Misooma Investments Group Limited v Haris Prem Mohan

3. Crucially, the Respondent posited thus: The suit property lawfully belongs to him [respondent]; the Respondent was duly issued with a certificate of title; the certificate of title has bestowed upon the Respondent legal rights to and in respect of the suit property; the Respondent is entitled to exclusive occupation and possession; the Appellant has trespassed onto the suit property; the actions of the Appellant constitutes and amounts to trespass; and the Respondent is entitled to various orders including eviction. 4. The Appellant duly entered appearance and filed a statement of defence. The Appellant denied the claims by the respondent. Furthermore, the Respondent posited thus: The Respondent herein had previously filed a civil suit at the Chiefs Magistrate’s court at Isiolo; the previous suit was Isiolo CM ELC No. 1 of 2019; the suit touched on and concerned the same property; the suit together with another suit namely, Isiolo CMELC NO. 102 of 2018, were consolidated and heard together; the Chief Magistrate’s Court rendered a judgment; and the Respondent herein lost the claim pertaining to the ownership property. 5. Additionally, the Appellant contended thus: The Respondent herein filed an appeal before this court; the appeal was ELC Appeal No. 3 of 2024; the appeal was heard and determined vide judgment delivered on 03.06.2025; The court found and held that neither of the disputants had acquired title to the disputed plot; and thereafter, both Appellant and Respondent herein filed notices of appeal. Page 2 of 19

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6. Thereafter, the Appellant took out the notice of motion application dated the 27.10.2025 and wherein the Appellant contended that the original suit [the suit giving birth to the subject appeal] was prohibited by the doctrine of res judicata; and res sub judice. The Appellant sought to have the original suit struck out and that costs be awarded to it. 7. The Respondent filed a replying affidavit and wherein the Respondent denied the contention by the appellant. In particular, the Respondent posited thus: The previous suit namely; Isiolo CM ELC NO. 1 of 2019 and ELC NO. 102 of 2018, did not concern the suit property; the disputed plots were unsurveyed residential plots numbers A- Isiolo Township and unsurveyed Industrial plot number B- Isiolo township; the dispute before the court touches on a property which has since been registered; and the ownership rights flowing from the registration of the suit property have not been determined and disposed of by a court of law. To this end, the Respondent invited the lower court to find and hold that the issues at the foot of the suit [Isiolo CM ELC No. E016 of 2025] were neither directly nor substantially in issue with the previous suits. 8. The application dated the 27.10.2025 was heard and disposed of vide ruling delivered on the 05.03.2026, whereupon the learned trial magistrate [Hon. L Mutai – Chief Magistrate] found and held that the suit was not barred by the doctrine of res judicata. The learned trial magistrate thereafter dismissed the application and awarded costs to the respondent. Page 3 of 19

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9. Dissatisfied, the Appellant has now approached this court vide memorandum of appeal dated the 23.03.2025. Subsequently, the memorandum of appeal was amended culminating into the amended memorandum of appeal dated the 03.06.2026. 10. The grounds raised are: i. That the learned trial magistrate erred in law and fact by holding that the instant suit is not res judicata whereas the Respondent clearly indicated the dispute over the land has a legal batter and thy quoted case number CM ELC 1 of 2019 and appeal in Isiolo No. 1 of 2019 and appeal in Isiolo ELCA No. 3 of 2014 in paragraph 7 of the plaint. ii. That the learned trial magistrate erred in law and fact by holding that the instant suit is not res judicata whereas the Respondent stated in his plaint that he obtained certificate of title during the pendency of the suit number Isiolo ELCA No. 3 of 2024 but the title was not admitted at appeal stage. iii. That the learned trial magistrate erred in law and fact by holding that the suit is not res judicata whereas the Respondent admitted in his plaint that the suit property is the same in CM ELC No. of 2019 and appeal No. ELCA No. 3 of 2024 as he claims his certificate of title could not be admitted at appeal stage. Page 4 of 19

