RULING
1. The 1st and 2nd Defendants (hereinafter referred to as “the Applicants”) did file a Notice of Preliminary Objection dated 23rd June, 2025 (hereinafter referred to as “the present PO”) seeking to strike out the Plaintiff’s (hereinafter referred to as “the Respondent’s”) Plaint dated 17th June, 2025 on the following grounds:-
A. THAT the entire suit is res judicata, having been heard and conclusively determined by a court of competent jurisdiction in Eldoret ELC No. 418 of 2012 - Celine George Poland vs Jonah Chiroch & Veronica Sum (Administratrix of the Estate of the Late Ernest Sum), judgment delivered by Justice Ombwayo on 20th November, 2017 and further rulings delivered in Eldoret E057 of 2022 Veronica Sum (Administratrix of the Estate of the Late Ernest Sum) vs Joel Samoei by Justice Onyango on 27th September 2023 and 7th December 2024, and is therefore barred under Section 7 of the Civil Procedure Act (Cap. 21 Laws of Kenya).
B. THAT the Plaint discloses no reasonable cause of action against the Defendants and fails to raise any triable issues in law or fact.
C. THAT the Plaint is frivolous, vexatious, scandalous and an abuse of the process of the court, contrary to the provisions of Order 2 Rule 15(1) of the Civil Procedure Rules, 2010.
D. THAT the continued prosecution of the suit will prejudice, embarrass and unduly delay the fair trial and disposal of this matter.
E. THAT it is in the interest of justice that the Plaint be struck out in its entirety, and judgment be entered for the Defendants as prayed in their Defence.
2. The present PO was duly served on the Respondent who did express her intention to oppose the same.
3. The Court did direct that the present PO would be canvassed by way of written submissions.
4. The Applicants did file their submissions on the 28.01.2026 in support of the present PO while the Respondent did file her submissions dated 16.03.2026.
5. The Court did carefully peruse the present PO as well as the submissions filed by the parties herein and identifies the following issues for determination; -
ISSUE NO.1- WHETHER OR NOT THE PLAINT DATED 17.06.2025 IS RES-JUDICATA THE PROCEEDINGS KNOWN AS ELDORET ENVIRONMENT & LAND COURT CASE NO. 418 OF 2012?
ISSUE NO.2- WHETHER OR NOT THE PLAINT DATED 17.06.2026 IS AN ABUSE OF THE COURT PROCESS OR NOT?
ISSUE NO.3- WHETHER THE PRESENT PO IS MERITED OR NOT?
ISSUE NO.4- WHO BEARS THE COSTS OF THE PRESENT PO?
6. The Court having identified the above issues for determination, the Court shall now proceed to look at the facts thereof and make its conclusions thereon.
ISSUE NO.1- WHETHER OR NOT THE PLAINT DATED 17.06.2025 IS RES-JUDICATA THE PROCEEDINGS KNOWN AS ELDORET ENVIRONMENT & LAND COURT CASE NO. 418 OF 2012?
7. The first issue for determination is whether the Plaint dated 17.06.2025 is Res-Judicata the proceedings known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012.
8. According to the Applicants herein, the Respondent in the present PO was also the Plaintiff in the proceeding known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012.
9. On the other hand, the 1st Applicant in the present PO was also was the 2nd Defendant in the proceeding known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012.
10. The Applicants did submit that the property in dispute in the proceeding known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012 was the property known as LR.NO.2226 within Moiben Location of Uasin Gishu County.
11. In the proceeding known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012, the portion being claimed by the Respondent in the present PO was 100 acres within the property known as LR.NO.2226 within Moiben Location of Uasin Gishu County.
12. The prayers sought by the Respondent was a declaration that she was the owner of a portion measuring 100 acres within the property known as LR.NO.2226 and an Order of Specific performance against the 1st Applicant to excise and transfer the said portion to the Respondent herein.
13. The Applicants did submit that the dispute in the proceeding known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012 was duly adjudicated therein on merit and a Judgement was pronounced on the 20.11.2007 resolving all the issues thereof.
14. The 1st and 2nd Applicant were of the view that the Judgement pronounced on the 20.11.2007 in the proceeding known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012 was done by a competent Court of law and is therefore lawful and binding on the parties herein.
