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JudgmentMARK KARIUKI AND ALEXANDRA BELL AND 2 Others VS NATIONAL LAND COMMISSION AND CHIEF LAND REGISTRAR AND 9 Others32 min read

MARK KARIUKI AND ALEXANDRA BELL AND 2 Others VS NATIONAL LAND COMMISSION AND CHIEF LAND REGISTRAR AND 9 Others

Environment and Land Court at Naivasha Environment and Land Court · · Oundo M Clausina

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NAIVASHA

ELC PETITION NO. E011 OF 2024

(FORMERLY NAKURU ELC PETITION NO. E9 OF 2022)

IN THE MTTER OF ALLEGED CONTRAVENTION OF ARTICLE 2(2), 10, 20(2), 21, 22(1), 23(3), 27(1), (2), (5), 40(6), 50(1), 62(1) (n), 67, 69, 70, 162(2) AND 258 OF THE CONSTITUTION OF KENYA 2010

BETWEEN

MARK KARIUKI

ALEXANDRA BELL

MAIRO RETIEF

GARY HOPCRAFT (Suing as Chairman, Vice Chairlady, Secretary and Treasurer of Members on behalf of

LAKE NAIVASHA RIPARIAN ASSOCIATION…………………… PETITIONERS

AND

THE NATIONAL LAND COMMISSION…………………………...1ST RESPONDENT

CHIEF LAND REGISTRAR ………………….………………….….2ND RESPONDENT

DIRECTOR OF SURVEYS. ………………….…………………..…3RD RESPONDENT

ATTORNEY GENERAL….. ………………….………..……….….4TH RESPONDENT

DUNCAN WACHIRA KABITHE…………………………………....5TH RESPONDENT

GEOFFREY MUHORO…………………………………………….…6TH RESPONDENT

LAWRENCE TONY KURIA……………………………………..…..7TH RESPONDENT

MARGARET W. KAGWE…………………………………………....8TH RESPONDENT

COUNTY GOVERNMENT OF NAKURU………………………....9TH RESPONDENT

AND

ETHICS & ANTI-CORRUPTION COMMISSION……...1ST INTERESTED PARTY

WATER RESOURCES AUTHORITY……………….……2ND INTERESTED PARTY

RULING

  1. Vide a Notice of Motion dated 29th November 2024, brought under the provisions of Article 40 of the Constitution of Kenya 2010, Order 2 Rule 15 (1) (a) and (b) of the Civil Procedure Rules, 2010, Section 7 of the Civil Procedure Code, and any other enabling provisions of law wherein the 6th Respondent seeks the following orders:
      1. That the instant suit is misconceived, misplaced, frivolous, vexatious and therefore an abuse of the process of court.
      2. That the suit is res judicata since it had been subject of litigation in Civil Suit Number 97 of 2009, Geoffrey Muhoro v Lake Flowers Limited [2011] eKLR, Nakuru ELC Case No. 244A of 2018; Republic v National Land Commission & Others Ex parte Duncan Kabethi Wachira and Nakuru ELC Case No. 244B of 2018; Republic v National Land Commission; Lake Naivasha Riparian Association (Interested party) Ex parte Geoffrey Muhoro [2020] eKLR.
      3. That the Plaintiffs’ suit be dismissed with costs.
  2. The said Notice of Motion application was premised on the grounds therein as well as the Supporting Affidavit of an even date, sworn by the 6th Respondent herein who deponed that pursuant to an application, vide a letter reference No. 1944/XX11, PLAN NO. 1259/97/1 dated 4th April 1997, he had been allotted land wherein he had been subsequently registered as proprietor of the suit land parcel L.R No. 22957/4 on 1st April, 1997 under the Registration of Titles Act Cap 28 (Repealed).
  3. That however, since the year 1998, he had not enjoyed his constitutional rights over the suit property because he had been defending cases over the claim of either ownership or the issue of riparian land, where some of the Petitioners and Respondents had been parties, as per copies of judgements herein annexed as GM-3 (a –c).
  4. That in the said cases, some of the parties in the instant suit were members or officials of the Petitioner herein who had also been parties to the previous suits. That in the present suit, the Petitioners’ claim was on similar issues that had been dealt with in the aforementioned cases, to wit that his properties had been allocated illegally and/or fraudulently which property was on the riparian land.
  5. That in a Judicial Review application to quash the 2nd Respondent’s decision that had revoked the allocation of the suit property, herein reported as Republic v National Land Commission; Lake Naivasha Riparian Association (Interested party) Ex parte Geoffrey Muhoro [2020] eKLR; Republic v National Land Commission & Others Ex parte Duncan Kabethi Wachira, the Court had held as follows;

“…I see no valid reason why not to grant the order of certiorari in the circumstances considering that the impugned determination threatens to irregularly deprive the ex parte applicant of a proprietor’s interest in the property…”

