Augustine Kimutai Koech & 11 others v Paul Kipterer Keino, District Land Registrar - Bomet & The Honourable Attorney General

PAUL KIPTERER KEINO……….………..................1ST DEFENDANT DISTRICT LAND REGISTRAR- BOMET …...……..2ND DEFENDANT THE HONOURABLE ATTORNEY GENERAL……...3RD DEFENDANT RULING. Introduction. 1. This ruling is in respect of the 1 st Defendant/Applicant’s Notice of Motion application dated 17 th March, 2026. The application is expressed to be brought under Section 3A & DR A FT COP Y 7 of the Civil Procedure Act and Order 2 Rule 15 of the Civil Procedure Rules. 2. The application seeks the following orders; a. That the Plaintiffs’ suit be struck out with costs as; 1. It is res-judicata and; 2. It is not only vexatious but also constitutes an utter abuse of the court process. -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 2 of 41

page 2 of 41

3. The application is based on the grounds on its face and the supporting affidavit of Paul Kipterer Keino which affidavit is sworn on 16th March 2026. Factual Background. 4. The Plaintiffs/Respondents commenced the present proceedings vide the Plaint dated 8 th December, 2025 DR A FT COP Y wherein they seek the following prayers; a. An order be issued that the plaintiffs herein have acquired title to the entire share belonging to the 1st Defendant from the land parcel known as Kericho/Emkwen(Kapkures) 290 by order of adverse possession. b. A permanent injunction injunction do issue to restrain the 1 st defendant either by themselves or by their servants and or/ agents or any -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 3 of 41

page 3 of 41

other person acting for and /or on their behalf from accessing and/or conducting any activities in the land parcel known as Kericho/Emkwen(Kapkures)290. c. General damages. d. Costs of the suit. e. Any other or further relief the court may deem fit and just to award. 5. As at the time of writing this ruling the 2 nd and 3rd Defendants/Respondents have not filed their statement of defense. 6. DR A FT COP Y The application came up for hearing on the 19 th March 2026 and Counsel for the 2nd and 3rd Defendants/Respondents informed the Court that they had not been served with the application. 7. The Court issued directions that Counsel for the 1 st Defendant/Applicant serves the 2nd and 3rd Defendant/Respondent with the relevant pleadings and also -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 4 of 41

page 4 of 41

directed that the 2nd and 3rd Defendants/Respondents file their responses. 8. On the 19th March, 2026 the Court also issued directions that the application be canvassed by way of written submissions. 9. On the 27th April, 2026 the matter came up for mention to confirm filing of submissions and upon confirmation by parties that submissions had been filed, the application was reserved for ruling. DR A FT COP Y 10. As at the time of writing this ruling the 2 nd and 3rd Defendant/Respondents had not filed their responses to the application. The Defendants/Applicant’s Contention. 11. The affidavit in support of the application is sworn by Paul Kipketer Keino. -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 5 of 41

page 5 of 41

12. The 1st Defendant/Applicant contends that the Plaintiffs' application dated 19th December, 2025 was not made in good faith, but was instead interposed only to frustrate implementation of the Judgment and Decree of this Honourable Court delivered on 25th January, 2026 in Kericho ELC Civil Suit No. 50 of 2019. 13. He also contends that the subject matter in the former case was all that parcel of land known as Kericho/Emkwen(Kapkures)/290, over which he was, inter alia, adjudged to be entitled as a common owner DR A FT COP Y together with one Tapnyobii C. Maina (Deceased), who was one of the Defendants in the former matter. 14. He further contends that he subsequently applied to have the common tenancy with the said Tapnyobii C. Maina (Deceased) severed, and that the property was accordingly sub-divided into the parcels of land known as Kericho/Emkwen (Kapkures)/815 and 816, which were vested in their respective names. -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 6 of 41

page 6 of 41

15. It is his contention that the said Tapnyobii C. Maina is the biological mother of the 1st to 8th Plaintiffs and grandmother to the 9th,10th and 13th (sic) Plaintiffs, respectively. 16. It is also his contention that the 12th Plaintiff is only a proxy of the 1st to 9th and 11th -13TH Plaintiffs, co-opted in the suit in a bid to lend credence to it. 17. It is further his contention that the 10 th Plaintiff has never DR A FT COP Y lived on the suit land nor otherwise occupied it, at least not his parcel of land known as Kericho/Emkwen(Kapkures)/815. 18. He also contends that the 1st Plaintiff was in fact substituted in place of the said Tapnyobii C. Maina (Deceased) in the former matter upon her demise, and that he is currently the subject of a warrant of arrest issued upon the 1 st Defendant/ -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 7 of 41

