Chesang

whose outcome was that the defendant was only entitled to occupy and work on 16 acres and not to acquire any title to the portion. 3. The plainti avers that while aware that the deceased had passed on, on 1/12/2012, the defendant, by an application dated 18/1/2016, sought an order which was granted on 21/3/2016 for the Executive Ocer to execute the Land Control Board and transfer in her favour to allegedly implement the decree in Kitale Magistrates Land Case No. 38 of 2004, whereby she became the registered owner of the suit land. 4. The plainti avers that the said order was set aside and or reviewed by a ruling dated 10/8/2018; hence making the title held by the defendant unsustainable, illegal since it was obtained while the registered owner was dead, was not only irregular but also done without involving the legal representative of the estate. 5. Further, the plainti avers that in Kitale ELC No. 40 of 2017, the court held that the defendant was one of the widows of the deceased, was only allowed to use and occupy the land, and not to transfer it to her name. 6. The defendant opposed the suit through a statement of defence dated 16/12/2024. The defendant averred that through a chief’s letter dated 3/7/2015 and her own letter dated 20/7/2015, processing of her title for the suit land was expressed to the Trans Nzoia Land Registrar, measuring 6.475 Ha, as the best way for resolving the existing dispute. 7. The defendant avers that pursuant to the chief’s letter conrming the family members and for the lifting of the caution, her title deed was processed and issued on 15/8/2017, as one among other plot holders, who were to process and collect title deeds in respect to parcel Nos. Trans Nzoia/ Suwerwa/1313, 1314, 1315, and 1316, according to the area chief’s letter. 8. The defendant avers that vide judgment in Kitale ELC No. 40 of 2017, dated 24/6/2021, she was decreed as the owner of the suit land, following upholding of the decree in Kitale CMC No. 38 of 2004 and the registration of mutation dated 20/5/2013, the after which the County Surveyor was ordered to revisit the land re-establish boundaries on the ground as per the mutation form which was undertaken by a letter dated 8/3/2024 copies to all the parties and thereafter as ordered she took vacant possession after the re-establishment of the boundaries. 9. The defendant avers that the plainti and her allies attacked her and the team of surveyors, destroyed her car, and caused her bodily injuries in an attempt to deny her access to occupy, possess, use, or utilize the suit land. 10. Again, the defendant avers that the issuance of the title to the suit land, in line with the judgment and decree of the court, which the plainti and other relatives, despite being public servants, have been trying to frustrate her in its intention, causing her to incur a lot of expenses. 11. The defendant denies the alleged irregularities; otherwise, there was a will of the estate of her late husband, the plainti being one of the witnesses. The defendant terms the suit as lacking merit and being res judicata. 12. Through a reply to defence dated 1/7/2025, the plainti reiterated that the decree in the Land Disputes Tribunal did not authorise the defendant to become the registered owner of the suit land. Further, the plainti reiterated that the title held by the defendant could not stand following the ruling dated 10/8/2018. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18255/eng@2025-12-10 2

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13. At the trial, Okwaro Alfred, on behalf of the Executive Ocer of this court, testied as PW1. He produced certied proceedings and decrees in Kitale Chief Magistrates ELC Case No 38 of 2004 and ELC No. 40 of 2017 as P. Exhibits. No. (1) and (2), respectively. 14. Solomon Kiplagat Chesang testied as PW2. He relied on a witness statement dated 19/11/2024 as his evidence-in-chief. PW2 told the court that in Kitale HC Succession Cause No 38 of 2016, he was issued with a grant of letters of administration on 24/10/2024. Reiterating the contents of the plaint on the history of the dispute right from the Land Disputes Tribunal, award, its adoption, decree, appeal by way of a Judicial Review, the subsequent illegal subdivisions, and issuance of title in favour of the defendant, the decision in Kitale ELC No 40 of 2017. 15. The plainti produced the decree issued on 3/1/2023, as P. Exhibit. No. (3), the ruling in Kitale HC Misc. Civil Suit No. 31 of 2005 as P. Exhibit. No. (4), ruling delivered on 10/8/2018 as P. Exhibit. No. (5), an order issued on 21/3/2016 as P. Exhibit. No. (6), judgment delivered on 24/6/2021 as P. Exhibit. No. (7), an ocial search certicate for Trans Nzoia/Suwerwa/1313. 1314, 1315, 1316, as P. Exhibit. No. (8)-(12), death certicate issued on 1/8/2012 as P. Exhibit. No. (13). 16. Similarly, PW2 relied on letters of grant issued on 24/10/2024 as P. Exhibit. No. (14). PW2 told the court that he was not a party in Kitale ELC No. 40 of 2017, where the defendant’s counterclaim was also struck out. 17. The plainti relies on written submissions dated 18/11/2025. The plainti submits that the defendant in Kitale ELC No. 40 of 2017 had led a counterclaim, which was struck out for lack of locus standi as per P. Exhibit. No. (8). 18. The plainti submits that the suit is not res judicata since the issue raised in the counterclaim in Kitale ELC No. 40 of 2017 was not heard on the merits but was struck out since Luka Ruto had no letters of administration to challenge the title on behalf of the estate of the deceased. Reliance is placed on Christopher Kenyariri -vs- Salama Beach [2017] eKLR and Kenya Commercial Bank -vs- Muiri Coee Estate Ltd & Another [2016] eKLR. 19. Further, the plainti submits that in view of P. Exhibits. No. (4) and (5), the title held by the defendant cannot be sustained in law, for it lacks a legal foundation. The plainti submits that after the ruling in 2018, the foundation on which the defendant transferred and got registered as the owner collapsed. Therefore, under Section 26(1) (b) of the Land Registration Act, the entries made to the register and the issuance of title on 15/8/2017 should be cancelled, for the title to be registered in the estate of the deceased. 20. The court has carefully gone through the pleadings, evidence tendered, and written submissions. The issues calling for my determination are: 21. (a) If the suit is res judicata. (b) If the plainti has impeached the title held by the defendant. (c) If the plainti is entitled to the reliefs sought. The crux of the plainti’s case is that the foundation leading to the issuance of title in favour of the defendant was, following several court interventions, being disturbed and or nullied, hence the title stands impeached under Section 26(1)(b) of the Land Registration Act. The plainti has tendered exhibits showing that the defendant’s title is tainted with illegality for this court to make a nding that the root is fundamentally awed, to claim protection under the law. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18255/eng@2025-12-10 3