  1. That further, in the case of Geoffrey Muhoro v Lake Flowers Limited [2011] eKLR, the court had delved on the process of the allocation of the suit property and the riparian land use, in a judgement that has never been appealed, as follows;

“…The following year, 1998, the plaintiff sub-divided the original parcel and curved out four (4) plots namely, Nos. 22957/1/2/3 and 4. He sold three of the resultant parcels and retained the last parcel No. 22957/4. It is his contention that the defendant has encroached on part of this parcel……

The suit property initially measuring 4.6 acres was allocated to the Plaintiff by way of a temporary occupation license on 1st February, 1967 for a term of nine (9) months from that date and thereafter until in determination in accordance with the terms of the license and subject to payment of yearly rent. Thirty (30) years later on 4th April, 1997, the Commissioner of Lands issued a letter of allotment in favour of the plaintiff. The letter allotted to the plaintiff 42.0 hectares up from the original 4.6 acres in 1967. The stand premium and other charges amounting to Kshs. 1,556,793/= were duly paid.”

  1. At page 4 the court had held as follows;

“…the Lake Naivasha Riparian Association to which the defendant is also said to be a member appears to have had for years an agreement with successive governments, since the colonial period, to manage the riparian land around Lake Naivasha. Again, from what I have gathered in the course of this trial, the Association had been instrumental for the conservation both of the environment and wildlife including the marine ecosystem. But what gives rise to a riparian right? This is a concept with its origin in English Common Law and today exists in many countries with a common law heritage……..

Simply put, all landowners whose property is adjoining to a body of water, have right to reasonable use of it…Explained simply, riparian right is a right flowing from the fact of ownership of land which extends to the body of water. It is a right exercised subject to the rights of other riparian land owners…”

  1. That among all other users of the riparian land who enjoyed the said rights, he was the only proprietor who was victimized by the Petitioners/proxies since the year 1998. That being an elderly person of 80 years, he wished to enjoy his constitutional rights on the property in peace hence he urged the court to conclude the instant matter which had dragged on for too long with members of the Petitioners wearing different faces.
  2. That from the foregoing, the court lacked jurisdiction to hear the instant case since the same was res judicata and the judgements were in rem. That litigation could not go on forever. The instant matter had been determined by a court of competent jurisdiction, and could not be re-opened by the same parties or their proxies in a latter suit. He thus deponed that the instant Petition was vexatious, scandalous and an abuse of the court process thus it should be dismissed with costs to the Respondents.
  3. In response and opposition to the 6th Respondent’s Application, the Petitioners, vide their Replying Affidavit dated 20th February 2025 sworn by Mark Kariuki, the 1st Petitioner and the Chairman of Lake Naivasha Riparian Association deponed that the issue of res judicata had first been raised by the 6th Respondent through its Notice of Preliminary Objection dated 6th February, 2023 which Objection had been dismissed hence the 6th Respondent was attempting to have a second bite of the cherry.
  4. That Lake Naivasha Riparian Association (Petitioners’ Association), comprising of over 150 persons, was founded in the year 1929 by owners of land surrounding Lake Naivasha with the objects and purpose was among others to safeguard riparian land around the said lake as defined in various laws of Kenya and more particularly and collectively the marginal land covered and uncovered by the changing water level of the lake and the adjacent/adjoining members land. That the riparian land around Lake Naivasha was public land within the meaning of public land in Article 62(1) (i) and (l) of the Constitution of Kenya 2010 and Section 2 of the Land Act 2012 which defines public land to include all lakes and all lands between the high and low water marks.
  5. That on or about 16th September 2015, the Petitioners’ members herein who own properties adjoining Lake Naivasha on the southern side had reported trespass, unauthorized invasion and forceful detainer by some persons who had declined to identify themselves or their principal on Lake Naivasha riparian land adjoining the said members land. That on further inquiry, the Petitioners had found out that the 5th to 8th Respondents had illegally and un-procedurally been allocated L.R Nos. 22597/1, 2, 3 and 4 respectively which properties fell within Lake Naivasha riparian land. That subsequently, the Petitioners had jointly reported the said invasions that had occurred on diverse dates including 16th September 2015 and 1st October 2015 to the 1st Respondent, who had conducted independent investigations, hearings and rendered its decision on 22nd August 2016 declaring the allocation of the Lake Naivasha riparian land to the 5th to 8th Respondents as illegal, null and void, their titles had subsequently been revoked.
  6. That he was aware that a judgement that had been delivered in Nakuru ELC JR No. 244A of 2018; Republic v National Land Commission & Others exparte Duncan Kabethi Wachira, had quashed the 1st Respondent’s decision of 22nd August 2016 revoking the titles to the suit properties on the basis that the 1st Respondent did not have power to do so under Section 14 (5) of the National Land Commission Act. That it ought to have directed the 2nd Respondent to cancel the titles. That indeed at paragraph 27 of the said Judgement, the Learned Judge had emphasized as follow;

