Introduction
1. By a plaint dated 26th March 2024, the plaintiffs instituted the instant suit seeking judgment against the defendants jointly and severally for: -
a) A declaratory order that the parcel of land known as plot number or title number 82 Sacho/Kabarak (the suit property) was not reserved for public utilities and was not available for alienation at the time the 1st defendant’s predecessor, the County Council of Baringo caused the property to be transferred and registered in its name;
b) A declaratory order that at the time the 1st defendant’s predecessor caused the suit property to be registered in its name the plaintiffs had been in lawful continuous and uninterrupted use and occupation of the suit property and had established lawful proprietary rights and/or ownership and that the purported transfer and registration was illegal, null and void ab initio;
c) An order of permanent injunction restraining the defendants, their servants, employees, agents and/or any other person whomsoever acting under instructions of the defendants from evicting, dispossessing the plaintiffs, selling, transferring, charging, leasing and or in any manner interfering with the plaintiffs’ peaceful ownership and use of the suit property;
d) An order directing the Chief Land Registrar to cancel the title and/or records in respect of the title held by the 1st defendant and or its predecessor, the County Government of Baringo, over the suit property.
e) Costs of the suit;
f) Such further reliefs that the honourable court may deem fit to grant.
2. As can be discerned from the averments contained in the plaint, the plaintiffs’ suit is premised on the grounds that the plaintiffs by themselves and/or their predecessors, claim that they are entitled to the suit property as they have been in use and possession of the suit property for a long period of time, since 1941; that the plaintiffs with their children, grandchildren and great grandchildren, live and cultivate on the suit property and have built matrimonial homes therein; that sometime in 2011, the 1st defendant issued them (the plaintiffs) with a notice to vacate the suit property claiming that it was the owner of the suit property and that following the issuance of the notice, the plaintiffs petitioned the 1st and the 2nd defendants leading to acknowledgement by the 1st defendant of the plaintiffs’ right of occupation and ownership of the suit property.
3. The plaintiffs complain that despite having acknowledged their right of occupation and ownership of the suit property, sometime in August and November 2023, the 2nd and the 5th defendants served them with letters claiming that the 1st defendant is the owner of the suit property.
4. Terming the claim by the defendants unlawful, lacking any legal and factual foundation, fraudulent and false representation that are actionable in law, the plaintiffs contend that by the time the suit property was registered in the name of the 1st defendant’s predecessor, County Council of Baringo, the suit property had never been alienated for public purpose or use. The plaintiffs further contend that no legal and requisite procedures were followed in registration of the suit property in the name of the 1st defendant.
5. As to whether there existed any suit in court or previous proceedings in court between themselves and the defendants over the suit property, the plaintiffs pleaded that there has been none. The plaintiffs swore affidavits verifying the correctness of the averments in the plaint.
6. Simultaneous with the plaint, the plaintiffs filed a notice of motion of an even date seeking a temporary injunction to restrain the defendants, their servants, employees, agents and or any other person whatsoever acting under instructions of the defendants from evicting, dispossessing them, selling, transferring, charging, leasing and in any manner interfering with their (the plaintiffs) peaceful ownership, occupation and use of the suit property pending the hearing and determination of the application and the suit.
7. In opposing the application, the 1st and the 2nd defendants filed the notice of preliminary objection, dated 9th February 2024. Through the notice of preliminary objection, the 1st and 2nd defendants urge this court to strike out the suit on the ground that it is res judicata Nakuru High Court Civil Suit No.111 of 2010 and Subjudice Eldoret High Court No. 04 of 2021. The 1st and 2nd defendants also contend that the suit is premature, an afterthought and an abuse of the court process.
8. The 1st and 2nd defendants have attached a ruling delivered in Nakuru 111 of 2010, which shows that there were previous proceedings between the plaintiffs and/or their representatives and the defendants and/or their representatives over the subject matter of the instant suit.
9. The 1st and the 2nd defendants have also annexed an order issued in Eldoret High Court Petition No.04 of 2011 showing that there were previous proceedings between the plaintiffs and/or their representatives and the defendants and/or their representatives over the subject matter of the instant suit.
10. The plaintiffs filed a response to the preliminary objection, dated 24th March, 2024 through which they acknowledge existence of the suits referred to in the 1st and the 2nd defendant’s preliminary objection but contend that there is no proper preliminary objection on a point of law as the Nakuru High Court suit was struck out on legal ground which does not amount to hearing and determination within the meaning of Section 7 of the Civil Procedure Act.
