Chirau Ali Mwakwere VS County Assembly of Kwale AND County Government of Kwale

1. Before the Honourable Court for its determination is a Notice of Motion application dated 7th November 2024 filed by Buttercup Properties Limited the Applicant herein. The application was brought under the provision Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21, Order 51 of the Civil Procedure Rules 2010 and PART VIII and Sections 107, 108, 109, 110, 111, 112, 113, 114, 115, 152А, 152В, 152E, 152G, and 152F of the Land Act No. 6 of 2012 and Article 40 of the Constitution of Kenya 2010 all of the Laws of Kenya.

2. Upon service of the Notice of Motion application, the Respondents responded through filing of Grounds of Opposition and Notice of Preliminary Objection both dated 10th February 2025 respectively.

3. The Honourable Court directed that both the Notice of Motion application dated 7th November 2025 and Notice of Preliminary Objection to be handled concurrently and an omnibus ruling to be delivered thereafter. Hence the subject of this ruling.

4. The Applicant sought the following orders: -

5. The application was premised on the grounds, testimonial facts and the averments made out under the 25 Paragraphed Supporting Affidavit sworn by Hon Amb. Chirau Mwakwere the Director of the Applicant dated on 7th October 2024. He averred that:-

a) He was a Director of the Applicant herein. I am well conversant with the facts of this case thus competent to swear this Affidavit;

b) Vide Minute No. 19/2009 of its Town Planning Works, Housing and Market Committee of 11th November 2009 and Minute No. 44/2009 of Special Full Council Meetings of 30th November 2009, the Town Council of Kwale (Now the 1st Respondent Kwale County Government) resolved to adopt and allocate to them Plot 36 known as PDP No. 140 KWL.8.2009 measuring approximately one decimal eight Hectares (1.8Ha) situate in Kwale Township (Hereinafter referred to as “The Suit Property”). Annexed and marked as "CH- la-c" were copies of the said minutes together with the Allotment letter and Part Development Plan.

c) They accepted the terms of the offer thereon by paying up the Council Charges and forthwith took vacant possession and occupation of the Suit Property. In fact, the 1st Respondent had been charging them the necessary land rates and rents, which they had been duly paying up to date. Hence, they were thereby due owners and proprietors of the Suit Property herein. Annexed and marked as "CH-2" was receipt for payment of allotment and charges.

d) Vide a Demand Notice dated 17th June 2014, the 1st Respondent demanded from them the payment of a sum of Kenya Shillings One Hundred and Nine Thousand  Six Sixty Three Hundred (Kshs.109,663.00/=) being land rent and rates, which they dutifully paid.

e) Consequently, he was certain that the Respondents were fully aware that they were the owners and proprietors of the of the Suit Property. Annexed and marked as "CH-3a-b" was the Demand Notice and payment receipt.

f) They had been enjoying vacant possession and occupation of the Suit Property and had in fact fenced and done other works of the Suit Property to launch its Hotel Project on the Suit Property. Sometimes in June 2014, the Deponent visited the 1st Respondent''s offices to express their intentions to apply for allocation of a disused plot adjacent to the Suit Property for purposes of utilizing the it to serve as a motor vehicle parking bay for vehicles expected to visit their establishment on the Suit Property.

g) However, on Friday 5th June 2015 and despite the Respondents knowing that they were the Proprietor and owner of the Suit Property, its agents and employees trespassed the Suit Property by forcefully making entry into the Suit Property and unilaterally re-beaconing it and the neighboring areas. On 8th June 2015, the Respondent''s employees and agents again trespassed onto the Suit Property, destroyed their fence on it, removed other structures and materials from it and interfered with their quite possession;

h) They verily protested and complained about the said actions causing the Respondents employees and agents to inform him that the Respondents were taking over the Suit Property to undertake construction on it.

