called the Land Adjudication and Settlement Officer (DLASO) to support its case and tender evidence on how the property was illegally consolidated to form the property held by the 1st Defendant. Further, the Plaintiff has not disputed the survey that was done. According to the Topo Cadastral Survey and Report dated 27th May 2021, the 1st Defendant reported that the Suit Property was confirmed to be the same parcel of land that the Plaintiff had claimed. The survey further revealed that the Plaintiff's certificates of title had been extinguished following the consolidation of parcels in 2010, which resulted in the creation of L.R. No.28432.The report indicated that L.R. No. 28432 was subdivided in 2017 into L.R. Nos.28432/1 and 28432/2, with the latter being transferred to the 1st Defendant.”*** 1. At paragraph 111 the Judge found: ***“111. In the end, I strongly hold that the 1st Defendant a bona fide purchaser of value without notice and the registered and legal owners to the suit property with all the indefeasible title, rights and interest vested on them by law.”*** 1. As mentioned earlier, the parties involved in the previous case and this one are different. The Plaintiffs here, along with Ainushamsi Hospitality Group Limited and Isaac Juma Obila, were not parties in **Mombasa ELC No. 130 of 2020.** According to Section 7 of the Civil Procedure Act, *res judicata* applies only if the same parties or those claiming under them were involved in the previous case. Since there is no such party identity, the doctrine cannot be invoked. The objectors have not shown that these parties claim under the same title as in the earlier case. 2. The previous lawsuit did not establish ownership of LR No. 28432/2. The judgment in **Mombasa ELC No. 130 of 2020** dismissed the claim without issuing any order allocating or confirming the parcel to any party. The 3rd Defendant did not counterclaim in the former suit. A dismissal of a case without a substantive determination of the parties' rights does not settle the issues now raised in the current Counterclaim. Therefore, the matters before this Court have not been conclusively decided in the prior case. 3. The Plaintiff asserts ownership of LR No. 28432 and contends that the parcel was improperly subdivided into LR Nos. 28432/1 and 28432/2. Conversely, the 3rd Defendant asserts ownership of LR No. 28432/2 as an independent purchaser. Their claims arise from distinct sources and are directly conflicting. Therefore, they cannot be considered as litigating under the same title within the scope of Section 7 of the Civil Procedure Act. 4. The scope of the current dispute extends beyond that of the previous case. The present Counterclaim involves Land Registration (LR) Nos. 10173, 10174, and LR No. 28432, with particular emphasis on the legality of their consolidation and subdivision. Based on the excerpts and judgments from the earlier case, details concerning the original parcels, their ownership history, all involved parties, and the root of title are pertinent; however, the prior case did not examine this historical context. The earlier case solely concerned LR No. 28432/2, a part of LR No. 28432. Consequently, the issues presently before the Court surpass the scope of those previously addressed and have not been directly or substantially adjudicated. 5. The essential elements required to sustain a plea of *res judicata* and, by extension, *sub judice* have not been established. The former suit did not determine the substantive rights now in dispute; the parties are not the same; several parties in the present proceedings were not involved in the former suit; and the Plaintiff and the 3rd Defendant are not litigating under the same title. Accordingly, the objection based on *res judicata* and *sub judice* cannot stand and is legally untenable. 6. The Notice of Motion application by the 3rd Defendant, dated on the same day, raises identical grounds to the PO. Furthermore, the courts consistently emphasise that pleadings should be struck out sparingly and only in clear and unequivocal cases where the pleading constitutes an irredeemable sham. In **DT Dobie & Company (Kenya) Ltd v Muchina & another [1980] KECA 3 (KLR)**, the Court of Appeal articulated that the authority to strike out a pleading must be exercised with the utmost prudence. If a pleading is capable of being rectified by amendment, the court ought to favour an amendment rather than dismissing the suit entirely. A case should not be dismissed simply because it demonstrates weakness or a low likelihood of success. 7. Consequently, the 3rd Respondent’s Notice of Preliminary Objection dated 10th December, 2025; the 3rd Respondent’s Notice of Motion Application dated 10th December, 2025; and the Plaintiffs’ Notice of Preliminary Objection dated 21st January, 2026, are hereby dismissed, with costs. **Dated, signed, and electronically delivered in Nyeri on the 30th day of July 2026.** **E. K. MAKORI** **JUDGE** **In the presence of:** **Ms. Manea H/B for Mr. Makworo for the Plaintiff& Interested Party** **Mr. Kilumo H/B for Bwire for the 2nd Defendant** **Mr.Kipkorir for the 3rd Defendant** **Denis: Court Assistant**