Sang v Saina & 2 others (Environment and Land Case E017 of 2025) [2026] KEELC 4775 (KLR) (21 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT KAPSABET** **ELC LAND CASE NO. E017 OF 2025** **WILLIAM KIPSETLEM SANG……………………..………………PLAINTIFF** **VERSUS** **REUBEN KITUR SAINA………………………….…………..1ST DEFENDANT** **EDWARD KIPKOECH ROTICH…………………..……….2ND DEFENDANT** **THE LAND REGISTRAR, NANDI COUNTY………...……3RD DEFENDANT** **RULING** 1. The present ruling is in regard to a notice of preliminary objection dated 9th September 2025 generated by the 1st and 2nd Defendants through the law firm of J. K. Kiplagat & Company Advocates on the grounds infra: 2. That this court lacks jurisdiction to hear and determine this matter, the same being a reserve of the probate and administration court as it relates to inheritance of property of a deceased person. 3. ​That the suit offends the mandatory provisions of Section 7 of the Civil procedure Rules, the same issues having been dealt with and concluded by consent order in Eldoret High Court Probate and Administration Cause no. 35 of 1995. 4. ​The 1ˢᵗ and 2ⁿᵈ Defendants therefore pray the suit be dismissed with costs. 5. ​ The instant suit was originated by way of a plaint dated 10th July 2025 by the Plaintiff through the law firm of Rotich, Langat & Partners Advocates for the following prayers: 6. An order of declaration that the Defendants, jointly and severally, illegally and fraudulently transferred **NANDI/KAPTEL/528 (The suit property herein) to the 1ˢᵗ and 2ⁿᵈ Defendants from BARATON ARAP BUTUK Alias BARATON ARAP BUTOK (DECEASED)** without going through succession. 7. An order cancelling the illegal entries **NO. 2** and **NO. 3** on the register of the suit property**.** 8. An order of declaration that title of the suit property obtained by the 1ˢᵗ and 2ⁿᵈ Defendants on 09/12/2000 is null and void having been obtained fraudulently and procedurally. 9. An order of declaration that the Defendants' subsequent subdivision of the suit property is null and void for want of good lead title due to the Defendants' illegalities fraud and misrepresentation. 10. ​An order cancelling the new titles being **NANDI/KAPTEL/1786** and **1787** and reverting to suit parcel to the original land namely the suit property in the name of the late **BARATON ARAP BUTUK Alias BARATON ARAP BUTOK.** 11. An order of injunction restraining the 1ˢᵗ and 2ⁿᵈ Defendants, directly, through their agents and or anybody claiming under their titles from occupying, selling, transferring, alienating, dealing and/or in any way disposing the suit property**.** 12. Costs of this suit. 13. Any other relief that this Honourable Court deems fir to award. 14. The 1st and 2nd Defendants entered appearance vide a memorandum of appearance dated 9th September 2025 through M/S J. K. Kiplagat & Company Advocates They did not file any defense in the suit but opted to file the notice of preliminary objection. 15. Mr. Kwame Ramo instructed by the Honourable Attorney General for the 3rd defendant is in support of the preliminary objection as discerned in the proceedings of 19th May 2026 in this matter. 16. On 29th June 2026, the court directed that hearing of preliminary objection be by way of written submissions. 17. Consequently, learned counsel for the 1st and 2nd Defendants filed submissions dated 26th June 2026 in support of the preliminary objection. Counsel submitted that by implication of the Plaint, it was clear that there existed a succession cause in which the Plaintiff and the Defendant litigated over the shares in the estate of **Baraton Arap Butok** and that a certificate of confirmation of grant was issued. According to the Defendants, the issue of the Plaintiff’s share in the estate as an adopted son was determined on merit and that there was neither an appeal that was filed nor summons for revocation of grant issued. 18. Also, counsel submitted on the elements of res judicata and that litigation must come to an end. That the Plaint was an attempt to re-litigate the succession proceedings of the estate of **Baraton Arap Butok.** 19. On the issue of jurisdiction, the defendants argued that the Plaintiff’s claim lies somewhere else and not in this court (ELC) which according to them is mandated to hear and determine issues relating to land ownership and not inheritance disputes. That if the Plaintiff is indeed, a beneficiary, he seeks protection of his share, dentification of whether he is a beneficiary and his share falls under probate court not the ELC. 20. The Plaintiff’s counsel filed submissions dated 14th July 2026 in opposition to the preliminary objection. On the issue of jurisdiction, counsel relied on Article 162 (2) of the Constitution of Kenya 2010 which establishes the ELC and section 13(2) of the ELC Act which prescribes the jurisdiction of the same Court. 