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1. By a plaint dated 24th February, 2025 the plaintiff instituted this suit seeking judgment against the defendants for a declaration that the defendants hold the parcel of land known as Baringo/Ravine 102/156 (hereinafter referred to as the suit property) in trust for him and other beneficiaries; An order for the subdivision and transfer of the plaintiff’s rightful share of the land; A permanent injunction restraining the defendant from selling, transferring, or interfering with the plaintiff’s portion of the land; Costs of the suit and any other relief the court may deem fit and just to grant.
2. Simultaneously with the plaint, the plaintiff filed the notice of motion application dated 26th February 2025, seeking an order to restrain the defendants/respondents whether by themselves, their agents, servants and/or assigns from selling, disposing, alienating, transferring or in any way dealing on or carrying out activity on his portion of the suit property pending the hearing and determination of the application and the suit.
3. The defendants did not file a defence to the suit but instead filed a notice of preliminary objection, dated 27th March, 2025 in which they prayed that the suit be dismissed with costs to them and the plaintiff be declared a litigious litigant on the ground that the suit is res judicata Nakuru RMCC 764 of 1989; Eldama Ravine PMCC ELC No.E14 of 2022; Eldama Ravine PMCC ELC No.E009 of 2023 and that there is a pending appeal in respect of the decision of Ohungo J. made in E002 of 2020 over the suit property.
4. Pursuant to directions given on 8th July 2025, that the preliminary objection be disposed of by way of written submissions, parties filed submissions which I have read and considered.
5. From the grounds taken up in support of the preliminary objection namely, the suit is res judicata the various suits listed in the preliminary objection and the submissions filed by the parties, the issue for determination is whether the issue of res judicata is a pure point of law that can be taken up as a preliminary objection.
6. Concerning that issue, the defendants have pointed out that the objection is supported by a print out from the Judiciary Case Tracking System (CTS) of Nakuru ELC No.E002 of 2020-Kimitei Arap Chirchir vs Kimutai Arap Kirui & Amos Lumet Kimosop; Eldama Ravine PMCC ELC No.E14 of 2022-Kimitei Arap Chirchir vs Amos Lumet Kimosop, Kimutai Arap Kirui, Lands Registrar and the Hon. Attorney General; Eldama Ravine PMCC ELC No.E009 of 2023-Kimitei Arap Chirchir vs. Amos Lumet Kimosop & Kimutai Arap Kirui and a ruling dated 25th February 2025 delivered in Nakuru ELC No. E002 of 2020-Kimitei Arap Chirchir vs. Kimutai Arap Kirui & Amos Lumet Kimosop and submitted that those facts are not contested.
7. Based on the provisions of Section 7 of the Civil Procedure Act, the decisions in the cases of Otieno & another vs The Ministry of East Africa Community (EAC) and Regional Development and 5 others (2023)KEELC 19225 (KLR); County Government of Kilifi v. Ricci; NLC & 2 Others (Interested Parties) (2022) KEELC 14699 (KLR) and Musimba v National Land Commission & Another; China Road & Bridge Construction Company (Interested Party) Environment and Land Petition 6 of 2018 where the court quoted with approval the decision in Omondi v National Bank of Kenya Ltd and others (2001)EA 177 thus:-
“the essence of the doctrine of res judicata is to bring an end to litigation and a party should not be vexed twice over the same cause”, the respondents submitted that based on the decision of Ohungo J in Nakuru ELC No.E002 of 2020 supra, the instant suit is res judicata the former. They urged this court to uphold the preliminary objection.
8. In his submissions filed on 25th August 2025, the plaintiff identified four issues for the court’s determination. These are: -
i) Whether the preliminary objection is merited
ii) Whether the plaintiff’s suit is res judicata;
iii) Whether the court has jurisdiction to determine the suit; and
iv) Who should bear the costs?
9. On whether the preliminary objection is merited, the plaintiff submitted that it is not. In that regard, he made reference to the cases of Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd (1969) EA 696; Oraro vs. Mbaja (2005) 1 KLR 141, Henry Wanyama Khaemba vs Standard Chartered Bank Ltd & another (2014) e KLR and George Kamau Kimani & 4 others vs. County Government of Trans Nzoia & Another (2014) eKLR.
