Ngamia Consulting Co. (K) Limited v Lorogoi & 3 others (Environment and Land Case E063 of 2025) [2026] KEELC 2950 (KLR)

4. The plaintifi deposes that the defendants have forcefully encroached onto the land and are threatening to evict them from the land as per the eviction notice dated 3/11/2025, attached as annexure marked NEL-(5). 5. The plaintifi deposes that the defendants allege that Plot No. 824 forms part of their Plot No. 456, owned by the 3rd defendant, hence the need to enjoin the interested party, which allocated the plot, to furnish the court with the necessary information and aid it in making a just determination. 6. Further, the plaintifi deposes that the dispute is over the existence of Plot No. 824 and its locality, hence the need for the court to issue an order for the county surveyor to visit the plot, establish the position, and file a report in court. 7. The applicant deposes that at some point, a boundary issue was lodged with the intended interested party, which was never resolved as per annexure marked NEL-(6). 8. The plaintifi deposes that the defendants have denied its agreements or other persons acting on its behalf from quiet enjoyment and possession of its suit property, hence adversely afiecting other business establishments on the said premises or scaring ofi their customers due to the presence of the respondents’ agents therein. 9. The plaintifi deposes that the threat of eviction, if implemented, would amount to a total miscarriage of justice and loss of livelihood. The plaintifi deposes that it has withdrawn the application dated 30/12/2025 as per annexure marked NEL-(7). 10. The 1st defendant, as the applicant filed another application dated 6/3/2026, the second application. The court is asked to strike out this suit on account of res judicata. The reasons are contained on the face of the application and in a supporting afidavit of Charles Ejore Lorogoi, sworn on 6/3/2026. 11. It is deposed that there is a previous judgment, namely ELC No. 176 of 2016, whose final judgment was delivered on 25/3/2025, attached as CEL-(1), where parties were the same over Plot No. 824, situated in Lodwar Town, to which the plaintifi’s suit was dismissed, triggering a notice of appeal as per annexure marked CEL-(2). 12. Further, it is deposed that an application for stay pending the intended appeal was also heard and determined on 30/7/2025 as per annexure marked CEL-(3). 13. The applicant deposes that an application for leave to appeal out of time was also dismissed as per a ruling delivered on 27/11/2025, attached as CEL-(4). 14. The applicant deposes that in the amended plaint before this court dated 30/12/2025, the 2nd plaintifi in the further suit is currently the plaintifi seeking similar reliefs as in the former suit, but strangely, the pleadings state that there is no other pending suit over the same cause of action, though the verifying afidavit falls short of mentioning the former suit. 15. The applicant denies that the former suit was dismissed on procedural technicalities, as the court considered its merits, found, and held that the plaintifi in this suit had not been incorporated when the plot allotment was purportedly done, hence the same was irregular, null, and void, resulting in the cancellation. 16. The applicant deposes that the applicant is not candid and is guilty of concealment of material facts in a bid to mislead the court, both in the amended plaint and the notice of motions dated 30/12/2025 and 26/1/2026. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2950/eng@2026-05-14 2

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17. The application is opposed on the grounds of opposition filed on 5/4/2026 by the plaintifi. It states that the suit is not res judicata, Kitale ELC No. 176 of 2026, which suit was not determined on merits, but was dismissed on the ground that the 1st plaintifi then did not have authority from the company. The 2nd plaintifi herein thus instituted this suit in his own capacity on behalf of the 2nd plaintifi, which had the right to do so on its own; thus, the 1st plaintifi lacked locus standi to institute the suit. 18. The plaintifi states that the issues raised in Kitale ELC No. 176 of 2026 were never determined on merit. Under Section 7 of the Civil Procedure Act, a suit can only be termed as res judicata if 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. 19. The plaintifi has approached the court through an amended plaint dated 21/2/2026. It alleges that it owns Plot No. 824 Crusade Ground measuring 0.0402 Ha, allocated to it on 18/7/2012, while the 3rd defendant owns a bordering Plot No. 456. 20. The claim is that the 3rd defendant has intentionally and willingly encroached and or trespassed onto its plot, claiming that the plot does not exist or form part of Plot No. 456. The plaintifi claims that it lodged a boundary issue with the intended interested party, whose efiorts to resolve the issue have been futile. 21. The plaintifi avers that by a notice of eviction dated 3/11/2025, the 3rd defendant has threatened to forcefully evict it and its agents or persons under the use of Plot No. 456, but the target is Plot No. 824. The plaintifi avers that out of the defendants’ infiuence within the local community, it has threatened to destabilize the business running on the suit property, as a form of intimidation to scare ofi its agents or persons under its instructions on the suit land. 22. The plaintifi prays for: a. Declaration that it lawfully owns Plot No. 824. b. A survey report filed by the County Surveyor shall be adopted as an order of the court, and beacons shall be established herein as permanent boundaries between the two plots. c. The defendants are held liable for trespass and will be permanently evicted from the plot. d. Permanent injunction. e. The interested party be compelled to issue a certificate of lease in favour of the plaintifi for the plot. (f) General damages for trespass. 23. The plaintifi’s suit has been attached on account of res judicata. In John Florence Maritime Services Ltd & Another -vs- C.S. for Transport & Infrastructure & Others [2015] eKLR, the court held that the rationale behind the doctrine is based on the public interest that there should be an end to litigation, coupled with the interest to protect a party from facing repetitive litigation over the same matter. 24. The court said that res judicata ensures the economic use of the court’s limited resources and timely termination of cases, which at the same time promotes stability of judgments to reduce the possibility of inconsistency of judgments of concurrent courts, promotes confidence in courts, and predictability as essentials to maintaining respect for justice and the rule of law. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2950/eng@2026-05-14 3

