Tawai Homes Development Limited v Eldoret Express Limited & 3 others (Environment and Land Case E007 of 2025) [2025] KEELC 7595 (KLR)

4. Mr. Maiyo, learned counsel for the 2nd defendant, associated himself with the submissions by Mr. Kimani, urging the court to find that it lacks jurisdiction to hear the instant suit. Learned counsel promised to avail the decisions in the former suit(s). 5. Mr. Omondi, learned counsel for the plaintifi, submitted that for a suit to be said to be res judicata, the subject matter and the parties must be the same in both suits. 6. In this case, learned counsel submitted that the plaintifi is a separate entity from the party who was in the previous suits, as Tawai Ltd. Learned counsel submitted that Tawai Ltd and the plaintifi herein were distinct companies incorporated separately. Leaned counsel submitted that the plaintifi’s suit and the 3rd defendant in this suit were not parties in the former suits. 7. Further, learned counsel submitted that the initial suit raises critical issues on the plaintifi’s rights under paragraphs 26 and 27 of the plaint. 8. Equally, learned counsel submitted that in paragraphs 29-30 of the plaint, the plaintifi is seeking compensation and that the prayers are also difierent as they relate to two aspects of the land. Learned counsel urged the court to find the suit properly before the court. 9. Mr. Kimani and Mr. Maiyo, learned counsels in a rejoinder, urged the court to find that the preliminary objections are pure points of law as raised both in writing and also in the 1st and 2nd defendants’ statements of defence dated 12/3/2025 and 21/5/2025, respectively. 10. Res judicata is a doctrine of substantive law whose purpose is that once the legal rights of parties have been judicially determined, such a decision stands as a conclusive statement as to those rights. See Kenya Commercial Bank Ltd -vs- Muiri Cofiee Estates Ltd & Another [2016] eKLR. The doctrine of res judicata allows a litigant only one bite at the cherry. It prevents a litigant or persons claiming under the same title, from returning to court to claim other reliefs not claimed in the earlier action. 11. In John Florence Maritime -vs- Attorney General [2021] KESC 39[KLR] (CIV) (6th August 2021) (Judgment), the court held that the doctrine is a public policy, serving the cause of order and eficacy in the adjudication process, to prevent multiplicity of suits that would ordinarily clog the courts and apart from occasioning unnecessary costs to the parties, to ensure that there is an end to litigation, where the verdict translates into fruits for one party and a liability for another party, conclusively. 12. In Omondi -vs- National Bank of Kenya Ltd & Others [2001] EA 177, the court held that a party cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit. 13. In Njangu -vs- Wambugu & Another, Nairobi HCCC No. 2340 of 1991, the court said if parties were to be allowed to go on litigating forever, over the same issue with the same opponent before the court of competent jurisdiction, merely because he gives his case some cosmetic facelift, on every occasion he comes to court, there would no need for res judicata. 14. The elements to invoke the doctrine of res judicata were set out in Independent Electoral and Boundaries Commission -vs- Maina Kiai [2017] eKLR. They include:a. A former judgment or order that was final. b. The judgment or order was on merit. c. It was rendered by a court having jurisdiction over the subject matter and the parties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7595/eng@2025-11-05 2

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d. The first and second actions are by identical parties, over the same subject matter and cause of action. 15. A preliminary point of law consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which, if argued as a preliminary point, may dispose of a suit. 16. In Mukisa Biscuits Manufacturing Co. Ltd -vs- West End Distributor Ltd [1969] EA 696, examples of the same were said to include a plea of lack of jurisdiction and time limitation. 17. The 1st and 2nd defendants' terms the preliminary objection dated 16/9/2025 and 8/8/2025 as raising pure points of law. In Gurbachan Singh Kalsi -vs- Yowani Ekori Civil Appeal No. 62 of 1968, the court said that the plea of res judicata, applies except in special cases not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence, might have brought forward at the time. 18. In Paul Mungai Kimani & Others -vs- Kenya Airports Authority & Others SCOK Petition No. 11 of 2019, the court held that it is trite law that a court of law takes notice of its decision. In Mumira -vs- Attorney General [2022] KEHC 271 [KLR], the court said that res judicata takes two forms: issue estoppel and cause of action estoppel. In Oyugi -vs- Independent Electoral and Boundaries Commission & Others [2022] eKLR, the court held that the institution of fresh proceedings, two years later, to challenge a decision on facts and issues finally determined was a strategy constituting the very mischief that the common law doctrine of issue estoppel was meant to forestall, against a party using an institutional detour to attack the validity of an order by seeking a difierent result from a difierent form, rather than through the designated appellate or judicial review route. 19. In John Florence Maritime Services Limited & another -vs- Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), the court said a party seeking a court to an exercise an exception to the doctrine is where there is potential for substantive injustice, if a court does not hear the matter or issue on its merits. In each case, the court has to examine the entirety of the circumstances and the factors for or against the exercise of such discretionary power. 20. The plaintifi takes the view that it is a separate and distinct entity from Tawai Ltd, and it was not involved in the previous suits together with the 3rd defendant, hence the cause of action is not res judicata. In Communication Commission of Kenya -vs- Royal Media Services Ltd [2014] eKLR, the court held that the concept of res judicata operates to prevent causes of action or issues from being relitigated once they have been determined on the merits. The court said that the concept encompasses limits upon both issues and claims, and the issues that may be raised in subsequent proceedings. 21. Section 7 in explanation No. 4 of the Civil Procedure Act says that any matter which might and ought to have been made a ground of defence or attack on the former suit shall be deemed to have been a matter directly and substantially in issue in such a suit. 22. A pure point of law does not inherently require factual and evidential inquiry. Courts have said that the best way to raise the plea of res judicata is through a notice of motion. In George Kamau Kimani & Others -vs- County Government of Trans Nzoia & Another [2014] eKLR, the court said that the issues of res judicata, duplicity of suits are best raised through a notice of motion where pleadings are annexed to enable the court to determine whether the current suit is res judicata. 23. In Henry Wanyama Khaemba -vs- Standard Chartered Bank Ltd & Another [2014] eKLR, the court said res judicata was incapable of being handled by way of a preliminary objection, due to the limited https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7595/eng@2025-11-05 3

