https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4185

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT KAPSABET** **ELCLC NO. E020 OF 2026** **​VALERIAN KIPNGETICH TORMOI ................................... PLAINTIFF** **​=VERSUS=** **​LINUS KIPKEMBOI KOROS .....................…................. 1ST DEFENDANT** **GREGORY KIPCHUMBA KOROS .............................. 2ND DEFENDANT** **ANDREW KIRWA ROTICH ...................................... 3RD DEFENDANT** **PAULINE ROTICH .................................................... 4TH DEFENDANT** **​RULING** 1. The present ruling is with regard to the preliminary objection dated 10th June 2026 originated by the defendants through Jepkemboi Irene and Company Advocates on the grounds infra; 2. That the suit herein is Res Judicata pursuant to the provisions of Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya (The CPA herein), the matters at hand having already been directly and substantially in issue and finally decided in a previous case between the same parties or those claiming under them by a court of competent jurisdiction. 3. That the matters substantially in issue in the present suit were dispensed with in the **Eldoret Environment and Land Case No. 571 of 2012, Eldoret Court of Appeal Civil Application No. E012 of 2022 and Eldoret Civil Appeal No. 36 of 2018**. 4. That the suit herein is frivolous, vexatious and an abuse of the process of Court which renders the same due for striking out pursuant to the provisions of **Order 2 Rule 15 of the Civil Procedure Rules, 2010** (The CPR 2010 herein). 5. That the continued prosecution of the suit is thus untenable at law and will prejudice and impede justice and embarrass the court not to mention waste the precious judicial time of this Honourable Court. 6. It is paramount to note that the plaintiff through AMA and Advocates generated the suit by way of a plaint dated 8th May 2026 claiming legal ownership of fourteen (14) acres in the eight suit land parcel numbers. **Nandi/Chepterwai/849, 850, 852, 853, 854, 855, 857 and 858** (formerly known as **Nandi/Chepterwai/79, the original land)**. That he inherited the said portion of the eight suit land parcels from his late father, **Joseph Kipyator Turmoi (Deceased-1**). That the defendants are the beneficiaries of the estate of the late Thomas Koross (Deceased-2) and that the original land was sub divided into the eight suit land parcels upon succession of the estate of Deceased-2. That the defendants have since and actually interfered, tried to evict, remove and or cause to be removed or evicted the plaintiff from the suit land parcels. 7. Thus, the plaintiff is seeking the following orders; 8. A declaration that the Plaintiff is legal beneficiary/owner of the 14 acres in the eight suit land parcels (formerly the original land). 9. Upon grant of pray (a), an order of permanent injunction restraining the Defendants from cultivating, leasing, alienating and/or in any manner dealing or interfering with the eight suit land parcels (formerly known as **the original land)**. 10. Mesne profits arising from cultivating and cutting trees/timber. 11. Costs of this suit. 12. Simultaneously, the plaintiff/applicant filed an application of even dated seeking principal orders namely temporary injunction and maintenance of status quo over the eight suit land parcels pending the hearing and determination of the suit. 13. So, the defendants raised the preliminary objection herein. In addition, by their statement of defence dated 10th June 2026 containing the grounds of the preliminary objection at paragraphs 8, 9 and 10, the defendants prayed that the present suit be dismissed with costs. 14. Also, the defendants/respondents opposed the applicant/plaintiff’s application by their replying affidavit of twelve (12) sworn on 10th June 2026 by the 2nd defendant on his own behalf and on behalf of the other defendants and prayed that it be dismissed with costs. 15. The preliminary objection was heard on priority basis by written submissions pursuant to this Honourable court’s directions given on 11th June 2026 and in view of the case of **Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd (1969) 1 E A 696.** 16. By the submissions dated 24th June 2026, learned counsel for the defendants referred to the grounds of the preliminary objection and that the matters substantially in issue in the present suit were determined in Environment and Land case number 571 of 2012, Civil Application No. E012 of 2022 and Civil appeal number 36 of 2018. That the suit is res judicata pursuant to section 7 of the CPA (supra) and an abuse of the process of the court which renders the same due for striking out pursuant to Order 2 Rule 15 of the CPR 2010 (supra). 17. To buttress the submissions, counsel relied upon the case of **Independent and Electoral Commission (IEBC) vs Maina Kiai & 5 others (2017) KLR and Hussan Mustajabu & another vs Chief Land Registrar Kwale & 3 others {2021} KEELC 4385 (KLR)** on the res judicata principle. Also, reliance was made on the case of **John Florence Maritime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 others {2021) KESC 59 (KLR). ET vs Attorney General and another (2012) KLR and Omondi vs National Bank of Kenya Limited 92001) EA 177** as regards res judicata and that the suit is frivolous, vexatious and an abuse of the court process. That in that regard, the instant suit is res judicata and the same be struck out with costs to the defendants. 