i) Consequently, in July 2015 and vide the Civil suit “Mombasa ELC Case No. 129 of 2015 Buttercup Properties Limited – Versus - Kwale County Government & 2 Others”, they sued for a Permanent injunction against the Respondents and Declaratory orders that they were the lawful proprietor, owner, and possessor of the Suit Property herein. Thus, through a Ruling delivered on 9th October 2015, a Permanent injunction against the Respondent pending hearing of the suit was issued as follows:

"A permanent injunction do and hereby issue restraining the Respondents either by themselves, their agents employees, servants and or workers from entering upon the Suit Premises, removing, destroying, wasting, constructing, and or in any other manner howsoever interfering with the Plaintiff''s quite possession, use, enjoyment of all that parcel of land known as Commercial Plot No. PDP.140.kwl.8.209 Kwale Township pending the Hearing and determination of the Suit" Annexed and marked as “CH - 4" was a copy of the said Ruling.

i). However, he was advised by his Counsel that the suit was never decided on merit as it was dismissed for want of prosecution. Either way, he was further advised that the said Suit which was seeking Permanent Injunction to restrain the Respondents from trespassing and encroaching on the Suit Property had been passed by events as the Respondents had since trespassed on the Suit Property and had been in illegal possession and occupation of a portion of it for nine (9) years now.

k). To their surprise and in spite of the foregoing, that in the same year on 20th August 2015, the 1st Respondent''s Ministry of Lands, Housing and Urban Development issued to them with a Boundary Verification dated 20th August 2015 thereby confirming, affirming and verifying the allotment and allocation of the Suit Property to them. Annexed and marked as "CH - 5" was a copy of the said Verification

l). Despite of the stated verification, the Respondents unlawfully and illegally trespassed and encroached onto the Suit Property and took possession and occupation of a portion of the Suit Property and since had arbitrarily declined and refused to vacate the Suit Property. That the said trespass had caused them tremendous losses as their plans and projects on the Suit Property had stalled and never taken off for nearly nine (9) years now. Either way they now preferred this eviction proceedings to evict the Respondents the Suit Property. Annexed and marked as "CH – 6 (a-b)" was a survey report dated 24th September 2015 showing the said trespass and encroachment together with a Business Plan.

m). Thus he was advised by his Counsel on record true that the Respondents were undertaking to unlawfully, illegally and unprocedurally and completely disposed from their the Suit Property.

n). By virtue and with the blessings of the Respondents, the neighboring residents had squatted on the Suit Property. They had put up "shanty mabati" structures at peripheries of the Suit Property which had ultimately hindered their joyful access, possession and occupation of the Suit Property.

o). They had severally issued the Respondents various eviction notices and Notices to vacate, but the Respondents had totally refused and declined to vacate the Suit Property. Annexed and marked as "CH- 7" as the eviction notice.

p). There had been no communication and/or expression howsoever from the Respondent as to compulsorily acquire the Suit Property. There had been no Notification of the Intention to acquire it.

q). They were advised by their Counsel on record that if at all the Respondents had compulsorily acquired the Suit Property, the said acquisition was unlawful, illegal, unprocedural and thus null and void as it contradicted the provision Article 40 (3) as read together with PART VIII and Sections 107, 108, 109, 110, 111, 112, 113, 114, 115 of the Land Act No. 6 of 2012 Laws of Kenya, as the Respondents had to date not paid to him any compensation whatsoever for any compulsory acquisition.

r). Despite being the lawful owner and proprietor of the Suit Property, the Respondents had for nine (9) years now continued the trespass on a portion of the Suit Property and which had disrupted their quiet possession and occupation of the Suit Property.

s). They were further advised by their Counsel that the Respondents action and omissions was inimical to their proprietary interests in the Suit Property which was tantamount to dispossessing them of the Suit Property and the Respondents had thus violated their quiet possession and occupation of the Suit Property contrary to the Judicial Decidendi in the case of: “Rukaya Ali Mohamed – Versus - David Gikonyo Nambachia ∧ another Kisumu HCCA.9/2004” where Warsame J held that:-

a. "...once allotment letter is issued and the allottee meets the conditions therein, the land in question is no longer available for allotment since a letter of allotment confers absolute right of ownership or proprietorship unless it is challenged by the allotting authority or is acquired through fraud, mistake or misrepresentation or that the allotment was out rightly illegal or it was against public interest".

