https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3904

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC APPEAL NO. E057 OF 2024** **RONALD INGANGA LUDA........................... APPELLANT** **VERSUS** **MAURICE MIRIKAU MUTULI & 12 OTHERS.... RESPONDENTS** ***(Being an appeal against the ruling of Hon. Edwin Nyongesa Wasike (PM) delivered on 1st August 2024 in Butere PM ELC Case No. E039 of 2023)*** **JUDGMENT** **Introduction** 1. This appeal arises from the ruling of Hon. Edwin Wasike Nyongesa (PM) delivered on 1st August 2024 in Butere PM ELC Case No. E039 of 2024. In the impugned ruling, the trial court held that Butere PM ELC Case No. E039 was res judicata in view of the decree in Kakamega ELC Case No. 305 of 2017 delivered on 30th April 2020. **Background** 1. By a plaint dated 12th June 2023, the plaintiff who is the appellant herein and owner of parcel No. Marama/Buchenya/18 sued the defendants claiming for a declaration that the defendants were criminal trespassers on his land and for orders that the boundary of the said parcel be restored by a government surveyor; a permanent injunction to restrain the defendants from interfering with the plaintiff’s title, boundaries and occupation; vacant possession; damages for wrongful deprivation of title; and costs. 2. The plaintiff averred that between 2005 and 2023, the defendants had been in gradual interference with the suit property and its boundaries, built houses on part thereof and destroyed property including 1108 trees; three toilet doors; 400 fencing posts; 15 rolls of barbed wire; fencing nails and cement. That the defendants are criminal trespassers on the boundary of the suit property. 3. The defendants filed defence dated 25th October 2023. They denied the plaintiff’s claim and stated that the suit was *sub judice* in view of the consent decree entered into in Kakamega ELC Case No. 305 of 2017 dated 2nd December 2019 and adopted on 4th March 2022. That the Land Registrar and surveyor visited the suit property and prepared a report dated 4th March 2019. That the said report found that the plaintiff was the one who had encroached on the neighbouring land belonging to the defendants. That the matter was mediated and parties agreed, and the matter which involved a boundary dispute was settled. 4. That following the consent order the boundary was corrected, and the plaintiff’s trees standing on the boundary removed. That parties lived harmoniously but that dissatisfied with the consent the plaintiff moved the ELC for review of the same but his application was dismissed. 5. That parcel No. Marama/Buchenya/18 abuts the defendants’ parcel Nos. Marama/Buchenya/1390; 1392 and 102. That parcel 1390 is registered in the name of Christopher Aswani deceased. 6. Further that the suit was bad in law, fatally defective, mala fides and *res judicata* and that they will raise a preliminary objection in that regard. 7. On 21st February 2024 the court directed that the preliminary objection raised in paragraph 3 of the defence shall be canvassed by written submissions. 8. Upon consideration of submissions by the parties, the trial court made a ruling dated 1st August 2024 and held that the parties in the previous suit and current suit were the same save for additional parties in the current suit; that the subject matter was the same and that therefore the suit was *res judicata.* 9. Aggrieved with the decision of the trial court, the appellant herein appealed against the same vide his Memorandum of appeal dated 16th August 2024 citing the following 10 grounds of appeal. The gist of the appeal was that the trial court was wrong in concluding that the appellant’s case before the trial court was res judicata as the ingredients of res judicata were not proved. 10. Consequently, the appellant sought the following orders; 11. **The appeal be and is hereby allowed** 12. **The ruling of the Environment and Land Court at Butere dated 1st August 2024 in Butere ELC Case No. E039 OF 2023 be and is hereby set aside** 13. **The suit by the plaintiff in Butere ELC CASE NO. E 039 OF 2023 by the appellant herein be allowed with costs awarded to the appellant.** 14. **The costs of this appeal be awarded to the appellant against the respondents in any event.** 15. The appeal was canvassed by way of written submissions. The appellant filed submissions dated 26th November 2024 and a rejoinder dated 8th May 2025 while the respondent’s submissions are dated 17th March 2025. **Appellant’s submissions** 1. The appellant submitted that the respondents presented misleading facts as Maurice Mutuli the 1st respondent alleged to be a legal representative of the estate of Ham Mutuli in Kakamega ELC Case No. 305 of 2017 but denied the same in Butere SP ELC Case No. 39 of 2023. He maintained that parties who attended the mediation in the former suit were not the same parties as those in the subsequent suit. He argued that although he attended the mediation, he was not the principle owner of the suit property. He insisted that no documentary evidence was produced by the respondents to prove res judicata. Further that parties in the former suit lacked capacity to litigate. **Respondents’ submissions** 1. The respondents argued that the appeal raised one issue, namely; whether the trial court erred in concluding that Butere SPM C ELC CASE No. 39 of 2023 was res judicata in view of Kakamega ELC Case No. 305 of 2017. They referred to section 7 of the Civil Procedure Act as well as the reliefs sought in the former and subsequent suits and argued that the prayers sought are the same and even where they may not be, they were available in Kakamega ELC Case 305 of 2017. 2. Reliance was placed on the case of **E.T. v Attorney General & Another (2012) e KLR** and urged the court to exercise vigilance to stop a party from relitigating similar issues. They argued that the parties and reliefs sought in the former suit and the subsequent suit were similar. They also referred the court to the case of **Siri Ram Kaura v M.J.E. Morgan CA 71/1960 (1961) EA 462** for the proposition that a party cannot raise issued already decided upon, in a subsequent suit. **Analysis and determination** 1. The court has carefully considered the appeal, the trial court record and rival submissions. The only issue that arise for the court’s determination is whether the trial court was right in concluding that Butere PM ELC CASE NO. E039 OF 2023 was *res judicata* in view of the consent judgment in Kakamega ELC Case No. 305 of 2017. 2. *S*ection 7 of the Civil Procedure Act provides for the doctrine of *res judicata* as follows; ***“Res judicata*** **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.