18. In the submissions dated 29th June 2026, learned counsel for the plaintiff made reference to the instant suit where the plaintiff has sought determination of rights over land and the preliminary objection that the matters were previously determined as stated in paragraph 1 hereinabove. Counsel submitted that the plaintiff opposes the entire preliminary objection which does not meet the legal threshold. That the same is not sustainable, it is incompetent, requires factual investigation and the suit is neither frivolous nor vexatious as the previous proceedings did not finally determine the issue of 13.7 acres out of 14 acres. That therefore, this suit was commenced to fill that lacuna and does not violate section 7 of the CPA. 19. Additionally, it was the plaintiff’s submissions that there are factual allegations in the suit that cannot be determined on the face of the pleadings alone without investigation into the underlying facts as held in **Mukisa Biscuit case** (supra). That the suit raises bona fide issues of law and fact relating to land ownership and possession that merit full hearing. That the Court of Appeal in **IEBC case** (supra) reaffirmed that a preliminary objection that requires the court to look at the evidence for determination is not valid. Therefore, counsel urged the Court of overrule and dismiss the preliminary objection in entirety with costs to the plaintiff. 20. In the foregone, is the preliminary objection sustainable? 21. The preliminary objection is premised upon, inter alia, that the suit is res judicata under **section 7 of the CPA** which 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."* 1. **Black’s Law Dictionary 10th Edition at page 1504**, defines ‘Res Judicata’ principle as follows; ‘*An affirmative defense barring the same parties from litigating a second law suit on the same claim or any other claim arising from the same transaction or series of transactions and that could have been-but was not-raised in the first suit.’* 1. Further, the three essential elements of the principle are set out in Black’s Law Dictionary (supra) thus; *(1) an earlier decision on the issue* *(2) a final judgment on the merits and* *(3) the involvement of the same parties or parties in privity with the original parties.’* 1. Furthermore, this Honourable court is guided by **IEBC case** (supra) where the Court of Appeal reaffirmed the following res judicata ingredients; 2. The suit or issue was directly and substantially in issue in the former suit. 3. That former suit was between the same parties or parties under whom they or any of them claim. 4. Those parties were litigating under the same title. 5. The issue was heard and finally determined in the former suit. 6. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” 7. Notably, the Supreme Court of the Republic of Kenya in **John Florence Maritime Services Limited case (supra)** was quite emphatic that courts must be vigilant against the drafting of pleadings in such manner as to obviate the principle of res judicata. 8. It is a fundamental principal that litigation has to come to an end; see also **ET case (supra)** on the court’s vigilance on litigants evading the doctrine of res judicata by introducing new causes of action which has been resolved by a court of competent jurisdiction. 9. In Civil Appeal No. 36 of 2016 between the defendants herein and the plaintiff herein referred to in the preliminary objection, the Court of Appeal (Kiage, Mumbi Ngugi and Tuiyott JJA) on 21st June 2022 reasoned; ‘(a)*That the appeal is allowed to the extent that the Judgement of the ELC be set aside in its place its ordered that the Respondent is entitled to 0.3 acres in* ***Nandi/Chepterwai/858.*** 1. *That subdivision of land* ***Nandi/Chepterwai/858*** *be effected and 0.3 acres thereof occupied by the respondent be transferred and registered in his favour.* 2. *That each party bears their own costs.’* 3. Moreover, in Eldoret Civil Application No. E012 of 2022 between the plaintiff and the defendants herein, the Court of Appeal differently constituted **(Mativo, Gachoka and Odunga JJA)** on 9th May 2025 delivered a ruling and at paragraph 18 thereof reads, inter alia; ‘……*Litigation must come to an end and the losing party should pick up the pieces and move on with life…..*’ 1. It is trite law that a preliminary objection must contain a pure point (s) of law duly pleaded or which arise by clear implication of pleadings and if argued, has power to dispose of the suit in entirety’ see **Biscuit case** (supra). 2. In the case of **Susan Jane Shah and another vs Cooperative Merchant Bank Ltd Pet No. 9 of 2017 (2017) eKLR**, Supreme Court of the Republic of Kenya held that cases cannot be relitigated when barred by re judicata which is a matter of substantive law and not a minor rule. **Article 159 (2) (d) of the Constitution of Kenya 2010** is borne in mind herein. That in case of res judicata, the court has to strike out in limine (at the outset) the suit to prevent the abuse of the court process. 3. In the present suit, there are same parties and cause of action as well as competent court determined the instant matter in previous decisions as stated in the preliminary objection, paragraphs 19 and 20 hereinabove and fully in consonant with, inter alia, **Blacks’ Law Dictionary, Mukisa Biscuit, IEBC, Susan Shah cases** (all supra). So, the preliminary objection is legally solid in the circumstances. 4. A fortiori, the defendants’ preliminary objection dated 10th June 2026, be and is hereby allowed accordingly and this entire suit originated by the plaint dated 8th May 2026, is struck out. 5. By dint of the proviso to **section 27 (1) of the CPA** and being guided by the Supreme Court of Kenya decision in the case of **Rai and others vs Rai and others (2014) eKLR** alongside the obtaining circumstances, costs of the preliminary objection be borne by the plaintiff. 6. It is so ordered. **Dated** and **Delivered** at **Kapsabet** this **8th Day of July 2026**. **HON. G M A ONGONDO** **JUDGE** **In the presence of;** 1. Mr. B.K Cheruiyot learned counsel for the plaintiff 2. Ms. Irene Rop learned counsel for the defendants 3. Walter, court assistant