10. In Henry Wanyama Khaemba vs Standard Chartered Bank Ltd & another supra, it was held that one cannot raise a ground of res judicata by way of preliminary objection; that the best way to raise a ground of res judicata is by way of notice of motion where pleadings are annexed to enable the court determine whether the current suit is res judicata.
11. Because evidence is required to determine whether the current suit is res judicata the former suits, the plaintiff submitted that the grounds raised in the preliminary objection do not amount to a preliminary objection.
12. As to whether the suit is res judicata the former suits, the plaintiff submitted that it is not because the issues raised in the current suit are distinct and different; the parties to the suit are also said to be different. The plaintiff is also said to be litigating in a different capacity.
13. As to whether the court lacks jurisdiction to determine the suit, the plaintiff cited the provisions of Article 162(2)(b) of the Constitution and Section 13(7) of the Environment and Land Court Act, 2011 and submitted that this court is clothed with jurisdiction to hear and determine the suit.
14. On costs, the plaintiff submitted that costs follow the event and urged the court to dismiss the preliminary objection with costs to it.
15. As pointed out herein above, the defendants did not file a statement of defence on which their preliminary objection can hinge. They merely filed the preliminary objection contending that the instant suit is res judicata the former suits listed in the preliminary objection and attached decisions in the former suits in support of his contention that the instant suit is res judicata.
16. Whereas from the decision of Ohungo J., attached to the preliminary objection it appears that the instant suit is res judicata the suits listed in the defendants notice of preliminary objection, I agree with the plaintiff that the preliminary objection raised by the defendants does not raise a pure point of law. Evidence in the form of pleadings filed in the instant suit and the former suits and the decisions made in the former suits is required to determine whether the instant suit is res judicata the former.
17. In the circumstances of this case, where the defendant/respondents have merely attached the decision of Ohungo J in Nakuru ELC No. E002 of 2020-Kimitei Arap Chirchir vs Kimutai Arap Kirui & Amos Lumet Kimosop, I find and hold that in the absence of the pleadings filed in that suit properly adduced in the proceedings seeking to dismiss/strike out the suit for either being res judicata the former suits or being an abuse of the court process, this court cannot dismiss/strike out the suit.
18. As held in the case of Henry Wanyama Khaemba vs Standard Chartered Bank Ltd & another supra, one cannot raise a ground of res judicata by way of preliminary objection.
19. To properly hinge their preliminary objection, the defendants needed to file a statement of defence where the issue would be raised and thereafter file a notice of motion application seeking to dismiss the suit for being res judicata the former suits. In the affidavit sworn in support of the motion, they would have annexed pleadings in the instant and the former suits for the court to compare. It is only upon consideration of the pleadings filed in the former suits, the decisions made in respect thereof vis a vis the issues raised in the instant suit, that the court would be able to determine whether or not the instant suit is res judicata the former suits.
20. Because the defendants’ preliminary objection is not hinged on any pleadings and it requires evidence in the form of pleadings filed in the instant suit and in the former suits and the decisions made in the former suit properly adduced, I do find the instant preliminary objection which does not meet the above threshold to be incapable of forming the basis of granting the defendants the reliefs sought. Consequently, I decline to uphold it.
21. Because the decision by Ohungo J., attached to the preliminary objection suggests that the issues raised in the instant suit are res judicata the former suits, the defendants are at liberty to move the court appropriately for determination of the question as to whether the instant suit is res judicata the former.
22. On costs, because the plaintiff failed to disclose the existence of the former suits in his plaint contrary to the rationale of Section 6 and 7 of the Civil Procedure Act as read with Order 4(1)(f) of the Civil Procedure Rule 2010, which required him to disclose existence of the previous suits, I decline to grant him costs of the preliminary objection and instead order that the costs of the preliminary objection be in cause.
23. Orders accordingly.
Dated, signed and delivered at Iten this 23rd day of October 2025.