15. The 1st and 2nd Applicants did state that the Plaint dated 17.06.2025 filed by the Respondent herein as the Plaintiff did raise the same issues over the same portion of land within the property known as LR.NO.2226 and did further seek for the same reliefs as those sought in the proceeding known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012.
16. In essence, the 1st and 2nd Applicants did plead and submit that the Plaint dated 17.06.2025 was Res-Judicata the proceeding known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012 and therefore should be struck out as the Court did not have the required jurisdiction to hear and determine the same.
17. The Respondent on the other hand did plead and submit that the present PO should not be sustained as it requires the Court to look at the facts relating to the previous proceeding known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012 and make a finding as to whether the same facts have been raised in the Plaint dated 17.06.2025.
18. Secondly, the Respondent did plead that although the previous proceeding known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012 was between the Respondent and the 1st Applicant, the same was dismissed because the property known as LR.NO.2226 had been charged to a financier and did not adjudicate on the substantive issue of ownership of the 100 acres within the suit property.
19. In essence, the Respondent was of the view that the ownership of the 100 acres within the property known as LR.NO.2226 had not been heard on merit and/or any determination made in the proceeding known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012 to render the Plaint dated 17.06.2025 Res-judicata.
20. As such, the Respondent did plead that the Plaint dated 17.06.2025 in this proceeding was not Res-Judicata the proceeding known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012.
21. The Respondent did finally submit that the Plaint dated 17.06.2025 was not an abuse of the Court process and should be allowed to proceed for hearing and determination.
22. The provision that deals with the issue of Res Judicata is Section 7 of the Civil Procedure Act, Cap 21 which states as follows; -
“7. 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.”
23. Based on the above provision, it is clear that for a party to succeed on an issue of Res Judicata, there are a number of tests that must be satisfied relating to the previous proceeding and the present proceeding.
24. The tests can be summarized as follows; -
a) There is a former judgment or order which was final;
b) The judgment or order was on merit;
c) That the judgment or order was made by a court of competent jurisdiction;
d) There must be between the first and the second action identical parties;
e) The subject matter and cause of action must be the same;
f) Finally, the issues in the previous suit must be the same as those arising in the subsequent suit;
25. To be able to appreciate the contains of the previous suit known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012, a Copy of the Judgement pronounced on the 20.11.2017 was availed to the Court by the 1st and 2nd Applicant of which this Court had carefully perused and appreciated the same.
26. Consequently, the Court will now proceed to evaluate and make its determinations on the various tests mentioned hereinabove and thereafter make its conclusion as to whether the Plaint dated 17.06.2025 is Res Judicata the proceeding known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012 or not.
(i) Whether there is a judgment or order which is final
27. The first test for evaluation is whether or not there was a judgement and/or final order emanating from the previous proceeding and in this case being ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012.
28. The 1st and 2nd Applicants herein did plead and submit that the previous proceedings known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012 had been heard on merit and a final Judgement pronounced on the 20.11.2017.
29. The Respondent herein did not dispute the existence of the final Judgement pronounced on the 20.11.2017 in the proceedings known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012.
30. In essence, this Court hereby makes a finding that there are proceedings known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012 wherein a Final Judgement was pronounced on the 20.11.2017 stands in determination of the issues raised therein.
ii) The judgment or order was on merit;
31. The second test to be applied is whether or not the Judgement pronounced in the previous proceedings was made on merit and in determination of the issues before it.
32. A Judgement on merit is provided for under Order 21 Rule 4 of the Civil Procedure Rules, 2010 which states as follows; -
“Judgements in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.”
33. Based on the above guidance of a Judgement on merit, this Court has carefully gone through the Judgement pronounced on the 20.11.2007 in the proceeding known as ELDORET ENVIRONMENT & LAND COURT CASE NO. 418 OF 2012 and takes notice of the following facts; -
i. The concise statement of the Plaintiff’s and Defendants’ case in the same proceedings known as ELDORET ENVIRONMENT &LAND COURT CASE NO.418 OF 2012 was outlined by the Court.
ii. The Points for determination were clearly identified by the Court.
iii. The decision on the points of determination was arrived at.
iv. The reasons for the decision were clearly given by the Court.
