Thomson Kerongo & 4 Others v Kisii County Government & 19 Others
The bottom line
#The Kisii Environment and Land Court allowed a long-running land dispute to proceed, rejecting claims that earlier cases had already settled the matter.
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 Applicants have demonstrated the threshold for res judicata
Key legal issues
#Whether the petition is res judicata by virtue of Criminal Case No. 1425 of 1966 (and its appeal No. 58 of 1966) and Kisii HCCC No. 69 of 1989
The petition is not res judicata; the threshold under section 7 of the Civil Procedure Act was not met.
The court examined section 7 and its explanations, then compared the former suits with the petition. The criminal appeal concerned improper placement of boundary marks and directed negotiation to allow land for a school, without mentioning the suit parcel. The 1989 HCCC was stood over generally after a surveyor's report, and it is unclear whether the report resolved the dispute. The competency of the criminal court to determine ownership was also in doubt. Neither the ownership question nor the allotment/compensation question was determined in the former suits.
Legal principles established
#- A plea of res judicata requires that the matter in issue was directly and substantially in issue and determined in a former suit between the same parties; where the former proceedings did not conclusively determine the dispute, the plea fails.
Court orders
#- 1.The application dated 15th April 2026 is dismissed
- 2.Costs of the application awarded to the Petitioners
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22 and 23 of the Constitution (constitutional petition before the Environment and Land Court); interlocutory application under Order 2 Rule 15(1)(b), (c) and (d) of the Civil Procedure Rules and Sections 1A, 1B, 3A and 63(f) of the Civil Procedure Act
Relief refused
#Prayer to hear and uphold the preliminary objection dated 13th March 2026
The suit was found not to be res judicata
Prayer to strike out and/or dismiss the Petitioners' Petition
The res judicata threshold was not demonstrated; the former suits did not determine the issues in the petition
Costs
The application is dismissed with costs to the Petitioners.
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.
In light of the foregoing observations, I find that the present suit is not res judicata. The application is dismissed with costs to the Petitioners.
None of the two issues was determined in the former cases cited by the applicants. In fact, the HCCC did not fully determine the dispute.
The content of the judgment in criminal appeal no. 58 of 1966 shows these parties were charged with a criminal offence; hence, the competency of the court to determine the question of ownership is in doubt.
It is not clear whether the survey report read out to the parties resolved the dispute.
Issues in the judgment
#Inconsistent dates for the same letter
Applicants labelled 11th to 20th Respondents though petition lists only 19 respondents
Inconsistent spellings of the suit parcel number
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomson Kerongo & 4 Others v Kisii County Government & 19 Others", Case Analysis (2026). ELC Petition Number E003 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6242/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.