https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3244

Amendi v Ombuge & 2 others (Environment and Land Appeal E008 of 2023) [2026] KEELC 3244 (KLR) (20 May 2026) (Judgment) Neutral citation: [2026] KEELC 3244 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Appeal E008 of 2023 A Nyukuri, J May 20, 2026 Between Vincent Ida Amendi Appellant and Rowland Eshipila Ombuge 1st Respondent Land Registrar Kakamega County 2nd Respondent County Surveyor Kakamega County 3rd Respondent (Being an appeal against the judgment of Hon. G.P. Omondi (PM) delivered on 24th January 2023 in Mumias ELC Case No. E056 of 2022) Judgment Introduction 1.This appeal was commenced by a Memorandum of appeal dated 27th February 2023, which was amended on 8th January 2024, and filed by Vincent Ida Amendi. 2.The appeal challenges the ruling of the lower court in Mumias SPMC ELC Case No. E56 OF 2022, delivered on 24th January 2023 by Hon. G.P.Omondi (SPM) in respect of a notice of motion dated 24th October 2022 filed by the respondent; wherein the lower court dismissed a preliminary objection dated 7th October 2022. Background 3.The respondent filed a plaint dated 4th October 2022 seeking against the appellants orders of permanent injunction to restrain the respondents from visiting parcel Nos. N.W.Kholera/4862 and 4863 “until the hearing and determination of the suit”. The plaintiff alleged that he was the registered proprietor of parcel No. N.W.Kholera/4862 while Vincent Idah Amedi was the registered proprietor of parcel No. N.W.Kholera/4863; both emanating from the subdivision of parcel No. N.W.Kholera/3208. 4.He accused the 1st defendant of fraudulently subdividing parcel No. N.W.Kholera/3208 into the two aforesaid parcels before paying the entire consideration. That on the complaint by the 1st defendant, the 3rd defendant had given notice to reopen the access road between parcel No. N.W.Kholera/4862 and 4863; which does not exist on the map. He stated that no similar proceedings are pending save MCELC N.W.Kholera/4862MISC NO. E013 OF 2022 which was dismissed on a technicality. 5.Simultaneous with the filing of the plaint, the plaintiff filed a notice of motion dated 4th October 2022 seeking orders of temporary injunction to restrain the defendants from visiting parcel Nos. N.W.Kholera/4862 and 4863 and opening access road until the determination of the suit. His reasons being that he owned parcel No. N.W.Kholera/3208, and sold part thereof to the 1st defendant but that the latter despite not paying the entire consideration, proceeded to fraudulently subdivide the said parcel and obtained title to parcel No. N.W.Kholera/4863. 6.In response, the 1st defendant entered appearance and filed a notice of preliminary objection dated 7th October 2022. He stated that the applicant had failed to make disclosure of material facts including the fact that there was a similar suit being MC ELC CASE NO. E013 OF 2022, which was dismissed on 14th September 2022, hence the court remains functus officio. That this suit is a nullity ab initio and the suit is res judicata. 7.The application dated 4th October 2022 came up for directions on even date and the trial court made the relevant directions concerning the disposal of the same and directed that a ruling date be fixed on 14th November 2022. On 14th November 2022, a ruling was fixed. The ruling was delivered on 24th January 2023. In the ruling, the trial court found that to ascertain if the suit before it was res judicata, it would need evidence and that the court could not be able to ascertain that issue, without calling for evidence and on that ground the court dismissed the preliminary objection dated 7th October 2022. 8.Aggrieved with the ruling of 24th January 2023, Vincent Idah Amendi filed the instant appeal vide an amended Memorandum of appeal dated 24th March 2023, citing the following four grounds of appeal;a.The learned magistrate erred in law and fact by failing to construe correctly that the applicant's application was indeed res judicata.b.The learned magistrate erred in law and in fact by failing to appreciate that the doctrine of res judicata saves valuable court time.c.The learned magistrate erred in law and fact by failing to appreciate that a party to a suit need not be subjected to unnecessary proceedings in court of law.d.The learned magistrate erred in law and fact by failing to appreciate that a preliminary objection raises a pure point of law if argued would bring to an end speedily a matter that should not have proceeded in the first place. 9.Consequently, the appellant sought the following orders;a.An order that ruling and order of the Honourable G. P. Omondi delivered on the 24th day of January 2023 be reversed and set aside.b.The application dated 4th October 2022 before Hon. G.P. Omondi in the Environment and the Land Court E056 of 2022 be dismissed with costs.c.The respondent to pay costs. 10.Theappeal was disposed by way of written submissions. The appellants filed submissions dated 23rd January 2024 while the respondent filed submissions dated 15th March 2024 and supplementary submissions dated 27th November 2024. Appellant’s submissions 11.Counsel for the appellant submitted that the suit before the trial court was res judicata, owing to the fact that the 1st respondent had previously filed MCELC No. 13 of 2022, which was dismissed and fourteen days later, the 1st respondent filed another suit involving the same parties, the same pleadings and seeking substantially the same orders. 