Morara & 2 others v Koske (Suing as the Legal Representative of the Estate of Michael Kichirchir Bor) & 2 others; Kipleitich (Interested Party) (Environment and Land Case E027 of 2024) [2025] KEELC 5396 (KLR)
The bottom line
#The court dismissed a land claim and contempt application because buyers can't re-litigate a settled land dispute over the same property.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the preliminary objection on res judicata, lis pendens and abuse of court process is merited
- 2.Whether the 1st respondent is guilty of contempt of the orders of 2/8/2024 and 3/4/2025 warranting committal to civil jail
- 3.Whether the applicants obtained the orders through non-disclosure of material facts
Key legal issues
#Res judicata and lis pendens
The suit is res judicata; the applicants' titles were acquisitions lis pendens nullified by the decree in Kitale ELC No. 76 of 2018, and the prior judgment was in rem binding on all the world
The applicants admitted the prior decree which cancelled the mother title, quashed sales during pendency and awarded the 1st respondent the land. Their plaint was filed after that decree. Following IEBC v Maina Kiai, Henderson v Henderson and Mawji, a party cannot re-litigate the same subject in a new form, and purchasers pendente lite are bound by the decree. The proper course was review, joinder post-judgment, or a separate claim against the vendor.
Contempt of court
No contempt established; the applicants did not disprove the 1st respondent's honest belief and the complaint rested on unauthenticated photographs
Contempt requires proof of the order's terms, knowledge, and wilful and deliberate disobedience. The 1st respondent held an un-set-aside decree and deposed to a bona fide belief that he occupied only the decreed portion and that the survey did not conform to the registered mutation. The only evidence of breach was photos without a certificate of electronic production, and the applicants did not file a supplementary affidavit to counter the decree's implications.
Non-disclosure in obtaining ex parte/injunctive orders
The applicants were aware of the decree and its implications yet sought orders in disregard of it; orders obtained through non-disclosure should be set aside
The court noted that parties must make full disclosure and that a party obtaining orders through concealment must be deprived of them (Motor Vessel Lilian 'S'; Order 40 Rule 7). Since the applicants admitted the decree in their supplementary affidavit and their plaint post-dated it, the injunctions of 2/8/2024 and 3/4/2025 could not stand and all existing orders were vacated.
Legal principles established
#- Contempt requires proof of the terms of the order, knowledge of the terms, and wilful and deliberate failure to comply; bona fide non-compliance does not constitute contempt
- A judgment in rem in land binds all persons dealing with the property, and purchases during pendency (lis pendens) are bound by the decree
- A party cannot ignore one court order and obtain a contradictory one; such conduct is an abuse of process
Court orders
#- 1.The preliminary objection dated 26/5/2025 is found merited
- 2.The suit is dismissed with costs to the defendant
- 3.The application by the plaintiffs (dated 14/5/2025) is dismissed with costs
- 4.All existing orders are vacated
- 5.File marked as closed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a contempt application and land suit (Court Procedure Rules; Order 40 Rule 7 of the Civil Procedure Rules discussed)
Relief refused
#Civil warrants of arrest and committal of the respondents to civil jail for contempt
The suit itself was res judicata and abusive; the orders complained of fell with the suit and the applicants held titles nullified by the decree in ELC No. 76 of 2018
Declaration of lawful ownership of L.R Nos. Kapomboi/Kapomboi Block 3/Kobos/634, 744, 745 and 746, permanent injunction and general damages for trespass
Res judicata - the titles and sales were nullified by the decree in Kitale ELC No. 76 of 2018 and the judgment was in rem
Costs
Suit dismissed with costs to the defendant; the plaintiffs' application dismissed with costs to the defendant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that I find the preliminary objection dated 26/5/2025 merited. The suit is dismissed with costs to the defendant. The application by the plaintifis is dismissed with costs. All existing orders are hereby vacated. File marked as closed.
This court cannot sit on appeal of its judgment in a suit over the same title or issues that was litigated on the merits to finality.
Court decrees are not made in vain. A party cannot shut its eyes to one court order and seek to obtain an opposite order.
The court said that the disobedience should be both willful and deliberate and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt of court.
The judgment was in rem. it determined the title to the property and the rights of the parties, not merely as between themselves but also against all persons at the time who were dealing with them or with the property upon which the court had adjudicated.
A purchaser of a property actually in litigation pendente lite, is afiected in the same manner as if he had notice and will accordingly be bound by the judgment or decree in the suit.
Issues in the judgment
#Citation of Ruth Kinyua -vs- Patrick Thuita Gachure & Another is printed as "[2-15] eKLR", apparently a typographical error for [2015] eKLR
The case number of the present suit is not stated anywhere in the judgment; only the former suit (Kitale ELC No. 76 of 2018) is identified
The applicants are referred to variously as applicants and plaintiffs without a formal case title or number for the current suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Morara & 2 others v Koske (Suing as the Legal Representative of the Estate of Michael Kichirchir Bor) & 2 others; Kipleitich (Interested Party) (Environment and Land Case E027 of 2024) [2025] KEELC 5396 (KLR)", Case Analysis (2025). Not stated in the judgment (arising from a plaint dated 18/7/2024; former suit Kitale ELC No. 76 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5396/eng@2025-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.