page 7 of 41

Respondent's application for recovery of costs awarded in his favour against them. 19. He contends that, on the advice of his advocates on record, the instant suit and the accompanying application are bad in law in that the subject matter of the instant suit, being the parcel of land known as Kericho/Emkwen(Kapkures)/290, now comprised in Kericho/Emkwen(Kapkures)/815 and 816 upon partition, is one and the same as the subject matter in the former suit i.e. Kericho ELC Civil Suit No. 50 DR A FT COP Y of 2019. 20. It is his contention that the parties in the former suit and the instant suit are essentially similar. 21. It is also his contention that the Plaintiffs claim cannot be divorced from that of their mother and grandmother in the former suit and therefore the Plaintiffs’ herein are speaking, -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 8 of 41

page 8 of 41

litigating or otherwise claiming under the same title as their mother in the former suit. 22. It is further his contention that the issues raised in the instant suit are similar to those in the former suit in so far as they relate to the use and occupation of the parcel of land known as Title No. Kericho/Emkwen(Kapkures)/290, now comprised in Title Nos. Kericho/Emkwen(Kapkures)/815 and 816, even though the instant suit has been dressed up as if it were a bona fide DR A FT COP Y claim of adverse possession. 23. He contends that the Judgment in the former suit is a Judgment in rem, which is binding against the whole world, the Plaintiffs/Applicants included. 24. He also contends that, in the circumstances, and on the advice of his advocates on record, the instant suit is res judicata and ought to be dismissed with costs. -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 9 of 41

page 9 of 41

25. It is his contention that the instant application (sic) is an utter abuse of the court process. 26. He ends his deposition by urging the Court to dismiss the Plaintiffs' application dated 19th December, 2025 (sic) with costs. PLAINTIFFS/RESPONDENTS’ RESPONSE. DR A FT COP Y 27. In response to the 1st Defendant/Applicant’s application, the Plaintiffs/Respondents filed a Replying Affidavit dated 25 th May 2026 sworn by Augustine Kimutai Koech. 28. The Plaintiffs/Respondents contend that, 1 st Defendant/ Applicant’s application herein is fatally defective, without merit, incompetent, based on assumptions, instituted in bad faith and a mere waste of this Honourable Court's judicious time, and that the supporting affidavit thereto is full of -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 10 of 41

page 10 of 41

falsehoods and misrepresentation of facts, specifically tailored to mislead the Court so as to advance the 1 st Defendant/Applicant’s selfish interest. 29. They also contend that the instant suit and/or application is not in any way res judicata, as it does not in any way seek to ventilate issues already ventilated by this Honourable Court. 30. It is their contention that, on or before the year 2019, the 1 st Defendant/Applicant filed a suit against the estate of the late DR A FT COP Y Tapyobi C. Maina for partition of the land parcel known as Kericho/Emkwen(Kapkures)/290,being Environment Kericho and Land Court Civil Suit No. 50 of 2019, which suit was heard and determined vide the Judgment of this Honourable Court delivered on 25th January, 2024. 31. It is also their contention that the former suit, being Kericho Environment and Land Court Civil Suit No. 50 of 2019, -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 11 of 41

page 11 of 41

was between the 1st Defendant/Applicant herein and the estate of the late Tapyobi C. Maina. 32. It is further their contention that it is instructive to note that the 1st Plaintiff/Respondent only participated in the said former suit as administrator of the estate of the late Tapyobi C. Maina, after the said Tapnyobi died before the conclusion of the suit. 33. They also contend that despite having participated in the DR A FT COP Y former suit, the 1st Plaintiff/Respondent only acted in a representative capacity as administrator of the estate of the late Tapnyobi C. Maina, which filed the said suit against the 1st Defendant/Applicant. 34. It is their contention that throughout the pendency of the former suit, it was the Plaintiffs/Respondents herein who were in occupation of the suit land parcel. -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 12 of 41

