Kenya Agricultural and Livestock Research Organizatton v County Govt of Kisii & 3 others (Environment and Land Case E003 of 2024) [2026] KEELC 3398 (KLR)

3. The Defendant/Applicant avers that entertaining the current suit would be contrary to the doctrine of res judicata. Additionally, continuing the current suit will clog the court and incur unnecessary costs to the parties. That public policy requires that litigation should come to an end. 4. The application is further supported by the afidavit sworn on 15th July 2025 by Alfred Nyandieka, the Defendant’s County Attorney. He listed the reliefs sought by the Plaintifi/Respondent in Petition 3 of 2018 and annexed a copy of the said petition. He went further to list the reliefs sought in the present suit. 5. Mr Nyandieka deposes that the reliefs sought in paragraphs a, c, d, e, f and g in the present suit are similar to what was prayed for and/or ought to have been prayed in the former suit. That prayers B and H relating to a prayer for permanent injunction and resultant costs are issues that the Plaintifi had already brought up in the aforementioned Petition 3 of 2018. 6. He concluded that this court lacks jurisdiction to proceed with this suit as it ofiends the provisions of section 7 of the Civil Procedure Act. The Defendant urged this court to strike out the suit with costs. 7. The Plaintifi opposed the application through the replying afidavit of Dr Eliud Kireger sworn on 28th August, 2025. He deposes that the Defendant/Applicant herein has misrepresented facts arising from Kisii ELC Constitutional Petition No. 3 of 2008, Kenya Agricultural & Livestock Research Organisation vs Kisii County Government and Ibrahim Mose. 8. The Plaintifi/Respondent deposes that their suit is not res judicata and gave a history which led to the filing of the previous suit stating that on or around February, 2018, the Defendant/Applicant herein, among other persons, unlawfully and without any colour of right trespassed into all that parcel of land situated at Kisii County, identified and marked as "C" within Kisii Municipality Block IV. 9. The Respondent were granted the reliefs sought in the previous suit. However, on 28th March, 2021 the Defendant/Applicant trespassed into a parcel of land now described now as "C(i)" (hereinafter referred to as "the suit property'') situate within all that parcel marked "C" in Kisii Municipality Block IV as appears in the coloured survey maps and satellite map annexed in the Plaintifis/Respondent's list and bundle of documents. 10. Following the action by the Defendant/Applicant, the Respondent took out contempt proceedings against Patrick Lumumba, the Defendant’s County Secretary. Their application was dismissed on the ground that the boundaries of the land claimed by the Plaintifi were not identifiable, as per the ruling dated 27th October, 2021, annexed to the afidavit in support of the motion. 11. Immediately after the dismissal of the aforesaid contempt application, the Respondent avers that the Defendant continued with the construction of the governor's residence over land that belongs to them without any iota of right, permission or justification. This unlawful access, use, possession and occupation of the subject portion of the Plaintifis' land, they argue, constitutes a tort of trespass, which the Defendant is continuously undertaking to date. 12. Further, the Plaintifi argues that the ruling of the court dated 27th October, 2021, found that the dispute as regards the complained construction of the Governor's residence and the land over which the construction was ongoing could not be adjudicated by the judgment dated 29th August, 2019. 13. The Plaintifi deposes that the Defendant, in response to the contempt application, had stated that the construction of the residence of the Governor of the County Government of Kisii, which commenced on 28th March, 2021, should be handled in a fresh suit; hence, it cannot turn around and raise a defence of res judicata once the fresh suit was filed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3398/eng@2026-06-04 2

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Submissions: 14. The application was argued by way of written submissions, with the Defendant/Applicant’s submissions dated 17th March, 2025, and the Plaintifi/Respondent’s submissions dated 16th September, 2025. 15. The Applicant submitted on the provisions of Order 2, Rule 15, stating the present suit is an abuse of the court process. He went further to cite the case of Satya Bhama Gandhi vs Director of Public Prosecutions & 3 Others (2018) Eklr, which set out what amounts to abuse of court process, thus; 16. On res judicata, the Defendant recited the provisions of section 7 of CPA and the cases of, amongst others, Gladys Nduku Nthuki vs Letshego Kenya LTD; Muueni Charles Maingi (2022) KEHC 2227(KLR) and Apondi vs Canuald Metal Packaging (2005)1EA 12. 17. On the other hand, the Plaintifi reiterated the factual background of their case and submitted that the case in the previous suit determined the complaint on the construction of a feeder road, but did not determine the issue of the construction of the residence of the Governor of Kisii County, which commenced in 2021 after the impugned judgment. 18. To support this assertion, the Plaintifi cited the case of Firstlings Supplies Ltd vs Director of Public Prosecutions (2022) KECA 976(KLR) of 26th August, 2022 (judgment) which held as follows; “ While the parties in the two petitions appear to be the same, and it appears that the facts relied upon overlap, the central issue in petition 3 of 2020 was not directly and substantially in issue in the earlier petition. The main fact relied on in the later petition, namely the inclusion of a separate entity in the charge sheet, occurred after the determination of the earlier petition. The issue could not have been raised in the earlier petition.” 19. It also cited the Court of Appeal in HFCK VS J.N Wafubwa (2014) KECA 695 (KLR), which found that a suit can be anchored on a subject matter which had been presented in a determined case so long as there were new developments to the subject matter which did not exist at the time of determination of the previous suit. 20. On whether the dispute presented was conclusively determined on the merits in the previous suit, it submits that vide the ruling of 27th October, 2021, the Court had found that the judgment of 29th August 2019 was unambiguous as the acreage of the land marked “C” was not known and there were no beacons in place. This made the court not determine on the merits of the Plaintifi’s complaint over the construction of the governor’s residence. It is the Plaintifi’s case that, in the absence of a conclusive decision on the merits of the previous case, the Plaintifi’s claim of trespass remains unresolved, warranting that this suit be heard and determined on the merits. 21. They also submitted that the Defendant is estopped from raising the defence of res judicata premised on its deposition at paragraphs 61-69 of the afidavit of Patrick Lumumba dated 24th May 2021 and 5th July 2021. Analysis and Determination: 22. Section 7 of the Civil Procedure Act defines what constitutes res judicata under explanations 1-6 thereof. The task required of this court is to answer the question of whether the present suit is res judicata, ELC Pet 3 of 2018. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3398/eng@2026-06-04 3