t). Additionally, in the case of:- “African Line Transport Co. Limited -Versus - The Hon. AG, Mombasa HCCC No.276 of 2013” Njagi J held as follows:-

b. "...Secondly, all the defence witnesses were unanimous that in the normal course of events, planning comes first, then surveying follows. A letter of allotment is invariably accompanied by a PDP with a definite number."

q). Similarly, they were advised by their Counsel that the said actions and omissions were a violation, trespass and encroachment was a violation of their inviolable rights to Property under the provision of Article 40 of the Constitution of Kenya 2010 which accorded them the protection of their ownership and proprietorship of the Suit Property.

u). Based on the foregoing, the Deponent was reasonably the Respondents had trespassed. Thus, he prayed for this Honorable Court protection and orders to evict the Respondents from the Suit Property.

v). The orders being sought were intended to preserve their proprietary rights under Article 40 of the Constitution of Kenya 2010.  They were in furtherance of the Jurisdiction of this Honorable Court and in the interests of justice. This was because they would suffer great irreparable loss if the orders sought were not granted.

x). On the contrary, the Respondents would suffer no prejudice as they do not have any proprietary interest in the Suit Property which had already been allotted to them.

y). The application had been made timely, without delay. It was made in the interest of justice and equity. This Honorable Court had the Jurisdiction to grant the orders sought.

6. The Respondents responded to the Notice of Motion application dated 7th November 2024 through Grounds of Oppositions dated 10th February 2025. It was on the following grounds that: -

a) The Application is “res judicata”.

b) The said Application in incurably defective.

c) The Application lacks merit and an abuse of the court process and should therefore be dismissed with costs.

7. The Respondents also filed a Preliminary objection dated 10th February 2025. It was on the grounds that the matter before the Honourable Court as filed is res judicata, the subject in issue having been determined on merit in “Mombasa ELC case no. 129 of 2015: Buttercup Properties Limited – Vs - Kwale County Government & 2 others”.

8. On 27th March 2025 while all the parties were present the Honourable court directed that both parties file write submissions in relation to both the application and the preliminary objection.

9. Subsequently, all parties obliged and the Honourable Court reserved a date for the delivery of the Ruling.

10. The Learned Counsel for the Applicant through the Law firm of Messrs. Swanya & Company Advocates filed their written submissions dated 24th March 2025. Mr. Swanya Advocate based his submissions on three (3) key issues for determination. These were:-

i. Whether this instant application was “Res judicata?

ii. Whether this instant application offended the holding in the case of:- “Mumira – Versus - Attorney General (Constitutional Petition E007 of 2020) [2022] KEHC 271 (KLR) (8 April 2022) (Ruling)”?

iii. Whether the Applicant was the Proprietor/owner and registrable Owner of the Suit property?

iv. Whether the Applicant was entitled to the Orders sought?

v. Costs?

11. The Counsel recounted the facts of the case briefly. He stated that the Applicant filed a Notice of Motion application dated 7th November 2024 seeking eviction orders and a permanent injunction against the Respondents in respect of Commercial Plot 36, PDP No. 140 KWL.8.2009, Kwale Township, claiming proprietary rights arising from allocation by the defunct Kwale Town Council and continuous payment of rates.

12. The Learned Counsel submitted that the Preliminary Objection dated 10th February 2025 was misconceived. They argued that “Mombasa ELC Case No. 129 of 2015 – Buttercup Properties Limited – Versus -  Kwale County Government & Others”, cited by the Respondents, was dismissed for want of prosecution and never heard or determined on its merit. Dismissal for want of prosecution does not constitute res judicata. To buttress that argument, the Counsel relied on the cases of:- “Moses Mbatia – Versus - Joseph Wamburu Kihara [2021] eKLR and Tee Gee Electrics & Plastics Co. Limited – Versus - Kenya Industrial Estates Limited [2005] KLR 97”.

