Langat v Olakeri-Lolasho Group Ranch & 7 others (Enviromental and Land Originating Summons E001 of 2023) [2024] KEELC 6126 (KLR)

before the court in another way and in a form a new cause of action which has been resolved by a court of competent jurisdiction. 3. The plaintifi submitted that the instant matter which has not been determined is only instituted by the plaintifi alone and touches on a matter that has never been heard before. 4. The defendants did not file their written submissions. Be that as it may, I have considered the written submissions filed by the plaintifi, and in my view, the issue for determination is whether the suit is res judicata. The principle of res judicata is provided under Section 7 of the Civil Procedure Act, which provides as follows :“ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation. —(1) The expression 'former suit' means a suit which has been decided before the suit in question whether or not it was instituted before it. Explanation. —(2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court. Explanation. —(3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation. —(4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit Explanation. —(5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. Explanation. —(6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.” 5. From the above, it will be observed that for res judicata to apply, the issue in the latter suit must have been directly and substantially in issue in the former suit, between the same parties, or between parties under whom they are litigating. The Court of Appeal in the case of Uhuru Highway Development Ltd V Central Bank & Others, CA No. 36 of 1996 held that: “ In order to rely on the defence of res judicata, there must be a previous suit in which the matter was in issue; the parties must have been the same or litigating under the same title; a competent court must have heard the matter in issue and the issue is raised once again in the fresh suit.” 6. The plaintifi filed the originating summons dated 1st August, 2023 seeking a determination of the following questions: 1. Whether the plaintifi is entitled to 200 acres of land comprised in the land parcel L.R. No. CisMara/ Ololulunga/ 156 subdivided into parcel nos. 15567, 15568, 15569 (17544 and 17545), 15570, 15571, 15572, 15573, 15574 (16254 and 16255), 15575 formerly Olokeri- https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6126/eng@2024-09-26 2

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Lalasho Group Ranch by virtue of the plaintifi’s adverse possession of the said parcel in open, quiet and peaceful occupation for a period of over 33 years. 2. Whether the titles resultant from the subdivision of L.R. No. CisMara/ Ololulunga/ 156 should be cancelled in order to pave way for excision and transfer of the 200 acres currently occupied by the plaintifi. 3. Whether the plaintifi herein should be registered as the proprietor of the said 200 acres in place of the defendants who are at present the registered owners/ proprietors of the said parcels of land. 4. Whether or not the plaintifi is entitled to an order of permanent injunction restraining the defendants, their agents, employees from entering, cultivating, occupying, trespassing, alienating, transferring, and/or in any other manner adversely dealing with the applicant’s portion measuring 200 acres of the aforesaid land. 5. That cost of this suit be provided for. 7. The originating summons was supported by the afidavit of the plaintifi sworn on even date. In response, the 3rd defendant filed his replying afidavit sworn on 27th September, 2023 on his own behalf and on behalf of the other defendants. The 3rd defendant deposed that the plaintifi sued the other defendants in Misc. Civil Application No. 20 of 2009 and ELC Appeal No. 1 of 2017 formerly Nakuru HCA No. 54 of 2016, and that in all these matters, the plaintifi’s suits were dismissed. In their response, the 3rd defendant annexed a copy of the ruling delivered in Misc. Civil Appl. No. 20 of 2009 and the judgment delivered by this court in ELC Appeal No. 1 of 2017. 8. In determining whether or not the instant suit is res judicata, this court will analyze the evidence as provided by the parties and consider the arguments contained in the written submissions filed by the plaintifi. The plaintifi argued that the issue of res judicata has never been canvassed before, and in the instant suit, he is the only plaintifi as opposed to the other matter which included 38 others against some of the defendants herein. 9. In Misc. Civil Application No. 20 of 2009, the plaintifi filed a suit alongside 38 others and it was against Rukuti Ole Koriata and 4 Others. It is not clear who the rest of the 38 plaintifis are and who the 4 other defendants are as their names have not been disclosed. From the ruling delivered on 18th November, 2014, it can be seen that the plaintifi was seeking injunctive orders against the defendants with regards to the dealings of parcel no. Cis-Mara/Ololulunga/ 156. From the ruling, it appears that the suit property was the subject of litigation before the Land Dispute Tribunal. The application was dismissed as incompetent as the plaintifi sought certain oficers to be compelled to carry out their functions. The plaintifi also filed ELC Appeal No. 1 of 2017. In a judgment delivered on 18th March, 2019 by Kullow, J, the court dismissed the appeal as lacking in merit and faulted the appellant for not invoking the correct procedure in requiring other parties to do certain acts i.e. enforcing the decree of the Land Dispute Tribunal. 10. From the above summary, can it be said that the instant suit is res judicata? It is not in doubt that the subject matter in all the suits before court is CisMara/Ololulunga/ 156 which has now been subdivided and forms other parcels of land. It is also not disputed that there are parties who were parties in the previous suits and are not parties in the present suit. However, the contention herein lies with the claim by the plaintifi who has now sought to ascertain his rights by claiming adverse possession. As I have understood the ruling delivered on 18th November, 2014, the plaintifi failed to invoke the correct procedure to compel the District Land Adjudication Oficer, the District Physical Planning Oficer https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6126/eng@2024-09-26 3

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and the County Land Registrar to enforce the award of the Land Dispute Tribunal. This does not mean that the plaintifi gave away his ownership rights or claims arising from the suit properties. 11. The defendants in my view have not provided suficient material in terms of the pleadings filed in the previous matters before this court to show the court that in the previous matters, the issues raised in the present matter were previously heard and determined and which would qualify to be termed as res judicata. The plaintifi in the instant matter is seeking to ascertain his ownership rights albeit a difierent means. 12. From the above, I find that the defendants have not suficiently proved res judicata, the claim or assertion is thus dismissed. I make no orders as to costs. Further mention on 8th October, 2024 for further directions. It is so ordered. DATED, SIGNED & DELIVERED VIA EMAIL ON THIS 26TH DAY OF SEPTEMBER, 2024. HON. MBOGO C.G. JUDGE 26/09/2024. In the presence of: Mr. Meyoki – C.A https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6126/eng@2024-09-26 4

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