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iv. That the learned trial magistrate erred in law and in fact by holding that the subject matter is different in that residential plot “A” Industrial Plot Number “B” Isiolo and Title No. IR 208970 Isiolo Township are not same whereas the plaintiff had admitted that they refer to the same plot and it is the plot that was in dispute in CM ELC No. 1 of 2019 and appeal in ELCA No. 3 of 2024 in paragraph 7 of the plaint. v. That the learned magistrate erred in law and in fact by holding that the matter is not sub judice whereas both the Appellant here and the Respondent had filed an appeal in the court of appeal in Isiolo ELCA No. 3 of 2014. 11.The appeal came up for direction on the 29.07.2026, whereupon learned counsel for the Appellant intimated to the court that same had filed and served the record of appeal. In addition, learned counsel posited that the record of appeal was complete. In this regard, counsel sought directions pertaining to the hearing and disposal of the appeal. Moreover, counsel proposed to have the appeal canvassed by way of written submission. 12.With the concurrence of learned counsel for the respondent, the court proceeded to and issued directions. The directions were: The appeal shall be canvassed before one judge; the appeal shall be canvassed vide written submissions; the Appellant shall file and serve written submissions within 14 days from the date of the directions; the Respondent shall file and serve written submissions within 14 days from the date of service; and the Appellant shall be at liberty to file and serve rejoinder submissions [if any] within 7 days from the date of service. Page 5 of 19

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13.The Appellant filed written submissions dated the 20.07.2026. The Appellant has raised and canvassed two key issues. The issues are: The original suit filed by the Respondent was barred by the doctrine of res judicata and res sub judice; and the impugned ruling of the learned trial magistrate failed to take into account the salient elements and thus the ruling is fraught with fundamental errors of law. 14.Learned counsel for the Appellant has submitted that the Respondent herein had previously filed Isiolo CMELC No. 1 of 2019 and which suit touched on and concerned ownership of unsurveyed plot number A Isiolo; and unsurveyed plot number B Isiolo. Moreover, it has been contended that what was previously unsurveyed plot number B Isiolo, is what was later on registered and became the suit property. 15.Be that as it may, it has been submitted that what constitutes the suit property remains to be the subject matter/property, which was the subject of the previous suit. In addition, it has been argued that the facts that the property has now been registered does not take it away from the doctrine of res judicata. 16.To buttress the submissions, pertaining to res judicata, learned counsel for the Appellant has cited and referenced the decisions in the case of IEBC versus Maina Kiai and 5 others [2017] EKLR and John Florence Maritime Services Limited and another versus the Cabinet Secretary, Transport, Infrastructure and Public Works and 3 others [2021] eKLR, respectively. Page 6 of 19

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17.Regarding, the doctrine of res sub judice, it has been submitted that following the determination of an appeal that was filed by the Respondent herein, namely; Isiolo ELC Appeal Number 3 of 2024, both the Respondent and the Appellant lodged the notices of appeal and wherein same sought to impugn the decision of the Environment and Land Court. 18.Learned counsel for the Appellant has further submitted that the appeals that were filed by both the Appellant and the respondent, sought to challenge the findings of the court that the suit property, which had not been registered constituted public land. It has been posited that the said appeal is still pending before the court of appeal and thus the new suit by the Respondent was sub judice. 19.To bolster the submissions on the question of sub judice, learned counsel for the Appellant has referenced the holding in the case of Kiki Investment Limited and 2 others versus Insurance Regulatory Authority [2024] KECA. Pertinently, it has been contended that the doctrine of sub judice operates to bar a court of law from entertaining parallel proceedings where the issues substantially overlap. 20.Premised on the foregoing, the court has been invited to find and hold that the appeal is meritorious. In addition, the court has been implored to allow the appeal; set aside the impugned ruling; allow the Page 7 of 19

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application dated the 27.10.2025; strike out the original suit; and award costs to the appellant. 21.The Respondent filed written submissions dated 11.08.2026 and wherein same has canvased two key issues. The issues are: The original suit was not barred by the doctrine of res judicata; and the doctrine of sub judice does not apply to the original suit either as contended or at all. 22.Learned counsel for the Respondent has submitted that the dispute that was canvassed before the lower court vide Isiolo CM ELC NO.1 of 2019, touched on and concerned unsurveyed industrial plot number B – Isiolo. Furthermore, it has been submitted that Isiolo CM ELC No. 102 of 2018 concerned unsurveyed residential plot A – Isiolo. To this end, it has been submitted that the suit property, which is now registered, did not feature and the court did not make any determinations, touching on the suit property. 23.Counsel for the Respondent has submitted that the original suit, which has provoked the subject appeal, was not defeated by the doctrine of res judicata. In particular, it has been submitted that the court did not determine ownership rights attendant to and flowing from the registration of the suit property. 24.Regarding the applicability of the doctrine of sub judice, it has been submitted that the notices of appeal touched on and concerned the determination relating to unsurveyed industrial plot number B – Isiolo; Page 8 of 19

