https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4238

 **THE REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC LC. CASE NO. E045 OF 2026** **PAUL JUVE NGEI MAINGI……………………………………….PLAINTIFF** **VERSUS** **KCB BANK KENYA LTD…………………………………………DEFENDANT** **RULING** **Introduction** 1. Before the Court is the Applicant’s Notice of Motion dated 5th May 2026, brought pursuant to Sections 1A, 1B, 3A and 7 of the Civil Procedure Act, Order 2 Rule 15(1)(a) and (d), and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The Application seeks the following orders: 1. That the Plaint dated 23rd March 2026 be struck out for offending the doctrine of *res judicata*; 2. That the Plaint be struck out for disclosing no reasonable cause of action against the Defendant and for being an abuse of the process of the Court; and 3. That the costs of the application and the suit be borne by the Plaintiff. 2. The Application is supported by the affidavit of **Bonnie Okumu** sworn on 5th May 2026. In substance, the Applicant contends that the Plaintiff's claim is founded upon share certificates issued by Lukenya West Association in respect of land whose ownership was conclusively determined in Machakos **ELC No. 155 of 2016, *East Africa Portland Cement Company Limited v Sammy Kathilu & 272 Others*.** 3. The Application is opposed through the Replying Affidavit of **Paul Juve Ngei Maingi** sworn on 5th June 2026. The Plaintiff contends that the present suit is founded upon the Defendant's conduct following the judgment in the earlier proceedings and therefore raises a distinct cause of action not determined therein. 4. The Application was canvassed by way of written submissions. The Applicant filed written submissions dated 8th June 2026 together with a list and bundle of authorities, while the Respondent filed written submissions dated 11th June 2026 together with a corresponding list and bundle of authorities. **The Applicant’s Submissions** 1. Learned counsel for the Applicant submitted that the suit is barred by the doctrine of res judicata. Counsel argued that the Plaintiff's claim is founded upon interests allegedly derived from share certificates issued by Lukenya West Association. 2. Counsel submitted that those interests were conclusively determined in Machakos ELC No. 155 of 2016, where the Court held that persons occupying the Defendant's land without registered proprietary interests, including those claiming through Lukenya West Association, were trespassers and that the Defendant, as the registered proprietor, was entitled to exclusive possession. 3. It was further submitted that although the Plaintiff was not a party to the former proceedings, he claims through Lukenya West Association and is therefore bound by the judgment pursuant to section 7 of the Civil Procedure Act, particularly Explanation 6. 4. Counsel also argued that the judgment in the former proceedings was a judgment in rem and was therefore binding upon all persons asserting interests in the suit property. Reliance was placed on ***County Government of Kilifi v Ricci; National Land Commission & 2 Others (Interested Parties) [2022] KEELC 14699 (KLR)*** and ***Odera & 30 Others (Suing as Officials of Chokaa Upper Chamber Development Welfare Group) v Group & 6 Others [2025] KEELC 7727 (KLR).*** 5. On the alternative ground, counsel submitted that the Plaint discloses no reasonable cause of action against the Defendant. 6. Counsel argued that the Defendant, as the registered proprietor of the suit property, was under no contractual, legal or equitable obligation to transfer the land to the Plaintiff. It was submitted that the Plaintiff could not compel the Defendant to dispose of its property merely because he had made payments during the regularisation process. Reliance was placed on ***Wilson Kipkoech Lelei v Stephen Kipsang Koech & Another [2021] KEELC 1737 (KLR) and Nyachongi & 4 Others v Nyachongi & 2 Others [2024] KEELC 3983 (KLR).*** 7. Counsel accordingly urged the Court to strike out the Plaint with costs. **The Respondent’s Submissions** 1. Learned counsel for the Respondent opposed the Application and submitted that the present suit is not barred by the doctrine of *res judicata* because it arises from events occurring after the judgment in **Machakos ELC No. 155 of 2016.** 2. Counsel submitted that following the delivery of that judgment, the Defendant initiated a land sale and regularization program by inviting existing occupants of the suit property to participate upon payment of a prescribed commitment fee. 3. It was submitted that the Plaintiff accepted that invitation by making the requisite payments, which were received and processed by the Defendant. Counsel argued that those subsequent dealings created contractual and equitable obligations independent of the matters determined in the former proceedings. 