13. The Applicant distinguished “Mumira – Versus - Attorney General [2022] KEHC 271”, emphasizing that, the instant suit arose from a new cause of action—namely the Respondents’ subsequent trespass and actual occupation of part of the suit land despite earlier interim injunctions.  The Counsel argued that this fresh trespass created a new actionable claim necessitating eviction, rather than review or appeal of the 2015 case on dismissal.

14. On ownership, the Applicant relied on the provision of Articles 40, 64, and 67 of the Constitution of Kenya, 2010, and authorities such as “Nelson Kazungu Chai & 9 Others – Versus - Pwani University College [2014] eKLR, Rukaya Ali Mohamed – Versus - David Gikonyo Nambacha Kisumu HCCA 9/2004, and John Muchiri Mbuthia v. Rebecca Were Mutanda [2015] eKLR, to argue that allotment letters, supported by approved PDPs and payment of land rates, confer proprietary rights. Counsel emphasized that the Applicant’s allocation was confirmed by a Boundary Verification Certificate dated 20th August 2015, and no lawful process of compulsory acquisition had ever been commenced.

15. The Learned Counsel contended that if the Respondents had expropriated the property, such acquisition was unlawful for want of compliance with the provision of Sections 107 to 115 of the Land Act, No. 6 of 2012 and Article 40 (3) of the Constitution. They cited the famous case of: “Patrick Musimba – Versus - National Land Commission [2016] eKLR and Chief Lands Registrar – Versus - Natha Tirop [2018] eKLR” to underline that compulsory acquisition must follow due process and be accompanied by prompt compensation, which had not occurred.

16. On remedies, the Applicant invoked the provision of Article 23 (3) of the Constitution and “Minister of Health – Versus - Treatment Action Campaign (2002) 5 LRC 216”, urging the Court to grant appropriate relief including eviction and a permanent injunction. The Counsel stressed that the Respondents’ continued occupation constituted an illegal dispossession, violates the Applicant’s rights under the provision of Article 40, and could not be legitimized by delay or acquiescence.

17. In conclusion, the Applicant prayed that the Court strike out the Preliminary Objection. It should allow the application dated 7th November 2024, issue eviction and injunctive orders against the Respondents, and award costs to the Applicant.

18.  Mr. Salim Gombeni Suleiman, the County Attorney for the County Government of Kwale, filed their written submissions dated 7th April 2025 on behalf of the Respondents in opposition to the Notice of Motion application dated 7th November 2024. Equally, the Respondents submitted on three ( 3 ) key issues for determination. These were:-

i. Whether or not the Respondents’ Preliminary Objection was merited?

ii. Whether or not the application was procedurally defective and constitutes an abuse of the court process?

iii. Whether or not the Applicant was entitled to the orders sought?

19. The Respondents opposed the Notice of Motion dated 7th November 2024, raising a Preliminary Objection on the ground that the matter was res judicata. They referred to the provision of Section 7 of the Civil Procedure Act, Cap. 21 and the Court of Appeal in the case of: “Independent Electoral & Boundaries Commission – Versus - Maina Kiai & 5 Others [2017] eKLR”, which outlined the conjunctive elements of res judicata to wit that the same issue, between the same parties litigating under the same title, and finally determined by a competent court.

20. It was their contention that the Applicant previously filed “Mombasa ELC Case No. 129 of 2015 – Buttercup Properties Limited – Versus - Kwale County Government & Others”, seeking similar reliefs over the same property, which suit was dismissed for want of prosecution. The Respondents argued that dismissal under the provision of Order 17 Rule 4 of the Civil Procedure Rules, 2010 amounted to a final determination, thereby barring the instant proceedings.

21. To this effect, the Respondents further relied on “Co - operative Bank of Kenya – Versus - Cosmas Mrombo Moka & Legacy Auctioneering Services [2019] KECA 788, where the Court of Appeal held that a matter dismissed for want of prosecution could not be re - litigated unless the dismissal was first set aside. They submitted that since the Applicant never moved to set aside the dismissal, the present suit was incurably defective.