page 12 of 41

35. It is also their contention that the 1 st Plaintiff/Respondent later filed the instant suit in his personal capacity, together with his co-Plaintiffs/Respondents herein. 36. It is further their contention that the 2nd to 12th Plaintiffs/Respondents never participated in the former suit, being Kericho Environment and Land Court Civil Suit No. 50 of 2019. 37. They also contend that it is not therefore true that the DR A FT COP Y parties in the former suit and the instant suit are the same. 38. It is their contention that the parties herein have raised totally different issues that were never in any way ventilated in the former suit. 39. It is also their contention that, in the instant suit, the Plaintiffs/Respondent herein seek a declaration that they have acquired the suit property by way of adverse -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 13 of 41

page 13 of 41

possession, and that the same was never raised in the former suit. 40. It is further their contention that, at all material times, most of the Plaintiffs/Respondents herein were not aware of the existence of the former suit, being Kericho Environment and Land Court Civil Suit No. 50 of 2019. 41. They also contend that in the circumstances, the 1st Defendant/Applicants’ claim that the suit herein is res DR A FT COP Y judicata is baseless and without any lawful justification. 42. They end their deposition by contending that, in the circumstances, the 1st Defendant/Applicants’ application dated 17th March, 2026 is without merit, a waste of this Honourable Court's time, and ought to be dismissed with costs to the Plaintiffs. Issue for Determination. -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 14 of 41

page 14 of 41

43. The 1st Defendant/Applicant filed his written submissions dated 9th April, 2026 in support of the instant application while the Plaintiffs filed written submissions dated 26 th May, 2026. 44. Both parties seem to agree that the single issue for determination is whether the instant suit and/or the application dated 17th March, 2026 is res judicata, vexatious and constitutes an abuse of the process of this Honourable Court. DR A FT COP Y 45. The 1st Defendant/Applicant submits that the Plaintiffs' application dated 19th December, 2025, together with the suit herein, was not lodged in good faith but was instead only interposed to frustrate implementation of the Judgment and Decree of this Honourable Court delivered on 25 th January, 2024 in Kericho ELC Civil Suit No. 50 of 2019. -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 15 of 41

page 15 of 41

46. He also submits that the subject matter in the said former suit was that parcel of land known as Kericho/Emkwen(Kapkures)/290, over which he was, adjudged as a common owner alongside one TAPNYOBII C. MAINA (deceased) which parcel of land was subsequently sub-divided into Kericho/Emkwen(Kapkures/815 & 816. 47. It is the 1st Defendant/Applicant's submission that the said TAPNYOBII C. MAINA is the biological mother of the 1 st–8th Plaintiffs and grandmother to the 9th ,10th & 13th (sic) DR A FT COP Y Plaintiffs, and that the Plaintiffs' claim herein cannot accordingly be divorced from her claim in the former suit. 48. It is further his submission that the 1 st Plaintiff was in fact substituted in place of the late TAPNYOBII C. MAINA in the former matter upon her demise, and is currently the subject of a warrant of arrest issued upon his application for recovery of costs awarded in his favour. -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 16 of 41

page 16 of 41

49. The 1st Defendant/Applicant relies on Section 7 of the Civil Procedure Act and submits that 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 parties litigating under the same title, in a court competent to try such subsequent suit, and which has been heard and finally decided by that court. 50. He also relies on the judicial decision of The Independent Electoral and Boundaries Commission v Maina Kiai & 5 DR A FT COP Y others [2017] eKLR and submits that the bar of res judicata is upheld only where the conjunctive conditions as set out therein are satisfied. 51. Applying those conditions, the 1 st Defendant/Applicant submits that the subject matter of the instant suit, being Kericho/Emkwen(Kapkures)/290, now comprised in TITLE No.s Kericho/Emkwen(Kapkures)/815 & 816 upon partition, is one and the same as that in the former suit; the -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 17 of 41

