Cheruiyot v Maiyo & 2 others (Environment and Land Case E006 of 2025) [2025] KEELC 6582 (KLR)

b. The application and pleadings amount to an abuse of this court process and id devoid of merit hence ought to be dismissed. 3. Furthermore, the 1st defendant/respondent opposed the application by his 23-paragraphed replying afidavit sworn on 2nd May 2025 seeking dismissal of the same with costs. He deposed, inter alia, that the issues raised in the application are res judicata in light of the proceedings and judgment marked ‘PKM1’ annexed to the afidavit and there was no appeal preferred therefrom. That he is an owner by purchase of a portion measuring 5 acres out of the land parcel LR 9245 having purchased it from the applicant as disclosed in the agreement marked ‘PKM2’ annexed to his afidavit. That the applicant’s allegations of fraud are preposterous and a non-starter 4. The 2nd and 3rd defendants through the 3rd defendant, the Honourable Attorney General, too, opposed the plaintifi/applicant’s application in their grounds of opposition dated 2rd May 2025 that; 5. 6. a. That there is a pending dispute on ownership, entitlement, or interest in the suit property, which must be resolved before any orders for the return of the title deed can be granted. b. That the application seeks a mandatory order at the interlocutory stage, contrary to established legal principles which provide that such relief is only granted in the clearest of cases and where there is no other viable remedy pending trial. c. That the Applicant has not established a prima facie case with a probability of success, nor has it demonstrated that the circumstances justify the grant of such a drastic interim remedy. d. That granting the interim orders would amount to a final determination of the main issue in dispute before the Court has had an opportunity to fully evaluate the evidence, thereby rendering the main suit nugatory. e. That the balance of convenience tilts in favour of maintaining the current status quo, pending full determination of the matter. f. That the application dated 25th March, 2025 is misconceived, speculative, without merit and an abuse of the court process and the same should be dismissed with costs. By the application, the plaintifi/applicant through M.A Ingutia and Company Advocates, is seeking the following orders; a. That this Honourable Court be pleased to issue an order compelling the 1st Respondent herein to return the original title deed for Nandi/Ketnarak/Kapngecher Farm No. L.R 9245/5 (The suit land) to the Applicant. b. That in the interim, this Honourable Court be pleased to issue an order restraining all the Respondents herein whether by themselves, their authorized agents and or otherwise from ofiering for sale and or from dealing with, transferring, subdividing, charging, or interfering with the said title in any matter whatsoever pending the hearing and determination of this application and the main suit. c. That the costs of this application be borne by the Respondents. The application is founded upon are grounds (a) to (i) set out on it’s face alongside the applicant’s afidavit of eleven paragraphs sworn on even date together with a Grant of Letters of Administration Intestate and letters (EJC-01 to EJC-05) annexed thereto. In a nutshell, the applicant’s lamentation is that she is the legal owner of the suit land having obtained it through succession of her late husband’s estate. That in May 2026, the 1st defendant/respondent requested her to give him the original title to https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6582/eng@2025-09-30 2

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the suit land to enable him process his own title but proceeded to process more titles of pieces of the suit land without her consent or without following the due process thus, precipitating the suit and the application. 7. In the applicant’s further afidavit of thirty-one paragraphs sworn on 24th May 2025, it is averred, inter alia, that the 2nd and 3rd respondents’ grounds of opposition is fatally defective and improperly anchored on contested facts and that the 1st respondent’s preliminary objection and the grounds of opposition are frivolous and legally misconceived. That the Tribunal’s award was never adopted as a judgment of the court of competent jurisdiction. That the interim injunction be granted to preserve the subject matter and the application be allowed with costs in the cause. 8. The preliminary objection was heard by written submissions further to the orders of the court made on 26th May 2025. 9. The 1st Respondent’s counsel filed submissions dated 14th July 2025 capturing the two grounds of opposition to the applicant’s application and urged the court to find the plaintifi’s application and pleadings, res judicata. It was submitted, inter alia, that the applicant was the registered proprietor of the suit land after transmission of title from her late husband, John Kipruto Cheruiyot with whom he sold several portions of it to several individuals between 1970s and 2006. That Kapsabet Senior Resident Magistrates’ Court adopted an order of the Nandi South Land Disputes Tribunal on 21st December 2005 regarding a dispute arising from the land. 10. Thus, counsel urged the court to find merit in the preliminary objection and the grounds of opposition, allow them and that the plaintifi/applicant’s suit be dismissed with costs to the 1st defendant. To buttress the submissions, reference was made to the Court of Appeal decision in the case of Siri Ram Kaura-vs-M. J. E Morgan, CA 71/1960 (1961) EA 462 and High Court decision in Njenga-vs-Wambugu and another Nairobi HCCC NO. 2340 of 1991 (UR) with regard to essence of res judicata in litigation. 11. In the submissions dated 21st July 2025, learned counsel for the plaintifi/applicant referred to the application and the orders sought therein which he termed lawful and necessary. That the applicant is the undisputed registered owner of the suit land through a grant obtained under the Law of Succession Act Chapter 160 Laws of Kenya and the Land Registration Act, 2012. That the 1st respondent has unlawfully retained title to the suit land for the last nine years. Counsel framed and analysed issues for determination including whether the applicant has established a prima facie case for the granting of the orders sought on the face of the application and whether the grounds of opposition as well as the preliminary objection are legally grounded in favour of the applicant. 12. Also, counsel submitted that interlocutory injunction be granted to preserve the subject matter, among others. Reliance was made on, inter alia, Article 40 of the Constitution of Kenya , 2010, sections 79, 82, 83 of the Law of Succession Act (Cap 160) , sections 24 (1), 26 (1), 27, 28 and 107 of the Land Registration Act (LRA) and section 6 (1) of the Land Control Act (Cap 302) as well as the case of Independent Electoral and Boundaries Commission-vs-Maina Kiai & others (2017) eKLR, Mwanaisha Kiariale Mohammed-vs-Alfred Wafua Okuku & 2 others (2014) KLR, both on res judicata, Giella-vs Cassman Brown Company Limited-(1973) EA 358, Paul Gitonga Wanjau-vsGithuthis Tea Factory Company Ltd & 2 others (2016) KLR that the grounds of opposition and the preliminary objection are unsupported. That thus, the same be dismissed with costs and that the application, be allowed accordingly. 13. The 2nd and 3rd defendants did not file any submissions in respect of the preliminary objection. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6582/eng@2025-09-30 3