22. The Respondents also invoked the doctrine of laches, citing the case of:- “Joshua Ngatu – Versus - Jane Mpinda & Others [2019] eKLR”, which emphasized that equity aids the vigilant and not the indolent. They noted that the alleged trespass arose in the year 2015, the earlier case was dismissed in the year 2018, and the Applicant waited until the year 2024—over nine years—to bring this fresh action, thereby rendering the claim stale and prejudicial.

23. On procedure, the Counsel argued that the application was incompetent for being instituted by way of a Notice of Motion without an accompanying Plaint or Originating Summon. Reference was made to the provision of Section 19 of the Civil Procedure Act, Cap. 21 and Order 3 Rule 1 of the Civil Procedure Rules, 2010 as well as the case of:- “Wanja & Another – Versus - Roothaert [2022] KEHC 10255 and Tatecoh Housing & Co-op Sacco Limited – Versus - Qwetu Sacco Limited (2021) eKLR,” which affirm that substantive remedies such as eviction or permanent injunction could not be granted through a miscellaneous application.

24. It was further argued that the present suit constituted an abuse of court process within the meaning of the case of:- “Henderson – Versus - Henderson (1843) 67 ER 313 and Muchanga Investments Limited – Versus - Safaris Unlimited (Africa) Limited & 2 Others [2009] eKLR”, where abuse was defined to include repetitive or improper litigation meant to harass or vex parties. The Court of Appeal in the case of “Barongo – Versus - Chemilil Sugar Co. Limited [2023] KECA 1400” was also cited, affirming the need for vigilance against attempts to evade the doctrine of res judicata.

25. As to the substantive reliefs sought, the Respondents urged the Court to note that eviction and permanent injunctions were  drastic orders which could only issue after a substantive hearing on the merits. They referred to “Rono & Others – Versus - Kenya Forest Service [2024] KEELC 5247 and Tatecoh Housing & Co - op Sacco Limited – Versus - Qwetu Sacco Ltd (2021) eKLR”, where it was held that such remedies could not be granted at the interlocutory stage or through a miscellaneous application. They submitted that the Applicant had failed to establish a legal or factual basis for the orders, citing the case of:- “Baryan – Versus - Bank of India [2025] KEHC 3222, which required proof of a clear and unmistakable right threatened by the act sought to be restrained.

26. In conclusion, the Respondents maintained that the application was res judicata, tainted by laches, procedurally defective, and amounted to an abuse of the court process. Therefore, they prayed that the Notice of Motion application dated 7th November 2024 be dismissed with costs.

21. I have keenly assessed and considered the filed pleadings being mainly the said Notice of Motion application dated 7th November, 2024, the annexures thereof, the written Submissions in support of the Application, the myriad authorities cited, the provision of the Constitution of Kenya, 2010 and the statures.

22.  For the Honourable Court to arrive at an informed, reasonable and fair decision, the following three (3) issues fall for determination in the application: -

27. Under this Sub – heading, at the very onset, the Court has taken cognisance of the fact that the Respondents filed both Replying Affidavit and Preliminary objections dated 10th February, 2025. This is allowed in Law as per the provision of Order 51 Rule 14 (1) of the Civil Procedure Rules, 2010 which holds thus:-

Indeed, in this case the Respondents while opposing the application by the Applicants decided to file both Grounds of Opposition and Preliminary objection. Clearly, they were within their legal right so to do in conformity to the provision of the law as stated out herein.

28. Procedurally, and as matter of precedence, the Honourable Court will proceed on to make determination of the Notice of Preliminary Objection. To begin with, the Court will first consider what amounts to a Preliminary Objection and then Juxtapose the said description herein and come up with a finding on whether what has been raised herein fits the said description.

