1. This Court is called upon to determine the Notice of Motion dated 4th March 2025 by which the Plaintiff seeks leave to amend an earlier application, interlocutory injunctive orders restraining the Defendants from interfering with land parcels Bokoli/Bokoli/4095 and 4096, an order for police assistance in enforcement, and costs.
2. The application is supported by the affidavit of the Plaintiff and is opposed through a Replying Affidavit sworn on 13th March 2025 together with a Preliminary Objection of even date. The Respondents also filed written submissions which have been duly considered.
3. The Preliminary Objection raises questions of law, namely that the suit and application are barred by the doctrine of res judicata, that they offend the Civil Procedure Rules, and that they amount to an abuse of the court process. These objections go to the jurisdiction and competence of the proceedings and must therefore be determined at the outset.
4. The law on Preliminary Objections is settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the Court held that a preliminary objection consists of a pure point of law which, if argued successfully, may dispose of the suit. The objections raised herein meet that threshold.
5. The Respondents contend that the issues raised in the present application and suit were directly and substantially in issue in Webuye ELC No. E017 of 2024 between the same parties and concerning the same parcel of land, Bokoli/Bokoli/4095, which matter was conclusively determined by a judgment delivered on 29th October 2024.
6. Section 7 of the Civil Procedure Act expressly bars a court from trying a suit or issue which has been directly and substantially in issue in a former suit between the same parties, litigating under the same title, where such issue has been heard and finally determined by a court of competent jurisdiction.
7. From the material placed before the Court, it is not disputed that the earlier suit involved the same parties and substantially the same subject matter and that final orders, including permanent injunctive relief, were issued. Those orders have not been set aside, varied or stayed.
8. The Plaintiff now seeks to reopen the dispute by expanding the acreage claimed and by reintroducing issues which either were, or ought to have been, raised in the earlier proceedings. Courts have consistently frowned upon such conduct. In Henderson v Henderson (1843) 67 ER 313, it was held that parties must bring forward their entire case at once and are barred from reopening litigation by advancing claims that could have been raised earlier.
9. I am satisfied that the present proceedings invite this Court to sit on appeal over a decision of concurrent jurisdiction, which this Court cannot do. To that extent, the suit and the application are barred by the doctrine of res judicata.
10. The manner in which the Plaintiff has approached the Court also discloses an abuse of the court process. Litigation must come to an end, and parties cannot be permitted to engage the court repeatedly over the same dispute merely because they are dissatisfied with an earlier outcome.
11. Even if the application were otherwise competent, the Plaintiff would still be required to satisfy the principles governing the grant of interlocutory injunctions as set out in Giella v Cassman Brown & Co. Ltd [1973] EA 358. In light of the existing judgment determining rights over the suit land, the Plaintiff has not demonstrated a prima facie case with a probability of success, nor has irreparable harm been established. The balance of convenience favours upholding the finality of a subsisting decree.
12. On the prayer for leave to amend the application, while amendments are generally allowed to facilitate the just determination of disputes, such discretion cannot be exercised to revive matters that have been conclusively determined. Further, no draft amended application was annexed, leaving the Court to speculate on the nature of the intended amendments, which is impermissible.
13. In the result, I find that the Preliminary Objection is merited, that the suit and application are barred by res judicata and amount to an abuse of the court process, and that the Notice of Motion dated 4th March 2025 is devoid of merit.
14. Consequently, the Notice of Motion dated 4th March 2025 is hereby dismissed in its entirety with costs to the Defendants.
DATED, SIGNED AND DELIVERED at Bungoma this 15th Day of December, 2025
HON. JUSTICE ENOCK C. CHERONOJUDGE
In the presence of;
1. M/S Nekesa H/B for Kapten for the Plaintiff/Applicant.
2. M/S Musyoka H/B for Mr. Walubengo for the Respondent.
3. Bett C/A.