12.Reliance was placed on section 7 of the Civil Procedure Act upon which counsel submitted that once a competent court had heard and finally determined the matter, the 1st respondent could not properly institute a fresh suit over the same issues. That if the 1st respondent was dissatisfied with the decision in the previous suit, the proper recourse was to file an appeal or seek review, rather than commence a new suit. They therefore submitted that the trial court erred in declining the appellant’s preliminary objection and in requiring him to participate in a matter that had already been determined. 13.To buttress their argument, counsel relied on several cases including KCB v Muiru Coffee Estate Limited & Another [2016] e KLR and John Florence Maritime Services Limited & Others v Cabinet Secretary Transport and infrastructure [2021] e KLR. 1st Respondent’s submissions 14.Counsel for the 1st respondent submitted that the appeal was incompetent and unmerited since the appellant filed an amended memorandum of appeal without clearly indicating the amendments made, and that the record of appeal was incomplete as it omitted material documents, including the parties’ submissions before the trial court. Further that if the appeal was filed out of time and the delay was attributed to the court, then the appellant ought to have filed a certificate of delay. 15.On the plea of res judicata, the counsel argued that the appellant failed to place before the court the proceedings and ruling in MCELC No. E013 of 2022, which were necessary to enable the court determine whether the earlier matter involved the same parties, subject matter and issues, and whether it was finally determined on the merits. They argued that the earlier matter was dismissed without costs because it arose from an ex parte application and did not conclusively determine the parties’ rights. 16.It was further contended for the 1st respondent that the trial court properly declined to strike out the suit prematurely and correctly held that, being a land dispute, the matter ought to proceed to full hearing. They argued that the parties needed to exchange documents and adduce evidence, particularly because the agreement relied upon was silent on the access path and the appellant had allegedly processed title in his favor without the 1st respondent’s input. Analysis and determination. 17.The court has carefully considered the appeal, the trial court record and rival submissions. The duty of this court as a first appellate court is to reevaluate the decision of the trial court in view of the material on record and decide whether or not the findings should stand and give reasons either way. 18.In the case of Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR, the court reiterated the duty of the first appellate court thus;“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way…’’ 19.Having considered the grounds of appeal, the appellant’s grievance was that the court was wrong in dismissing the plea of res judicata. 20.From the summary of the facts in this case, it is clear that the ruling appealed against, was in regard to the application dated 4th October 2022 that sought orders of temporary injunction to restrain the appellants, the Land Registrar and County Surveyor from visiting parcel Nos. N/W/KHOLERA/4862 and 4863 pending the hearing and determination of the suit. The response to that application was by way of preliminary objection dated 7th October 2022. In the suit before the lower court, no defence opposing the suit or denying the respondent’s claim was filed. Besides, no replying affidavit indicating evidence of a previous suit and decision was filed. 21.The appellant filed witness statements and list of documents. From the provisions of Order 5 Rule 7 of the Civil Procedure Act, witness statements and documents accompany a defence. Thus, evidence follows pleadings, and not the other way around. With no defence on record, the witness statements and documents filed are documents without foundation and legal import. 22.The impugned ruling was supposed to be in regard to the application dated 4th October 2022 and the preliminary objection dated 7th October 2022. However, the same was only addressed the preliminary objection. The lower court having found that the issue of res judicate required evidence to prove, was silent on the application dated 4th October 2022, which in my considered view was erroneous. A court ought to determine all the issues raised before it. In this case, the trial court fell in to error when it failed to determine the merits of the application dated 4th October 2022. 23.The appellant has faulted the court for dismissing his preliminary objection maintaining that it would have saved the court’s time and that the appellant is now being subjected to unnecessary proceedings. 24.The doctrine of res judicata is provided for in section 7 of the Civil Procedure Act as follows;“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.” 25.The doctrine of res judicata bars a court from trying a suit or an issue which was directly and substantially in issue between the same parties or their privies in a former suit, where a competent court has already determined such suit or issue on merit and with finality. 26.The elements of res judicata are;a.The issues, the parties, the subject matter and cause of action in the former suit are identical to those in the current suit.b.There is a judgment or order in a former suit which is final.c.The judgment or order in the former suit was on merit.d.The judgment or order was rendered by a competent court with jurisdiction. 