4. Counsel further submitted that the Defendant subsequently declined to process some of the Plaintiff's plots, sought to relocate him, and demolished developments he had erected on the suit property. According to counsel, those acts gave rise to a fresh cause of action which could not have been determined in the earlier litigation. 5. On that basis, counsel argued that the doctrine of res judicata was inapplicable. Reliance was placed on ***John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others* [2021] KESC 39 (KLR).** 6. Counsel further submitted that the Plaint discloses a reasonable cause of action founded upon the Defendant's subsequent conduct, including the alleged contractual relationship arising from the regularisation process and the equitable doctrine of promissory estoppel. 7. Counsel urged the Court to find that the Plaint raises triable issues requiring determination at a full hearing and to dismiss the Application with costs. **Analysis and Determination** 1. I have considered the Application, the affidavits on record, the pleadings and the written submissions filed by the parties. In my view, the application raises two issues for determination: 2. Whether the suit is barred by the doctrine of *res judicata,* and; 3. Whether the Plaint discloses no reasonable cause of action against the Defendant and is otherwise an abuse of the process of the Court. 4. The Motion is anchored on two distinct grounds. The first is that the suit is barred by the doctrine of *res judicata* in light of the judgment rendered in **Machakos ELC No. 155 of 2016.** The second is that the Plaint discloses no reasonable cause of action and constitutes an abuse of the Court’s process. The issues arising from those grounds fall for determination in that sequence. **Whether the suit is barred by the doctrine of res judicata** 1. The first issue is whether the present suit is barred by the doctrine of *res judicata*. The Applicant contends that the Plaintiff seeks to re-litigate matters conclusively determined in **Machakos ELC No. 155 of 2016,** whereas the Plaintiff maintains that the present suit is founded upon subsequent events occurring after that judgment. It is against that background that the doctrine falls to be considered. 2. The doctrine of res judicata is founded upon the long-established maxim, interest *reipublicae ut sit finis litium.* It is in the public interest that litigation must come to an end. The doctrine gives effect to that principle by safeguarding the finality and authority of judicial decisions. Indeed, finality is not the enemy of justice. Properly understood, it is one of its essential guarantees. 3. The Applicant’s primary contention is that the Respondent’s claim is founded upon share certificates allegedly issued by Lukenya West Association and that any rights flowing therefrom were conclusively determined in **Machakos ELC No. 155 of 2016, East Africa Portland Cement Company Limited v Sammy Kathilu & 272 Others.** 4. The doctrine of res judicata is anchored in Section 7 of the Civil Procedure Act, Cap. 21 of the Laws of Kenya, which provides that: - ***“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 suchissue has been subsequently raised and has been heard and finally decided by such court.”*** 1. The Supreme Court in ***John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR*** comprehensively addressed the various facets of the doctrine of res judicata. The Court stated as follows: ***“[86] We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter, the following elements must be demonstrated:*** * + 1. ***There is a former Judgment or order which was final;*** 2. ***The Judgment or order was on merit;*** 3. ***The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and*** 4. ***There must be between the first and the second action identical parties, subject matter and cause of action.”*** 1. The Supreme Court had earlier explained in ***Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR*** the doctrine of res judicata in the following terms: ***[317] The concept of res judicata operates to prevent causes of action, or issues from being relitigated once they have been determined on the merits. It encompasses limits upon both issues and claims, and the issues that may be raised in subsequent proceedings. In this case, the High Court relied on "issue estoppel", to bar the 1st 2nd and 3rd respondents claims. Issue estoppel prevents a party who previously litigated a claim (and lost), from taking a second bite at the cherry. This is a long-standing common law doctrine for bringing finality to the process of litigation; for avoiding multiplicities of proceedings; and for the protection of the integrity of the administration of justice? all in the cause of fairness in the settlement of disputes.