https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4726

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT HOMABAY** **ELC NO. E013 OF 2025** **THOMAS ODHIAMBO OGOLA (suing on behalf of himself and as Administrator of the Estate of OGOLA OGONYO DEDE alias OGOLA OGONYO alias JAMES OGOLA OGONYO ……………………. PLAINTIFF** **VERSUS** **ANATASIA ACHIENG ONDENG’E (Sued on her own behalf and as Administratix to the Estate of JOSHUA ARUM ONDUTO) …………………………………………………………. DEFENDANT** **RULING ON APPLICATION DATED 30TH JULY, 2025** **BACKGROUND** **‘’ Interest reipblicae ut sit finis litium’’ is a latin maxim to the effect there should be an end to litigation in public interest. This is informed by the fact that an ideal legal framework must have closure to conserve judicial resources and provide certainty to the society.** 1. The plaintiff herein has filed suit by way of plaint against Anastasia Achieng Ondeng'e in her capacity as Administratrix of the Estate of Joshua Anum Ondutu. 2. In the said plaint, to be precise dated 30th May, 2025 and filed in Court on the same day the plaintiff who purports to sue on behalf of himself and the Administrator of the Estate of his late father Ogola Ogonyo Debe *alias* Ogola Ogonyo alias James Ogola Ogonyo states thus: - He is a beneficiary of the Estate; -His deceased father was and is still the registered and absolute proprietor of Land parcel No. **KABONDO/KODHOCH WEST / 396** - That the late Joshua Ephraim Anum Ondutu had leased a portion of the said land from his mother. - Family members have held the said land on customary interests specifically on the concept of trust. - That after the demise of the plaintiff’s father the family realized that the Executive officer had conducted a sub-division without knowledge and consent of his father. - On 28/11/2002 the Senior Resident magistrates Court in Oyugis Miscellaneous P & E 1 of 2002 had on 28th November 2002 adopted the decision of the Tribunal. - That the said order is illegal ab-initio to the extent that it was adopting the tribunals decision which cancelled the original title. - That the adoption of the award was not served upon his deceased father. - That pursuant to the said illegal order the Executive officer conducted a sub-division process which divided the title into two portions with two new numbers namely KABONDO/ KODHOCH WEST/918 and 919. - He has pleaded particulars of fraud in paragraph 15 (a) to (h). He seeks for: 1. An order declaring the ruling of the Kabondo Land Disputes Tribunal dated 5-8-2002 to be null and void 2. An order declaring the proceedings in SRMCC Oyugis Miscellaneous P & E Number 1 of 2022 irregular and without jurisdiction. 3. An order directing the Land Registrar Homabay County to cancel Sub-divisions 4. An order permanently barring the Defendant from entering into and or dealing in any manner with Land parcel No. KABONDO / KODHOCH WEST / 396 5. Costs of the suit 6. Any order or further relief. 7. In Support of the pleadings, he swore an affidavit stating that there is no pending suit or previous proceeding over the subject matter and subject involving same parties. 8. Upon service of Summons the Defendant acting through the firm of Achach and Associates on 27th June 2025 filed a defence dated 27th June, 2025 in which he stated in paragraph 10 that she intends to move the court to strike out the suit on the ground of res-judicata. 9. Upon filing the application directions were taken on 16th December, 2025 to the effect that the Defendant/applicant was granted leave to respond within Ten (10) days and thereafter a response be filed together with written Submissions. 10. As a result of want of compliance on the part of the plaintiff the documents filed in opposing the application were struck out with leave to file fresh documents within a span of five (5) days to comply. 11. Ultimately on 6/2/2026 the Plaintiff/Respondnt filed a replying affidavit sworn on 2nd June 2026 opposing the application on the grounds that: 12. He is challenging the legality of proceedings and the award of the Land disputes Tribunal. 13. That he is challenging the legal order made by the Senior Resident Magistrates in Oyugis Miscellaneous P & E 1 of 2022. 14. The instant case is not res-judicata. 15. To His late father had challenged the award but his advocate withdrew the application without his knowledge. 