page 17 of 41

Plaintiffs' claim cannot be divorced from that of their mother and grandmother in the former suit, notwithstanding that the instant suit has only been dressed as if it were a bona fide claim of adverse possession. He submits that the Judgment in the former suit is a Judgment in rem which is binding against the whole world, the Plaintiffs inclusive. 52. He therefore implores the Court to decline the invitation to revisit the matter of the title, use and occupation of the suit properties now DR A FT COP Y comprised in KERICHO/EMKWEN(KAPKURES)/815 & 816. 53. The 1st Defendant/Applicant further relies on ET vs Attorney General & Another (2012) eKLR, as cited in Daniel MesiriKasoo & 7 Others vs Fredrick Nkonge Mutwiri & another [2020] eKLR, and submits that the courts must always be vigilant to guard against litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy, the test -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 18 of 41

page 18 of 41

being whether the plaintiff in the second suit is trying to bring before the court, in another form, a matter already resolved by a court of competent jurisdiction. 54. He also relies on General of the Salvation Army (Registered Trustees) v Chief Officer, Lands Physical Planning and Urban Development, Muranga County & 4 others [2026] KEELC 1879 (KLR) and submits that the principle of judgment in rem, like the doctrine of res judicata, is a pure point of law, and that issuance of the orders sought DR A FT COP Y would have the effect of varying the Judgment in the former suit. 55. He further relies on Joshua Ngatu v Jane Mpinda & 3 Others [2019] eKLR (Mbugua J), cited therein, for the proposition that both justice and equity abhor a claimant's indolence, sloth and stale claims, which prejudice and negatively impact the efficacy and efficiency of the administration of justice. -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 19 of 41

page 19 of 41

56. The 1st Defendant/Applicant implores the Court to find and hold that the present suit was only filed invoking a different cause of action in a bid to defeat the operation of the doctrine of res judicata, in view of the Judgment of this Honourable Court in Kericho ELC Civil Suit No. 50 of 2019. 57. He further relies on the judicial decision of The Independent Electoral and Boundaries Commission v DR A FT COP Y Maina Kiai & others (Supra) and submits that the doctrine of res judicata serves the aim of bringing finality to litigation and affords parties closure and protection against wastage of time and resources, and that its foundation rests in the public interest for swift, sure and certain justice. 58. The 1st Defendant/Applicant concludes his submissions by urging the Court to allow his application dated 17 th March, -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 20 of 41

page 20 of 41

2026, as the instant suit clearly constitutes an utter abuse of the court process. 59. In response, the Plaintiffs/Respondents submit that they filed the instant suit against the Defendants. 60. They submit that the 1 st Defendant/Applicant then filed the application dated 17th March, 2026 seeking to strike out the suit on grounds that it is res judicata and that it is not only vexatious but also constitutes an utter abuse of the court DR A FT COP Y process. 61. The Plaintiffs/Respondents also submit that on or before the year 2019, the 1st Defendant filed a suit against the estate of the late Tapyobi C. Maina for partition of the land parcel known as KERICHO/EMKWEN(KAPKURES)/290, vide Kericho Environment and Land Court Civil Suit No. 50 of 2019, which suit was heard and determined vide the -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 21 of 41

page 21 of 41

Judgment of this Honourable Court delivered on 25 th January, 2026 9 (sic). 62. They further submit that the former suit was between the 1 st Defendant/Applicant and the estate of the late Tapyobi C. Maina; that the 1st Plaintiff/Respondent participated in the former suit only as an administrator of the said estate. 63. They submit that that the 2nd to 12th Plaintiffs never participated in the former suit and that it is therefore not DR A FT COP Y true that the parties in the former suit and the instant suit are the same and adds that the parties herein have raised a totally different issue that was never in any way ventilated in the former suit and that in the instant suit the Plaintiffs seek a declaration that they have acquired the suit property by way of adverse possession, a claim they contend was never raised in the former suit. -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 22 of 41

page 22 of 41

64. It is the Plaintiffs/Respondent’ submission that the only issue for determination is whether the instant suit and/or the application is res judicata and/or an abuse of the court process. 65. The Plaintiffs/Respondents rely on Section 7 of the Civil Procedure Act and submit that the doctrine of res judicata is intended to bar multiplicity of suits and guarantee finality to litigation, making conclusive a final judgment between the same parties or their privies on the same issue by a court of DR A FT COP Y competent jurisdiction. 66. The Plaintiffs/Respondents further submit that in the instant suit there has been no suit between the Plaintiffs/Respondents and the 1st Defendant/Applicant in any court. 67. It is the Plaintiffs/Respondents submission that the former suit, Kericho Environment and Land Court Civil Suit -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 23 of 41