34. In essence thereof, this Court is of the considered view and finding that the Judgement pronounced on the 20.11.2017 in the proceedings known as ELDORET ENVIRONMENT & LAND COURT CASE NO. 418 OF 2012 was on merit.
iii) That the judgment or order was made by a court of competent jurisdiction;
35. The third test is whether the Judgement or Order was made a Court of Competent jurisdiction.
36. The 1st and 2nd Applicants did plead and submit that the Court that heard and determined the previous proceedings known as ELDORET ENVIRONMENT & LAND COURT CASE NO. 418 OF 2012 was indeed couched with the appropriate legal jurisdiction to do so.
37. The Respondent herein did not dispute the jurisdiction of the Court which heard and determined the previous proceedings known as ELDORET ENVIRONMENT & LAND COURT CASE NO. 418 OF 2012.
38. As such, this Court hereby makes a finding that the previous proceedings known as ELDORET ENVIRONMENT & LAND COURT CASE NO. 418 OF 2012 was indeed heard and determined by a Court of competent jurisdiction.
iv) There must be between the first and the second action identical parties;
39. The fourth test is whether the parties in the previous proceedings and the present proceedings are identical or not.
40. A perusal of the previous proceedings known as ELDORET ENVIRONMENT & LAND COURT CASE NO. 418 OF 2012, shows that the Plaintiff therein is the same Plaintiff in the present suit.
41. The 1st and 2nd Defendants in the previous proceedings known as ELDORET ENVIRONMENT &LAND COURT CASE NO.418 OF 2012 were the Administratrix of the Estate of the Late Ernest Kipngetich Sum who are the same parties in the present suit.
42. Clearly therefore, the parties in the previous proceedings known as ELDORET ENVIRONMENT & LAND COURT CASE NO. 418 OF 2012 are the same and/or identical to the parties in the present suit.
v) The subject matter and cause of action must be the same;
43. The fifth test is to confirm whether the subject matter and the cause of action in the previous proceedings and the present proceedings are similar or not.
44. According to the Judgement pronounced on the 20.11.2017 in the previous proceedings known as ELDORET ENVIRONMENT & LAND COURT CASE NO. 418 OF 2012, the subject matter was the portion of 100 acres within the property known as LR.NO.2226 Moiben Location within Uasin Gishu County.
45. The cause of action in the previous proceedings was the alleged Agreement For Sale between the Respondent herein and the late EARNEST KIPNGETICH SUM entered into in the year 1983 or thereabout.
46. The Respondent’s reliefs in the previous proceedings known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012 was a declaration that she was the lawful owner of the 100 acres within the property known as LR.NO.2226 and that the said portion be excised and transferred to her name.
47. In the present suit, the Plaintiff did identify the subject matter to be the 100 acres within the property known as LR.NO.2226 within Moiben Location in Uasin Gishu County.
48. The cause of action in the present suit is the legality of the Agreement For Sale between the Respondent herein and the late EARNEST KIPNGETICH SUM purportedly entered in the year 1983.
49. The reliefs sought in the present proceedings includes a declaration that the Respondent is the lawful owner of the 100 acres within the property known as LR.NO.2226 within Moiben Location in Uasin Gishu County as well as an Order seeking to have the portion measuring 100 acres excised and transferred to her name.
50. In other words, this Court is not in doubt that the subject matter and the cause of action between the previous proceedings known as ELDORET ENVIRONMENT & LAND CASE NO. 418 OF 2012 and the present case are similar in all aspects thereof.
vi) Finally, the issues in the previous suit must be the same as those arising in the subsequent suit;
51. Based on the findings in tests (i) to (v) hereinabove, it is clear in the mind of this Court that the facts and the issues in the previous proceedings known as ELDORET ENVIRONMENT & LAND COURT CASE NO.418 OF 2012 and the present case are the similar and/or the same in all aspects.
52. As such, this Court is of the view that the Plaint dated 17.06.2025 is Res-Judicata the previous proceedings known as ELDORET ENVIRONMENT & LAND COURT CASE NO. 418 OF 2012.
ISSUE NO.2- WHETHER OR NOT THE PLAINT DATED 17.06.2026 IS AN ABUSE OF THE COURT PROCESS OR NOT?