Ruling read virtually in the presence of:
Mr. Rotich holding brief for Mr. Maritim for the plaintiff
Mr. Opondo holding brief for Ms. Sabaya for the defendants/respondents
Court Asst.: Brian
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1. By a plaint dated 24th February, 2025 the plaintiff instituted this suit seeking judgment against the defendants for a declaration that the defendants hold the parcel of land known as Baringo/Ravine 102/156 (hereinafter referred to as the suit property) in trust for him and other beneficiaries; An order for the subdivision and transfer of the plaintiff’s rightful share of the land; A permanent injunction restraining the defendant from selling, transferring, or interfering with the plaintiff’s portion of the land; Costs of the suit and any other relief the court may deem fit and just to grant.
2. Simultaneously with the plaint, the plaintiff filed the notice of motion application dated 26th February 2025, seeking an order to restrain the defendants/respondents whether by themselves, their agents, servants and/or assigns from selling, disposing, alienating, transferring or in any way dealing on or carrying out activity on his portion of the suit property pending the hearing and determination of the application and the suit.
3. The defendants did not file a defence to the suit but instead filed a notice of preliminary objection, dated 27th March, 2025 in which they prayed that the suit be dismissed with costs to them and the plaintiff be declared a litigious litigant on the ground that the suit is res judicata Nakuru RMCC 764 of 1989; Eldama Ravine PMCC ELC No.E14 of 2022; Eldama Ravine PMCC ELC No.E009 of 2023 and that there is a pending appeal in respect of the decision of Ohungo J. made in E002 of 2020 over the suit property.
4. Pursuant to directions given on 8th July 2025, that the preliminary objection be disposed of by way of written submissions, parties filed submissions which I have read and considered.
5. From the grounds taken up in support of the preliminary objection namely, the suit is res judicata the various suits listed in the preliminary objection and the submissions filed by the parties, the issue for determination is whether the issue of res judicata is a pure point of law that can be taken up as a preliminary objection.
6. Concerning that issue, the defendants have pointed out that the objection is supported by a print out from the Judiciary Case Tracking System (CTS) of Nakuru ELC No.E002 of 2020-Kimitei Arap Chirchir vs Kimutai Arap Kirui & Amos Lumet Kimosop; Eldama Ravine PMCC ELC No.E14 of 2022-Kimitei Arap Chirchir vs Amos Lumet Kimosop, Kimutai Arap Kirui, Lands Registrar and the Hon. Attorney General; Eldama Ravine PMCC ELC No.E009 of 2023-Kimitei Arap Chirchir vs. Amos Lumet Kimosop & Kimutai Arap Kirui and a ruling dated 25th February 2025 delivered in Nakuru ELC No. E002 of 2020-Kimitei Arap Chirchir vs. Kimutai Arap Kirui & Amos Lumet Kimosop and submitted that those facts are not contested.
7. Based on the provisions of Section 7 of the Civil Procedure Act, the decisions in the cases of Otieno & another vs The Ministry of East Africa Community (EAC) and Regional Development and 5 others (2023)KEELC 19225 (KLR); County Government of Kilifi v. Ricci; NLC & 2 Others (Interested Parties) (2022) KEELC 14699 (KLR) and Musimba v National Land Commission & Another; China Road & Bridge Construction Company (Interested Party) Environment and Land Petition 6 of 2018 where the court quoted with approval the decision in Omondi v National Bank of Kenya Ltd and others (2001)EA 177 thus:-
“the essence of the doctrine of res judicata is to bring an end to litigation and a party should not be vexed twice over the same cause”, the respondents submitted that based on the decision of Ohungo J in Nakuru ELC No.E002 of 2020 supra, the instant suit is res judicata the former. They urged this court to uphold the preliminary objection.
8. In his submissions filed on 25th August 2025, the plaintiff identified four issues for the court’s determination. These are: -
i) Whether the preliminary objection is merited
ii) Whether the plaintiff’s suit is res judicata;
iii) Whether the court has jurisdiction to determine the suit; and
iv) Who should bear the costs?
9. On whether the preliminary objection is merited, the plaintiff submitted that it is not. In that regard, he made reference to the cases of Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd (1969) EA 696; Oraro vs. Mbaja (2005) 1 KLR 141, Henry Wanyama Khaemba vs Standard Chartered Bank Ltd & another (2014) e KLR and George Kamau Kimani & 4 others vs. County Government of Trans Nzoia & Another (2014) eKLR.