page 23 of 41

No. 50 of 2019, was between the 1st Defendant/Applicant and the late Tapnyobi Maina and that the 1st Plaintiff/Respondent was only introduced to the former suit upon her demise and proceeded with it as an administrator and not in his personal capacity. 68. It is also the Plaintiffs/Respondents’ submission that most of them were not aware of it despite residing on the suit parcel for over thirty years and that the Plaintiffs/Respondents then proceeded to file the present adverse possession claim, an DR A FT COP Y issue which they contend was never ventilated in the former suit. 69. It is also the Plaintiffs/Respondents submission that the suit herein is not res judicata as it falls short of the provisions of Section 7 of the Civil Procedure Act, and that the 1st Defendant's/Applicants’ application dated 17 th March, 2026 ought accordingly to be dismissed. -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 24 of 41

page 24 of 41

70. On the question of costs, the Plaintiffs/Respondents rely on Section 27(1) of the Civil Procedure Act and submit that the costs of and incidental to all suits are in the discretion of the court, subject to the proviso that costs shall follow the event unless the court, for good reason, directs otherwise. 71. The Plaintiffs/Respondents’ conclude their submissions by urging the Court to dismiss the 1 st Defendant/Applicant's application and to award them the costs of the application. DR A FT COP Y Analysis and Determination. 72. I have considered the 1st Defendant/Applicant’s application, the response thereto and the rival submissions. My view is that the following issues are for determination: a. Whether the present suit is res judicata. b. Whether the former Judgment is a Judgment in rem. c. Whether this suit otherwise constitutes an abuse of the process of the Court. -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 25 of 41

page 25 of 41

d. who should bear the costs of this application. A. Whether the present suit is res judicata. 73. Section 7 of the Civil Procedure Act, Cap. 21, provides that: “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 DR A FT COP Y 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.” 74. Explanation (4) to Section 7 further provides that; -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 26 of 41

page 26 of 41

“Any matter which might and ought to have been made a ground of defence or attack in a former suit shall be deemed to have been a matter directly and substantially in issue in that suit – the doctrine of constructive res judicata.” 75. The Court of Appeal in The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, Nairobi Civil Appeal No. 105 of 2017, [2017] eKLR, held that the bar of res judicata is upheld only where the following DR A FT COP Y elements, which are conjunctive and not disjunctive, are all satisfied. First, that the suit or issue was directly and substantially in issue in the former suit. Secondly, that the former suit was between the same parties or parties claiming under them. Thirdly that those parties were litigating under the same title. Fourth, that the issue was heard and finally determined in the former suit and lastly that the former court was competent to try the subsequent suit. -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 27 of 41

page 27 of 41

76. The Supreme Court, in John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others, Petition 17 of 2015, [2021] eKLR, approved a similarly framed five-part test drawn from Bernard Mugo Ndegwa v James Nderitu Githae & 2 others [2010] eKLR, and observed that the doctrine of res judicata allows a litigant only “one bite of the cherry,” preventing a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not DR A FT COP Y claimed in the earlier action. 77. The Supreme Court further held that whenever res judicata is raised, the court must examine the decision claimed to have settled the issue, the entire pleadings and record of the former case, and the instant case, to ascertain whether the issues determined previously are the same as those now raised. -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 28 of 41

page 28 of 41

78. It is important to note that the 1 st Defendant/Applicant only annexed the decree and judgment to his application. 79. I shall now look at each element in deciding whether this suit is res judicata. 80. As to whether the former court was competent, and whether the former decision was final. Neither party disputes that this Honourable Court was competent to determine the former DR A FT COP Y suit and do not also dispute that the Judgment in Kericho ELC Civil Suit No. 50 of 2019 was final. Those two elements are accordingly satisfied. 81. In regard to whether the former suit was between the same parties, or parties under whom the present parties claim, the former suit was between the 1st Defendant and the late Tapnyobii C. Maina (or her estate, the 1 st Plaintiff having been substituted as her administrator upon her death). -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 29 of 41

