Korio & another v Korinko & 6 others (Petition E005 of 2024) [2025] KEELC 6413 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a land dispute petition because it repeated issues already decided in earlier cases over the same Shartuka Group Ranch land.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition is res judicata in view of Kilgoris ELC Petition No. 7 of 2021
Yes; the parties (notwithstanding substitution), subject matter (subdivision of Transmara/Shartuka/1 and resultant titles) and cause of action (due process in registration) are identical to the previous petitions, and the previous judgment remains final despite the pending appeal
Applying section 7 of the Civil Procedure Act and the John Florence Maritime elements, the court found the subject matter and cause of action identical. Guided by Bank of Africa v TSS Investment and Diocese of Eldoret Trustees, the substitution of petitioners did not defeat res judicata. The prior judgment, though on appeal, was final for res judicata purposes under Explanation 2 of section 7, and under section 43 of the Evidence Act this court could not make a contrary finding.
Whether the pending appeal and Civil Application E034 of 2023 render the petition sub judice
The court did not rest its decision on sub judice; it struck the petition out solely as res judicata
Although sub judice under section 6 of the Civil Procedure Act was raised, the court's determination rested on res judicata, the issues of membership and subdivision of Transmara/Shartuka/1 having been heard and determined in previous suits and found res judicata in Kilgoris Petition No. 7 of 2021.
Whether the remaining issues (merits, representation) should be determined
No; the court declined to determine them, some being premature and the representation issue already decided in a ruling of 29th January 2025
The court confined itself to the res judicata question, holding that the respondents' submissions on the merits of the main petition were premature since the petition would not be heard, and that the issue of the firm of Oguttu Mboya & Ochwal Partners Advocates had already been heard substantively and determined in a ruling delivered on 29th January 2025.
Legal principles established
#- For res judicata to apply there must be a former final judgment by a competent court and identical parties, subject matter and cause of action between the suits
- A judgment on appeal still suffices as a final judgment for res judicata purposes, competence being determined irrespective of any right of appeal
- Mere addition or substitution of parties does not convert a suit into a fresh suit to escape res judicata
Court orders
#- 1.The Petition dated 20th July 2024 and filed on 21st June 2024 is struck out on the ground that it is res judicata
- 2.Costs of the application and the main petition awarded to the 1st to 4th Respondents/Applicants
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution establishing the Environment and Land Court (implied); application under civil procedure rules (not expressly cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Korio & another v Korinko & 6 others (Petition E005 of 2024) [2025] KEELC 6413 (KLR)", Case Analysis (2025). Notice of Motion dated 16/9/2024 in Kilgoris ELC Petition (Petition dated 20th July 2024, filed 21st June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6413/eng@2025-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.