Macheo Limited v Wycliffe Mulunda Khaoya, Benson Wanambisi Khaoya & Douglas Shikuku Khaoya (Sued as the Administrators of the Estate of Joseph Wafula Khaoya (Deceased)) & The Land Registrar, Trans Nzoia (Interested Party)

fencing, grazing livestock, wasting, damaging, selling, alienating or in any manner interfering with the applicant’s quiet possession and occupation of 140.7 acres comprised in Land Reference Number 10288 Saboti Southwest of Kitale Municipality, (the suit property) pending hearing and determination of this application and the suit. b)Costs. 2. The application is premised on the grounds on the face of it and further grounds set out in the supporting affidavit sworn by James Kisa, the director of the applicant, on even date. The applicant contends that it is the lawful purchaser of the suit property, pursuant to two written agreements for sale, both dated 1/10/1995, between the applicant and the deceased. 3. According to the applicant, it paid the entire agreed purchase price of Kshs.8,360,600/= and a further payment of Kshs.2,105,562.60 for an additional acreage, whereupon the deceased acquired vacant possession of the suit property. Further, the applicant contends that it has remained in actual, continuous, peaceful, open, uninterrupted and exclusive possession of the suit property from 1995 to date. RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 2

page 2 of 21

4. The applicant further contends that under the first sale agreement, it purchased a total of 90.7 acres through consideration comprising his purchase on behalf of the deceased, of an equivalent parcel of land belonging to one Joel Kipyegon Cheptumo at a consideration of Kshs.5,260,600/=. 5. Further, the applicant asserts that, under the second sale agreement, it purchased 50 acres at a consideration of Kshs.3,100,000/=. The deceased accepted the full purchase price without protest or reservation and never sought to rescind the sale agreements or refund the purchase price. 6. The applicant deposes that in line with the sale agreements, the deceased subdivided his property and obtained the Land Control Board consent to subdivide and transfer the suit property. 7. The applicant developed the asserts that it has extensively suit property with permanent improvements that include a maize storage facility, cattle dip, livestock infrastructure, access roads, and extensive agricultural activities. However, the deceased did not execute the requisite transfer documents, prompting the applicant to file Kitale RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 3

page 3 of 21

High Court Civil Case No. 141 of 2007, seeking specific performance. 8. The applicant deposes that unfortunately, the deceased passed on before the suit was heard and determined, and the beneficiaries failed to substitute, leading to a dismissal of the suit for want of prosecution. 9. Subsequently, the applicant filed Kitale High Court Citation Cause No. 25 of 2018 to compel the beneficiaries to take out or renounce letters of administration, which they failed to do. 10. According to the applicant, the respondents were appointed as administrators of the estate of the deceased but have deliberately refused or neglected to execute the transfer instruments to complete the sale and are engaging in unlawful acts intended to defeat the applicant’s long-established proprietary and equitable interests in the suit property. 11. In this regard, the applicant contends that on 29/6/2026, the respondent, together with goons, entered the suit property, ploughed, cleared bushes and fenced it off. The respondents have continued to trespass and vandalize the applicants developments on the suit property. The applicant reported the RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 4

page 4 of 21

alleged criminal acts at Saboti Police Station vide O.B. No. 24/29/06/2026 and O.B. No.14/04/07/2026 respectively. 12. The applicant contends that unless the respondents are restrained, they will continue with the trespass and occasion substantial and irreparable loss that cannot be compensated in damages. That he has established a prima facie case and that the respondents do not dispute the sale agreements or the payment of the purchase price. 13. According to the applicant, the balance of convenience favours preserving the status quo, since there is real and imminent danger of losing its beneficial interest in the suit property. 14. The applicant has annexed and marked as “JK1”, a bundle comprising copies of the Certificate of Incorporation, Certificate of Title, first and second land sale bundles agreements, of payment cheques of schedule payment and and acknowledgments of receipts, consents, plaint in Kitale High Court Civil Case No.141 of 2007, an affidavit of service sworn 13/12/2018, Grant of Letters of Administration issued RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 on 2/6/2011, 5

page 5 of 21

photographs, O.B Numbers 24/29/06/2026 and 14/4/7/2026. 15. Opposing the motion, the respondents filed a notice of preliminary objection dated 18/7/2026. They contend that the suit is res judicata, Kitale Land Case No. 39 of 1999 and Kitale Civil Case No. 141 of 2007, contrary to Section 7 of the Civil Procedure Act. Further, that the suit is time-barred under Section 4(1)(a) of the Limitation of Actions Act; that the court lacks jurisdiction to grant an equitable remedy of specific performance over a contract that has expired by absolute effluxion of time; that the suit does not disclose any reasonable cause of action and that it is an abuse of the judicial process. 16. Subsequently, the applicant filed a supplementary affidavit dated 23/7/2026. It contends that the preliminary objection raises contested factual issues that require proceedings, the court rulings to and examine other pleadings, documentary evidence, and therefore does not raise pure points of law. 17. On res judicata, the applicant contends that the same is legally untenable since the dispute before RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 6