29. According to the Black Law Dictionary a preliminary objection is defined as:-

30.  In the case of “Nitin Properties Limited – Versus - Singh Kalsi & Another [1995] eKLR” the court stated thus: -

31. I wish to refer to the  Tanzanian Court of Appeal sitting in Dar es Salaam, in the case of “Karata Ernest & others – Versus - Attorney General (Civil Revision No 10 of 2020) [2010] TZCA 30 (29 December 2010), (Luanda, JA, Ramadhani, CJ, Rutakangwa, JJA), expounded the issue of preliminary objections in a more exhaustive manner as follows: -

32. The court in the case of:- “Mukisa Biscuits Manufacturing Co. Limited – Versus - West End Distributors Limited (1969) EA 696 described a preliminary objection as hereunder:-

33. With the same breath, the Supreme Court addressed its mind on this issue in the case of: “Aviation & Allied Workers Union Kenya – Versus - Kenya Airways Limited & 3 Others [2015] eKLR” and stated:

34. Therefore, from the above holdings of the Courts, it is clear that a preliminary Objection must be raised on a pure point of law and no fact should be ascertained from elsewhere. See also the case of:- “In the matter of Siaya Resident Magistrate Court Kisumu HCCMisc. App No. 247 of 2003” where the Court held that;

35. I have further relied on the decision of “Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR”: - as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection inter alia: -

36. The Black’s law Dictionary 10th Edition defines “res judicata” as

37.  The doctrine of res judicata is codified at the provision of Section 7 of the Civil Procedure Act, Cap.21 which provides as follows: -

38. Undoubtedly, the plea of Res-judicata is a point of law as it is based on the provision of Section 7 of the Civil Procedure Act, Cap. 21 and it has the potential of determining a matter summarily.

39. From the above excerpts a Preliminary Objection must not deal with issues of ascertainment of the facts and evidence. This is what the Court expected the Learned Counsels to address it on. The issue of the existence of the previous suit which was dismissed by this court determined by this court is a factual issue which requires examination of facts and evidence to be availed before court through the ordinary course of evidence by way of adducing either “viva voce” evidence or affidavit evidence. It follows therefrom as drawn the preliminary objection fails to meet the threshold of a preliminary objection as this Preliminary objection involves ascertainment of facts through the rules of evidence as indeed the Respondents advocate referred to a matter having been determined on merit in “Mombasa ELC case No. 129 of 2015: Buttercup Properties Limited – Versus - Kwale County Government & 2 others”. Ideally, this is what should have happened, instead of them annexing a copy of the Judgement or Plaint of this case in an affidavit. For this reason, therefore, the Preliminary Objection must fail, as it hereby does, and the court shall not dwell on its merits or otherwise.

40. The upshot is that the preliminary objection dated 10th February 2024 is hereby struck out with no orders as to costs.

41. The Applicant has sought the afore stated orders in the Notice of Motion Application dated 7th November 2024. As indicated above, the Respondents in opposition to the Notice of Motion Application filed Grounds of opposition dated 10th February 2025 as stated above.

42. The Black’s law Dictionary 10th Edition defines “res judicata” as:-

43.  The doctrine of res judicata is codified at Section 7 of the Civil Procedure Act, Cap. 21. For a suit to be declared res-judicata, the following must be proved;

44. Emphatically, for res judicata to apply in a particular matter, there must have been a previous suit in which the matter was in issue; the parties in both matters must be the same or litigating under the same title; the previous matter must have been heard and determined by a competent court and the issue is raised once again in the new suit. See the case of:- “John Florence Maritime Services Limited & another – Versus - Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR”. Res judicata operates as a complete estoppel against any suit that runs afoul of it. See “Maithene Malindi Enterprises Limited – Versus - Kaniki Karisa Kaniki & 2 others [2018] eKLR”.