*** ***[318] This concept is incorporated in Section 7 of the Civil Procedure Act (Cap. 21, Laws of Kenya) which prohibits a Court from trying any issue which has been substantially in issue in an earlier suit. It thus 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.*** ***[319] There are conditions to the application of the doctrine of res judicata: (i) the issue in the first suit must have been decided by a competent Court; (ii) the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and (iii) the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title Karia and Another v. The Attorney General and Others, [2005] 1 EA 83, 89.”*** 1. For the doctrine to apply, it must be demonstrated that the matter directly and substantially in issue in the subsequent suit was directly and substantially in issue in a former suit between the same parties or parties claiming under them, litigating under the same title, and that the issue was heard and finally determined by a court of competent jurisdiction. 2. There is no dispute that ***Machakos ELC No. 155 of 2016*** was determined by a court of competent jurisdiction and that the judgment remains valid and binding. The Court in that matter determined, inter alia, that the Defendant is the registered proprietor of the suit properties and entitled to exclusive possession thereof. 3. To the extent that the Plaintiff seeks to assert proprietary rights over the suit properties solely on the basis of membership in Lukenya West Association or share certificates allegedly issued by that association, this Court agrees that such a claim cannot stand against the previous determination. The issue of ownership of the parent titles was conclusively determined and cannot be reopened through subsequent proceedings. 4. The law does not permit a party to repaint an old house and present it to the Court as a new structure. Courts look not at the labels attached to a claim, but at its true substance. Where the foundation of the claim remains unchanged, a change in language or presentation cannot transform a concluded dispute into a fresh cause of action. 5. However, that is not the entirety of the Plaintiff's case. The Plaint contains allegations that following the judgment in ***Machakos ELC No. 155 of 2016,*** the Defendant initiated a land regularization process, invited existing occupants to make payments, accepted payments from the Plaintiff, conducted surveys, declined to process some plots, sought to relocate the Plaintiff, and thereafter demolished developments allegedly standing on the land. 6. These allegations arise from events said to have occurred after the judgment in ***Machakos ELC No. 155 of 2016***. They were neither litigated nor determined in the earlier proceedings. 7. Whether those allegations are ultimately proved is a matter to be determined at trial. At this stage, it is sufficient to observe that they arise from events alleged to have occurred after the determination of **Machakos ELC No. 155 of 2016** and therefore rest upon a factual foundation that was not before that Court. 8. I emphasize that the doctrine of *res judicata* serves the important purpose of bringing finality to litigation by closing the door on matters that have already been determined. It does not, however, shut the door of the Court to disputes founded upon subsequent events or conduct which could not have been the subject of determination in the earlier proceedings. 9. Accordingly, the judgment in **Machakos ELC No. 155 of 2016** remains conclusive as to the ownership of the suit properties. The Plaintiff cannot, through these proceedings, revisit that determination. However, the doctrine of *res judicata* does not extend to disputes founded upon alleged subsequent conduct which was not the subject of determination in the former proceedings. The objection founded on *res judicata* therefore fails. **Whether the Plaint discloses a reasonable cause of action** 1. The Defendant further seeks the striking out of the suit under Order 2 Rule 15(1)(a) and (d) of the Civil Procedure Rules on the grounds that it discloses no reasonable cause of action and is otherwise an abuse of the process of the Court. 2. The principles governing the striking out of pleadings are well settled. The jurisdiction is a summary one and must be exercised with caution, as striking out a pleading deprives a party of the opportunity to have its dispute determined on the merits. 