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25. In Kenya Commercial Bank Ltd -vs- Muiri Cofiee Estates & Others [2016] eKLR, the court held that res judicata applies in respect of matters of all categories, allowing a litigant only one bite at the cherry, prevention of litigants or persons claiming under the same title from returning to court to claim further reliefs not claimed in the earlier action, prevention of multiplicity of such, and that a verdict duly translates into fruit for one party, and a liability for another, conclusively. 26. The court warned that courts should be vigilant against the drafting of pleadings in such a manner as to obviate the principle, by introducing a new cause of action to seek the same remedy before the court. 27. The court also held that the test is whether the plaintifi in the second suit is trying to bring before the court in another way and in the form of a new cause of action, which has been resolved by a court of competent jurisdiction. 28. The elements of res judicata as set out in Independent Electoral and Boundaries Commission -vsMaina Kiai & Others [2017] eKLR, are: a. The suit or issue was directly and substantially in issue in the former suit. b. The former suit was between the same parties or parties under whom they or any of them claim. c. These parties were litigating under the same title. (d) The issue was heard and determined in the former suit by a court competent to try the subsequent suit. 29. In Mwikali & Another -vs- Mutungi & Others Civil Appeal No. 189 of 2019 [2026] KECA 231 [KLR] (13th February 2026) (Judgment), the court held that the doctrine applies not only to the issues raised in the first suit, but also to all issues which, by reasonable diligence, the parties ought to have raised in the first suit; otherwise, parties are required to bring forward their entire claim in the first suit rather than to litigate issues in instalments. 30. The court held that the new parties and cause of action were nothing short of a poorly contrived stratagem to defeat the doctrine of res judicata. 31. Turning to a temporary injunction, a party seeking such orders must establish a prima facie case with a probability of success at the hearing, that there will be irreparable damage or loss in the absence of a temporary injunction, and lastly, that the balance of convenience tilts in favour of granting the orders sought. 32. Order 40 Rule 1 of the Civil Procedure Rules provides that where a suit property is in danger of wastage, damage, or alienation by any party to the suit, or is being wrongly sold, or the defendant threatens or intends to dispose of it, a court may grant a temporary injunction to restrain such an act until the suit is disposed of. 33. A prima facie case is more than an arguable case. It is established that, if looking at the material before the court, a right has been infringed or violated to call for an explanation from the defendant. See Mrao Ltd -vs- First American Bank of (K) & Others [2003] KLR 125. 34. Irreparable loss or damage may not be quantified or monetarily compensable. It must be real, apparent, imminent, but not imagined as held in Nguruman Ltd -vs- Jan Bonde Neilsen & Others [2014] eKLR. 35. Balance of convenience, as held in Giella -vs- Cassman Brown & Co. Ltd [1973] EA 358, and in Pius Kipchirchir Kogo -vs- Frank Kimeli Tenai [2018] eKLR, as demonstrated as to which party could sufier more from either granting or denying the injunction. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2950/eng@2026-05-14 4