“this court makes no determination on the validity or otherwise of the ex-parte applicant’s (5th Respondent herein) title to the suit property since it is not an issue before the court…”

  1. That similarly, in another suit that had been commenced by the 5th Respondent in Nakuru ELC Case No. 244B of 2018; Republic v National Land Commission; Lake Naivasha Riparian Association (interested party) Ex parte Geoffrey Muhoro [2020] eKLR, the court at paragraph 25 had held as follows:

“…For the avoidance of doubt, I must emphasize before penning off, that this court makes no determination on the validity or otherwise of the ex parte applicant’s title to the suit property since that was not an issue before the court…”

  1. That he was also aware that there had been another case; Nakuru Civil Suit No. 97 of 2009 between the 6th Respondent and Lake Flowers Limited over the ownership of property known as L.R No. 22597/4. That the issue however had not been whether the said parcel had fell within Lake Naivasha riparian land and neither had Lake Naivasha Riparian Association been a party to the proceedings therein.
  2. He thus deponed that the issues in the present Petition were distinct and separate from the ones in the previous cases herein cited for the following reasons:
      1. In the present Petition, the issue was not the ownership of the suit properties, but whether or not the suit properties, being L.R Nos. 22597/1, 2, 3 and 4 allegedly owned by the 5th to 8th Respondents respectively, had fallen within Lake Naivasha Riparian land.
      2. That the issue that had been in dispute in Nakuru Civil Suit 97 of 2009 between the 6th Respondent and Lake Flowers Limited, had been on the ownership of property known as L.R No. 22597/4 where Lake Naivasha Riparian Association had not been a party to the matter.
      3. With respect to Nakuru ELC JR No. 244A/2018 and Nakuru ELC JR No. 244B/2018 that had been filed by the 5th and 6th Respondents against the National Land Commission, the main focus had been decision-making process by the 1st Respondent herein, contained in the letter dated 22nd August, 2016.
      4. Similarly, the issue in dispute in the Judicial Review cases had been on the revocation of titles by the 1st Respondent vide its decision dated 22nd August, 2016 which had been the issue of ownership and not on the issue of whether or not the said parcel had fell within Lake Naivasha riparian land as had been pleaded in the present Petition.
  3. That further, in the present Petition, the issue as to whether or not the 6th Respondent’s title deed to L.R No. 22597/4 had been procedurally, illegally and/or unlawfully acquired was open for determination for the following reasons:
      1. The temporary occupation license that had allegedly been issued to the 6th Respondent on 1st February 1967 for 4.2 acres had been for a period of 9 months only. That indeed, there had been no evidence that the said license had been renewed up to the year 1997 when the parcel of land herein had been allegedly allocated to him.
      2. That further, there had been no evidence showing that the alleged J.M Dauson had been allocated an adjacent parcel of land measuring 234 aces. That it was also physically impossible to use one (1) Part Development Plan (PDP) to allocate two different parcels of land to two different individuals since each parcel of land ought to have its own PDP.
      3. There had been no evidence of either cessation and/or amalgamation of the different parcels of land to give rise to 42 hectares which had been allocated to the 6th Respondent through the letter dated 4th April 1997, Ref No:19447/XXII.
  4. That in any case, the purported allotment of 42 hectares of public land to the 6th Respondent through the letter dated 4th April 1997, Ref No: 19447/XXII had been un-procedural, illegal and/or fraudulent for failing to meet the criteria below:
      1. There had been no advisory from the defunct Naivasha Municipal Council, now the 9th Respondent to the 2nd Respondent herein, that the allotted riparian land had been available for disposition.
      2. The defunct Naivasha Municipal Council, now the 9th Respondent, had not carried out a fact-finding mission to satisfy itself that the allotted riparian land had been available for disposition.
      3. The 2nd Respondent herein had not gazetted the said riparian land for a period of four (4) weeks to indicate that the same was available for sale through public auction, the upset price; the term of the lease and rent payable, building conditions and any attaching special covenants.
      4. There had been neither a public auction carried out for the allotment of the said riparian land, nor the list of bidders who had participated, the bidding prices and the memorandum and certificate of sale indicating that the 6th Respondent had been a successful bidder.
      5. There had been no PDP, the cadastral survey, the authentication and approval as well as the issuance of a beacon certificate by the 3rd Respondent for the purported allotment of the riparian land.
      6. Lastly, under the law, the allotment of foreshore/or riparian lands around spring, river, lake, stream, ocean and/or sea was not permitted and any license issued for usage did not confer ownership rights.
  5. That subsequently, the issues in dispute in the present case as to whether or not the properties in question fell within Lake Naivasha riparian land, were never determined in Nakuru Civil Suit No. 97 of 2009; Nakuru ELC JR No. 244A and Nakuru ELC JR No. 244B hence the same were open for determination by the Court.
  6. He thus deponed that the 6th Respondent’s application was unmerited, frivolous, vexatious hence the same should be dismissed with costs.
  7. In a rejoinder, the 6th Respondent vide his Further Affidavit dated 4th February 2025 reiterated the contents of his Supporting Affidavit dated 29th November, 2024 thereby reiterating that the suit land had been allocated to him under the Registration of Title Act (Now repealed) wherein the lease had outlined the conditions for use. That indeed, at no point since the grant of the said lease had he ever violated the conditions of use as had been stipulated in the said special conditions.
  8. That the suit land having been registered under the Registration of Title Act (Now repealed), subjecting it to the new land laws of 2012 and the 2010 Constitution would be unjust to the proprietors since the statute did not have retrospective effects.
  9. He deponed that the registered proprietors of land adjoining lakes or water bodies enjoyed equal rights to riparian land use and management as the learned Judge had analyzed in Civil Suit No. 97 of 2009;