27.Essentially, to prove res judicata, a defendant ought to prove the above elements. Those elements cannot be proved by way of a preliminary objection. To prove the above elements, a defendant ought to file a Notice of motion with a supporting affidavit upon which evidence of a decision in respect of a previous suit together with any other relevant evidence including pleadings are attached. The preliminary objection referred to Case No. E013 OF 2022. As it is, this court cannot tell where the said suit was filed; who the parties were; what the issues were and what the decision therein was. 28.From the Memorandum of appeal, the appellant appears to be at a loss and quite aggrieved as why the trial court did not agree with him that the suit in the lower court was res judicata in view of “Case No. E013 OF 2022”. He forgot that there was no basis for the trial court to have knowledge of “Case No. E013 OF 2022”; the identity of the parties and the issues therein and the nature of the decision therein. The trial court could also not ascertain whether the decision in that matter was based on merit or if it was a summary decision and whether the court that made the decision was competent to try the current dispute. 29.Parties ought to always remember that what is well known to them in a suit, is mostly unknown to the court, and if they intend to rely on what they know, they ought to bring it to the court’s attention through the procedure provided in law. To prove res judicata, instead of filing an application and present evidence of the pleadings and decision made in case No. E013 OF 2022, the appellant chose to file a preliminary objection. 30.A preliminary objection raises a pure point of law where the facts relied upon are not contested. (See Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Limited [1969] EA 696 case). The question of res judicata requires evidence to prove and therefore is not a pure point of law capable of being raised through a preliminary objection. This is what the trial court stated in the impugned ruling. 31.Therefore, on res judicata, I agree with the findings of the trial court that to prove res judicata, evidence is needed and the plea of res judicata ought to be raised through a notice of motion and not by way of preliminary objection. The preliminary objection herein having failed to raise a pure point of law, is not a proper preliminary objection and therefore the same becomes incompetent whose fate is an order of striking out. In the premises I hereby strike out the appellant’s preliminary objection dated 7th October 2022. 32.As the impugned ruling was in respect of the application dated 4th October 2022, the trial court was wrong in failing to proceed to determine the merits of the application, upon dismissal of the preliminary objection. As section 78 (2) of the Civil Procedure Act empowers this court on appeal to have the same power and to perform the same duties as that of the court with original jurisdiction, I will proceed to determine the question as to whether the application for injunction dated 4th October 2022 was merited. 33.The respondent having sought temporary injunction, the applicable law is Order 40 Rule 1 of the civil procedure Rules which states as follows;“Cases in which temporary injunction may be granted [Order 40, rule 1]Where in any suit it is proved by affidavit or otherwise—(a)that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or(b)that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.” 34.Principles for grant of temporary injunction are well settled. The applicant must demonstrate prima facie case with chances of success, irreparable loss and where there is doubt, show that the balance of convenience tilts in favour of granting an injunction. (See Giella v Cassman Brown [1973] EA 358) 35.In the instant matter, the basis for injunction by the appellant was that the 1st respondent fraudulently subdivided his parcel No. N/W/Kholera/3208 to create parcel No. 4862 yet there was a balance of Kshs. 50, 000/=. In the plaint he sought injunction to restrain the respondents from visiting the two parcels with intention to open the access road. 36.It is clear that there is no claim against the 1st respondent’s title, although fraud is alleged. The respondent’s grievance is that the access road should not be opened before the sum of Kshs. 50, 000/= is paid by the appellant and that the access road does not exist between parcel Nos. 4862 and 4863. In the supporting affidavit, the respondent confirmed that he sold the appellant land measuring 50 feet by 100 feet to be hived from parcel No. 3204 at Kshs. 350000/=. That the appellant paid Kshs. 300, 000/- leaving a balance of Kshs. 50, 000/= yet he wants to have a non-existent road opened. He attached the sale agreement and his title deed. The allegation that there is no access road relating to the two parcels was not demonstrated by way of a Map and or mutation form. In the premises, the respondent failed to demonstrate a prima facie case with chances of success. 37.As the amount said not to have been paid is Kshs. 50, 000/- it is clear to me that in the event the appellant succeeds before the trial court, he can be compensated in damages, as the alleged loss which is not substantial, being a sum of Kshs. 50, 000/= is known. 38.On the question of balance of convenience, the court takes judicial notice of the fact that upon survey, no parcel of land remains inaccessible. Therefore, the balance of convenience tilts in favour of declining to grant injunction. 39.In the premises, this court hereby sets aside the decision of the lower court made on 24th January 2023 and substitutes it with orders striking out the appellant’s preliminary objection dated 7th October 2022. In addition, the court hereby dismisses the respondent’s application dated 4th October 2022. 40.In view of the court’s findings above, this court orders that each party shall bear its own costs of the appeal and the costs of the application dated 4th October 2022, in the court below. 41.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 20TH DAY OF MAY 2026A. NYUKURIJUDGEIn the presence ofThe appellant in personThe 1st respondent in person.Court Assistant: Delphine