10. In Henry Wanyama Khaemba vs Standard Chartered Bank Ltd & another supra, it was held that one cannot raise a ground of res judicata by way of preliminary objection; that the best way to raise a ground of res judicata is by way of notice of motion where pleadings are annexed to enable the court determine whether the current suit is res judicata.
11. Because evidence is required to determine whether the current suit is res judicata the former suits, the plaintiff submitted that the grounds raised in the preliminary objection do not amount to a preliminary objection.
12. As to whether the suit is res judicata the former suits, the plaintiff submitted that it is not because the issues raised in the current suit are distinct and different; the parties to the suit are also said to be different. The plaintiff is also said to be litigating in a different capacity.
13. As to whether the court lacks jurisdiction to determine the suit, the plaintiff cited the provisions of Article 162(2)(b) of the Constitution and Section 13(7) of the Environment and Land Court Act, 2011 and submitted that this court is clothed with jurisdiction to hear and determine the suit.
14. On costs, the plaintiff submitted that costs follow the event and urged the court to dismiss the preliminary objection with costs to it.
15. As pointed out herein above, the defendants did not file a statement of defence on which their preliminary objection can hinge. They merely filed the preliminary objection contending that the instant suit is res judicata the former suits listed in the preliminary objection and attached decisions in the former suits in support of his contention that the instant suit is res judicata.
16. Whereas from the decision of Ohungo J., attached to the preliminary objection it appears that the instant suit is res judicata the suits listed in the defendants notice of preliminary objection, I agree with the plaintiff that the preliminary objection raised by the defendants does not raise a pure point of law. Evidence in the form of pleadings filed in the instant suit and the former suits and the decisions made in the former suits is required to determine whether the instant suit is res judicata the former.
17. In the circumstances of this case, where the defendant/respondents have merely attached the decision of Ohungo J in Nakuru ELC No. E002 of 2020-Kimitei Arap Chirchir vs Kimutai Arap Kirui & Amos Lumet Kimosop, I find and hold that in the absence of the pleadings filed in that suit properly adduced in the proceedings seeking to dismiss/strike out the suit for either being res judicata the former suits or being an abuse of the court process, this court cannot dismiss/strike out the suit.
18. As held in the case of Henry Wanyama Khaemba vs Standard Chartered Bank Ltd & another supra, one cannot raise a ground of res judicata by way of preliminary objection.
19. To properly hinge their preliminary objection, the defendants needed to file a statement of defence where the issue would be raised and thereafter file a notice of motion application seeking to dismiss the suit for being res judicata the former suits. In the affidavit sworn in support of the motion, they would have annexed pleadings in the instant and the former suits for the court to compare. It is only upon consideration of the pleadings filed in the former suits, the decisions made in respect thereof vis a vis the issues raised in the instant suit, that the court would be able to determine whether or not the instant suit is res judicata the former suits.
20. Because the defendants’ preliminary objection is not hinged on any pleadings and it requires evidence in the form of pleadings filed in the instant suit and in the former suits and the decisions made in the former suit properly adduced, I do find the instant preliminary objection which does not meet the above threshold to be incapable of forming the basis of granting the defendants the reliefs sought. Consequently, I decline to uphold it.
21. Because the decision by Ohungo J., attached to the preliminary objection suggests that the issues raised in the instant suit are res judicata the former suits, the defendants are at liberty to move the court appropriately for determination of the question as to whether the instant suit is res judicata the former.
22. On costs, because the plaintiff failed to disclose the existence of the former suits in his plaint contrary to the rationale of Section 6 and 7 of the Civil Procedure Act as read with Order 4(1)(f) of the Civil Procedure Rule 2010, which required him to disclose existence of the previous suits, I decline to grant him costs of the preliminary objection and instead order that the costs of the preliminary objection be in cause.
23. Orders accordingly.
Dated, signed and delivered at Iten this 23rd day of October 2025.
Ruling read virtually in the presence of:
Mr. Rotich holding brief for Mr. Maritim for the plaintiff
Mr. Opondo holding brief for Ms. Sabaya for the defendants/respondents
Court Asst.: Brian
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