“But what gives rise to a riparian right? This is a concept with its origin in English Common law and today exists in many countries with a common law heritage.

Simply put, all landowners whose property is adjoining to a body of water, have a right to reasonable use of it. Riparian rights include such things as the right to access for swimming, boating, fishing, the right to erect piers, the right to use water for domestic purpose, and so on. Explained simply, riparian right is a right flowing from the fact of ownership of land which extends to the body of water. It is a right exercised subject to the rights of other riparian land owners…”

  1. That further, the said judgement had been appealed by the aggrieved parties in the court of appeal in Civil Application No. 114 of 2011; Lake Flowers Limited v Geoffrey Muhoro wherein the court had held as follows;

“…As regards the applicant’s argument that the suit land is riparian land, (land bordering on a waterway) there is on record an affidavit sworn on 29th November, 2000 by Zablon Agwata Mabeya, then Assistant Commissioner of Lands, which discloses that the respondent applied for grant of the suit land and was granted temporary occupation permit on 1st February, 1967 and had been in occupation thereof since then. The respondent thereafter applied for allocation of the suit land and the allocation was approved and a letter of allotment issued on 4th April, 1997. Thereafter the land was sub-divided into two parcels, one of them being the suit land…whether the suit land is riparian land is the subject of Misc. Civil Application No. 1235 of 1998…”

