GEORGE OMONDI NYANKECH VS FRANCIS OGOLA AYOO

1    This ruling is the subject of the application dated 16/6/2025 and Preliminary objection dated 30/6/2025.
APPLICATION DATED 16/6/2025
2    The plaintiff at commencement of these proceedings filed Notice of Motion dated 16/06/2025 under certificate of urgency. The application seeks an order of temporary injunction to restrain the defendants and his agents from trespassing, evicting the plaintiff charging, selling, transferring or in whatever manner with the property East Gem/Kagilo/1460 and 1461 pending the hearing of this suit.
3    The application is opposed by the Respondent/Defendant.

THE PRELIMINARY OBJECTION
4    This suit was commenced by way of originating summons. The applicant in the OS seeks cancellation and or revocation of the title deeds to the parcels East Gem/Kagilo/1460 and 1461 having been unprocedurally and fraudulently excised from parcel East Gem/Kagilo/186 which is stated to be an asset in the estate of Samwel Nyakech Ojee (deceased) without grant of letters of administration. That among other allegations the defendant financed one David Ogute Ojee (deceased who was not a beneficiary in the estate of Samwel Nyakech Ojee (deceased) to have the parcel East Gem/Kagilo/186 transferred to the said David Ogute Ojee contrary to the provisions of the Law of Succession.
5    It is contended that the present suit is res judicata as there has been similar suits between the parties regarding the same subject matter namely 1) Siaya MC ElC Case No. 55 of 2022 2) Civil appeal No. Siaya ELCA/E025 of 2023 and 3) MCELC Case No. 127 of 2024; 4) Notice of Motion application dated 26/01/2025 in Siaya Court of Appeal 5) Siaya ELCA/E073 of 2025 which was withdrawn unconditionally by the plaintiff.
6    According to the respondent all the above matters were heard and determined and orders issued. That the current application is now the 6th with one of the parties removed, same content, same particulars, same parcel of land and same prayers. That the list of supportive documents are the same ones in all the matters. It is stated that there is nothing new that the court may consider. The probability of a 3rd lawyer using the same materials succeeding is zero other two lawyers having been unable to prove their case. That changing and or playing around with respondents does not sanitize the fact that the case is res judicata.
7    It is submitted on behalf of the applicant that the preliminary objection has no merit. That it is not sufficient to state that parties have been previously engaged in similar suits. The pleadings point to the need to ascertain facts to wit the root of the title of parcel 1461 herein and which can be done in the course of the trial.
ANALYSIS ON THE PRELIMINARY OBJECTION
8    The court will start by  considering the preliminary objection because if the court sustains it then there will be no need to render a determination on the application.
9    Ordinarily a preliminary objection based on the plea of res judicata cannot be sustained on its own. It would have to be anchored on a notice of motion application. This is because the pleadings in the previous suits would have to be attached for the court to review the same and reach a determination.
10    But having made the above observation I think I will depart from the norm and invoke my inherent jurisdiction conferred upon the court under section 3A of the Civil Procedure Act to deal with the objection as raised. This will also be in tandem with the overriding objectives of the court. Moreover, the matters said to be in existence culminated into an appeal before this very court and the pleadings are readily available.
11    I will first discuss the doctrine of res judicata as embodied in section 7 of the Civil Procedure Act and 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 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.”
12    The Black’s law Dictionary 10th Edition defines “res judicata” as
“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”
13    The above provisions have been a subject of many judicial pronouncements all the way to the apex court where the test for determining if a matter is res judicata has been outlined
14    The Supreme Court of Kenya in a decision rendered on 6th August, 2021 in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR extensively dealt with the different components making up the doctrine of res judicata. The Apex Court went ahead and rendered itself on the threshold for proving the applicability of the doctrine. The Court stated as follows:
[86] We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated:
a) There is a former Judgment or order which was final;
b) The Judgment or order was on merit;
c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d) There must be between the first and the second action identical parties, subject matter and cause of action
15    Applying the law as set out in section 7 above and guidance of the Apex Court I will proceed to determine if the present proceedings are res judicata.
THE FORMER SUIT
16    The former suit in this case is Siaya Land Civil Suit PM ELC  Civil Case NO.55 of 2022 FRANCIS OGOLA AYOO VS GEORGE OMONDI NYAKETCH filed in Siaya Magistrates Court which culminated into a judgement delivered by Hon B. Limo on 5/12/2023.
17    The Defendant in the above matter aggrieved with the judgement of the trial court filed an appeal before the ELC Siaya being Land Appeal No. E025 of 2023.
18    Therefore, the above are the former suits.