45. Res judicata operates as a bar to subsequent proceedings involving same issue which had been finally and conclusively decided by a competent court in a prior suit between the same parties. In case of:- “John Florence Maritime Services Limited (Supra)” the Court of Appeal stated:

46. From the foregoing, the first requirement in analyzing the plea of res judicata is whether there existed a former suit between the same parties concerning the same subject matter. The Respondents argue that the case of:- “Mombasa ELC Case No. 129 of 2015 – Buttercup Properties Limited – Versus - Kwale County Government & Others was such a suit. It is not in dispute that the said case was instituted by the Applicant over the same parcel of land, Commercial Plot No. PDP 140 KWL.8.2009, and sought similar injunctive reliefs against the same Respondents. This is in respect to paragraph 10 of the Grounds of the Notice of Motion application:-

47. Additionally, it was averred by Hon. Amb. Chirau Mwakwere the Director of the Applicant dated on 7th October 2024 in his Supporting Affidavit to the Notice of Motion under Paragraphs 8 and 9 as follows:-

48. The second requirement is whether the parties were litigating under the same title. In both suits, the Applicant asserts proprietary rights over the suit property derived from allocation by the then Kwale Town Council, while the Respondents dispute the Applicant’s entitlement. It is therefore evident that the parties were litigating under the same title, namely ownership and occupation of the same parcel of land.

49. The next criterion is whether the issues in contest were directly and substantially the same. In the civil case of:- Mombasa ELC No. 129 of 2015, the Applicant sought to restrain the Respondents from trespassing or interfering with the suit property. In the present proceedings, the Applicant seeks eviction orders and permanent injunctive relief against the same Respondents. Though framed differently, both claims arise from the same cause of action – alleged unlawful entry and occupation by the Respondents.

50. The final consideration is whether the former suit was heard and finally determined by a court of competent jurisdiction. The record shows that Mombasa ELC No. 129 of 2015 was dismissed for want of prosecution under Order 17 Rule 4 of the Civil Procedure Rules. The Court of Appeal in the case of: “Co-operative Bank of Kenya – Versus - Cosmas Mrombo Moka & Legacy Auctioneering Services [2019] KECA 788” held that dismissal for want of prosecution constitutes a final determination unless and until the dismissal is set aside. The Applicant never moved to reinstate or appeal that dismissal. The said Court held:-

51. In my view, the dismissal of the former suit, though procedural, nonetheless resulted in a final judgment capable of triggering the doctrine of res judicata. As stated in the case of “Independent Electoral & Boundaries Commission – Versus - Maina Kiai & 5 Others [2017] eKLR”, res judicata is intended to prevent multiplicity of suits and to safeguard the judicial process from abuse. To allow the Applicant to relitigate the same issues afresh would defeat this purpose.

52. Consequently, I find that the plea of res judicata raised by the Respondents is well founded. The present suit is barred, the former proceedings having conclusively settled the matter between the parties, albeit through dismissal for want of prosecution. The Applicant’s attempt to seek eviction orders over the same property is therefore untenable in law.

53.  It is now well established that the issue of Costs is the discretion of Courts. According to the Black Law Dictionary, “Cost” is defined to mean, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”. The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. By the events, it means the results or outcome of any legal action or proceedings thereafter. The case before Court being a Constitutional Petition, Rule 26 (1) and (2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms Practice and Procedure Rules 2013) provides: -

54.  Further, these legal principles were upheld in the Supreme Court case of: “Jasbir Rai Singh – Versus – Tarchalans Singh, (2014) eKLR” and the Court of Appeal cases of “Cecilia Karuru Ngayu – Versus – Barclays Bank of Kenya & Ano. (2016) eKLR” the Courts held: -

55. In the instant case, the Notice of Motion application dated 7th November 2024 by the Applicants has not succeeded since the suit amounts to res judicata and thus it is dismissed. It follows that the Respondent is entitled to the costs thereof.

56. Consequently, upon causing an in-depth analysis to the framed issues herein, the Honourable Court on Preponderance of Probabilities and the balance of convenience reaches at the following findings. These are: -

a) Mr. Daniel Disii, the Court Assistant.

b) M/s. Julia Omwamba, Advocate for the Applicant.

c) No appearance for the 1st , 2nd & 3rd Respondents.