https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3566

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIVASHA** **ELCL CASE NO. E016 OF 2024** **TIMON KIPKORIR MOI……..……..……..……..……….…………………….PLAINTIFF** **VERSUS** **THE MINISTRY OF LAND, LAND ADJUDICATION AND SETTLEMENT……………………………….……………………….…….……DEFENDANT** **JUDGEMENT** 1. Vide a Plaint dated 27th March 2024, the Plaintiff herein sought the following orders: 2. An order for the allocation of land measuring approximately 5 acres. 3. Confirmation of issuance of land at OlJorai Phase II Settlement Scheme measuring approximately 5 Ha. (2.40 Ha) within Naivasha District of Nakuru County. 4. Costs of the suit. 5. Upon service, the Defendant filed its Statement of Defence, dated 24th January 2025, denying the allegations contained in the Plaintiff’s Plaint, putting the Plaintiff to strict proof, and praying that the Plaintiff’s claim, as outlined in the Plaint, be dismissed with costs. 6. Subsequently, the matter proceeded for hearing on 16th February 2026 in the absence of the State Counsel for the Defendant, wherein Timon Kikpkorir Moi, the Plaintiff herein, testified as PW1 to the effect that he worked with the Kenya Agricultural Research Organization (KARO) based in Kisumu. He stated that he had been allocated a piece of land in 2002 through the Agricultural Development Corporation (ADC) via a letter dated 28th May 2002. 7. He explained that he was among the individuals whose parents had donated land for the construction of a school, noting that they had been called as a community to the site around 1997 or 1998 by the local committee. He stated that he had given a notice of intention to sue dated 15th February 2024, which he wished to produce as Pf exh 1. He added that the ADC had written back to him via the letter dated 28th May 2002 regarding the allocation of the piece of land, and he wished to produce that letter as Pf exh 2 as well. 8. The Plaintiff further stated that he had received a letter of offer from the Director of Land Adjudication and Settlement dated 10th September 2008 allocating him a piece of land measuring 2.4 hectares in the Ol-Jorai Phase II Settlement Scheme in Elementaita, within Naivasha District. He testified that he paid a 10% deposit of Kshs. 4,000/= on 19th January 2009 and produced the letter of offer as Pf exh 3 and the respective payment receipt as Pf exh 4. 9. He testified that he had visited the suit land and erected a structure on it. However, in 2009, numerous disputes over double land allocations arose, leading to several conflict-resolution meetings. The Plaintiff stated that he had attended all of those meetings. He testified that during this period, another person had been introduced to his farm. 10. Following the meetings to resolve the double allocations, he received a letter dated 16th August 2010 that allocated him a different parcel of land with a reduced size, now measuring 1.20 hectares, but within the same locality. He stated that they were required to pay an undocumented, outright fee of Kshs. 7,683.90/= which he subsequently paid Kshs. 7,945/= on 29th November 2010. He produced that allotment letter and the receipt as Pf exh 5(a) and 5(b). 11. The Plaintiff informed the court that he was dissatisfied with the reduced allocation and regularly visited the Land Adjudication offices in an effort to retain his original parcel size. In 2014, he received another letter of offer from the Settlement Fund Trustees (SFT), which granted him 1.2 hectares at the Ol-Jorai Settlement Scheme in Nakuru County. For this land, he was required to pay Kshs. 7,736.40/= which he paid in two instalments of Kshs. 4,000/= on 10th November 2014, and Kshs. 4,000/= on 9th March 2018. He produced the letter of offer and the two receipts as Pf exh 6(a) to 6(c). 12. He proceeded to testify that upon receiving those documents, he believed he owned land and repeatedly asked the SFT to point out the plots to them in vain, noting that the only land he had ever visited was the original plot shown to him by the ADC. He testified that the person who was introduced to his land earlier did not allow anyone to take possession of it, but gradually demolished his building. He lamented that, at present, he did not have any land allocated to him. He further stated that he had repeatedly asked the surveyor to take him to the subsequent parcels of land, to no avail, and that he knew only the location of the original land. He added that the person who had been introduced to his initial land was a police officer who had since passed away, and whose family was currently in occupation of that property. 13. He further testified that in 2023, officials from the Ministry of Lands, including a surveyor, visited the disputed land, and although he expected to be invited, they did not contact him. He stated that, according to what he had heard from the local residents, the officials had instructed the deceased officer's family to fence off the land. The Plaintiff stated that he went to see the Sub-County District Land Officer, who was arrogant and dismissed him, informing him that since they had finalised their report, he should go to Nairobi (their Headquarters). He stated that this dismissal prompted the current suit. He requested the court to compel the Ministry to settle him on the original 2.4-hectare piece of land given to him in 2002, or alternatively, he be allocated another piece of land measuring 2.4 hectares. He also prayed for the costs of the suit. 14. In response to questions from the court, the Plaintiff stated that he was not aware that the matter had been handled previously in the Nakuru Environment and Land Court (ELC). He added that he was unaware that the allotment letters issued between 2005 and 2008 had been cancelled, or that the court had previously ordered a reimbursement. He reiterated that he simply sought to be given the land allocated to him in the year 2002. 