page 29 of 41

82. The 1st Plaintiff/Respondent was accordingly a party to the former suit, albeit in a representative capacity. The 2 nd to 12th Plaintiffs/Respondents were not parties to the former suit. 83. The question that follows is whether they are, in law, persons “under whom” the 1st Plaintiff or the late Tapnyobii C. Maina claim, or who claim under either of them, so as to be bound as privies. 84. DR A FT COP Y Ordinarily, beneficiaries of a deceased person's estate who derive their interest in property solely from that estate are treated, for the purposes of res judicata, as claiming under the deceased and are accordingly bound by a final judgment obtained by or against the deceased's legal representative in respect of the same title. -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 30 of 41

page 30 of 41

85. However, the 1st Defendant's own affidavit evidence on this point is internally inconsistent. It describes the late Tapnyobii C. Maina as grandmother to persons identified as the “9th , 10th & 13th Defendants,” whereas the present suit has only three Defendants and twelve Plaintiffs. This inconsistency has not been explained, clarified or corrected anywhere in the record placed before the Court. Therefore, it leaves unresolved precisely which of the 2 nd to 12th Plaintiffs are, as a matter of fact, children or grandchildren of the late Tapnyobii C. Maina and therefore her heirs or beneficiaries DR A FT COP Y capable of claiming under her and which of them, if any, assert some other or independent basis of interest in the suit property. This Court cannot resolve that factual uncertainty by inference or assumption, it can only be resolved on evidence. 86. As to whether the parties were litigating, or are litigating, under the same title. The former suit determined the question of the parties' respective shares of ownership in -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 31 of 41

page 31 of 41

KERICHO/EMKWEN(KAPKURES)/290 as between the 1st Defendant and the late Tapnyobii C. Maina, resulting in partition into TITLE NO.'S KERICHO/EMKWEN(KAPKURES) /815 and 816. 87. The present suit, by contrast, asserts a claim to have acquired the suit property by adverse possession ,a statutory claim founded on open, continuous, hostile and uninterrupted possession for a period of not less than twelve years. A claim of adverse possession by its nature accrues DR A FT COP Y independently of and potentially adverse to the registered proprietor's title. 88. Whether the Plaintiffs/Respondents claim to adverse possession is in substance merely the former ownership dispute relitigated under a different label, or whether it rests on a distinct factual foundation of possession that could not have been, or was not, an issue in the former suit, is a -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 32 of 41

page 32 of 41

question of fact which this Court is not in a position to resolve on the affidavit evidence. 89. As to whether the matter now in issue was directly and substantially in issue, or heard and finally determined, in the former suit, on the material before the Court, the former suit determined ownership and partition as between the 1 st Defendant /Applicant and the late Tapnyobii C. Maina, it did not, on any account given by either party, determine a claim of adverse possession. DR A FT COP Y 90. The 1st Defendant/Applicants' own submissions do not assert that adverse possession was pleaded or argued in the former suit. His case, rather, is that the present claim is camouflaged and devised to reopen the ownership dispute that was already decided. 91. That is a serious and properly arguable contention, but it is one that engages the doctrine of constructive res judicata -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 33 of 41

page 33 of 41

under Explanation (4) to Section 7 – that is, whether the present claim is one that “might and ought” to have been raised in the former suit. 92. The application of constructive res judicata in turn depends on facts not disclosed in the record before this Court, in particular, when the possession said to basis of the Plaintiffs' adverse-possession claim is alleged to have commenced, whether it commenced before, during or only after the former proceedings, and whether the Plaintiffs (or their DR A FT COP Y predecessor) had, at the material time of the former suit, the knowledge and opportunity to raise such a claim. 93. In the absence of such evidence, the Court is not able to make a definitive finding that the present claim might and ought to have been raised in the former suit. 94. Having regard to the foregoing, I find that two of the five conjunctive elements required to sustain a plea of res -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 34 of 41

page 34 of 41

judicata namely, that the former suit was between the same parties or their privies, and that the matter now in issue was heard and finally determined (whether actually or constructively) in the former suit cannot be established on the evidence before this court at this stage of these proceedings. 95. As the requirements of Section 7 are conjunctive, i.e. they must all be fulfilled to sustain a plea of res judicata, the failure to establish these elements is fatal. DR A FT COP Y B. Whether the former Judgment is a Judgment in rem. 96. Section 44 of the Evidence Act (Cap. 80) laws of Kenya, provides that a judgment in rem is a final judgment, order or decree of a competent court which confers upon or takes away from any person any legal character, or which declares any person entitled to any such character or to any -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 35 of 41