16. That he came to know of the grave injustice amounted in 2022 17. That the LDT is not a competent court as envisaged under section 7 of the Civil Procedure Act. **SUBMISSIONS BY THE PARTIES** 1. Defendant/Applicant filed Submissions dated 20th January, 2026. Counsel addressed one issue, whether the suit is res-judicata and relies on Section 7 of the Civil procedure Act and on the authorities of **Kenya Commercial Bank Vs Muiri Coffee Estate Limited & 3 others [2016] and Benard Mugo Ndegwa V James Nderitu Githae & 2 Others** where the Court addressed requirements for a matter to be res-judicata as follows: (i) That the matter in issue is identical in both suits (ii) The parties in the suit are the same (iii) Sameness of Title / Claim (iv) Concurrence of jurisdiction (v) Finality of previous decision. * That the present suit seeks to challenge the issue of property by bringing fraud, which was before the Land Disputes Settlement Tribunal (sic) and later adopted by the Senior Resident Magistrates Court at **Oyugis in Misc. Application number 1 of 2002 Joshua Anum Versus Ogolla Ogonyo**, the present suit has been instituted by the plaintiff on behalf of his late father against the Defendant's late husband, that the suit seeks to relitigate the issue of land ownership ,and the Land disputes Tribunal had powers and jurisdiction vested on it by section 3 of the Land disputes Tribunal Act Cap 303 'A' to hear and award an issue. * He further relies on the cases of **Benard Mugo Ndegwa V James** **Nderitu Githae & 2 Others and E.A E. T Vs Attorney General &** **Another [2012] eKLR** where courts were urged to be vigilant to guard litigants evading the doctrine by introducing new cause of action. Ultimately Counsel seeks to strike out the suit with costs. 1. The plaintiff / Respondent through his Counsel filed submissions dated 4th February, 2026. * Counsel states the application is incompetent, bad in law and should be dismissed; that the plaintiff is challenging the legality of proceedings and the order that was made by the Senior Resident Magistrate, that the plaintiff had a right to challenge the said proceedings in a new suit, that the issue of jurisdiction and legality of the Tribunal have never been challenged and determined by a court of competent jurisdiction, that the issue of fraud was never determined and the suit is properly before this court. He relies on the **Case of Benard Mugo Ndegwa versus James Nderitu Githae & 2 Others [2010] KEHC 3922 (KLR)** where the court held that the Land disputes Tribunal was not a competent Court. **ISSUE FOR DETERMINATION** 1. The issue that arises for determination is the Case before This Court is res-judicata. 2. Res-judicata according to wikipedia, is the latin term for judged matter; refers to either of two concepts in common law civil procedure, a case in which there has been a final judgment and that is no longer subject to appeal, and ,a legal doctrine meant to bar or preclude relitigation of a claim between the same parties. It goes without saying that a matter cannot be relitigated again either in the same court or in a different court. 3. Res-judicata is governed by Section 7 of the Civil procedure Act Cap 21. 4. In the case of **John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR** the 3 Court of Appeal held: ***“The rationale behind res-judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the subject matter. Res-judicata ensures the economic use of limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability by reducing the possibility of inconsistency in judgments of concurrent courts. It creates confidence in courts and predictability which is one essential ingredient of maintaining respect for justice and the rule of law. Without res-judicata and the very essence of the rule of law would be in danger of unraveling uncontrollably.”*** 1. In **Kenya Commercial Bank Ltd v Muiri Coffee Estate & Another [2016] eKLR** the Supreme Court held: ***"Res-judicata is a doctrine of substantive law. Its essence being that once the legal rights of the parties have been judicially determined, such edicts stand as conclusive statements as to those rights. It would apply that the doctrine of res-judicata to apply in respect of all matters of all categories including issues of constitutional rights. The doctrine of res-judicata effective allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title from returning to court to claim further reliefs not claimed in the earlier action, it is a doctrine that serve the cause of order and efficiency in adjudication process. The doctrine prevents a multiplicity of suits which would clog the courts, apart from occasioning the parties unnecessary costs and it ensures that litigation comes to an end, and the verdict translates into fruit for one party, and liability for another party conclusively.”*** 1. Order 53 Rule 2 of the Rules Civil Procedure envisage that for one to challenge a decision of the Land disputes tribunal, an aggrieved party has to do so through an application for judicial review to the High Court by way of Certiorari within 6 months from the date of the decision or through an appeal as envisaged under Section 8(9) of the land disputes Tribunal. 2. Order 53 Rule 2 does not envisage a scenario where an aggrieved party can argue a point of law through a plaint therefore in my considered view a party cannot seek for a remedy through a plaint. This alone renders the suit incurable. 