15. Following this testimony, the Plaintiff closed his case. The Defendant’s case was also marked as closed, wherein parties were directed to file written submissions. As I write this judgement, neither party has complied. **Determination.** 1. Based on the procedural posture of the case where both parties have closed their cases but failed to file written submissions, the court must determine the suit based purely on the oral and documentary evidence presented by the Plaintiff. 2. Briefly the Plaintiff, Timon Kikpkori Moi, is seeking an order from the court to compel the Ministry of Lands and the Settlement Fund Trustees (SFT) to settle him on his originally allocated 2.4-hectare piece of land, which he had been allocated in 2002/2008 by the Agricultural Development Corporation (ADC), or alternatively, to provide him with an alternative plot of the same size, along with the costs of the suit. 3. His case is that in 2002, he had originally beenallocated land by the Agricultural Development Corporation (ADC) via a letter dated 28th May 2002 wherein he erected a structure. This allocation was linked to his parents' donation of land for a local school project in 1997–1998. 4. That he had received a formal letter of offer dated 10th September 2008, from the Director of Land Adjudication and Settlement for 2.4 hectares in the Ol-Jorai Phase II Settlement Scheme (Elementaita, Naivasha District) wherein he paid the required 10% deposit of Kshs. 4,000/= on 19th January, 2009. 5. Following widespread disputes over double allocations in 2009, the Plaintiff was issued a new letter dated 16th August 2010 for a different plot that had been slashed in acreage, thus measuring 1.2 hectares. He complied with an undocumented payment demand, paying Kshs. 7,945/= on 29th November, 2010. 6. He received yet another letter of offer from the Settlement Fund Trustee for 1.2 hectares at the Ol-Jorai Settlement Scheme in Nakuru County wherein again he paid the requested fee of Kshs. 7,736.40/= in two instalments in 2014 and 2018. 7. His lamentation was that whereas he had been allocated the original land shown to him by the ADC, a police officer was subsequently introduced to the same farm, who blocked the Plaintiff from occupying it, took possession and occupation and gradually demolished the Plaintiff's structure/building. Although the police officer has since died, his family remains in occupation of the land. 8. That despite paying for multiple iterations of allocations, the Plaintiff currently possesses no land at all, as land officials have consistently failed to point out or give him possession of any of the smaller alternative plots. 9. When prompted by the court, the Plaintiff maintained that he has no knowledge of any prior litigation handling this specific dispute in the Nakuru Environment and Land Court, nor was he aware that the 2005–2008 allotment letters had been legally cancelled or that a financial reimbursement had ever been ordered by a court. 10. This Court is duty-bound to take judicial notice of its own records, specifically the final and binding Ruling delivered on 1st March, 2023, inNakuru Environment & Land Case No. 263 of 2012. The Plaintiffs therein instituted suit vide a Plaint dated 24th June 2010, which was subsequently amended and further amended. By the further Amended Plaint of 7th November 2012, the Plaintiffs claimed that between the years 2005 – 2008, they were allocated various plots within the Oljorai Phase II Settlement Scheme at Naivasha, asserting that while some of them were issued allotment letters, others were, for unexplained reasons, not issued any. The Plaintiffs argued that in 2009/2010, the Defendants (Settlements Fund Trustees) unlawfully and irregularly prepared a fresh list of allottees and issued letters of allotment to third parties, demanding that they (Plaintiffs) vacate the parcels of land that they had been allocated and/or taken occupation and possession of. Their suit therefore sought orders of restraint against the Defendants, directing them to issue the Plaintiffs with letters of allotment, receive payments for the same, and process title documents in favour of the Plaintiffs. 11. From the above summary, the issues that stand out for determination are as follows: 12. Whether the present suit is barred by the doctrine of *Res Judicata*. 13. Whether the Plaintiff is entitled to the remedies sought. 14. On the first issue for determination,the Supreme Court of Kenya in **Dina Management Limited vs County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment)** held as follows: “*The doctrine of res judicata was founded on public policy and was aimed at achieving two objectives namely, that there must be finality to litigation and that the individual should not be harassed twice with the same account of litigation. The doctrine of res judicata may be pleaded by way of estoppel so that where a judgment had been delivered, subsequent proceedings were estopped. Where res judicata was pleaded by way of estoppel to an entire cause of action, rather than to a single matter in issue, it amounted to an allegation that all the legal rights and obligations of the parties were concluded by the earlier judgment, which may have involved the determination of questions of law as well as findings of fact, that was a form of action estoppel. Res judicata, was embodied in section 7 of the Civil Procedure Act.* *The elements to be proven before a court could arrive at the conclusion that a matter was res judicata were to be conjunctive rather than disjunctive before a suit or an issue was to be deemed res judicata on account of a former suit. It must be demonstrated that there was a former judgment which was final, it was on merit and by a court having jurisdiction and had identical parties, subject and cause of action.”