(On a preliminary objection)
1. The plaintiff brought this suit against defendants, the first of whom was a private citizen, and the other three, public offices. He filed the Plaint dated 20th February 2023 on the 6th of March 2023. His claim against the 1st defendant was that he, in collision with the 2nd and 4th Defendant hived of a large portion of his parcel of land No. 691 and registered the hived off portion as part of parcel No. 683 in the plaintiff’s name. He averred further that the original boundary of the two parcels was clearly demarcated by sisal plantation, and the subsequent curving out of a section of his land caused substantial reduction of his acreage. He added that the collusion and fraud had caused him to lose a section of this parcel of land which was now being used by the 1st Defendant.
2. He sought a declaration that a portion of land parcel number Kabuoch/Kawere/Karading/683 registered in the name of Obago Oyaga and which was an occupation of the 1st Defendant was irregularly curved off from his land parcel No. 691. Further, he sought an order that the 2nd and 3rd Defendants do rectify the register to reflect the true boundary and an order of permanent instrument injunction against the 1st Defendant from any interference with the land parcel No. 691.
3. The Defendant entered Appearance and filed a Defense. In the Statement of Defence dated the 3rd of January 2024, he denied the contents of the claimant’s claim. He added that parcel No. 683 was registered in his father's name. He was young, that is to say, 29 years old at the time of the institution of this suit. He added that they had lived on this land all their years. Further that when his father died, he was buried in the city land. That there were succession proceedings in relation to the parcel of land.
4. Of importance, for purposes of this preliminary objection before me, the Defendant added at paragraph 4 (i) and (j) that prior to the institution of the instant case, the plaintiff had filed two other cases, being. Migori ELC. No. 32 of 2017 and ELC No. 101 of 2018 which were determined against him. Further that in relation to ELC No. 101 of 2018 the 1st Defendant’s family, even forgave the plaintiff on the issue of costs because he was an old man. He added, at paragraph 5 of the Plaint the same content of the existence of the two suits referred to above.
5. Soon after the filing of the defense, the 1st Defendant raised a preliminary objection to the instant suit. The preliminary objection was dated 29th October 2024. He raised it on the following grounds:
1. That the plaintiff had already sued the same parties in the whole ELC case number 101 of 2018.
2. That Migori ELC case number 101 of 2018 was dismissed on 6th September 2020 for non attendance or want of prosecution.
3. The plaintiff moved the court for reinstatement of the said suit and it was reinstated as per the ruling delivered in it on 31st October 2022.
4. The suit was later dismissed again for want of prosecution or through orders granted on the 30th of May 2023 and issued on 23rd. May 2024.
5. The orders of dismissal had never been set aside.
6. The parties to this case, the cause of action and the subject property or subject of the suit were the same as those in Case No. 101 of 2018.
7. As a result, the matter was res judicata and should be struck out.
6. The preliminary objection was disposed of by way of written submissions. The first defendant filed his written submissions dated 20th January 2024. In them, he gave the history of Migori No. 101 of 2018, which, indeed, shows that the Plaintiff in this case was the same plaintiff in that matter. The heading thereof was James Atio Mogo vs. Samuel Otieno Obago as the 1st Defendant besides one Felix Omondi Obago as the 2nd Defendant, and the 3rd and 4th defendants in this matter as the 3rd to 4th defendants respectively. He summed it up that that matter was dismissed. He relied on Section 7 and 8 of the Civil Procedure Act to argue that this matter was res judicata and therefore the court should dismiss it.
7. Immediately before the delivery of this instant suite. Specifically, on the 30th of October 2025, the plaintiff filed a Notice to Act in person which was dated the same date.
Analysis and Determination
8. This Court has considered the preliminary objection, the law, the pleadings of the parties, and the submissions herein. The sole main issue for determination is whether the Objection is merited. Attendant to it is who to bear the costs of either the Objection or both the objection and the suit of the Preliminary Objection succeeds.
9. The nature and basis of a preliminary objection was well articulated by the Court of Appeal in the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd. V West End Distributors Ltd. [1969] EA 696, where it held:
“… a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.”
10. In the judgment of Sir Charles Newbold JA stated, further as follows:
“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion (emphasis added)”
11. This court has Carefully considered the preliminary objection. It is clear that. The court can only rely on the pleadings of the parties. That is to say, the plant and the defence, in order to determine whether, indeed, the preliminary objection is merited. I have perused the Plaint. The plaintiff claims a portion of land from the Defendant, which land he avers was registered in his name. In the plaint, the plaintiff pleaded that prior to the institution of the instant suit the Plaintiff filed two suits which were determined.
12. Further, I have looked at the plaintiff’s pleadings. There is no denial by way of any other pleadings that the suits, as specified by the plaintiff, existed and were determined, and even the alleged costs due in one of them were forgiven of the Plaintiff. Thus, from the pleadings, it is clear to me, and I find so, that previously there were two similar suits filed between the parties, over the same subject, and they were determined. Therefore, to sustain the instant one would be contrary to the law, particularly Section 7 of the Civil Procedure Act. The objection is upheld, and the suit is dismissed with costs to the 1st Defendant only. The said defendant shall have the costs of the preliminary Objection as well.
13. Orders accordingly.
Ruling dated, signed and delivered electronically via the Teams Platform this 28th day of November 2025.
Hon. Dr. iur Nyagaka
Judge
In the presence of
Ms. Migele Advocate for the Plaintiff
Mr. Ngani Advocate for Adoyo Advocate for the 1st Defendant
No appearance for the other defendants