3. In the case of **Florence Myaboke Machani v Mogere Anasi Ombui & 2 others [2014] eKLR** The Court of Appeal while endorsing the verdict of the Trial Judge held thus: **"It is trite law that a valid judgment of a Court unless overturned by an appellate Court remains a judgment of Court and is enforceable the issue of jurisdiction notwithstanding. The plaintiff had all avenues to impugn the award as well as the judgment. He did nothing. As sarcastically but by Counsel for the Defendants in his submissions, the plaintiff chooses to sleep on his rights like the Alaskan fox which went into hibernation which went into hibernation and forgot that winter was over. Meantime In the meantime the 1st defendants right to the premises the suit property crystallized. Equity assists the vigilant not the indolent. The plaintiff has come to Court too late in the day and accordingly the declaratory relief must fail. I doubt that even the remedy of a declaration is available to the plaintiff to impugn a valid Court judgment and decree.”** 1. In **Republic v Marakwet District Land Disputes Tribunal & 6 Others Ex-parte Shaban Clan & 3 Others (2016) eKLR** the Court had held that the Land Disputes Tribunal Act did not contemplate filing of declaratory suits hence the order of declaration as sought was unavailable. 2. In **Jepkemoi Ngeyoni versus Nicholas Kipchumba Kogo & Another (2006) eKLR** the Court observed: ***"The award of the land disputes tribunal would be irregular or even a nullity. However, it can only be challenged through the existing legal regime. The plaintiff is following the wrong procedure by filing the amended plaint before this Court to challenge the decision of the land disputes tribunal and its execution. They should have followed the right machinery...... The two options of challenging a land disputes tribunal are through an appeal to the provincial Land Appeals Committee within 30 days and before the award was registered in the magistrates Court. The other option was filing judicial proceedings for review in the High Court under Order LIII Civil Procedure Rules after the decision was registered in the magistrate's Court. Therefore, it is my finding that that decision of the land disputes tribunal cannot be challenged through suit. As the decision of the tribunal was registered in the Subordinate Court filing suit in any event, would be fresh proceedings in a matter in which a decree of the Subordinate Court could have already been issued. Filing multiplicity of suits cases in Court on the same matter is not acceptable in law.”*** 1. I have looked at the Pleadings in the matter and I note that at paragraph 11 and 13, the plaintiff states that there was a case that was adopted in the Senior Resident Magistrate Court at Oyugis, to wit ,SRMC Miscellaneous Application number1 of 2002. 2. He pleads that the adoption was illegal and that subdivision and transfer was done creating new titles. 3. In the prayers, he wants the said Ruling to be declared null and void. 4. He has also Sworn verifying affidavit stating that there are no pending suit or previous proceedings over the subject matter, which averments are false. 5. In [SHIRIKA LA KUSAIDIA WATOTO WA KENYA & ANOTHER V RHODAH ROP & 4 OTHERS [2005] KEHC 653 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2005/653/eng%402005-11-02) Justice Kimaru observed: **In this instance, the plaintiff was clearly not swearing to the truth. The plaintiff was aware that there existed another suit between itself and one of the defendants over the same subject matter which had been struck out. The plaintiff cannot give an excuse that it forgot the fact of the existence of the said suit, because it filed the current suit one day after the previous suit had been struck out. The plaintiff deliberately swore a false affidavit to conceal the existence of the previous suit. I agree with the submission by Mr Kiarie that an affidavit being evidence in written form cannot be amended or retracted. In the circumstances therefore the plaintiff consciously and deliberately made false averment in his plaint that there existed no previous suit. It compounded its mischief by swearing a false affidavit stating that such previous suit did not exist. The plaintiff knew this fact to be incorrect. For the reasons stated I therefore find merit with the preliminary objection raised by the defendants. I consequently strike out the false affidavit filed by the plaintiff in verification of the plaint. The plaint filed by the plaintiff thus remains naked without a verifying affidavit.’’** 1. In view of the above decisions, I find that the suit in itself offends the doctrine of res-judicata as defined under section 7 of the Civil Procedure. 2. The affidavit is also false and cannot be used in this suit 3. Suit struck out with costs to the defendant. 4. It is so ordered. Ruling dated and delivered at Homa Bay, this 10th day of July 2026. In the presence of; * 1. Kwarikwari holding brief for Achach for the Defendant/Applicant 2. Ms. Ochieng for Nyarige for the Plaintiff/Respondent 3. Court Assistant, Mercy Awino. JUSTICE JOHN WALTER WANYONYI -JUDGE