Musau v Shire (Environment and Land Case Civil Suit E017 of 2024) [2025] KEELC 8096 (KLR)

3. (a) the defendant is the director of Blue Lime Company Limited the registered owner of all that property known as Land Reference No. 12715/656 (“suit property”) which has already been subdivided to 37 plots and of which the plaintifi similarly claims ownership thereof; (b) the plaintifi has begun construction of permanent structures on the suit property and unless she is restrained, the defendant is apprehensive that she will continue with the construction and change the subject matter of the suit before the dispute is determined; (c) there was no delay in the filing of the instant motion. Although the plaintifi contends it opposes the motion through the replying afidavit deposed on 26/03/2025 filed by Ms. Aziz & Associates Advocates, this law firm is not on record for the plaintifi as a notice of change of advocates has never been filed. Significantly, this law firm purportedly sought to file such a change on 16/06/2025, which has not been paid for, long after it had filed the replying afidavit on 1/04/2025. In the circumstances, the replying afidavit is hereby struck out. Hence, having been directed by the court, the law firm of M/s. Shabaan Associates LLP, for the defendant, filed written submissions dated 2/05/2025, in which counsel raised two issues for determination: whether the defendant is in contempt of the ruling of 22/01/2025 and whether the defendant has met the threshold for granting interlocutory injunctions. 4. Accordingly, the court has thoroughly examined the motion, its grounds, afidavit, and the defendant’s submissions, which are supported by relevant laws and case precedents. Therefore, the two issues for determination that this court considers arise for resolution and will be dealt with separately are: (a) whether the motion is res judicata and (b) whether the defendant has met the legal threshold to justify granting injunctive relief. a. Whether the motion is res judicata 5. Regarding the first issue, which concerns the legal principle of res judicata, the relevant legal framework is outlined in our Section 7 of the Civil Procedure Act, 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.” 6. In illuminating on this doctrine, the learned authors of Mulla, Code of Civil Procedure, 18th Ed. 2012, page 293 explained the purpose of the doctrine and its exceptions in the following words: “ The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8096/eng@2025-11-18 2

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7. In addressing this principle in the decision Kenya Commercial Bank Limited & another v Muiri Cofee Estate Limited & 3 others [2016] KESC 6 (KLR), the Supreme Court of Kenya explicated as follows: “ 52. 8. Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights.” Having considered the record, Hon Lady Justice Nyukuri, upon hearing the parties on the merits following a notice of motion by the plaintifi dated 18/03/2024 seeking injunctive reliefs, which was challenged by the defendant’s replying afidavit of 25/03/2024, rendered a ruling on 22/01/2025 and granted the following disposal orders: a. An order of temporary injunction is hereby issued restraining the defendant/respondent either by himself, his relatives, servants, employees, agents, assignees or anybody claiming under his name, from entering, accessing, trespassing, encroaching and/or in any way whatsoever interfering with the plaintifi’s quiet possession, use and possession of all that parcel of land known as LR Number 12715 / 656 I. R Number 47967 situate in the District of Machakos N.W of Athi River location within Machakos County, pending hearing and determination of this suit. b. The oficer in charge of Syokimau Police Station is directed to provide security to the plaintifi during the enforcement of the court order. c. The costs of the application shall be borne by the defendant. 9. Following this, the instant motion is res judicata. The doctrine of res judicata not only applies to suits but also applies equally to applications. Examining the record, in both motions, the parties were/are seeking injunctive reliefs, and they are the same litigants under the same title. Further, the previous motion was conclusively decided by a competent court with the necessary jurisdiction. In other words, the motion raised similar issues that had already been considered and determined in the previous court ruling. 10. It appears that the defendant has cleverly devised the motion, and his actions are tantamount to seeking both a review and an appeal against the orders issued on 22/01/2025, which this court will not entertain. Therefore, this court finds the motion to be res judicata and an abuse of court process, warranting its striking out. Thus, a determination of the second issue is deemed unnecessary, and ultimately, this court hereby issues the following final disposal orders: a. The notice of motion dated 26/02/2025 is hereby struck out with costs being in the cause. b. The law firm of Ms. Aziz & Associates Advocates is at liberty to regularise its representation. c. Unless with leave of the court, applications shall not be entertained in this matter. d. A mention date shall be given for purposes of pre-trial directions. Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 18TH DAY OF NOVEMBER, 2025. HON. A. Y. KOROSS JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8096/eng@2025-11-18 3

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18.11.2025 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Ms. Kanja Court Assistant. Mr. Oriwa for the respondents. Miss. Wangui holding brief for Mr. Masake for the applicant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8096/eng@2025-11-18 4

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