53. The second issue in the present PO is whether the Plaint dated 17.06.2026 is an abuse of the Court process or not.
54. The Court in Issue No.1 did make a finding that the Plaint dated 17.06.2026 was Res Judicata the proceedings known as ELDORET ENVIRONMENT & LAND COURT CASE NO. 418 OF 2012.
55. It is clear in the mind of this Court that at the time of filing the Plaint dated 17.06.2025, the Respondent was well aware of the Judgement pronounced on the 20.11.2017 in the proceedings known as ELDORET ENVIRONMENT &LAND COURT CASE NO. 418 OF 2012 as regards the issues raised in the present case.
56. In other words, the Respondent, despite being aware that the issues which were to pleaded in the Plaint dated 17.06.2025 had been resolved, still went ahead to file the same.
57. This action by the Respondent is clearly an abuse of the Court process and cannot be entertained by this Court.
58. In essence, this Court hereby makes a finding that indeed the filing of the Plaint dated 17.06.2025 is an abuse of the Court process and wastage of precious judicial time.
ISSUE NO.3- WHETHER THE PRESENT PO IS MERITED OR NOT?
59. The third issue for determination is whether or not the present PO is merited or not.
60. The 1st and 2nd Applicants are seeking to have the Plaint dated 17.06.2025 struck out for being Res Judicata and an abuse of the Court process.
61. Based on the findings in Issue No.1 and 2 hereinabove, it is clear that the Plaint dated 17.06.2025 is Res Judicata the proceedings known as ELDORET ENVIRONMENT & LAND COURT CASE NO. 418 OF 2012 and therefore an abuse of the Court process.
62. In the case of ELENA D. KORIR -VERSUS- KENYATTA UNIVERSITY & 4 OTHERS (2017) eKLR, the Court did pronounce itself as follows; -
“ Res Judicata is one of factors limiting the jurisdiction of a court. This doctrine requires that there should be an end to litigation or conclusiveness of judgment where a court has decided and issued judgment then parties should not be allowed to litigate over the same issues again. This doctrine requires that one suit one decision is enough and there should not be many decisions in regard of the same suit. It is based on the need to give finality to judicial decisions. Res Judicata can apply in both a question of fact and a question of law. Where the court has decided based on facts it is final and should not be opened by same parties in subsequent litigation.”
63. In essence, this Court having made the finding that the Plaint dated 17.06.2025 is Res Judicata the proceedings known as ELDORET ENVIRONMENT & LAND COURT CASE NO. 418 OF 2012, there present PO is merited and the Plaint dated 17.06.2025 has to be struck out as the Court does not have any jurisdiction to entertain the same.
ISSUE NO.4- WHO BEARS THE COSTS OF THE PRESENT PO?
64. Costs are usually awarded to the winning party.
65. In the present PO, the 1st and 2nd Applicants have indeed been successful in the present PO and are therefore awarded costs payable by the Respondent herein.
CONCLUSION
66. In conclusion, this Court hereby makes the following Orders in determination of the present PO; -
A. THE PRELIMINARY OBJECTION DATED 23.06.2025 IS MERITED AND THEREFORE ALLOWED.
B. THE PLAINT DATED 17.06.2025 IS RES JUDICATA THE PROCEEDINGS KNOWN AS ELDORET ENVIRONMENT & LAND COURT CASE NO. 418 OF 2012 AND THEREFORE AN ABUSE OF THE COURT PROCESS.
C. THE PLAINT DATED 17.06.2025 BE AND IS FORTHWITH STRUCK OUT.
D. THE 1ST AND 2ND APPLICANTS ARE AWARDED THE COSTS OF THE SUBSTANTIVE SUIT AND THE PRELIMINARY OBJECTION DATED 23.06.2025 HEREIN.
DATED, SIGNED and DELIVERED in ELDORET this 3RD DAY OF JUNE 2026.
IN THE PRESENCE OF:
Court Assistant: Mr. Brian
Counsel for the 1st And 2nd Applicant: Mr. Gichana
Counsel for the Respondent: Mr. Kenei
| ELC.E054 OF 2025 RULING 5 |