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23. There is no dispute that the parties in the former suit are the same as the parties in the current suit. The Plaintifi/Respondents afirm obtaining a favourable judgment in the previous suit but argue it does not res judicata the present case because it did not conclusively determine the dispute between the two parties, and secondly, because the Defendant had, in a reply to the interlocutory application, pleaded that the issues currently disputed were new. 24. Is the Plaintifi right to state that the dispute was not conclusively determined? A copy of the pleadings and judgment in Petition 3 of 2018 was annexed to the supporting afidavit of the Defendant. On the face of the judgment, the Defendant did not file a response to the petition save for filing written submissions dated 20th May, 2019. 25. One of the orders sought under paragraphs (D) & (E), and which was granted, read thus; “ D. An order of permanent injunction restraining the respondents, jointly and severally, with their agents, servants and/or employees, from encroaching upon, trespassing onto, or remaining on, or in any way interfering with, all that parcel of land marked as “C” in the maps annexed to the Petitioner’s list and bundle of documents at pages 1 and 2, situated at Kisii, belonging to the Petitioner.” E. An order directing the Respondents to restore the suit property to the status ante 6th February, 2018 and to remove all structures erected on the Petitioner’s property referred to above within 30 days, failing which the Petitioner may carry out the restoration and removal of the structures at the Respondents’ costs and expenses. 26. The reason these orders were sought as pleaded in the previous suit was receipt of an undated letter from the Defendant stating that a feeder road was to be constructed passing through the suit land marked “C”. The Plaintifi had expressed their objection vide their letter dated 31st January 2018, but it appears the Defendant proceeded to commence construction of that feeder road. After reviewing the pleadings and submissions presented, Mutungi J, in a judgment rendered on 29th August, 2019, granted all the reliefs sought in the petition, which restrained the Defendant from undertaking the construction of the feeder road. 27. Despite the orders of permanent injunction granted, the Plaintifi pleaded that the Defendant started constructing the governor’s residence on a portion of their land. They had moved the court to cite them for contempt of the court's decree, but the application was disallowed. This made the Plaintifi file the present suit. 28. The previous suit was conclusively heard, and the prayers sought by the Petitioner were granted. It is incorrect for the Plaintifi to state that the previous case did not conclusively determine the dispute before the court, as the trial court determined the dispute as presented by the party. The issue of the extent or size of the land marked “C” did not arise; hence, the court could not go beyond what was pleaded. 29. On whether the present suit is res judicata, the Plaintifi relies on the ruling on the contempt application. That ruling referred to the report of the Deputy Registrar, which reported inter alia 1. The site the Petitioner identified in dispute. The Petitioner alleged the site belongs to KALRO and forms part of the land marked “C”. The Respondent, on the other hand, alleges that the part belongs to AIC Agricultural Training Institute, owned by the Defendant and did not form part of the land marked “C” 2. In the disputed part “C”, there was no construction going on. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3398/eng@2026-06-04 4

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3. 30. There were two houses that belonged to the Defendant according to the sentiments of the tenants living there.” Thus, my reading of the present complaint is a matter touching on a boundary dispute and/or claim over who owns the portion of land where the impugned construction is being undertaken. This is as pleaded in paragraphs 18 and 23(a) of the plaint. The said paragraphs read thus; 18. The Defendant, when confronted on the aforesaid actions in view of the existing court judgment in the contempt proceedings, maintained that the complaints are fresh, and the original cause of action was on the building of a feeder road while the ongoing construction of the governor’s residence is on land belonging to the county government. (underline mine for emphasis). 31. The Defendant/Applicant stated that these issues ought to have been pleaded in the previous suit. Explanation 4 of section 7 of CPA bars future filing in instances where the matters ought to have been brought up in the previous suit. However, in this instance, the Applicant is not challenging the court's finding in the previous suit that the land labelled “C” belongs to the Plaintifi. All it says is that the portion of land where they are building does not belong to the Plaintifi. 32. The question of construction, which arose after the judgment in the previous suit, and the question of ownership of the piece of land where the actual construction is taking place could not have been challenged in the former suit, as the Plaintifi could not foresee the Applicant claiming a part of what they believe to be their land. The alleged trespass became a new cause of action. 33. In light of the foregoing analysis, I conclude that the issue in this dispute was not directly and substantially in issue in the former suit. For this reason, I hold that the suit is not res judicata and decline to strike it out. Consequently, the application dated 15th July 2025 is dismissed with costs to the Plaintifi/Respondent. DATED, SIGNED, AND DELIVERED AT KISII THIS 4TH DAY OF JUNE, 2026 A. OMOLLO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3398/eng@2026-06-04 5

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