page 6 of 21

the tribunal was contractual in nature and concerned the enforcement of rights arising from the sale agreements. Thereafter, the applicant challenged the tribunal’s jurisdiction to determine contractual disputes in Kitale High Court Civil Case No. 141 of 2007, which the court upheld. 18. The applicant contends that a decision rendered without jurisdiction is a nullity ab initio and cannot constitute a competent and final determination for purposes of Section 7 of the Civil Procedure Act. 19. Similarly, the applicant contends that to determine whether the suit is statutory barred, the court has to look at the evidence. And that in a case of fraud, time starts running upon discovery of the fraud. Again, the applicant contends that it is entitled to the order of specific performance, which cannot be disposed of through the preliminary objection. 20. In the grounds of opposition dated 23/7/2026, the applicant insists that; a)The notice of preliminary objection is incompetent, misconceived and does not raise pure points of law, since it calls for the court to ascertain and evaluate disputed facts and evidence. b)That the plea of res judicata is misconceived, as the respondents have failed to satisfy the RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 7

page 7 of 21

requirements of Section 7 of the Civil Procedure Act. c) That the proceedings and resultant decree in Kitale Land Case No. 39 of 1999 were declared null and void in Kitale High Court Civil Case No.141 of 2007 for want of jurisdiction of the Saboti Land Disputes Tribunal. d)That Kitale High Court Civil Case No.141 of 2007 was dismissed for want of prosecution following the death of the defendant and was never heard or determined on its merits and cannot, therefore, operate as res judicata. e)That the issues of limitation of action, specific performance and the Plaintiff1s entitlement to the reliefs sought are mixed questions of fact and law which can only be determined upon a full hearing and not by way of a preliminary objection. f) That the plaint discloses a reasonable cause of action founded on contractual obligations, the respondents' obligations as administrators of the estate, and their continuing acts of trespass, all of which raise triable issues for determination. g)That the notice of preliminary objection is an abuse of the court process intended to delay the hearing of the suit as the respondents continue interfering with the suit property, and ought to be dismissed with costs. 21. In written submissions dated 23/7/2026 the applicant reiterates that the respondents' preliminary RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 8

page 8 of 21

objection does not raise pure points of law and invites the court to determine whether the previous proceedings satisfy the ingredients of res judicata, whether the applicant’s claim is statute-barred, whether specific performance is available in the circumstances of this case and whether the plaint discloses a reasonable cause of action. 22. On this proposition, the applicant relies on Mukisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd (1969) EA 696, Independent Electoral and Boundaries Commission -vs- Jane Cheperenger & 2 Others (2015) eKLR and Oraro -vs- Mbaja (2005) eKLR. 23. On whether the suit is res judicata, the applicant relies on Section 7 of the Civil Procedure Act and submits that the following ingredients must all be established: the matter in issue must be directly and substantially in issue in the former suit; the former suit must have been between the same parties or parties litigating under the same title; the matter must have been heard and finally determined; and a court of competent jurisdiction must have determined the former suit. RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 9

page 9 of 21

24. The applicant relied on the holdings in Independent Electoral and Boundaries Commission -vs- Maina Kiai & 5 Others [2017] eKLR and Richard Wefwafwa Songoi -vs- Ben Munyifwa Songoi [2020] KECA 942 (KLR). 25. Further, the applicant submits that proceedings conducted without jurisdiction are void ab initio and cannot confer According to any legal rights or obligations. the applicant, a decision already declared a nullity for want of jurisdiction cannot constitute a competent and final determination capable of sustaining a plea of res judicata under Section 7 of the Civil Procedure Act. 26. The applicant directed this court to the holding in Owners of Motor Vessel "Lillian S" -vs- Caltex Oil (Kenya) Ltd [1989] KLR 1 and Macfoy -vsUnited Africa Co. Ltd [1961] 3 All ER 1169. Further, the applicant submitted that a suit dismissed for want of prosecution does not determine the merits of the dispute. Consequently, HCCC No.141 of 2007 does not satisfy the requirements of Section 7 of the Civil Procedure Act and cannot operate as res judicata. RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 10