  1. That in view of the above, the issue of the land being riparian had been dealt with in the above case hence was res judicata in the present Petition.
  2. That the Petitioners’ Petition was not in good faith. Whereas they contended that the 5th to 8th Respondents’ ownership of the suit property had been irregularly acquired, some of its members had properties nearer to the lake than the suit property. That the Petitioners’ agents or servants that had been interfering with his usage of the suit property wherein they had employed various unethical means to deny him the same constitutional rights which their members had been enjoying.
  3. That the process of allotment of the suit property to him had been delved with in Civil Suit No. 97 of 2009 as herein above stated thus the Petitioners’ allegations that the allotment had been illegal had already been decided and the validity of his title dealt with and made clear. The Petitioners ought to have appealed the decision if they were not satisfied.
  4. He reiterated that the issues that had been raised in the present Petition were similar to the issues that had been litigated over the years and in different cases where the Petitioners had been at the center of all the litigations through proxies and/or members. That the instant petition was an abuse of the court process hence it was in the interest of justice that the orders sought herein were granted.
  5. The 1st to 5th Respondents, 7th to 9th Respondents and the Interested Parties did not participate in the Application which was disposed of by way of written submissions where the 6th Respondent vide his submissions dated 17th February 2025 in support of the instant Application framed his issues for determination as follows:
      1. Whether the Court has jurisdiction.
      2. Whether the suit herein is Res judicata.
      3. Whether the Notice of Motion Application dated 29th November, 2024 is merited.
      4. Whether the orders sought in the Application can be issued.
  6. On the first issue for determination as to whether the court had jurisdiction, the 6th Respondent placed reliance in the Supreme Court’s decision in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR to submit that a Court’s jurisdiction flowed from either the Constitution or legislation or both and that a court could not create its own jurisdiction through craft. Further reliance was placed in the decided case of Ndimu vNdumi & Another (2008) EA at page 269 to submit that where the court found that a question of jurisdiction ought to be raised at the earliest opportunity, such Court, which was seized of the matter was then obligated to decide the matter right away. That the court thus lacked jurisdiction because the matter at hand had been subject of litigation on the same subject matter by a court of competent jurisdiction.
  7. On the second issue for determination as to whether the Petition herein was Res judicata, reliance was placed on the provisions of Section 7 of the Civil Procedure Act to submit in the affirmative. That he had been in and out of court in respect of the same subject matter. That the matter herein had been decided in Nakuru in Geoffrey Muhoro v Lake Flowers Limited [2011] eKLR, wherein he had demonstrated that the suit land had been allocated to him legally after he had followed the due process. That the court could not sit as an appellate court on the instant matter.
  8. That despite there having been a decision rendered on the issuance of title to the suit property, the civil suit had now morphed or transmogrified into a Petition whereby more parties had been joined. That this Petition was thus Res judicata. Reliance was placed on the decisions in the cases of John Florence Maritime Services Ltd & Another v Cabinet Secretary Transport and Infrastructure & 3 Others, Petition 17 of 2015 (2021) KESC 39 KLR (Civ) 6 August 2021 (Judgement) and Ngugi v Kinyanjui & Others (1989) KLR 146 to submit that the object of res judicata was to bar a multiplicity of suits and to guarantee finality to litigation respectively. That subsequently, any decision reached if not set aside, it could only be challenged on appeal and not in an inferior court, Tribunal or in the same court except in case of review. That the law would not allow any dispute between those who claim through them to re-open the dispute while the judgement still remained on record.
  9. As to whether the instant Notice of Motion was merited, the 6th Respondent implored the court to make a finding that it lacked jurisdiction to hear and determine the present Petition and thereafter to strike it out for being abusive of the court process, scandalous and vexatious as it was an attempt by the Petitioners to re-litigate issues that had been previously settled by a court of competent jurisdiction.
  10. The Petitioners on the other hand filed their written submissions dated 20th February 2025 in opposition to the 6th Respondent’s Application herein wherein they first summarized the factual background of the matter and reiterated the contents of their Replying Affidavit dated 20th February, 2025 on the distinction between the issues in the Petition herein and the issues in the cases that had been cited by the 6th Respondent, for which they proceeded to frame their issues for determination as follows:
      1. Whether the 6th Respondent should be allowed to raise similar issues of res judicata which were dismissed through a ruling delivered on 21st September, 2023.
      2. Whether the present Petition is res judicata.