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36. An inquiry into whether to grant or refuse an injunction is not for a court to conduct a mini-trial or to make a definitive or final analysis of law or fact, but to see to it out of the pleadings if, on a balance of probabilities, there is a need to issue a temporary injunction. See Kenya Commercial Finance Co. Ltd -vs- Afraha Education Society [2001] 1EA 86. 37. In this suit, the plaintifi claims encroachment of its Plot No. 456 by the defendants, who allege that the plot it occupies belongs to them as Plot No. 824. The defendants deny the plaintifi’s claim since it has already been decreed that the suit land through a valid decree of this court in a previous suit, rendering the suit res judicata. 38. The plaintifi’s suit is termed an abuse of the court process. Equally, both the suit and the application are termed as made by concealing material facts on the existence of a valid decree of this court in which the plaintifi in the instant suit was the 2nd plaintifi, and to which the court made a finding that the alleged allocation of Plot No. 456 occurred before the plaintifi came into existence. The defendants have attached the previous decision of this court to which the plaintifi was a participant, not disclosed in the amended plaint, and the notice. 39. The court is asked to strike out the suit. Striking out of a suit was discussed in DT Dobie & Company (Kenya) Limited -vs- Muchina & another (Civil Appeal 37 of 1978) [1980] KECA 3 (KLR) (18 March 1980) (Judgment) as a drastic step. 40. Non-disclosure of material facts was discussed in Bahadurali Ebrahim Shamji -vs- Al. Noor Jamal & 2 Others Civil Appeal No. 210 of 1997. The court said that a party has an obligation to make the fullest possible disclosure of all material facts within its knowledge. 41. In this suit, the plaintifi has not pleaded that there has been another suit between the parties over the subject matter. The pleadings by the plaintifi are silent on the existence of Kitale ELC No. 176 of 2016, to which it was a 2nd plaintifi, regarding Plots No. 824 and 456, where the deponent to the verifying and supporting afidavits was PW1, a director of the plaintifi herein. 42. In paragraphs 71 and 76, the court made a finding that the plaintifi was incorporated on 26/7/2012, hence could not have been an allottee of Plot No. 824, before it came into existence. The court also, in paragraphs 78- 90, determined the capacity of the deponent and the plaintifi herein, in relation to the ownership of the plot and the suit wanting. The plaintifi in that suit later filed a notice of appeal against the judgment delivered on 25/3/2025. 43. In the ruling delivered on 30/7/2025, the deponent to the supporting afidavit in this application was the deponent to this application for stay of execution of the decree arising out of the judgment delivered on 25/3/2025. The court declined to stay a negative order. 44. In the ruling delivered on 27/11/2025, the plaintifi herein was the 2nd applicant together with the deponent seeking to file a record of appeal out of time before the Court of Appeal regarding the appeal against the judgment of this court. The Court of Appeal declined the invitation and dismissed the application on 27/11/2025. Exactly, almost a month after the plaintifi filed this suit, over the same issue against the same defendants, over the same titles. The prayers in the former suit and the instant suit are similar. 45. In the grounds of opposition and written submissions dated 5/4/2026, in answer to the notice of motion for striking out, the court is told that the former suit was not determined on the merits, as the court merely looked at the locus standi issue, hence res judicata does not apply. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2950/eng@2026-05-14 5

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46. Paragraphs 63-83 of the judgment delivered on 25/3/2025 contain the issues for determination, analysis of the evidence tendered, and determination of the issue of ownership of Plot Nos. 824 and 456. Each of the parties was granted an opportunity to ventilate their respective claims, including the defence and counterclaim. Parties’ testimony and written submissions were conclusively considered before the court made its findings. The plaintifis who were substantive plaintifis in the former suit cannot feign ignorance that their former suit went through the rigors of trial and a merit-based judgment was rendered. 47. In Margaret Wangui Karugu -vs- John Njenga Karugu & Another [2018] eKLR, the court held that where a party is guilty of material non-disclosure, to steal a match of the other party, the court will discharge such orders immediately it is moved. 48. In Kilima Ltd & Another -vs- Samuel Ruto [2019] KEELC 3322 [KLR], the court held that parties who come to court must be honest and have integrity, for truth will always come out and consequences of dishonesty shouldered by the ofiender. 49. From the pleadings and documents brought by the defendants, it is crystal clear that the parties, title, reliefs, and the issues in the second suit are in Pari Materia to the issues in the previous suit. Misleading the court to obtain an unfair advantage in the exercise of its discretion to grant an equitable injunction disentitles such an applicant from the relief of a temporary injunction. 50. The plaintifi has miserably failed to establish the tests of a temporary injunction. See Bao Investments & Ofice Management Services Ltd -vs- Housing Finance Company of Kenya Ltd Civil Appl. No. 171 of 2006. The purpose of res judicata is to guard against vexing a defendant. 51. In Kithaka -vs- Wangari & Others Civil Appeal No. 155 of 2020 [2026] KECA 255 [KLR] (13th February 2026) (Judgment), the court said that Section 7 of the Civil Procedure Act prohibits the court, in absolute terms, from entertaining a suit that raises issues already heard and finally determined by a court of competent jurisdiction in an earlier suit between the same parties or parties claiming under them, as a doctrine based on the statutory principle that litigation must come to an end, and that a court cannot be asked to determine the same issue over and over. 52. In Kioko -vs- Attorney General, Civil Appeal No. E017 of 2022 [2026] KECA [KLR] (13th March 2026) (Judgment), the court held that re-litigation constitutes an abuse of the court process, especially where the identity of the parties, subject matter, and issues are similar. 53. Having regard to the jurisprudence set above on res judicata, the plaintifi fits the bill of a litigant who wants a second bite of the cherry, after losing the battle in the first suit before this court. The plaintifi went to the Court of Appeal and cannot come knocking on the doors of justice herein for a relook at the same issues, opting to get a difierent outcome. The court must guard against such a litigant and put a stop to the game by allowing the application dated 6/3/2026. 54. The suit brought by an amended plaint dated 26/1/2026 is struck out with costs. 55. File closed. 56. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 14TH DAY OF MAY 2026. HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2950/eng@2026-05-14 6

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In the presence of: Court Assistant - Dennis Mr. Ndarwa for Kiarie for the 1st defendant/applicant present Khisa for plaintifi/respondent absent Interested Party absent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2950/eng@2026-05-14 7

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