Akithii Ranching (Directed Agricultural) Company Ltd v National Land Commission & 23 others

JOSEPH KAILUTHA ANAMPIU .................................... 8TH INTERESTED PARTY ROMANO ABUABA ......................................................... 9TH INTERESTED PARTY BRUNO MUGAMBI LINYIRU ..................................... 10TH INTERESTED PARTY LUKE MUNGANIAINEBU ............................................ 11TH INTERESTED PARTY PHILIP MWITI IGWETA .............................................. 12TH INTERESTED PARTY STEPHEN THINKII MUCHEKE .................................. 13TH INTERESTED PARTY ROBERT CHATI ............................................................. 14TH INTERESTED PARTY HENRY MWINGIRWA .................................................. 15TH INTERESTED PARTY KIRAMANA GEORGE ABUABA ................................. 16TH INTERESTED PARTY CHARLES KAMWIBUA THIRITU .............................. 17TH INTERESTED PARTY GITUMAH MUNJURI DAVID ...................................... 18TH INTERESTED PARTY STEPHEN LINYURU IBAYA ......................................... 19TH INTERESTED PARTY RULING Introduction 1. 2. This cause was initiated by M/s Akithi Ranching (Directed Agricultural) Company Limited vide a petition dated 4/6/2024. The petition was amended on 30/9/2025. Through the amended petition, the petitioner seeks: (i) a declaration that their rights under Articles 35, 40 and 47 of the Constitution were infringed by the respondents; (ii) an order of certiorari quashing the notice issued by the 2nd respondent declaring land adjudication during the term of their lease over some 33,000 acres of land in Tigania West, Meru County; (iii) an order of certiorari quashing any title deed issued as a result of the said declaration; (iv) an order of mandamus compelling the 1st and 3rd respondents to expedite and undertake renewal and/or extension of their lease; (v) an order that the extension of lease by the defunct County Council of Nyambene dated 26th September, 2001 is still valid, (vi) a permanent injunction restraining the 2nd respondent against undertaking any adjudication relating to the suit land; (vii) mesne prots; and (viii) costs of the petition. The gravamen in the petition is that the County Government of Meru; the National Land Commission; and the Principal Secretary in the Ministry of Lands have failed to renew the petitioner’s https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5897/eng@2026-09-21 2

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lease relating to some 3,000 acres of land in Tigania West. The petitioner contends that they have preemptive renewal rights over the suit land. 3. The petition has attracted two applications, both seeking orders striking out the petition on the ground of res judicata. The rst application is the notice of motion dated 11/11/2025 by the 1st – 11th interested parties. The eleven interested parties led their application through M/s A & B Advocates LLP. The second application is the notice of motion dated 21/5/2026, brought by the County Government of Meru. The application by the County Government was led through M/s OMK Advocates LLP. The two applications fall for determination in this ruling. The common issue that falls for determination in the two applications is whether this petition is res judicata. Because of the commonality of grounds and issue, the two applications will be considered and disposed contemporaneously. Case of the Applicants 4. The application dated 11/11/2025 was premised on the grounds outlined in the motion; in the supporting adavit and supplementary adavit sworn on 11/11/2025 and 11/5/2026, respectively, by Alfred Kaibung’a Baariu. It was canvassed through written submissions dated 21/5/2026, led by M/s A & B Advocates LLP. 5. The application dated 21/5/2026 was premised on the grounds set out in the motion and in the supporting adavit sworn on 21/5/2026 by Saran Mutwiri Murungi. 6. The case of the two applicants is that the matters that are directly and substantially in issue in this petition have been directly and substantially in issue in two previous suits, namely: 7. (i) Meru ELC Petition No 23 of 2012 [this particular petition was initially led in the High Court at Meru as High Court Petition No 23 of 2012 but was subsequently became a cause in the Environment and Land Court upon subsequent operationalization of the court in 2012]; Akithi Ranching (Directed Agricultural) Company Limited v The District Land Adjudication and Settlement Ocer, Tigania District & 2 others; and (ii) Meru ELC Petition No 3 of 2018 Akithii Ranching (Directed Agricultural) Company Limited v The District Land Adjudication and Settlement Ocer, Tigania East & West Districts & 4 Others; Muthaura & 4 Others (Interested Parties). They contend that the two preceding petitions raised issues relating to: (i) the petitioner’s leasehold interest in the suit land (some 33,000 acres in Tigania West, Meru County); (ii) the constitutionality of the declaration of adjudication over the suit land; (iii) renewal of the petitioner’s lease over the suit land; and (iv) alleged violation and/or infringement of the petitioner’s rights over the suit land. The applicants contend that vide a ruling by this Court [P M Njoroge J] dated 2/10/2013, Meru ELC Petition No 23 of 2012 was disposed on merits following a hearing of the petition. They add that vide a ruling by this court [P M Njoroge J] dated 31/7/2017, the ELC claried that the permanent injunctive order issued in the preceding ruling dated 2/10/2013 only subsisted up to the end of the 33 year lease which commenced in 1982 and lapsed in June 2015. They add that the petitioner subsequently led Meru ELC Petition No 3 of 2018, and the said petition was fully heard and disposed by this Court [Yano J] vide a Judgment dated 15/2/2023. The applicants have exhibited the following: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5897/eng@2026-09-21 3