  11. On the first issue for determination, the Petitioners submitted in the negative to the effect that the 6th Respondent’s Application herein was an attempt to have a second bite at the cherry after his Notice of Preliminary Objection filed on 6th February, 2023 to have their Application and Petition struck out for being res judicata had been dismissed vide a Court’s Ruling of 21st September, 2023 which decision had not been availed for court’s scrutiny. Further, that the issue of res judicata could not be raised by way of a Preliminary objection as it would require the scrutiny of the alleged former suit or suits. It was thus their submission that the 6th Respondent’s Preliminary Objection having been dismissed, he could not be allowed to re-litigate the same issues because the Court’s ruling had neither been reviewed nor appealed against.
  12. They placed reliance on the decisions in the cases of Charles Mwangi Gitundu v Charles Wanjohi Wathuku [2021] eKLR and Muhia v General & another; Kenya National Human Rights and Equality Commission (Interested Party) (Miscellaneous Criminal Application E138 of 2022) [2023] KEHC 503 (KLR) (Crim) (30 January 2023) (Ruling) to submit that it would not only be an absurdity, but it would also lead to a legal conundrum were the court to pronounce itself on the same issues of res judicata which had already been dismissed. That subsequently, the 6th Respondent was either seeking to review or appeal against a decision that had been delivered on 21st September 2023.
  13. On the second issue for determination as to whether the present Petition was res judicata, the Petitioners submitted in the negative and placed reliance on the provisions of Section 7 of the Civil Procedure Act and the decisions in the case of Moses Mbatia v Joseph Wamburu Kihara [2021] eKLR and The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others [2017] eKLR to submit that the defense of res judicata would successfully be raised if the issue(s) in dispute in the previous litigation or suit were between the same parties as those in the current suit, were directly or substantially in issue in the previous suit as in the current suit and if the issues had been conclusively determined by a court of competent jurisdiction.
  14. That to determine whether or not the issues raised in a suit were res judicata, firstly, the party pleading or raising such defense must furnish the court with the pleadings filed in the previous suit to enable the court to examine and probe the same as well as the decision that had been made. That the 6th Respondent had failed to produce such pleadings for the court to peruse hence the court could not rule whether or not the issues were res judicata.
  15. The Petitioners maintained that the issue in dispute in the present Petition was not ownership of the suit properties, but rather, whether the suit properties L.R Nos. 22597/1, 2, 3 and 4 allegedly owned by the 5th to 8th Respondents respectively were within Lake Naivasha Riparian land. That the issue that had been in dispute in Nakuru Civil Suit No. 97 of 2009 between the 6th Respondent and Lake Flowers Limited, had been on ownership of the property known as L.R No. 22597/4 where they had not been parties to the matter therein.
  16. They reiterated that the decision in Nakuru ELC JR No. 244A/2018 and Nakuru ELC JR No. 244B/2018 had focused on the decision making process by the 1st Respondent herein in its decision dated 22nd August, 2016 wherein it had been held that the 1st Respondent had overstepped their mandate by revoking the titles because such powers was vested in the 2nd Respondent. That the 1st Respondent ought to have directed the 2nd Respondent to revoke the same. That the dispute in the judicial review cases had thus been the revocation of titles by the 1st Respondent which was on the issue of ownership and not whether the said parcels had fallen within Lake Naivasha riparian land as had been pleaded in the present Petition.
  17. That further, the court had even declined to issue prohibitory orders as sought wherein it had held that the issue of validity of titles could be revisited any time. That the issue on whether or not the properties in question had fallen within Lake Naivasha riparian land had therefore not been determined in Nakuru ELC JR No. 244A/2018 and Nakuru ELC JR No. 244B/2018 and were thus open for deliberation by the Court.
  18. That secondly, that the former suits were not been between the same parties or parties under whom they claimed and neither had the parties litigated under the same title. That the 6th Respondent’s argument had not fulfilled the said condition.
  19. That in Nakuru Civil Suit No. 97 of 2009, the parties therein had been the 6th Respondent and Lake Flowers Limited. That none of the members of the Association had been a party to it. That only the former member of the Association, John Richard Githere (deceased) had appeared as a witness. That similarly, in Nakuru ELC JR No. 244A and Nakuru ELC JR No. 244B, none of the members of the Association, which had been named as an interested party, had been a party in comparison to the Petition where the Association’s members were the main Petitioners.
  20. That subsequently, having been sued as an interested party, the members of the Association could not have asked for any substantive orders including a determination as to whether the suit properties fell within Lake Naivasha riparian lands.
  21. It was their submission that the 6th Respondent’s contention that the Petitioners’ Application and Petition dated 20th December, 2022 were Res Judicata had not met the criteria as was stipulated by the provisions of Section 7 of the Civil Procedure Act. They thus urged the court to dismiss the 6th Respondent’s Notice of Motion dated 29th November 2024 with costs to the Petitioners.