JUDGMENT OR ORDER WHICH WAS FINAL;
19    Under this requirement there must be judgement delivered on the merits of the matter. This means the parties were heard on their evidence resulting into a judgement which was final. I have already noted that a judgement was delivered on 5/12/2023 by the trial court after all the parties were heard between 20/6/2023 and 22/9/2023. This was on merit.
20    Upon appeal a judgement was delivered by Justice A. Koross on 31/10/2024.
21    Were both courts competent to hear the case, my answer is in the affirmative and in any case jurisdiction was not an issue in the trial court. Additionally Appeals on land cases from the magistrates Court lie to the ELC. The determinations were final as will be clear later in this ruling.
The Parties To The Former Suits; Subject  And The Issues
22    Having resolved the above the court must then determine if the parties were the same parties and if the issues were the same or substantially the same.
23    The parties in the trial court were Franscis Ogola Ayoo as the plaintiff and George Omondi Nyakech who was sued as the defendant. In instant suit George is now the Plaintiff and Francis Ogola Ayoo is the Defendant. These are the principal parties in both suits.
24    What was the subject matter of the suit in the lower court? The parcel land in dispute was East Gem/Kagilo/1461. However George Omondi Nyakech responded to the trial court suit by Defence and Counterclaim where he asserted that the said parcel was a subdivision of East Gem/Kagilo/186 (mother title) and which also created East Gem/Kagilo/1460. Clearly the subject matter is the same. The three properties cannot be separated for the purpose of res judicata.
25    What about the issues. In the trial court the Plaintiff Francis sued George for trespass alleging that George had trespassed into a portion of parcel 1461 cultivated thereon and blocked the access road that gave access to the parcel 1461. He sought among others declaratory orders that the plaintiffs’ actions were illegal, general damages, mesne profits permanent injunction and removal of the George’s structure.
26    In the counterclaim George denied he was a trespasser as his father was the 1st registered owner of the mother parcel. That he was in possession of the parcel 1461 and 1460 even before subdivision and upto the subdivision. He sought orders that the subdivisions were illegal and sought nullification of the same and registration into his name, permanent injunction among others.  He had also pleaded fraud which the trial court found the same had not been proved.
27    In the present suit George who was appellant in the appeal has sued Francis seeking revocation of the titles parcel 1461 and 1460 raising grounds of fraud, illegality and intermeddling there having been no grant of letters of administration.  I will not belabor the point. The grounds raised in the counterclaim which failed are the same and if he didn’t introduce the issue of intermeddling and capacity then that was his fault.
28    Additionally it is noteworthy that the appellant moved this very court by way of Notice of Motion dated 26/01/2025 seeking review of the judgement rendered on appeal. I did deliver a ruling on 5/6/2025 where I declined to grant the orders for review where I found that there was no new material fact that was presented before court for consideration. I also further noted that my sister judge had undertaken a postmortem of the nature and form of the Memorandum of Appeal against the provisions of Order 42 of the Civil Procedure Rules and also referred to judicial precedent. I noted that every ground was scrutinized against the law and precedents and reasons why each could not suffice explained. I stated that all these could not be swept under the carpet. I then rendered myself thus; -
19.‘What I can say is what is before court is an applicant who is aggrieved by the dismissal of the appeal by this court on technicality and urges the court ought to have been guide by the constitutional provisions that mandate the courts to render substantive justice without recourse to technicalities.
20. The above is a ground of appeal and this court cannot seat on appeal of its own judgement. I have not been led to any argument that that there is no opportunity for a second appeal to the court of appeal…’
29    The applicant states that the pleadings point to the need to ascertain facts to wit the root of the title of parcel 1461 herein and which can be done in the course of the trial. To me the  applicant herein has simply disregarded the appellate process by reintroducing the same issues that were tried by competent courts.
30    It is my finding that this suit is res judicata and must be struck out. The issues were determined by competent courts on merit with finality. Litigation must come to an end at this stage subject to the right of appeal to the Court of Appeal.
31    Having arrived at the above conclusion the court will down its tools and will not delve into the application dated  16/6/2025.
32    Costs abide the outcome of a matter. The applicant must bear the costs of this litigation.
33    Consequently, the preliminary objection is upheld, the entire suit herein is struck out together with the application dated 16/6/2025, with costs to the respondent.

DATED at SIAYA this 8th Day of  May  2026

Ruling  delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of:
Mr.  Omwenyo for applicant
Franscis Ogola Ayoo  Respondent
Court assistant: Nelima Janepher