21. Further, counsel submitted that the suit property has already been subdivided hence, the succession court lacks the jurisdiction to cancel title deeds nor entries in the register of the land parcels. He relied on the decision of the court in **RE ESTATE OF WACHANA (DECEASED) (Succession Cause 45 OF 1997) [2026] KEHC 9272 (KLR)** where it was held that: *“The prayer for the revocation of all the titles issued and order that the estate be reverted to the deceased directly implicates the validity of registered titles and the rights of persons presently on the register... such reliefs fall within the constitutional and statutory jurisdiction and mandate of the Environment and Land Court, and not within the limited jurisdiction of the Succession Court.”* 1. Moreover, counsel submitted that it is possible for an application for revocation of grant to run concurrently with a suit seeking the cancellation of title in different courts. He stated that their advocates in the former suit being **ELDORET HCP&A 35/1995** entered into consent without their knowledge to withdraw his application seeking to revoke the grant therein. That this information has just come to the plaintiff’s realization and prompted them to re-file summons for revocation of grant in the said **ELDORET HCP&A 35/1995**. 2. On the issue of res judicata, the plaintiff relied on the case of **The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR)** setting out the elements of res judicata. He submitted that the suit was not directly and substantially in issue as the former case because the current suit is on cancellation of titles. That he had never instituted any other ELC case between them and the Defendants herein. 3. In the foregone, this court is of the considered view that three issues arise for determination thus: 4. Whether this Court has jurisdiction to hear and determine the suit? 5. Whether this suit is *Res Judicata*? 6. Who bears the costs of the suit? 7. On the issue of jurisdiction, Nyarangi JA (as he then was) in the case of **OWNERS OF MOTOR VESSEL “LILIAN S” VS CALTEX OIL (K) LTD [1989] KLR 1 ,** statedthat jurisdiction is everything and without it a Court must not make one more step. That therefore, it must down its tools. 8. Section 13(2) of the Environment and Land Court Act,2015 (2011) is clear that this Court is mandated to hear and determine disputes relating to validity of titles. Since the plaintiff primarily seeks, inter alia, orders of declaration that the Defendants fraudulently and illegally transferred **NANDI/KAPTEL/528** to themselves and they also seek orders cancelling the said transfer and the resultant titles being **NANDI/KAPTEL/1786** and **NANDI/KAPTEL/1787** in this suit, this court has jurisdiction over the same. On that score, this court approves the decision **in Re estate of Wachana (Deceased) (Succession Cause 45 of 1997) [2026] KEHC 9272 (KLR)** where the court held thus: ***“The prayer for the revocation of all the titles issued and order that the estate be reverted to the deceased directly implicates the validity of registered titles and the rights of persons presently on the register... such reliefs fall within the constitutional and statutory jurisdiction and mandate of the Environment and Land Court, and not within the limited jurisdiction of the Succession Court.”*** 1. Besides, the second issue for determination is that of res judicata which will enable the court to reach a determination on the preliminary objection. According to the Defendants, the issues that are raised in the present suit were heard and determined on merit in the **ELDORET HCP&A 35/1995**. Both parties have confirmed that a succession suit was filed at the Eldoret High Court which involved the Plaintiff and Defendants herein. There is a certificate of confirmation of grant in that matter and the Plaintiff has attached the said certificate of grant to his documents herein. In his submissions, the Plaintiff has stated that he has re-filed an application for revocation of grant in the former suit, Eldoret **HCP&A No. 35 of 1995** which the court has had sight of. 2. In view of the prayers relating to cancellation of titles, without necessarily going into the merits of the suit, the root of the tittles that seek to be cancelled must be interrogated at the appropriate time. It is at this point that the former suit number **ELDORET HCP&A 35 of 1995** comes into play. The former suit involved the parties herein and it was a succession suit which resulted in a certificate of confirmation of grant issuing the deceased’s suit property to the defendants herein. The Plaintiff alleges that after the issuance of the certificate of confirmation of grant, he filed an application to revoke the same after about decades upon notice that his former advocate entered an irregular consent in the matter. 3. The principle of res judicata is premised under section 7 of the Civil Procedure Act which provides 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*** *(emphasis added) between the same parties, or between* ***parties under whom they or any of them claim*** *(emphasis added), 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. In the case of **Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR**, the Supreme Court while considered all the elements outlined under section 7 (supra) and observed that for the doctrine to be invoked, the court must be satisfied conjunctively that *(a) The suit or issue was directly and substantially in issue in the former suit.