Determination.

  1. I have considered the Notice of Motion dated the 29th November 2024, wherein the 6th Respondent seeks that the Petitioners’ Petition be dismissed for being Res Judicata. I have also considered the Petitioners’ objections herein, the submissions, the authorities cited by the parties herein as well as the Applicable law.
  2. I find that this matter arose pursuant to the filing of a Petition and Application both dated the 20th December 2022, by the Petitioners herein who had sought for the following summarized orders;
      1. A declaratory order that the alienation, demarcation and allocation of all that land within Moi North Road and South Lake Road of Naivasha referred to as L.R Nos. 22597/1, 2, 3 and 4 allocated to the 5th to 8th Respondents was illegal, unlawful, un-procedural, irregular and contrary to the Constitution of Kenya 2010 hence null and void ab initio.
      2. An order of judicial review by way of certiorari do issue to call, remove, deliver up to the Honourable Court and quash the decision by the 1st to 3rd Respondents or its predecessor to demarcate, alienate and allocate the said parcels of land to the 5th to 8th Respondents.
      3. An order for revocation of all the entries of the Certificate of Lease, Certificate of titles, Deed Plans and any other document of title that were illegally, fraudulently and un-procedurally allocated to the 5th to 8th Respondents.
      4. A mandatory order of eviction, to be against the 5th to 8th Respondents, their servants, agents, employees or anyone claiming to be in possession to vacate all the suit parcels of land with immediate effect.
      5. There be issued an order of permanent injunction restraining the 5th to 8th Respondents either by themselves, through their servants and or officers or anyone whatsoever acting on their instructions from dealing with the suit land in whatsoever way.
      6. There be issued an order of permanent injunction restraining the 1st to 4th Respondents herein either by themselves, through their servants and or officers or anyone whatsoever acting on their instructions from dealing with the suit land in whatsoever way, in contravention of National Land Commission Act, the land Act, 2012 and the Constitution of Kenya, 2010.
      7. There be issued an order of mandamus compelling the 1st to 4th Respondents to publish and/or issue a gazette notice declaring the suit land as falling within Lake Naivasha Riparian reserve and is a public land.
      8. That there be a restoration order directing the 5th to 8th Respondents to restore the suit land into its initial state prior to ploughing, harvesting of trees and/or the undertaking of any prohibited activities on the riparian land.
      9. They had also sought for any relief that the Court would deem fit to grant and for cost.
  3. The 6th Respondents objection via his Notice of Motion application was to the effect that the instant matter was Res Judicata, the instant matter had been determined by a court of competent jurisdiction, over the issues by same parties or their proxies in Nakuru Civil Suit Number 97 of 2009, Geoffrey Muhoro v Lake Flowers Limited [2011] eKLR, Nakuru ELC Case No. 244A of 2018; Republic v National Land Commission & Others Ex parte Duncan Kabethi Wachira and Nakuru ELC Case No. 244B of 2018; Republic v National Land Commission; Lake Naivasha Riparian Association (Interested party) Ex parte Geoffrey Muhoro [2020] eKLR, wherein the Court, lacked the requisite jurisdiction to hear and determine the same.
  4. In response, the Petitioners’ contention was firstly that the issue of Res judicata had previously been heard and dismissed vide a ruling delivered on 21st September, 2023 hence the 6th Respondent was attempting to have a second bite of the cherry. Secondly that the dispute in the judicial review cases herein cited had been on the issue of ownership and not whether the said parcels had fallen within Lake Naivasha riparian land as had been pleaded in the present Petition.
  5. I thus find the issues that stands out for determination as being;
  6. Whether this application is Res judicata the Ruling of 21st September, 2023, if not;
  7. Whether the Notice of Motion on a Preliminary Objection raised is sustainable.
  8. On the first issue for determination, I have gained sight of the of proceedings in this matter and more so to the impugned Ruling herein dated the 21st September 2023 herein reported as Kariuki & 3 others (Suing as Chairman, Vice Chairlady, Secretary and Treasurer of members on their behalf and of Lake Naivasha Riparian Association) v National Land Commission & 8 others; Ethics & Anti-Corruption Commission & another (Interested Parties) [2023] KEELC 19987 (KLR)
  9. It is trite that in order to decide as to whether the current Notice of Motion application dated 29th November 2024 is res judicata, the Preliminary Objection dated the 9th February 2023, the court has to look at the decision claimed to have been settled. It is not in dispute that the issue on Res judicata had previously been raised by the 6th Respondent herein touching on similar issues raised in the present Application. Further it is also not in dispute that a ruling had been delivered dismissing the said Application.
  10. However, a look at the decision of the court clearly shows that the impugned ruling, did not finalize on issue on Res judicata. I say this with humility because the preliminary objection raised therein had been dismissed on the account that the question of res judicata could not and should not be raised by way of a preliminary objection, further that whereas there had been mentioned several suits and determinations by the 6th Respondent, the same had not been made available to the court for interrogation. Since the rationale behind the rule on Res judicata is simple, that there has to be finality of the previous decision, I find that the Ruling of 21st September, 2023 was not a finality on the issue of Res-judicata therein raised as the same had not been heard and determined on merit.
  11. That said and done, I shall now proceed on the second issue for determination to wit whether the Notice of Motion on a Preliminary Objection raised is sustainable.
  12. A Preliminary Objection according to the decided case by the Court of Appeal in the case of Mukisa Biscuits Manufacturing Co. Ltd –v- West End Distributors Limited (1969) EA. 696 was stated to be thus: -

“So far as I am aware, 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. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

  1. The substantive law on res judicata is found in Section 7 of the Civil Procedure Act Cap 21 which provides that:

“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”

  1. It is therefore evident that a Preliminary Objection consists of pure points of law and it is also capable of bringing the matter to an end preliminarily. The Supreme Court in the case of John Florence Maritime Services Ltd & Another v Cabinet Secretary Transport and Infrastructure & 3 Others, Petition 17 of 2015 (2021) KESC 39 KLR (Civ) 6 August 2021 (Judgement) at paragraph 59 held as follows:

“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.”

  1. Thus in order therefore to decide as to whether this case is res judicata, a court of law should always look at the decision claimed to have been settled, the issues in question and the entire pleadings of the previous case and the instant case to ascertain;
  2. What issues were really determined in the previous case;
  3. Whether they are the same in the subsequent case and were covered by the decision of the earlier case.
  4. Whether the parties are the same or are litigating under the same title and that the previous case was determined by a court of competent jurisdiction.
  5. A look at the Supporting affidavit to the Notice of Motion, the 6th Respondent had annexed Judgments in the previous impugned matters to wit;
  6. Civil Suit Number 97 of 2009, Geoffrey Muhoro v Lake Flowers Limited [2011] eKLR,
  7. Nakuru ELC Case No. 244A of 2018; Republic v National Land Commission & Others Ex parte Duncan Kabethi Wachira
  8. Nakuru ELC Case No. 244B of 2018; Republic v National Land Commission; Lake Naivasha Riparian Association (Interested party) Ex parte Geoffrey Muhoro [2020] eKLR,
  9. I have gained sight of the said decisions herein as is expected of me and note as follows;
  10. In Civil Suit Number 97 of 2009, Geoffrey Muhoro v Lake Flowers Limited [2011] eKLR, the parties had been the 6th Respondent vs Lake Flowers Limited wherein the subject matter therein had been L.R. No.22957/4. The court in that matter had noted that the Defendant was a member of Lake Naivasha Riparian Association, the Petitioner herein. In the said proceedings, the Plaintiff therein had sought for the following prayers:

