A.Introduction
1.Before This Court is the 3rd -98th Defendants/Applicants' Notice of Motion dated 7.5.2026 brought pursuant to Order 51 Rules 1 and 4 of the Civil Procedure Rules, 2010, Sections 1A, 1B, 3, 3A and 7 of the Civil Procedure Act, 2010 Cap 21 Laws of Kenya and all other enabling provisions of the law. The Applicants seek for orders THAT:-
a.This Application be heard on priority basis.
b.The suit herein be struck out for being res judicata.
c.The costs of this application and the entire suit be provided for.”
2.The Application is supported by the affidavit of Dzombo Chirunga sworn on 7.5.2026 and premised on following grounds :
a. The suit herein involves the same subject matter being the land known as LR NO. 12177/8 and LR NO. 12177/9 situated at Taita Taveta County and raises similar issues that were directly and substantially in issue in a former suit heard and determined by this honourable court being VOI ELC CASE NO. E005 OF 2023- THE SAGALLA RANCHERS LIMITED -VS- AMOS MAKALO & 97 OTHERS where this court delivered a Judgment on 19th June, 2025 dismissing the plaintiff’s claim.
b. The parties in this suit are the same parties that were involved in VOI ELC CASE NO. E005 OF 2023- THE SAGALLA RANCHERS LIMITED -VS- AMOS MAKALO & 97 OTHERS.
c. The issues raised in this suit, which are undoubtedly identical, are based on the same set of facts that brought forth the issues that were raised and determined in VOI ELC CASE NO. E005 OF 2023- THE SAGALLA RANCHERS LIMITED VS- AMOS MAKALO & 97 OTHERS.
d. Through the plaint dated 13th December, 2023 filed by the plaintiff in VOI ELC CASE NO. E005 OF 2023- THE SAGALLA RANCHERS LIMITED -VS- AMOS MAKALO & 97 OTHERS, specifically paragraphs 4, 5 & 6, the plaintiff pleaded the alleged particulars of damage to the suit properties which are identical to the particulars pleaded in the plaint filed in this suit in paragraph 18.
e. Factually, there are pending proceedings before the Court of Appeal arising out of the Judgment delivered by this Honourable Court in VOI ELC CASE NO. E005 OF 2023- THE SAGALLA RANCHERS LIMITED -VS- AMOS MAKALO & 97 OTHERS in which the plaintiff seeks to impugn the judgment of this honourable court.
f. By dint of the Judgment of this Honourable Court delivered on 19.6.2025 in VOI ELC CASE NO. E005 OF 2023- THE SAGALLA RANCHERS LIMITED -VS- AMOS MAKALO & 97 OTHERS and the existence of an appeal at the Court of Appeal filed by the Plaintiff herein, this court has no jurisdiction to proceed with this matter on account of the doctrines of functus officio and res judicata.
g.The judgment of this court in VOI ELC CASE NO. E005 OF 2023- THE SAGALLA RANCHERS LIMITED -VS- AMOS MAKALO & 97 OTHERS applies in rem.”
h.The interest of justice will be served if the orders sought in this application are allowed as prayed.
3.The Applicants/Defendants contend that the suit is resjudicata on grounds that the parties in the current suit and Voi Elclc No E005/2023 are the same , subject matter is substantially and directly the same as the subject matter herein, the matter had been heard and determined by a court of competent jurisdiction.
4.The Applicants /Defendants deposed further that an appeal preferred against the judgment of the court dated 19.6.2025 by the Respondent/plaintiff is pending hearing and determination at the Court of Appeal Mombasa rendering this Court functus officio in dealing with the matter.
5.The Applicants urged the court to strike out the suit for being resjudicata, court being functus officio with costs of the motion and suit in their favor.
6.The Respondent/Applicant opposed the Motion dated 7.5.2026 vide a Replying Affidavit sworn on 5.6.2026 by Alfred Kilonzo, A Director of Sagalla Ranchers Limited contending that the present suit is not res judicata while conceding that the parties are substantially the same as those in Voi ELC Case No. E005 of 2023 being Sagalla Ranchers Limited -Vs- Amos Makalo & 97 Others (“Voi ELC Case No. E005 of 2023 or previous suit”).