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scope of preliminary objection jurisdiction. See Drill International Ltd -vs- Sidian Bank Ltd [2021] eKLR and Re Estate of Pauline Muthoni Nyaga (deceased) [2019] eKLR. 24. The court has carefully gone through the plaint dated 26/2/2025 in this matter. The plaintifi has admitted that there were other suits touching on the suit property and involving the defendants in various courts. 25. Facts in this matter are therefore not contested. See Aviation & Allied Workers Union -vs- Kenya Airways Ltd [2015] eKLR. The court notes that, although the plaintifi pleads that it was not a substantive party or directly involved in the previous suits, and that it is a separate entity from Tawai Ltd, the alleged liquidator of Tawai Ltd has been brought as the 4th defendant. This then raises a jurisdictional question, and I believe this is the basis of the preliminary objection, that leave to sue was not sought by the plaintifi before filing the suit. 26. Section 432(2) & (3) of the Insolvency Act provides that any party who wishes to continue or institute any legal proceedings against a company under liquidation must seek leave and or approval of the court. The court will revisit this issue shortly. 27. The court has looked at the entire plaint dated 26/2/2025. It is based on almost the same facts that were in existence in the previous suits. The reliefs sought touch on issues relating to L.R. No. 5707/6, which the proponents of the preliminary objections submit that they were litigated on merits and were heard with finality by courts competent over the same parties or parties litigating under the same subject matter. The respondents submit that the addition of more parties and or reliefs to give the claim a new facelift is what the doctrine of res judicata under Section 7 of the Civil Procedure Act is all about. 28. The doctrine of stare decisis is that decisions of the Court of Appeal are binding on this court under Article 163 of the Constitution. See Geofirey Asanyo & Others -vs- Attorney General SCOK Petition No. 7 of 2019. In my considered view, the plaintifi in the capacity of a holding company for the 4th defendant is seeking to reopen already-litigated issues, so as to seek a difierent outcome from the previous decrees. Litigation must have an end. 29. The plaintifi raises the issue of being a holding company to say that it was not bound by the former decisions against the 4th defendant. The plaintifi appears to be advancing the suit as a derivative claim on behalf of the 4th defendant. Sections 238 and 248 of the Companies Act require the plaintifi to seek leave of this court to bring the suit. See Ghelani Metals Limited & 3 others -vs- Elesh Ghelani Natwarlal & another [2017] eKLR. 30. Under Part X1 of the Companies Act, an application for leave is a condition precedent. Sections 560 (1)(a) and 561(a)(5) of the Insolvency Act provide that where a company is under administration, a person may only take steps to enforce a security over such company property with the consent of the administrator or approval of the court. 31. In Midland Energy Ltd -vs- George Muiruri T/A Leakeys Auctioneers & Others [2016] eKLR, the court said that the insulation from aggressive creditors by way of moratorium from other legal processes is to enable the liquidator to achieve its objective, and to give it some breathing space to carry out the administration of the company as per the Insolvency Act, 2015. 32. The 4th defendant is described in paragraphs 4, 14, 15, and 16 of the plaint dated 26/2/2025 as appointed under Winding Up Cause No. 1 of 1985. The plaintifi raises issues of breach against the liquidator in paragraph 27 of the plaint. It also seeks substantive relief on properties falling under the jurisdiction of the 4th defendant. Without leave of the insolvency court, I find the plaintifi’s suit incompetent. It is hereby struck out with costs. File closed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7595/eng@2025-11-05 4

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RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 5TH DAY OF NOVEMBER 2025. In the presence of: Court Assistant - Dennis Nyambeki for Amondi for plaintifi present Kimani for the 1st defendant absent Maiyo for 2nd defendant present No appearance for 3rd and 4th defendants HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7595/eng@2025-11-05 5

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