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22. In Dina Management Ltd -vs- County Government of Mombasa & Others [2023] KESC 30 [KLR], the court armed the decision of Munyu Maina -vs- Hiram Gathiha Maina [2013] eKLR, that where the registered proprietors root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership, without going beyond the instrument and show that the acquisition was legal, formal and free of any encumbrances including interests which would not be noted in the register. 23. The court observed that where the initial acquisition of title is unlawful, all subsequent transfers, even to innocent purchasers, are void. 24. In Kemboi -vs- Macharia & 2 Others civil Appeal No. 17 of 2020 [2025] KECA 1665 [KLR] (21st October 2025) (Judgment), the court said that a certicate of title cannot cure an unlawful allocation process, and as an end product, where the process of its acquisition is tainted, whether through procedural irregularity, fraud or illegality, then the resultant title is void. The court held that no right can ow from nothing; a nullity at inception remains a nullity, no matter how many hands it passes. 25. In Sawe & Another -vs- Sawe Civil Appeal No. 39 of 2020 [2025] KECA 1677 [KLR] (21st October 2025) (Judgment), the court held that it is a fundamental principle of law that, courts determine cases based on the evidence adduced by the parties, and that a court cannot be left to guess what a litigant means, yet he has the obligation to establish facts by presenting clear and reliable evidence to support their claim. 26. The court said that it has to base its decision on the proven facts and law and not on conjecture or speculation. The court emphasized that evidence presented in court must meet the standards for clarity, reliability, and admissibility and possess sucient weight to support a nding of fact. The court held that it was upon the appellant, subject to the rule of pleadings and evidence, to formulate their case and adduce cogent evidence. 27. The plainti has produced exhibits to support his case, which the defendant did not challenge on the defence of res judicata and lack of merit. When a party fails to attend court or call evidence, their pleadings remain mere statements of fact. See Linus Nganga Kiongo & Others -vs- Town Council of Kikuyu [2012] eKLR. 28. The evidence of a party that has not been challenged by the defendant remains uncontroverted. See Edward Muriga (through Stanley Muriga) -vs- Nathaniel D. Shutter Civil Appeal No. 23 of 1997, Interchemie EA Ltd -vs- Nakuru Veterinary Centre Ltd [2001] eKLR and Jamlik Muchangi Miano vs- Attorney General & Others [2017] KEHC 8422 l [KLR]. 29. That does not, however, absolve the plainti from discharging the burden of proof that it is probable than not that the allegation contained in the plaint occurred. See Palace Investments Ltd -vs- Georey Kariuki Mwenda & Dollar Auctioneers [2015] KECA 616 [KLR]. 30. In Rosaline Mary Kahumbu -vs- National Bank of Kenya Ltd [2014] eKLR, the court held that if the party with the onus of adducing sucient evidence fails to satisfy in truth threshold, the matter could stand dismissed on the basis that it was unmeritorious. 31. Res judicata, as held in John Florence Maritime Services Ltd & Another -vs- C.S. Transport & Infrastructure, Petition No. 17 of 2015, citing with approval Kenya Commercial Bank -vs- Muiri Coee Estates Ltd [2016] eKLR, is a doctrine of substantive law that once legal rights of parties have been judiciously determined, such edict stands as a conclusive statement of those rights. 32. The court said that when the doctrine is raised, the court has to look at the decision claimed to have settled the issues in question, the entire pleadings and record of the previous case, and the instant suit, to ascertain the issues determined in the previous suit and whether there are the same issues in the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18255/eng@2025-12-10 4