7.The Plaintiff/Respondent deposed that the present suit is founded on violation of the constitutional rights of the respondent to a clean and healthy environment and stautory obligations( ecological damage ,loss of economic gain on carbon credit sequestration ,environmental degradation or environmental conservation obligations ) arising under Eenvironmental Management Cordination Act (Emca) which were not a subject matter for hearing and determination in Voi Elclc E005/2023 that heard and determined the tort of trespass against the plaintiff/respondent even though the plaintiff and 3rd -97th Defendants thereof are same as the parties in matter. The plaintiff /Respondent contend that the pleadings in the current suit is distinct and separate from the previous suit having arisen post judgment hence not barred by the doctrine of resjudicata.
9. The 1st and 2nd Defendant wholistically supported the Application dated 7.5.2026 filed by the 3rd -98 Applicants/Defendants .
10.The motion was directed to be disposed of by way of written submissions on 17.6.2026.
B.Submissions by Parties:
10.The Applicants/Defendants(3rd-98th) in their written submissions dated 30.6.2026 contended that the present suit is res judicata as it involves same parties, subject matter and issues that were heard and determined in VOI ELCLC No E005/2023 by a court of competent jurisdiction .The Applicants’/Defendants urged the court to strike out the respondent’s suit for being resjudicata citing the cases of Kenya commercial bank limited vs Benjoh Amalgamated limited(2017)eklr, Kenya commercial Bank limited vs Muiruri Coffee estate limited & another no 42 of 2014 (2016)eklr and Henderson vs Henderson(1843) 67 ER313 as cited with approval by the supreme court in John Florence maritime services limited & another vs cabinet secretary for transport and infrastructure and 3 others (petition number 17 of 2015)(2021) kesc 39 klr) in support of their assertion. The Applicants /Defendants further submitted that the Respondent had the opportunity to plead the issues raised in the current suit in the previous suit for hearing and determination rather than engaging in peace meal litigation.
11.The Plaintiff/Respondent in its filed written submissions dated 14.7.2026 acknowledged that the parties and suit properties in the present suit are the same as those in VOI ELCLC NO E005/2023 but maintains that the suit is not barred by the doctrine of res judicata as the Defendants/Applicants failed to demonstrate that the issues presently before the Court were directly and substantially in issue and had been finally determined in VOI ELCLCE005/2023 citing the case of Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd [2017] eKLR and John Florence Maritime Services Ltd v Cabinet Secretary, Transport & Infrastructure & 3 Others [2021] KESC 39, Peter k waweru vs R(2006)eklr and Henderson vs Henderson (1843)67 ER 313 in rebuttal of the Applicants’averrements.
12.The Plaintiff/Respondent conceded that both suits arise from a similar factual background but the cause of action as determined in the previous suit was solely on trespass to suit land by Applicants/Defendants which was dismissed for want of surveyor’s report whereas the cause of action in the present suit is anchored on environmental degradation, violation of constitutional rights to a clean and healthy environment, loss of carbon credit sequestration which has not been heard and determined by a court of competent jurisdiction rendering the suit not resjudicata.
13. The Respondent/Plaintiff further submitted that matters arising post judgment were not foreseable by the Respondent/Plaintiff hence could not be pleaded for determination in the previous suit for determination citing the case of Peter K. Waweru v Republic [2006] eKLR, where the Court recognised environmental nuisance as a continuing wrong ripe for hearing and determination. The Plaintiff/Respondent urged the Court to dismiss the Defendants’/Applicants’ application with costs as the present suit is not resjudicata.
C-Issues for determination:
14.Upon considering the affidavit evidence, annexures in support, noble rival submissions of the learned counsels and cited decided authorities annexed on record the following issues arise for determination: -
1. Whether the suit is barred by the doctrine of res judicata.
2. Whether the court is functus officio.
3. Who should bear the costs of the Application?
D-Analysis and determination:
15.Jurisdiction of the court: It is trite that the doctrine of resjudicata is akin to jurisdiction of a court to hear and determine a matter without which A court downs its tools as stated in the celebrated case of owners of Motor vessels “Lillian S” vs Caltex Oil (Kenya) ltd(1989)klr.
16.As to whether this court has no jurisdiction to entertain the matter on grounds of resjudicata the court takes note of Section 7 of the Civil Procedure Act, 2010 which enumerates the elements of resjudicata 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.”