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14. Taking into account the preliminary objection, the grounds of opposition, the replying afidavit and the 1st defendant’s submissions as well as the plaintifi’s submissions alongside the application and the pleadings in this matter, the issues for determination are whether; a. The preliminary objection sustainable, and b. Subject to issue (a) hereinabove, what orders should be rendered for the ends of justice herein. 15. It is trite law that a preliminary objection must be based on points of law which may dispose of a suit; see Mukisa Biscuit Manufacturing Co Ltd-vs-West End Distributors (1969) EA 696 16. The preliminary objection is premised on the principle of Res Judicata under section 7 of the Civil Procedure Act Chapter 21 Laws of Kenya which reads; 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.’ 17. In the Concise English Dictionary 12th Edition at page 124, the term ‘Res Judicata’ is defined thus; ‘A matter that has been adjudicated by a competent court and may not be pursued further by the same parties.’ 18. Additionally, in the Black’s Law Dictionary 10th Edition at page 1504, the term ‘Res Judicata’ means an issue that has been definitely settled by judicial decision’ and the three essential elements thereof are; a. An earlier decision on the issue. b. A final judgment on the merits, and c. The involvement of the same parties or parties in privity with the original parties. 19. Paragraphs 4 and 5 of the 1st defendant’s replying afidavit point to the proceedings of the Tribunal and the Judgment of the magistrate’s court. However, there is no judgment annexed to the said afidavit to satisfy the elements of ‘Res Judicata’ as set out in Black’s Law Dictionary (supra) and even as noted in Mwanaisha Kiriale, Njenga and Kaura cases (supra) 20. Moreover, the preliminary objection, the replying afidavit and the grounds of opposition of the defendants as well as the parties’ respective pleadings, have exposed evidentially material for hearing of the suit; see also Oraro-vs-Mbaja (2005) KEHC 3182 (KLR). 21. The 2nd and 3rd defendants stated in their grounds of opposition that the applicant has sought mandatory orders in the application which are final orders. Indeed, the second prayer in the application is similar to the third relief at the foot of the plaint. 22. Clearly, the mandatory orders sought in the application, if granted, may dispose of the suit. Therefore, the suit has to be heard on merits. 23. It is well settled that it is premature to determine the rights of the parties at the interlocutory stage. The issues in controversy between the parties have to be determined on merit. Therefore, the issues in the parties’ respective pleadings have to go to trial; see SAJ-vs-AOG & 2 others (2013) eKLR. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6582/eng@2025-09-30 4

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24. On the restraint order sought in the application, I bear in mind the plaintifi’s claim for a temporary injunction and mandatory orders, among others. Further, I am guided by temporary injunction relief requirements laid down in Giella case (supra) and restated in the case of Nguruman Limited-vs-Jan Bonde Nielsen & 2 others (2014) eKLR. 25. It is established law that status quo order is meant to preserve the matter in dispute pending the outcome or termination of the case; see Ogada-vs-Mollin (2009) eKLR. 26. In light of the issues including allegations of ownership of the suit land and fraud raised in the parties’ respective pleadings, the balance of convenience tilts in favour of an interim preservation order. Therefore, the parties shall maintain the prevailing status quo status quo over the suit land in lieu of a temporary injunction to preserve, in the interim, the suit land in consonant with section 13 (7) of the Environment and Land Court 2015 (2011). 27. In sum, the preliminary objection partially fails as the issues raise therein call for hearing of the suit on merit. The application partially succeeds to the extent of status quo order to preserve the suit land herein. 28. Accordingly, I make the following orders; 29. a. The preliminary objection dated 2nd May 2025 is hereby partially disallowed. b. The application by way of notice of motion dated 25th March 2025 is hereby partially allowed. In particular, the parties shall maintain the prevailing status quo over the suit land and they shall be no sell, charge, sub divide, transfer or in any other manner dispose of the suit land pending the hearing and determination of this suit. c. Costs of the preliminary objection and the application be in the cause It is so ordered. DATED AND DELIVERED AT KAPSABET THIS 30TH DAY OF SEPTEMBER, 2025 HON. G M A ONGONDO JUDGE In the presence of; Ms Ingutia leaned counsel for the plaintifi/applicant Ms Ngala learned counsel for the 1st defendant Ms Odeyo learned counsel for the 2nd and 3rd defendants Walter, court assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6582/eng@2025-09-30 5

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