* 1. It must be noted, therefore, that the doctrine of res judicata is not a mere technicality that can be cured by invoking Article 159 (1)(d) of the Constitution, but is a matter of substantive law and jurisdiction. It is a pillar of the judicial system that serves the greater public interest in finality and the efficient use of judicial resources. 2. In order therefore to decide as to whether the Plaintiff’s current case is res judicata Nakuru ELC Case No. 263 of 2012, - **James Mungai Kinyanjui & 97 others vs Settlements Fund Trustees,** the court of law, as is trite of me, should always look at the decision claimed to have been settled, the issues in question and the entire pleadings of the previous case and the instant case to ascertain; 3. What issues were really determined in the previous case; 4. Whether they are the same in the subsequent case and were covered by the decision of the earlier case. 5. Whether the parties are the same or are litigating under the same title, and 6. whether the previous case was determined by a court of competent jurisdiction. 7. In order to so determine, on the first issue, I have looked at the decision of the court in its Ruling of the previous matter herein reported as **Kinyanjui & 97 others v Trustees [2023] KEELC 15966 (KLR)** which wasrepresentative suit involving a group of Plaintiffs from the Oljorai Phase II Settlement Scheme, a group of which the current Plaintiff was a constituent member. 8. Vide a Ruling delivered by the Court on 1st March, 2023, the court held as follows; *‘’The court in the premises adopts the Report and the recommendations for implementation and consequently enters judgment in terms of the Report and Recommendations and flowing therefrom makes the following final orders:-* *1.The plaintiffs holding the cancelled letters of offer issued between 2005 and 2008, and had paid any money for the plot offer and were issued official receipts should be refunded the money they paid upon production of the receipts by the Director of Land Adjudication and Settlement forthwith.* *2.The affected plaintiffs’ names and their particulars to be furnished to the Office of the Deputy County Commissioner, Gilgil (being the Chair to Sub-County Plot Selection Committee) to be prioritized for consideration for allocation of plots in any available Government Schemes established or declared by the Director, Land Adjudication and Settlement.* *3.The Director, Land Adjudication and Settlement to be furnished a copy of the ADR Report and this Ruling together with the plaintiffs list as under (2) above for him to consider and give priority to the affected plaintiffs in case land is identified for settlement anywhere within Nakuru County or the Republic of Kenya.* *4.Each party to bear their own costs of the suit.’’* 1. In the present case, the Plaintiff is seeking the exact same remedy (possession of the 2.4-hectare plot or alternative land) based on the exact same historical allocation letters (2002 and 2008) that were the subject matter of the 2010 omnibus suit. 2. The Plaintiff’s plea that he was ‘’not aware’’ that his allotment letters were cancelled or that the previous court had ordered a reimbursement does not salvage his case. The 2010 suit was a representative action that determined the global status of all entries in the Oljorai Phase II Settlement Scheme register. The final decision delivered on 1st March 2023, conclusively litigated the validity of those allotments, found them to have been lawfully cancelled, and replaced the paper titles with a right to a financial refund and priority relocation. 3. The Plaintiff cannot now file a fresh suit in 2024 to re-litigate a root cause of action that was conclusively extinguished and substituted by a final decree of this Court in 2023. The present suit is a clear duplication of claims and is completely barred by the doctrine of res judicata. 4. On the second issue for determination as to whether the Plaintiff is entitled to the remedies sought, I find that because the suit is fundamentally barred by *res judicata*, the Plaintiff cannot legally demand that this Court compel the Ministry of Lands to settle him on the original 2.4-hectare plot. As established in the 2023 ruling, that land is now the lawful property of third parties holding valid title deeds. The Court cannot issue an order that creates a fresh double-allocation or destabilizes existing legal titles. 5. I find that the Plaintiff’s true remedies do not lie in a fresh lawsuit for land ownership; they lie exclusively in enforcing the final orders explicitly laid out in the 1st March, 2023 ruling. The Plaintiff has a vested right to demand his financial refund from the Director of Land Adjudication and Settlement using his receipts as herein produced as Pf exh 4, 5(b), and 6 (b-c), and to ensure his name is actively maintained on the priority settlement list held by the Deputy County Commissioner of Gilgil. 6. To this effect the court finds as follows; 7. The Plaintiff’s suit dated 12th June, 2024, is hereby struck out in its entirety for being res judicata Nakuru ELC No 263 of 2012. 8. For the avoidance of doubt, the Plaintiff’s lawful remedies remain strictly confined to the enforcement of the final orders issued in the Ruling dated 1st March, 2023, inNakuru ELC No. 263 of 2012, namely: 9. The right to a full financial refund of all verified historical payments upon presentation of original receipts to the Director of Land Adjudication and Settlement. 10. The right to be prioritised for alternative plot allocation by the Sub-County Plot Selection Committee, chaired by the Deputy County Commissioner, Gilgil. There shall be no orders as to cost. **Dated and delivered via Microsoft Teams at Naivasha, this 11th day of June 2026.** **M.C. OUNDO** **ENVIRONMENT & LAND COURT– JUDGE**