11. Regarding Eldoret High Court Petition No.04 of 2011, the plaintiffs claim that it was withdrawn.
12. The plaintiffs having acknowledged the existence of Nakuru High Court Civil Suit No.111 of 2010 and the plaintiffs having annexed a copy of the ruling delivered in that suit, I have reviewed the ruling with a view of determining whether the court made decision(s) or pronouncements that have the effect of rendering the instant suit res judicata.
13. In the decision of the court in Nakuru HCC No.111 of 2010 the Court found that the suit property is public land and as such is not subject to a claim for adverse possession.
14. In the current suit, the plaintiffs have merely repackaged their claim. From the pleadings filed by the plaintiffs, it is clear that their claim to the suit property is not different from the claim they had advanced in Nakuru High Court Civil Case No.111 of 2010 which was dismissed by the court on the ground that a claim for adverse possession cannot be maintained against public land.
15. By repackaging their suit by introducing issues as to whether the suit property was available as at the time it was registered in the name of the 1st defendant’s predecessor, the County Council of Baringo, and alleged failure to adhere to applicable law and procedure in registration of the suit property in favour of the 1st defendant’s predecessor, the plaintiffs are merely evading the principle of res judicata.
16. It is worthy noting that res judicata does lie for issues taken up in a previous proceeding but also attached to issues that ought to have been taken up in those proceedings but were not taken up. In that regard, see the case of Onyango v Ochieno (Environment & Land Case E008 of 2022) (2023) KEELC 18938 (KLR) (18 July 2023) (Ruling) where it was held:-
“Cause of action res judicata extends to a point which might have been made but was not raised and decided in the earlier proceedings.”
17. The argument/contention/submission by the plaintiffs in their submissions dated 27th March 2025 that the suit was not heard within the context of Section 20 of the Civil Procedure Act but was merely struck out in the circumstances, is not supported by the ruling/decision of the court as it clearly shows that the court pronounced itself on the issues of law arising from the suit which are that the suit property is public land hence incapable of forming the basis of the plaintiff’s claim for adverse possession.
18. The submission by the plaintiffs that striking out of a suit does not preclude filing a fresh suit as long as the suit is not caught by the statute of limitation of Action like the Limitation of Actions Act Cap 22 Laws of Kenya, does not lie in the circumstances of this case because the plaintiffs suit was strike out after the court applied its mind on the merits of the suit.
19. I hasten to point out that under Order 4 Rule 1 (1) (f) of the Civil Procedure Rules, the plaintiffs were under a legal obligation to verify the correctness of the averment that there is no other suit pending and that there have been no previous proceedings in any court between them and the defendants over the same subject matter. In that regard, see the cited provisions of the law which provide as follows: -
“The plaint shall contain the following particulars-
.....
(f) An averment that there is no other suit pending, and that there have been no previous proceedings, in any court between the plaintiff and the defendant over the same subject matter and that the cause of action relates to the plaintiff named in the plaint”
Sub rule (2) of Order 4 on the other hand provides as follows: -
“The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in rule 1(1)(f) above.”
20. The plaintiffs, while knowing that there were previous proceedings in court between them and the defendants over the suit property withheld that fact from the court by merely pleading that there were no pending previous proceedings between them and the defendants.
21. The obligation imposed on the plaintiffs was not to state whether there are proceedings pending in court but to reveal the identity and status of the proceedings.
22. Failure to comply with the obligation imposed on the plaintiffs by Order 4 Rule (1) as read with Rule 2 of the Civil Procedure Rules thereof, renders the plaint liable for being struck out under Order 4 Rule (1) sub Rule (6) of the Civil Procedure Rules which provides as follows: -
“The court may of its own motion or on the application by the plaintiff or defendant order to be struck out any plaint or counterclaim which does not comply with sub-rule (2)(3) and (5) of this rule.
23. The upshot of the above is that the preliminary objection taken up by the 1st and the 2nd defendants has merit. Consequently, I uphold it by striking out the plaintiffs’ plaint dated 26th March 2024 together with the accompanying notice of motion, of even date.
24. I also award the costs of the suit to the 1st and the 2nd defendants.
25. Orders accordingly.
Dated, signed and delivered at Kabarnet this 21st day of May, 2025
Ruling delivered virtually in the presence of;-
Mr. Bundotich for the plaintiffs
N/A for the respondent
Court Assistant: Christine