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ELCDismissedELC Civil Case No E008 of 2026· [2026] KEELC 5774 (KLR)

Augustine Kimutai Koech & 11 others v Paul Kipterer Keino, District Land Registrar - Bomet & The Honourable Attorney General

Environment and Land Court
24 September 2026
6,063 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bomet court refused to strike out a land dispute suit, ruling that res judicata requires all five legal elements to be proven, not just some.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Bomet (Omollo J) determines the 1st Defendant's Notice of Motion dated 17th March 2026 seeking to strike out the twelve Plaintiffs' adverse possession suit over Kericho/Emkwen (Kapkures)/290, now subdivided into parcels 815 and 816, as res judicata, vexatious and an abuse of process, on the basis that the same land was the subject of Kericho ELC Civil Suit No. 50 of 2019 between the 1st Defendant and the estate of the late Tapnyobii C. Maina, in which the 1st Plaintiff participated only as administrator. The Plaintiffs countered that the 2nd to 12th Plaintiffs were never parties to the former suit, that they sue in their personal capacities, and that adverse possession was never litigated. The court framed four issues: res judicata, judgment in rem, abuse of process, and costs. Applying the conjunctive five-part test in IEBC v Maina Kiai and John Florence Maritime Services, it found two elements - same parties or privies, and matter heard and finally determined - not established on the affidavit evidence, noting internal inconsistencies in the applicant's affidavit regarding the family relationships of the Plaintiffs and the absence of evidence on when the alleged adverse possession commenced. The former judgment was held to be in personam, not in rem, under Section 44 of the Evidence Act. Applying D.T. Dobie, the court held the striking-out jurisdiction should be exercised sparingly and the issues raised were triable. The application was dismissed with costs to the Plaintiffs, with liberty to plead res judicata and other defences at trial.

Key legal issues

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01

Whether the suit is res judicata in light of Kericho ELC Civil Suit No. 50 of 2019

Holding

Res judicata not established at this stage; two of the five conjunctive elements (same parties/privies, and matter heard and finally determined) cannot be established on the affidavit evidence

Reasoning

The former suit was between the 1st Defendant and the late Tapnyobii C. Maina's estate; the 2nd to 12th Plaintiffs were not parties. Whether they claim under her is unresolved because the applicant's affidavit is internally inconsistent on the family relationships. Adverse possession was not determined in the former suit, and whether the claim might and ought to have been raised there depends on facts not before the Court.

p. 34
02

Whether the former judgment is a judgment in rem

Holding

No; it is a judgment in personam concerning immovable property, not a declaration of entitlement absolutely against the whole world

Reasoning

Under Section 44 of the Evidence Act a judgment in rem confers or takes away legal character or declares entitlement not against a specified person but absolutely. The former judgment cancelled the registration of the late Tapnyobii C. Maina as sole proprietor as between specified parties, so it is in personam. Its binding effect on non-parties remains open for the inter partes hearing.

p. 37
03

Whether the suit is an abuse of process warranting striking out under Order 2 Rule 15

Holding

Not a plain and obvious case; the contentions are arguable but raise triable issues

Reasoning

Applying the D.T. Dobie threshold, the unresolved factual questions - the precise family relationships and claimed interests of the 2nd to 12th Plaintiffs, and whether the adverse possession claim is independent or a repackaging - are not plain and obvious grounds to say the suit cannot succeed. They are properly triable issues for the hearing.

p. 39

Legal principles established

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  • The five elements of res judicata under Section 7 of the Civil Procedure Act are conjunctive and must all be satisfied
  • A judgment between specified parties concerning immovable property is a judgment in personam, not in rem, unless it declares entitlement absolutely against the whole world
  • The jurisdiction to strike out pleadings is a drastic remedy to be exercised sparingly only in plain and obvious cases

Court orders

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  1. 1.The 1st Defendant/Applicant's application dated 17th March, 2026 lacks merit and is hereby dismissed
  2. 2.Nothing in the Ruling shall preclude the 1st Defendant/Applicant from pleading and pursuing res judicata, estoppel, constructive res judicata and/or any other available substantive defence during trial
  3. 3.The Plaintiffs/Respondents shall have the costs of this application

Authorities

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Legislation

  • Civil Procedure ActSections 3A, 7, 27(1)
  • Civil Procedure RulesOrder 2 Rule 15
  • Evidence ActSection 44

Cases cited (8)

  • The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
    [2017] eKLR, Nairobi Civil Appeal No. 105 of 2017

    The five conjunctive elements that must be satisfied to uphold the bar of res judicata

  • John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others
    Petition 17 of 2015, [2021] eKLR

    Approved the five-part res judicata test; 'one bite of the cherry'; court must examine pleadings and record of both cases

  • Bernard Mugo Ndegwa v James Nderitu Githae & 2 others
    [2010] eKLR

    Source of the five-part res judicata test approved by the Supreme Court

  • ET vs Attorney General & Another
    (2012) eKLR

    Courts must guard against litigants evading res judicata by introducing new causes of action to seek the same remedy

  • Daniel MesiriKasoo & 7 Others vs Fredrick Nkonge Mutwiri & another
    [2020] eKLR

    Cited as the vehicle through which ET v Attorney General was relied upon

  • General of the Salvation Army (Registered Trustees) v Chief Officer, Lands Physical Planning and Urban Development, Muranga County & 4 others
    [2026] KEELC 1879 (KLR)

    Judgment in rem, like res judicata, is a pure point of law; orders sought would vary the former judgment

  • Joshua Ngatu v Jane Mpinda & 3 Others
    [2019] eKLR

    Justice and equity abhor a claimant's indolence, sloth and stale claims

  • D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another
    [1980] eKLR, Civil Appeal No. 37 of 1978

    Striking-out jurisdiction is drastic, exercised sparingly in plain and obvious cases without trial of the merits

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; application under Section 3A & 7 of the Civil Procedure Act and Order 2 Rule 15 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Augustine Kimutai Koech & 11 others v Paul Kipterer Keino, District Land Registrar - Bomet & The Honourable Attorney General", Case Analysis (2026). ELC Civil Case No E008 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5774/eng@2026-09-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.