* *(b)That former suit was between the same parties or parties under whom they or any of them claim.* *(c)Those parties were litigating under the same title.* *(d)The issue was heard and finally determined in the former suit.* *(e)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.* 1. It therefore, emerges that the primary issue for determination in the present suit revolves around ownership of the suit property originally number **NANDI/KAPTEL/528**. In the former suit filed before the Eldoret High Court, the primary issue was also about the distribution of the land parcel number **NANDI/KAPTEL/528** as captured in the property section of the certificate of confirmation of grant and taking into account the meaning of ‘land’ and ‘Property’ under **Article 260 of the Constitution of Kenya 2010**. 2. Further, it has been admitted by both the plaintiff and the defendants that the former suit was between the Plaintiff and the Defendants which culminated to the issuance of a certificate of confirmation of grant to the 1st and 2nd Defendants. The current suit also includes the same parties, save for the addition of the 3rd Defendant. On this front, this court is of the considered view that parties will not be permitted to evade the doctrine of res judicata by adding new parties or introducing a new cause of action so as to seek the same remedy as that sought in the first suit. 3. On that account, this Court subscribes to the decision in **Kenya Commercial Bank Ltd v. Muiri Coffee Estate & Another (2016) eKLR** where the Supreme Court stated: ***“59…Courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle…The Courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the Court. The test is whether the plaintiff in the second suit is trying to bring before the Court in another way and in a form of a new cause of action which has been resolved by a Court of competent jurisdiction.”*** 1. This Court has also considered the other issues being that the parties litigated in the same title, the matter was heard and determined on merit and that the court that determined it was of competent jurisdiction. Clearly, it was not in dispute that the former suit was heard and determined culminating into the issuance of a certificate of confirmation of grant which issued the property equally to the two defendants thus, the application of res judicata principle herein. 2. Furthermore, this Court has also established that the Plaintiff herein has filed Summons for Revocation or Annulment of Grant dated 14th July 2026 in Eldoret High Court Probate and Administration Cause no. 35 of 1995 through Rotich, Langat & Partners Advocates. He is seeking the orders which include: ***“That this Honourable Court be pleased to declare that all the consequential orders, proceedings and title deeds obtained by virtue of the Grant of Letters of Administration issued and confirmed on 29th July 1998 issued to the Respondent are null and void”*** 1. Plainly, the Summons for Revocation of Grant duly filed and from the orders sought therein, relate to the suit property. Given that the former matter had been concluded, by the said Summons, this matter becomes *sub judice* thereby this court cannot hear and determine this suit. 2. It is worth to note that whereas the issue of *sub judice* was not a ground in the preliminary objection, this Court has been clothed with the power to consider and make a finding on other issues not expressly pleaded but can be deduced from the pleadings, in the course of proceedings and submissions of parties. See **Odd Jobs- vs-Mubia 1970 EA 476.** 3. This court has deliberated on *res judicata* and *sub judice* principles which share the same foundational requirements regarding identical parties and subject matter, and that the critical distinction lies in the status of the previous lawsuit. Notably, at the time of filing the preliminary objection and the submissions in support thereof, the Plaintiff had not filed the said summons for revocation of grant in the former matter. He filed the summons on 14th July 2026 therein. On that account, this court is debarred from entertaining this suit. 4. In the premises, I hereby make the following final orders: 5. The defendants’ preliminary objection dated 9th September 2025 is upheld. 6. The suit commenced by the Plaint dated 10th July 2025**,** is struck out. 7. Each party to bear their own costs. **Dated** and **Delivered** at **Kapsabet** this **21st day of July, 2026**. **HON. G M A ONGONDO** **JUDGE** **In the presence of;** 1. Ms. Lisa Barno learned counsel for the plaintiff 2. Mr. J.K Kiplagat learned counsel for the 1st and 2nd defendants 3. Mr. Walter Kipkorir, court assistant