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and Unsurveyed residential plot A – Isiolo. Moreover, learned counsel for the respondents has submitted that the notices of appeal which has been relied upon by the appellant, stand withdrawn by virtue of Rule 85 [1] of the Court of Appeal Rules. 25.In the premises, it has argued that the learned trial magistrate correctly apprehended the issues that were raised vide the application dated the 27.10.2025 and thereafter arrived at the correct findings. It has been contended that impugned ruling is sound and thus deserving of being upheld. In this regard, the court has been implored to find and hold that the appeal is bereft of merits. 26.Having reviewed the record of appeal; the application dated the 27.10.2025; the Supporting Affidavit thereto; and upon considering the written submissions filed by /on behalf of the counsel for the respective parties, two [2] key issues emerge for determination the issues are: Whether the original suit, namely; Isiolo CMELC No. 16 of 2025 was barred by the doctrine of res judicata; and whether the original suit is prohibited by the doctrine of sub judice or otherwise. 27.Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a first Appeal. By virtue of being a first Appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first instance. The court is obligated to review the evidence and determine whether the findings and conclusion[s] arrived at by the Page 9 of 19

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trial magistrate, accord with the evidence on record and the legal principles. 28.The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding and conclusion of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principle, which vitiates the findings of the Trial Court. 29.Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. It is a jurisdiction that cannot be exercised for the mere asking. In addition, it cannot be invoked, or exercised at will. Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya, regulates its exercise. 30.The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first Appeal, has been the subject of various court decisions. In the case of Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR). The Court of Appeal expounded on the scope of the jurisdiction. Page 10 of 19

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31.The court stated thus: “46. We also wish to be guided by the reasoning of this court in the case of Mwana Sokoni versus Kenya Business Limited (1985) KLR 931 page 934,934 thus:-“Although this court on Appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and reevaluate the evidence on a first Appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses.” 32.Back to the issues for determination. It is common ground that the Respondent had previously filed Isiolo CM ELC No. 1 of 2019. The said suit touched on and concerned ownership of what was described as unsurveyed industrial plot number B – Isiolo Town. Instructively, Page 11 of 19

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the said suit was anchored on the basis of a letter of allotment. No certificate of title or lease had been issued in favour of the respondent. 33.Additionally, it is common ground that the said suit was consolidated with another suit namely: Isiolo CM ELC No. 102 of 2018. The latter suit touched on and concerned the claim of ownership in respect of unsurveyed residential plot A – Isiolo Town. Similarly, the claimant in respect of the latter suit has also not obtained any certificate of title or lease. 34.The two suits, namely; Isiolo CMELC No. 1 of 2019 and Isiolo CM ELC No. 102 of 2018 [consolidated] were heard and determined. Thereafter an appeal was filed before this court vide Isiolo ELC Appeal Number 3 of 2024. The said appeal was heard and determined vide judgment delivered on the 03.06.2025. 35.It is important to point out that this court while disposing of the appeal, namely; Isiolo ELC Appeal number 3 of 2024, found and held that neither of the disputants had procured title to the disputed properties. Further, and in addition, the court found and held that the properties which were being tussled on, constituted public property. The court held no rights could accrue to an Allottee on the basis of the letter of allotment. 36.Moving on, the Respondent herein seems to have progressed his letter of allotment and perfected the process of land registration. The Respondent has since acquired a certificate of lease in respect of the Page 12 of 19

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suit property. The Respondent is now the registered owner of the suit property. The Respondent seeks to partake of and actualize the rights flowing from the registration of the suit property. 37.The question that does arise is whether, the original suit, which touches on the registered title, can be equated with the previous suit, which dealt with and gravitated around unsurveyed industrial plot number B- Isiolo. In addition, there is also the question as to whether the court determined the issue of ownership of the suit plot [LR No. 7918/767] with finality. 38.I hasten to state that what comprises the suit property was not the subject of the previous suits. There is no way the lower court or even this court, while handling ELC Appeal 3 of 2024, could purport to determine ownership rights flowing from the certificate of title which had not been issued. Moreover, there is no gainsaying that the claim at the foot of the previous suits did not gravitate around the current property, which is described vide certificate of title. 39.Additionally, it is not lost on me that neither the lower court nor this court dealt with to determined ownership rights, flowing from the certificate of title under reference. It suffices to highlight that the interrogation of whether or not the Respondent owns the suit property, on the basis of the certificate of title, has never been dealt with. 40.To my mind, the issues raised at the foot of Isiolo CMELC No. E016 of 2025, cannot be said to have been dealt with in the previous suit[s]. Page 13 of 19