‘Lake Flowers Limited, claiming, in the main an order of injunction to restrain the latter from damaging, alienating, wasting, cultivating, building or putting up temporary structures and encroaching the former’s parcel of land known as L.R. No.22957/4 (the suit property). The plaintiff further seeks that the defendant be ordered to pull down, flatten and remove all the temporary structures on the suit property; that he be ordered to compensate the plaintiff for being denied the use of the suit property from 1998 as well as the cost of the trees cut down on the suit property by the defendant.’

  1. In its final judgment the court had entered judgment for the Plaintiff against the Defendant in terms of prayer (a) of the Plaint wherein the latter was accordingly restrained. The second limb of prayer (a) in the form of a mandatory injunction was similarly granted in those terms.
  2. A look at the second matter being Nakuru ELC Case No. 244A of 2018; Republic v National Land Commission & Others Ex parte Duncan Kabethi Wachira, the parties therein had been the Republic as the Applicant versus The National Land Commission as the Respondent and Lake Naivasha Riparian Association as the interested party wherein the 5th Respondent Duncan Kabethii Wachira had been the Ex-parte Applicant. In this matter the ex parte Applicant had sought for the following orders:
    1. An order of certiorari do issue to bring into this Honourable Court for the purpose of being quashed the respondent’s decision dated 22nd August 2016 revoking the applicant’s title to all that parcel of land known as LR. No. 22957/1.
  3. An order of prohibition do issue to prohibit the respondent by itself, servants, agents, employees or whomsoever from reviewing, revoking or alienating the applicant’s title to all that parcel of land known as LR. No. 22957/1 or from interfering with the applicant’s ownership and quiet possession of all that parcel of land known as LR. No. 22957/1 or having any other dealing whatsoever in relation to all that parcel of land known as LR. No. 22957/1 or taking any further proceedings or action in relation thereto.
  4. Costs of this application be provided for.
  5. In its final orders the court had held as follows;

‘Before concluding, I emphasize that this court makes no determination on the validity or otherwise of the ex parte applicant’s title to the suit property since that is not an issue before the court. This being a judicial review matter, the focus is purely on the decision making process leading to the determination dated 22nd August 2016, made by the respondent.

In view of the foregoing, I find merit in the ex parte applicant’s case for an order of certiorari. I make the following orders:

i) An order of certiorari is hereby issued, bringing into this court and quashing the respondent’s decision dated 22nd August 2016 which purported to revoke the ex parte applicant’s title to all that parcel of land known as LR. No. 22957/1.

ii) Costs are awarded to the ex parte applicant and shall be borne by the respondent.’

  1. Lastly, in regard to Nakuru ELC Case No. 244B of 2018; Republic v National Land Commission; Lake Naivasha Riparian Association (Interested party) Ex parte Geoffrey Muhoro [2020] eKLR, the parties therein had been the Republic as the Applicant versus The National Land Commission as the Respondent and Lake Naivasha Riparian Association as the interested party wherein the 6th Respondent Geoffrey Muhoro had been the Ex-parte applicant the proceedings and judgement therein had been identical to the above captioned proceedings save that reference was to parcel of land No. LR. No. 22957/4.
  2. Having produced the previous decisions as herein above, it is clear that apart from similarity of some of the parties as well as the subject suit properties in the previous matters with the current matter, doubtless to state that the issues that were determined in the previous cases were not similar to the issues herein sought to be determined in the current suit. Indeed, in the previous suits, there had been no determination made of either the validity and/or proprietorship or otherwise of the 6th Respondent’s title to the suit property, nor had there been a determination on whether or not the said suit properties fell within Lake Naivasha Riparian reserve and are public land, issues which the Petitioners now seek to be determined.
  3. I thus find that because the cause of action and its remedy in the current suit are different from the cause of action and its remedy in the former suits the issue of Res judicata was not properly raised in the circumstance for which I now hold and find that the Notice of Motion dated 29th November 2024 lacks merit and the same is herein dismissed with costs.

Dated and delivered via Microsoft Teams at Naivasha this 22nd day of May 2025.

M.C. OUNDO

ENVIRONMENT & LAND – JUDGE

Details

Delivered
Court rank
Environment and Land Court
Station
Naivasha Environment and Land Court (Environment and Land Court at Naivasha Environment and Land Court)
Division
Environment and Land Court
Case type
ELC Land Petition
Judge
Oundo M Clausina

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