** ***Explanation.* — (1) The expression "former suit" means a suit which has been decided before the suit in question whether or not it was instituted before it.** ***Explanation.* — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.** ***Explanation.* — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.** ***Explanation.* — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.** ***Explanation.* — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.** ***Explanation.* — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.”** 1. Therefore, a court is by law barred from adjudicating over an issue or a suit between the same parties which has already been determined with finality, on merit by a competent court. To prove *res judicata*, the applicant ought to demonstrate that the former suit was between the same parties or their privies as those in the current suit; that the issue in the current suit was directly and substantially in issue in the former suit; that those parties were litigating under the same title; that the issue was heard and finally determined in the former suit; and that the court that heard and determined the former suit issue was competent to try the subsequent suit. 2. In the case of **Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd [2017] e KLR,** the court enumerated the elements of *res judicata* in the following terms; **“The elements of res judicata have been held to be conjunctive rather than disjunctive. As such, the elements reproduced below must all be present before a suit or an issue is deemed res judicata on account of a former suit;** 1. **The suit or issue was directly and substantially in issue in the former suit.** 2. **That former suit was between the same parties or parties under whom they or any of them claim.** 3. **Those parties were litigating under the same title.** 4. **The issue was heard and finally determined in the former suit.** 5. **The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the suit is raised.”** 6. In **The Independent Electoral and Boundaries Commission –vs- Maina Kiai & 5 Others (2017) e KLR,** the Court of Appeal aptly captured the purpose of the doctrine of *res judicata* as follows; **“The role of the doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and Commonsensical Protection against Wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by multiplicity of suits and fora to obtain at last outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered noisome nuisance and brought to disrepute or calumny. The foundations of res judicata this rest in the public interest for swift, sure and certain justice.”** 1. A bar of *res judicata* is applicable against a party who ought to have raised an issue but failed to do so in the former suit, either due to negligence, mistake, inadvertence or otherwise. Besides, *res judicata* applies to a person, who was aware that a suit or issue affecting him was being litigated, but sat by with indifference and did not participate in such suit. In the case of **John Florence Maritime Services Limited & Another v. Cabinet Secretary Transport & Infrastructure & 3 Others (Petiton 17 of 2015] [2021] KESC 39 KLR (CIV) (6 August 2021) Judgment,**the Supreme Court of Kenyacited with approval the case of**Hinderson v. Henderson [1843] 3 Hare 100 at page 115,** where it was held as follows; **“Where a given matter becomes the subject of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident omitted part of their case. The plea of *res judicata* applies except in special cases, not only to points upon the court was actually required by the parties to form an opinion an pronounce judgment, but to every point which property belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time….”** 1. In Kakamega ELC Case No. 305 of 2017 (former suit) was filed by Christopher Aswani on behalf of Sameul Kataka, Gerishom Omwolo Javan, Geoffrey Matendechere, Wycliffe Andala and John Okubere against Ronald Inganga Luda on behalf of Henry Eshiunyu Ongonga. In that suit, the registered owners of parcel Nos. Marama/Buchenya/1390; 1392 and 102 sued the owner of parcel No. Marama/Buchenya/18 arguing that the defendants and owners of parcel No. 18 had destroyed the common boundary with the plaintiffs’ three parcels. They sought restoration of the boundary between their parcels and parcel No. Marama/Buchenya/18; an injunction against the defendants to restrain them from destroying the boundary and costs. 2. It is therefore clear that the parties in the former suit were the same as those in the current suit, save that there was an addition of parties. However, that did not change the fact that the appellants complaint revolved around rectification of boundaries concerning his parcel No. Marama/Buchenya/18. 3. The subject matter in the former suit and the current suit is parcel No. Marama/Buchenya/18 and the parcels abutting that property which are parcel Nos. Marama/Buchenya/1390; 1392 and 102, and the dispute is whether there is interference of the boundaries thereof by the parties. In the premises therefore, I find and hold that the issue of boundary dispute which was directly and substantially in controversy in the former suit is the same issue in Butere ELC CASE NO. E039 OF 2023. The determination in the former suit was by a consent judgment and therefore settled with finality. 4. It is therefore clear that this suit seeks to undo the consent through the back door, because if the appellant herein was dissatisfied with the consent, this court is not the right forum for setting aside the same. 5. In the premises, as the issue and the parties in the former suit are the same as those in the subsequent suit, the former suit having been resolved by a consent judgment, I find and hold that Butere PM ELC Case No. E039 of 2023, to the extend that it sought orders resolved by this court vide Kakamega ELC CASE NO. 305 OF 2017, through a consent, was *res judicata*. 6. In the premises, I find and hold that the trial court was right in concluding that Butere PM ELC CASE NO. E 039 of 2023 was *res judicata.* There is therefore no justification for this court’s interference with the findings of and conclusions made by the trial court. Ultimately, I find and hold that this appeal lacks merit and the same is hereby dismissed with costs to the respondents. 7. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 17TH DAY OF JUNE 2026** 1. **NYUKURI** **JUDGE** **In the presence of;** Appellant in person No appearance for the respondents Court Assistant: Delphine