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In any event, it is worth recalling that the previous suit did not concern land which has since been registered and issued with a certificate of title. 41.In a nutshell, I find and hold that the issues vide Isiolo CMELC E016 of 2025, were neither directly nor substantially in issue in the previous suit. Moreover, it is important to underscore that the question of the suit property and whether the actions complained of constitute trespass, were never determined with finality. 42.I beg to state that the doctrine of res judicata does not apply. The learned trial magistrate correctly appreciated the issues in dispute at the foot of the original suit; distinguished same; and correctly dismissed the plea of res judicata. 43.The parameters to be deployed before a court of law can uphold the plea of res judicata were aptly highlighted in the case of John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR). The apex court stated the relevant guidelines in the following terms: “Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the Page 14 of 19

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same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, [2010] eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.” 44.Regarding the issue as to whether the original suit is prohibited by the doctrine of res sub judice I wish to point out that the notices of appeal which were filed, touched on and concerned the findings of this court [Environment and Land Court] that no legal rights could be propagated on the basis of letters of allotment. In addition, the notices of appeal related to the conclusion of this court that the disputed properties [which had not been registered] constituted public land. 45.There is nowhere this court dealt with and spoke about ownership rights touching on the current registered property. For the avoidance of doubt, the notices of appeal and the appeal to the court of appeal [if any], do not touch on: a. Ownership of the suit property as registered b. The validity of the certificate of title c. The scope and extent of the rights of the registered owner d. Whether the actions complained of constitute trespass and Page 15 of 19

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e. Whether the registered owner can take out recovery proceedings [ if at all] against a trespasser. 46. I am afraid that the issues at the foot of the original suit, which has birthed the subject appeal are not on fours with [sic] the issues that were sought to be appealed against vide the notices of appeal. The elements that underpin the doctrine of res sub judice do not exist. 47.In the case of Kenya National Commission on Human Rights v Attorney General; Commission Independent & 16 [2020] KESC 54 (KLR), the Electoral & Boundaries others (Interested Parties) Supreme Court highlighted the ingredients that must be proven before the doctrine of sub judice can avail. 48.The apex court stated thus: “The term ‘sub-judice’ is defined in Black’s Law Dictionary 9 th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res subPage 16 of 19

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judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.” 49.Equally, I am not persuaded that the plea of res sub judice could be deployed to defeat the original suit. Quite clearly, the Appellant herein misapprehended the issues that were being raised at the foot of the original suit. Further, and in addition, the Appellant also misapprehended the import and tenor of the doctrine of sub judice. Conclusion: 50.The Appellant herein sought to persuade the lower court that the issues at the foot of the original suit, namely: Isiolo CM ELC E016 of 2025, had been dealt with and determined with finality. However, there is no gainsaying that the question of ownership of the suit property- now registered, had never been dealt with. 51.The learned trial magistrate clearly understood the distinction between the previous suits, which concerned unsurveyed plots vis -a viz the suit property, which is underpinned by a certificate of title. Moreover, the learned trial magistrate correctly apprehended and correctly applied, the elements underpinning res judicata. Page 17 of 19

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52.In a nutshell, the findings and conclusions of the learned trial magistrate are unassailable. In this respect, I am inclined to and do hereby find that appeal is devoid of merits. Final orders: 53.In the upshot, the final orders that commend themselves to the court are: i The Appeal be and is hereby Dismissed. ii The Ruling of the Learned Trial Magistrate dated the 05.03.2026 and the consequential order arising therefrom, be and are hereby Affirmed. iii Costs of the Appeal be and are hereby awarded to the Respondent. iv Costs in terms of clause [iii] shall be agreed upon and in default be taxed in the conventional manner. 54.For the avoidance of doubt, the original suit, namely; Isiolo CMELC No. E016 of 2025, ought to proceed for hearing and determination on merits, albeit before a Magistrate other than Hon. Lucy Mutai – Chief Magistrate. 55.It is so ordered. DATED, SIGNED AND DELIVERED AT ISIOLO ON THIS 28TH DAY OF SEPTEMBER, 2026 Page 18 of 19

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OGUTTU MBOYA; FCIArb; CPM [MTI-EA]. JUDGE. In the presence of: Court Assistant: Zakayo/Mukami Mr. Muriungi for the Appellant Mr. Kitheka for the Respondent Page 19 of 19

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