17. It is clear from section 7 of the Civil Procedure Act,2010 that the ingredients of resjudicata are :
1. The suit or issue was directly and substantially in issue in the former suit.
2. That former suit was between the same parties or parties under whom they or any of them claim.
3. Those parties were litigating under the same title.
4. The issue was heard and finally determined in the former suit.
5. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”
18. The court in the case of Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd (Civil Appeal 107 of 2010) [2017] KECA 98 (KLR) while citing Mulla, Procedure Code Act of 1908 16th Edition stated that: -
“. The elements of res judicata have been held to be conjunctive rather than disjunctive. As such, the elements reproduced below must all be present before a suit or an issue is deemed res judicata on account of a former suit;
a.The suit or issue was directly and substantially in issue in the former suit.
b.That former suit was between the same parties or parties under whom they or any of them claim.
c.Those parties were litigating under the same title.
d.The issue was heard and finally determined in the former suit.
e.The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”
19 .The Court of Appeal in the case of Independent Electoral Boundaries Commission vs Maina kiai &5 Others Civil Appeal No 105 of 2017(2017)eklr held that for the bar of resjudicata to be effectively raised and upheld on account of a former suit the following elements must be satisfied as they are rendered not in disnjunctive but conjunctive terms :
a.The suit or issue was directly and substantially in issue in the former suit.
b.That former suit was between the same parties or parties under whom they or any of them claim.
c.Those parties were litigating under the same title.
d.The issue was heard and finally determined in the former suit.
e.The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised
21. In essence for a matter to be deemed resjudicata the matter(s) in issue must be similar to those which were disputed in the former suit between the same parties and was determined on merit by a court of competent jurisdiction.
22. As to whether parties in the previous and present suit are same and litigated under the same title, The Applicants and Respondent acknowledge in their affidavit evidence and written submissions on record that the parties in VOI ELCLC E005/2023 and present case are same.(paragraph 3 of the Replying Affidavit dated where the Plaintiff /Respondent acknowledged that the parties in both suits are same .In the previous suit, the Plaintiff was Sagalla Ranchers Limited, while the Defendants are the same from the 1st to the 98th in the same order, title and capacity as those in the present case).
23. It is on record that the previous and present suits concern the same subject matter(title) namely Land Reference Nos. 12177/8 and 12177/9, situated in Taita Taveta County.
24.As to whether the suit or issue was directly and substantially in issue in the former suit ,the Applicants /Defendants maintain that the issues in dispute in the present suit are directly and substantially the same as those in VOIELCLCE005/2023. The Applicants urged that issues raised in the current suit vide the plaint dated 16.4.2026 revolve around issues that were substantially raised and determined in the former suit though the Respondent /Plaintiff has disguised the present reliefs as violation to environmental degradation ,compensation for economic losses arising from diminished carbon sequestration credit income among others to relitigate the matter a fresh. The Applicants/Defdendants further contend that the Respondent had the opportunity to plead the issues raised in the present suit in the previous suit for hearing and determination at ago placing reliance on the case of Henderson vs Henderson(1843) 67 ER313 among other cited cases on record hence cannot relitigate the same in this case. The Respondent maintained that the issues raised in the current suit arose post judgement in VOI ELCLCNO E005/2023 hence substantially different and pending hearing and determination by a court of competent jurisdiction.
25.It is the duty of the Court to guard against attempts by litigants to circumvent the doctrine of res judicata by disguising previously determined claims as new causes of action as stated in the case of Kenya Commercial Bank Limited v Muri Coffee Estate Limited & another Motion No 42 of 2014 [2016] eklr. The Court takes cognisance of the pleadings and reliefs sought in the previous case by Plaintiff/Respondent so to the contents of the Site Visit Report on Boundary Line Re-establishment dated 6.7.2023 and Report by Wildlife Works Limited on Habitat Destruction and Poaching Activities from 1.1.2024 to 25.4.2024 which predated determination of the previous suit. The witness statements in the Voi ELCLC No. E005 of 2023 disclosed a boundary dispute between the Plaintiff and Defendants which was a going concern. It is prudent to note that Dw3(James Oliver Nyale, 4(Daniel Nyae Ngao) and 5(William Kibwaga Nganga) who testified in Voi ELC No E005 of 2023 stated that they are in their own lands which are very distinct from LR 12177/8 and 12177/9.They were questioned regarding the Carbon Credit programme to which they stated they were unaware of its existence.