3. In ***D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another [1980] eKLR,*** the Court of Appeal cautioned that a court should, as far as possible, sustain rather than terminate litigation at a preliminary stage. The Court stated: ***“The court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof, before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the court. At this stage the court ought not to deal with any merits of the case for that 'is a function solely reserved for the judge at the trial as the court itself is not usually fully informed so as to deal with the merits "without discovery, without oral evidence tested by cross-examination in the ordinary way". (Sellers, L.J. (supra)). As far as possible, indeed not at all, there should be no opinions expressed upon the application which may prejudice the fair trial of the action or make it uncomfortable or restrict the freedom of the trial judge in disposing of the case in the way he thinks it right. If an action is explainable as a likely happening which is not plainly and obviously impossible the court ought not to overact by considering itself in a bind summarily to dismiss the action. A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. Normally a law suit is for pursuing it. No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it. On the other hand, if there is a point of law which merits a serious discussion the court should be asked to proceed under order XTV" rule 2."*** 1. Similarly, in ***Blue Shield Insurance Company Limited v Joseph Mboya Oguttu [2009] eKLR,*** the Court of Appeal reiterated that striking out is a drastic remedy that should be invoked only in the clearest cases. 2. The power to strike out pleadings is a judicial scalpel. It is intended to remove pleadings that are plainly incapable of sustaining a legal claim, not to determine disputed facts or prematurely terminate litigation merely because a claim may ultimately fail. 3. The question before the Court at this stage is not whether the Plaintiff will ultimately succeed, but whether the Plaint discloses a cause of action which warrants consideration at trial. 4. The Applicant contends that it owes no contractual, legal, or equitable obligation to the Plaintiff. That submission rests on the general proposition that a registered proprietor is entitled to deal with its property in accordance with the law, and that a court cannot compel an owner to sell property to a person merely because that person expresses an intention to purchase it. 5. The Plaintiff's case is that following the judgment in **Machakos ELC No. 155 of 2016,** the Defendant invited existing occupants to participate in a land regularization process, received payments from the Plaintiff pursuant to that process, and thereafter acted inconsistently with the representations allegedly made. 6. Whether those alleged representations were made, whether they created contractual or equitable obligations, whether the doctrine of promissory estoppel applies, and whether the Plaintiff is entitled to the reliefs sought are matters that can only be determined upon consideration of evidence. 7. At this stage, the Court is not concerned with the ultimate merits of those allegations. The question is simply whether the Plaint discloses an arguable cause of action deserving of adjudication upon evidence. 8. I am therefore unable to conclude that the Plaint is so hopeless, plainly unsustainable, or incapable of redemption as to warrant striking it out under Order 2 Rule 15(1)(a) of the Civil Procedure Rules. 9. The Applicant also contends that the suit constitutes an abuse of the Court’s process. The general rule is that Courts have an inherent and residual discretion to prevent an abuse of its process. 10. Abuse of the process of the Court is not established merely because a claim may ultimately fail. Rather, the doctrine is directed at preventing misuse of the Court's procedures in a manner that is oppressive, vexatious or otherwise inconsistent with the proper administration of justice. 11. In the present matter, beyond the grounds already considered under the doctrines of *res judicata* and failure to disclose a reasonable cause of action, the Applicant has not identified any separate or independent abuse of the Court's process. 12. In the circumstances, I am not persuaded that the institution or continuation of this suit amounts to an abuse of the process of the Court. 13. It follows that the Applicant has not established any of the grounds relied upon under Order 2 Rule 15(1)(a) and (d) of the Civil Procedure Rules. The prayer to strike out the Plaint is therefore declined. **Disposition** 1. For the foregoing reasons, the Notice of Motion dated 5th May 2026 is without merit and is hereby dismissed. 2. The costs of the application shall be in the cause. It is so ordered. **Delivered and Dated at Machakos this 9th day of July, 2026.** **HON. J. N. KUYIONI** **JUDGE** **09.07.2026** **Ruling delivered virtually through Microsoft Teams Video Conferencing Platform** In the presence of; Catherine Court Assistant. Mr. Mayiga for the Defendant. Ms. Mureithi holding brief for Mukami for Plaintiff.