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subsequent case, whether the parties are the same, or are litigating under the same title, and whether the previous suit was determined by a competent court. 33. The test is based on the ve heads as described in Bernard Mugo Ndegwa -vs- James Nderitu Githae & Others [2010] eKLR: (1) Identication of the issues. (2) Same parties. (3) Sameness of title or claim. (4) Concurrence of jurisdiction. (5) Finality of the previous decisions. 34. The court has looked at P. Exhibit. No. (7), one of the issues for determination was whether the defendant herein had obtained title No. Trans Nzoia/Suwerwa/1316 lawfully. Paragraphs 19-20 dwelt on the legality of the title based on the alleged fraud. Paragraphs 23-24 dwelt on the import of the Land Disputes Tribunal award and the implications of nullifying the title’s subdivisions and titles to the four co-wives of the deceased, who had not been joined to the suit. 35. The court in paragraph 26 looked at the locus standi of the defendant in that suit, who had no capacity to do so unless the provision of the Law of Succession Act. The court in paragraph 27 found that he could not sustain the counterclaim. It struck it out. 36. As to the issues of whether the subdivision of the suit land was legal, the court held that it was proper in line with the decree in Kitale CMC Case No. 38 of 2004. The court proceeded to conrm the legality of the mutation form dated 20/5/2013. It also declared the defendant as the legal proprietor of the suit land herein, who is entitled to vacant possession. 37. There is no evidence that the judgment dated 24/6/2021 was appealed against or set aside. In P. Exhibit. No. (5), on page 34, the court had been called upon to revoke the title held by the defendant herein, issued on 15/8/2017. The trial court declined to determine the issue on page 35 of the ruling in view of P. Exhibit. No. (7), 38. In P. Exhibit. No. (4), the applicant was seeking to quash the Cherangani Land Disputes Tribunal’s award adopted in Kitale SPM Land Case No. 38 of 2004 on 3/1/2005. Wanjiku Karanja J, as she then was, declined to quash the award or decree. 39. As indicated above, the court where an issue of res judicata is raised has to delve into the previous pleadings or judgment to see whether the aspects of res judicata as set out in the Independent Electoral and Boundaries Commission -vs- Kiai & 5 others [2017] KECA 477 (KLR) decision have been met. 40. In E.T. -vs- Attorney General & another [2012] KEHC 5506 (KLR), it was held that the court must always be vigilant to guard against a litigant evading the doctrine by introducing new causes of action to seek the same remedy before the court. The test here is whether the plainti in this suit is trying to bring before the court in a dierent way, and in the form of a new cause of action, which has been resolved by a court of competent jurisdiction. 41. In Omondi -vs- National Bank of Kenya & Others [2001] EA 177, the court held that parties cannot evade the doctrine by merely adding other parties or causes of action in a subsequent suit. To allow such action, there will be no end to litigation, and as held in Kuloba J in Njangu -vs- Wambugu & Another, Nairobi HCCC No. 234 of 1991, a party will simply give his case a new cosmetic facelift every time he comes to court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18255/eng@2025-12-10 5

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42. A party should not be vexed twice over the same cause of action as held in Kuria & Another -vsAttorney General & Others [2005] E 1 EA 82. 43. Further, a court should not be called again to re-determine an issue between the same parties over the same title and subject matter. 44. Decisions of competent courts on merits and made with nality must be accepted as nal and can only be open for challenge either on appeal or under review. 45. It is in the public interest that there be an end to litigation where a decision is a liability to one party who must accept to move on as a plus to the other who is entitled to enjoy the fruits of his litigation. 46. Courts' limited resources should not be misused by parties who seek a second bite of the cherry, tying a second chance to get a totally dierent outcome than what had been previously issued to them. See Henderson -vs- Henderson [1843] 3 Hare 100. 47. Looking at the instant suit vis-à-vis the previous decision in P. Exhibit. No. (7), the issue, subject matter, subject title, and parties are similar. The only dierence is that the plainti herein says that the defendant in the former suit, whose counterclaim was struck out, had no capacity to represent the estate, but he has a grant to do so. 48. Unfortunately for the plainti, the issues were dwelt on merits and to nality by a court competent to do so. 49. The upshot is that I nd the suit res judicata. It is dismissed with no orders as to costs. 50. Orders accordingly. JUDGMENT DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 10TH DAY OF DECEMBER 2025. HON. C.K. NZILI JUDGE, ELC KITALE. In the presence of: Court Assistant - Dennis Kiarie for the plainti - present Cheptarus for the defendant - present https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18255/eng@2025-12-10 6

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