page 10 of 21

27. On whether the suit is statute-barred, the applicant submits that the issue of limitation cannot be determined as a preliminary point in the circumstances of this case. The applicant submits that the dispute over the suit property commenced as early as 1999 when the late Joseph Wafula Khaoya instituted proceedings before the Saboti Land Disputes Tribunal, and thus the dispute has been continuous and has never been abandoned by the applicant 28. Further, the applicant submits that it has been in continuous, open and uninterrupted possession of the suit property since taking possession in 1995 after paying the purchase price in full. He has extensively developed the land, and the respondents have only recently commenced acts of trespass by invading the land, demolishing structures, erecting fences, subdividing the land and interfering with his quiet possession. Those acts constitute continuing trespass and give rise to fresh and continuing causes of action. 29. The applicant relies on the holding in Divecon Ltd vs- Samani [1995-1998] EA 48, DT Dobie & Company (Kenya) Ltd -vs- Muchina [1982] KLR RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 11

page 11 of 21

1 and In Re Estate of Konini Ole Kimantiru (Deceased) (2019) KEHC 10118 (KLR). 30. Further, the applicant submits that the plaint discloses substantial triable issues, and the question whether the plaintiff is entitled to specific performance is one for determination upon a full hearing of the evidence and that the interests of justice demand that the parties be allowed to ventilate their respective cases at trial. 31. The respondents, on the other hand, rely on submissions dated 27/7/2026. They submit that the suit is barred by the doctrine of res judicata under Section 7 of the Civil Procedure Act, as held in John Florence Maritime Services Limited & Another vs- Cabinet Secretary for Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR). 32. The respondents equally submit that the applicant is seeking to relitigate the issues already determined in Kitale Land Case No. 39 of 1999 and Kitale High Civil Case No. 141 of 2007. According to the respondents, the dispute arose from the same transaction, involved the same parties or parties litigating under the same title, was heard by two RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 12

page 12 of 21

courts of competent jurisdiction, and was finally determined by a delivery of judgment. 33. On jurisdiction, the respondents relied on the holding in Owners of the Motor Vessel “Lillian S” -vsCaltex Oil (Kenya) (supra), to submit that the plaintiff cannot circumvent the doctrine by merely adding parties or re-framing the cause of action. 34. Further, the respondents, guided by Order 24 Rule 7 of the Civil Procedure Rules, submit that all the ingredients of res judicata have been satisfied, and urge this court to uphold the preliminary objection on this ground. 35. Equally, respondents submit that the suit is timebarred by operation of Sections 4(1)(a) and 7 of the Limitation of Actions Act, rendering it defective, incompetent, and a nullity ab initio. They urged the court to be guided by Gathoni -vs- Kenya Co-operative Creameries Ltd [1982] KLR 104 and Mukuru Munge -vs- Florence Shingi Mwawana & 2 others [2016] eKLR. 36. Similarly, the respondents submit that limitation of action is not a mere procedural technicality to be cured by Sections 1A & 1B of the Civil Procedure Act or Article 159 of the Constitution. That it calls RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 13

page 13 of 21

into question the court’s jurisdiction to entertain the dispute. 37. I have carefully considered the application and the responses thereto, including the preliminary objection. I have equally considered the helpful submissions by counsel, for which I am grateful. The very first issue which calls for the court’s attention is the preliminary objection as it goes to the root of the application and indeed, the entire suit. 38. A preliminary objection is a pure point of law argued on the basis, or which arises by clear implication out of the pleadings, that all the facts pleaded by the opposite side are correct. (See Mukisa Biscuits Manufacturing Co. Ltd -vs- West End Distributors Ltd [1965] EA 696.) 39. To distinguish a pure point of law, courts have to be satisfied that there is no proper contest as to the facts, as held in Aviation & Allied Workers Union (K) -vs- Kenya Airways Ltd & Others [2015] eKLR. 40. The respondents urge that the present suit by the applicant is based on issues that were heard and determined in previous suits, to wit Kitale High Court Civil Case No. 141 of 2007 and Kitale RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 14

page 14 of 21

Land Case No. 39 of 1999 by a court seized of the requisite jurisdiction. The applicant, on the other hand, insists that the said previous suits were not heard and determined on the merits to be termed as res judicata. 41. The ingredients to establish res judicata were discussed in John Florence Maritime Services Ltd (supra). They include: a)There is a former judgment or order which was final. b)The judgment or order was on the merits. c) The judgment or order was rendered by a court having jurisdiction over the subsequent matter and the parties. d)The first and second actions must have identical parties, subject matter, and cause of action. 42. Needless to restate, Res judicata aims at preventing causes of action or issues from being relitigated once they have been determined on the merits. In addition, it prevents a party who has lost in a previous claim from taking a second bite at the cherry, so to speak. Put differently, the doctrine ensures an end to litigation. 43. The courts are cautioned, as held in Independent Electoral and Boundaries Commission RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 -vs15

