Samson Mariko Makubo v Joseph Mwita Ragiti & 4 others [2020] KEELC 3764 (KLR)
The bottom line
#A Kenyan landowner lost his case before trial because the same dispute was already decided in earlier proceedings — courts won't allow endless lawsuits over one piece of land.
What this practically means
#Executive summary
#Key legal issues
#Whether the instant suit is sub judice under section 6 of the Civil Procedure Act
The court found the suit pointedly sub judice, as demonstrated by the parties' own pleadings admitting pending proceedings in Kisii High Court Misc. Case No. 52 of 2010 and No. 4 of 2011 involving the plaintiff and the 1st defendant
The plaintiff admitted at paragraph 11 of the amended plaint that Misc. Case No. 52 of 2010 and No. 4 of 2011 were pending at Kisii High Court, and the defendants admitted this at paragraph 9 of the defence. The court held that by dint of section 6 of Cap 21, the suit was sub judice, a position the parties did not seriously dispute.
Whether the suit is res judicata under section 7 of the Civil Procedure Act
The suit was held to be res judicata: the same parties had litigated the same subject matter before the Kuria West Land Disputes Tribunal and in Kisii HCC Petition No. 4 of 2011, which were heard and determined
The court found it common ground that the plaintiff and 1st defendant were the same parties in the Kuria West Land Dispute Tribunal case No. 15 of 2007 and Kisii HCC Petition No. 4 of 2011, both heard and determined. Makhandia J had in that petition noted the judicial review challenge to the Tribunal award involved the same parties and issues. Applying the Duchess of Kingston conditions and section 7, the suit was barred and an abuse of process.
Whether the preliminary objection should be upheld and the suit dismissed
The preliminary objection was upheld in its entirety and the suit dismissed with costs
Having found the suit sub judice and res judicata and an abuse of the court process, the court held the preliminary objection dated 10th December 2015 and amended 24th June 2019 was merited and dismissed the suit with costs to the defendants, invoking the principle that litigation must end under Article 159(2)(b) of the Constitution.
Legal principles established
#- Jurisdiction of a court flows from the Constitution or legislation and a court cannot arrogate to itself jurisdiction beyond that conferred
- Jurisdiction is everything; without it a court cannot take a further step
- Lack of jurisdiction renders a decision void rather than voidable
- Litigation must come to an end; res judicata bars a suit where the matter was directly and substantially in issue in a former suit between the same parties before a competent court and was finally decided
Court orders
#- 1.The preliminary objection raised by the defendants at paragraph 11 of their amended statement of defence is upheld
- 2.The plaintiff's suit commenced by plaint dated 15th September 2015 and amended 29th November 2019 is dismissed with costs to the defendants
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya, 2010 (jurisdiction of the Environment and Land Court); suit originally filed at Migori Chief Magistrate's Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Union of Domestic Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) & 4 others v Management of Tea Hotel & 3 others; Onsongo t/a Hegeons Auctioneers (Interested Party) (Environment and Land Constitutional Petition E003 of 2022) [2025] KEELC 6208 (KLR)[2025] KEELC 6208 (KLR)25 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Samson Mariko Makubo v Joseph Mwita Ragiti & 4 others [2020] KEELC 3764 (KLR)", Case Analysis (2020). ELC Case (originally Migori Chief Magistrate's Court; plaint dated 15th September 2015, amended 29th November 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3764/eng@2020-01-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.