page 35 of 41

specific thing not as against any specified person but absolutely. 97. The former judgement in Kericho ELC Civil Suit No. 50 of 2019 was between the 1st Respondent, Kipkoech Arap Maina and Augustin Kimutai Koech who were sued as the personal representatives of the Estate Tapnyobii C. Maina, the Chief Land Registrar and Hon. Attorney General. 98. The said judgment determined that the registration of the DR A FT COP Y late Tapnyobii C. Maina of property Kericho Emkwen(Kapkures)/290 was illegal “Null and Void and ordered for cancellation of the registration of the late Tapnyobii C. Maina as the sole proprietor of Kericho Emkwen(Kapkures)/290. 99. This is a judgment in personam concerning immovable property rather than a judgment declaring entitlement absolutely and against the whole world. -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 36 of 41

page 36 of 41

100. I therefore do not accept the 1st Defendant/Respondents’ characterisation of the former Judgment as a Judgment in rem within the meaning of Section 44 of the Evidence Act. Its binding effect on persons who were not party to it may be a question for determination before this court during inter partes hearing. C.Whether the present suit constitutes of an abuse of the court process. DR A FT COP Y 101. The Court of Appeal in D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] eKLR (Civil Appeal No. 37 of 1978) held as follows; “The jurisdiction pleadings, guard though against to strike out it exists to scandalous, frivolous, vexatious claims or an abuse of the process of the Court, is a drastic remedy that ought to be exercised sparingly and only in -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 37 of 41

page 37 of 41

plain and obvious cases where it is clear that the action cannot succeed power or must is be unarguable; the exercised only after the Court has considered all the facts, but without embarking on a trial of the merits.” 102. Order 2 Rule 15 of the Civil Procedure Rules empowers the Court, at any stage of the proceedings, to strike out or amend a pleading that discloses no reasonable cause of DR A FT COP Y action or defence, is scandalous, frivolous or vexatious, may prejudice, embarrass or delay the fair trial of the action, or is otherwise an abuse of the process of the Court. 103. Applying this threshold to the present application, I am not satisfied that this is a plain and obvious case for striking out. For example, there are unresolved factual questions identified in the preceding paragraphs such as the precise family relationships and claimed interests of the 2 nd to 12th -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 38 of 41

page 38 of 41

Plaintiffs/Respondents, the basis of the claim for adverse possession, whether the present claim is truly independent of or merely a repackaging of issues determined in the former suit are not, in my view, plain and obvious so as to say that this suit cannot succeed or is unarguable. They are properly triable issues to be resolved on the evidence at the hearing of the suit. 104. It follows that, while the 1st Defendants/Applicant’s contentions concerning res judicata and abuse of the court DR A FT COP Y process are properly arguable and are not to be treated as concluded against him, they have not, on the material before the Court, been established to the plain and obvious standard required to strike out the suit at this stage. 105. Nothing in this Ruling is to be understood as a final determination that the suit is not res judicata that question, together with evidentiary matters identified above, remains -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 39 of 41

page 39 of 41

open to be pleaded and determined as a substantive defence during trial. D. Who should bear costs of the application. 106. The general rule is that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. DR A FT COP Y Disposition. 107. Taking the foregoing into consideration, I find and order as follows: a. The 1st application Defendant/Applicant’s dated 17th March, 2026 lacks merit and is hereby dismissed. b. For the avoidance of doubt, nothing in this Ruling shall preclude the 1 st Defendant/Applicant from pleading and pursuing res judicata, estoppel, -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 40 of 41

page 40 of 41

constructive res judicata and/or any other available substantive defence during trial. c. The Plaintiffs/ Respondents shall have the costs of this application. 108. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 24TH DAY OF SEPTEMBER, 2026. DR A FT COP Y L. A. OMOLLO JUDGE. In the presence of: Mr. Caleb Koech for the 1st Defendant/Applicant MR. Koech for the Plaintiffs/Respondents MR. Ojwang for 2nd and 3rd Defendants Mr. Makori/Miss Chelangat –Court Assistants -----------------------------------------------------------------------------------------------------------------------------------------ELCLC CASE NO. E008 OF 2026 [BOMET] Page 41 of 41

page 41 of 41