26.This court further takes note of the extract of the Judgement of My Brother Wabwoto J dated 19.6.2025 at paragraph 73 where the learned Judge observed as follows:
“ The Plaintiff has sought for several reliefs as pleaded in the plaint; however, this Court having found that the Plaintiff has failed to prove acts of trespass by the Defendants, the said reliefs are not available for granting since the Plaintiff's case has not been proved to the required standard “
27.The Plaintiff/Respondent contention that the reliefs sought in the current suit revolves around environmental degradation, compensation for economic loss arising from diminished carbon sequestration credit income, payment for restoration and rehabilitation costs , environmental audit and ecological assessment of the damage occasioned to the suit land by an independent body arose post judgement hence constitute a new cause of action for hearing and determination by this court need be considered vis a vis the doctrine of resjudicata placing reliance in the case of John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR )where it was stated that a cause of action arising post judgement are not deemed resjudicata unless proved by the party alleging the same.
28.Considering that the issues raised in the plaint dated 16.4.2026 arose post judgement of VOIELCLCE005/2023 which could not have been determined in the previous suit ,the current cause of action cannot be considered or deemed as having been determined by a court of competent jurisdiction unless evidentiary proof by each party is tendered before this court at the hearing of the main suit. I therefore find that the issue(s) for determination in the current suit are distinct from the issues determined in previous suit.
29. As to whether the previous suit was conclusively determined by a court of competent jurisdiction in which the present issue was considered, From the judgment delivered, signed and dated 19.6.2025 it is evident that Voi ELC Case No. E005 of 2023 was heard and determined by A court of Ccompetent Jurisdiction though the issues in the current suit are pending hearing and determination before this Honourable Court.
30. Having found that the reliefs sought by plaintiff as against the Defendants/Applicants arose post judgement thereby constituting a new cause of action and being guided by the principle that the elements of resjudicata are conjunctive and not disjunctive in nature failure of which to prove any limbs thereof renders the suit not resjudicata and The Defendants/Applicants having failed to establish that the issues in the present case were directly and substantially the same and determined by a court of competent jurisdiction in the previous case, I find that the present suit is not resjudicata.
31. Functus officio: The Defendants/Applicants contend that an appeal was filed by the Plaintiff/Respondent at the Court of Appeal Mombasa challenging the judgement rendered on 19.5.2025 by the Honorable court which is pending hearing and determination hence this court is functus officio and cannot entertain issues regarding this matter. The doctrine of functus officio implies that a court cannot revisit a matter and engage on same issues it previously decided on merits of the facts presented by the parties placing reliance on the case of Telkom kenya limited vs John ochanda (2014)eklr.
32.Order 42 rule 6(1) and (2) of the Civil Procedure Rules 2010 provides that an appeal does not operate as automatic stay of execution of the decree or order of a court pending its hearing and determination unless express orders of stay are issued by the court whose order/judgement is being impunged or Appellate bench . In this case there is no stay of execution order issued in favour of the plaintiff barring execution of the decree/order by the Appellate bench. The issue for hearing and determination before this court is different from the issues determined in the previous suit. Similarly, there is no order issued by the Appellate bench(Court of Appeal) served upon this court barring or staying any further proceedings related to the subject matter herein pending hearing and determination of the Appeal at the Court of Appeal Mombasa hence finds that the court is not functus officio hence mandated to hear the parties in the matter as presented on merit.
E-Final Orders:
33. Considering the reasoning above I find the Application dated 7.5.2026 is not meritorious hence dismissed with costs to abide by the outcome of the main suit.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT VOI THIS 21.7.2026 IN THE PRESENCE OF :
MR KURGAT FOR THE PLAINTIFF/RESPONDENT(VIRTUALLY)
MR NYANGE FOR THE 1ST AND 2ND DEFENDANTS PRESENT(VIRTUALLY)
MS WAMBURA FOR THE 3RD-98TH DEFENDANTS(VIRTUALLY)
MR LETISIAH- COURT ASSISTANT
BY J .A. Orwa
JUDGE.