page 15 of 21

Maina Kiai & Others [2017] eKLR and E.T. -vsAttorney General & Another [2012] eKLR, to be vigilant to guard against parties evading res judicata by introducing new causes of action to seek the same remedy before the court. 44. According to the applicant, if the court has to consider disputed facts, that cannot be said to be a pure point of law to amount to a preliminary objection. This, in my view, is the correct legal position. 45. Similarly, to determine whether the suit is statutory barred, the court is required to probe the facts and evidence. The applicant in the plaint seeks, among other orders, an eviction of the respondents. This is a triable cause of action, contrary to the respondents' view. 46. On jurisdiction, this court derives the same from Article 162(2) and (3) of the Constitution and Section 13 of the Environment and Land Court Act. See Mbuki (Environment -vs- Waweru & Land Case & 3 others E030 of 2025) [2025] KEELC 2932 (KLR) (25 March 2025) (Ruling). RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 16

page 16 of 21

47. The court has exclusive original and appellate jurisdiction to determine all matters referred to it relating to the environment and land. The jurisdiction of the court includes the power to determine any disputes “ relating to public, private, and community land and contracts, choses in action or other instruments granting any enforceable interests in land. 48. It follows, therefore, that this court has the requisite jurisdiction to hear and determine matters over disputed contracts. It is from hearing and examining the evidence and applying the relevant law that this court can determine whether the contract is enforceable and what orders to issue, if any. 49. Resultantly, the preliminary objection is dismissed as the same is not a pure point of law. 50. Coming to the application, the applicant is seeking a temporary order of injunction pending the hearing and determination of the suit. He has cited continued trespass and destruction of his developments on the suit property. 51. Order 40 Rule 1 of the Civil Procedure Rules provides that where in any suit, it is provided by affidavit or otherwise that the property in dispute in a RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 17

page 17 of 21

suit is in danger of being wasted, damaged or alienated by any party to the suit, the court may grant an order of temporary injunction to prevent such acts until the suit is heard and determined. 52. A party seeking a temporary order of injunction has to meet the conditions set out in Giella -vs- Cassman Brown Co. Ltd [1973] EA 358. 53. In Mrao Ltd -vs- First American Bank (K) Ltd [2003] KLR 125, the court held that the power to grant an interim order of injunction is discretionary. The court defined a prima facie case as including, but not confined to, a genuine and arguable case, which, based on the material presented to the court, shows that an existing right has been infringed by the opposite party, to call for an explanation or rebuttal from the other. 54. In Mrao Ltd (supra), the court emphasised that an applicant must tender evidence to show a prima facie case, demonstrate irreparable injury if the injunction is not granted, and allay any doubts by showing the balance of convenience in his favour. The court held that it is not sufficient to raise issues; the evidence must show an infringement of a right and the probability of success of the applicant’s case at trial. RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 18

page 18 of 21

55. From the sale agreement attached in the application and also looking at the plaint, I am of the persuaded view that the applicant has established a prima facie case to warrant restraining the respondents from committing further acts of destruction or otherwise on the suit property. 56. Irreparable loss is real, apparent, and incapable of being qualified or cured, or to put conditions back the way they were monetarily. In Nguruman Ltd -vsNielsen & Others [2014] eKLR, the court defined it as an injury where there is no standard by which the amount can be measured with reasonable accuracy, or the injury or harm that is in a nature that may not be ascertained monetarily. 57. In Pius Kipchirchir Kogo -vs- Frank Kimeli Tenai ELC Eldoret No. 221 of 2017, the court held that the balance of convenience is one where, if an injunction is not granted and the suit is ultimately decided in favour of the plaintiff, the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendant, if the injunction is granted, but the suit is ultimately dismissed. RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 19

page 19 of 21

58. To establish the foregoing principles, a court is not expected to conduct a mini-trial but to see, based on the material placed before it, that the justice of the matter requires issuance of temporary orders of injunction. 59. I feel I have said enough to demonstrate why I am persuaded to allow the application, which I hereby do. A temporary injunction as prayed is thus granted to last one year to allow for the hearing and determination of the suit. 60. The costs of this application shall abide the outcome of the suit 61. It is so ordered. Ruling dated, signed, and delivered via Microsoft Teams/Open Court at Kitale on this 18th day of September, 2026. In the presence of: Court Assistant: Matui Mr. Wesanza holding brief for Mayende for the plaintiff/applicant Mr. Bunyasi for the defendants RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 20

page 20 of 21

HON. G.M. GITONGA JUDGE, ELC KITALE RULING: KITALE ELCLC NO. E051 OF 2026 -D.O.D- 18/09/2026 21

page 21 of 21