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(i) the two preceding petitions; (ii) the two rulings by P M Njoroge J; and (iii) the judgment by Yano J. They urge the court to dismiss the petition on the ground of res judicata. Case of the 1st, 2nd and 3rd Respondents and the 12th – 20th Interested Parties 8. The 1st respondent is the National Land Commission. They led responses supporting the view that the petition is res judicata and urged the court to dismiss it. The 2nd and 3rd respondents were represented by the Oce of the Attorney General. They, similarly, led responses supporting the position of the applicants and urged the court to dismiss the petition for being res judicata. The 12th – 20th interested parties, too, supported the two applications vide submissions dated 30/6/2026, led by M/s Wanjiku Muna & Co Advocates. Case of the Petitioner 9. The petitioner opposed the notice of motion dated 11/11/2025 through a replying adavit sworn on 21/1/20p26 by Michael Kilemi Nabea. They opposed the application dated 21/5/2026 through a replying adavit sworn on 15/6/2026 by the same deponent. In addition they led written submissions dated 16/6/2026. 10. The case of the petitioners is that this petition is not res judicata because they [the petitioner] were the successful party in Meru ELC Petition No 23 of 2012 where the court held that they had a valid lease and issued a permanent injunction restraining the respondents against continuing with the adjudication process in respect of the suit land. They add that the petition is not res judicata because through it, they seek to enforce the rights that were granted to them vide the ruling that disposed ELC Petition No 23 of 2012. They further argue that even though the lease expired in 2015, the respondents do not have the right to carry out the adjudication process because they (the petitioner) have preemptive rights to have the lease renewed. 11. The petitioner argues that the issues to be determined in this petition relate to renewal of the lease and contend that the said issue did not arise for determination in ELC Petition No 23 of 2012. They urge the court to reject both applications. 12. The court has considered the two applications; the responses to the two applications; the parties’ respective submissions on the applications; the relevant legal frameworks; and the relevant jurisprudence. As pointed out in the introduction part of this ruling, the single common question falling for determination in the two applications is whether this amended petition is res judicata 13. The tenor and import of the doctrine of res judicata is that a cause of action may not be relitigated once it has been heard and determined on merits by a court or tribunal of competent jurisdiction. Kenya's Parliament codied the doctrine of res judicata through the enactment of Section 7 of the Civil Procedure Act which provides as follows: “ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially been in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and nally decided by such court”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5897/eng@2026-09-21 4

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14. In Kenya Commercial Bank Vs Muiri Coee Estate Limited & another [2016] eKLR, the Supreme Court of Kenya rendered itself on the question as to whether the doctrine of res judicata applies to litigations relating to constitutional rights as follows: “ Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of all constitutional rights.” 15. The Supreme Court added thus: “ The doctrine of res judicata, in eect, allows a litigant only one bite at the cherry; prevents a litigant or persons claiming under the same title from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and ecacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily drag the courts, apart from occasioning unnecessary costs to the parties and it ensures that litigation comes to an end and the verdict duly translates into fruits for one party, and liability for another party conclusively." 16. The question as to whether the doctrine of res judicata applies to petitioners brought to enforce the Bill of Rights was, similarly, answered by the Supreme Court of Kenya in John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others (2021) KESC 39 (KLR) in the following words: “ 82. 17. If we were to nd that the doctrine does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity. We say this in light of the fact that constitutional tenets permeate all litigation starting with the application of Article 159 of the Constitution in both civil and criminal litigation, and its application is now embedded in all procedural statutes. Further, Article 50 on the right to a fair hearing and Article 48 on access to justice are fundamental rights which every litigant is entitled to. Such a holding may very well lead to parties, whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some constitutional provision or other…. The Supreme Court further outlined the following as the key elements that must be established by a party alleging res judicata: “ 86. We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter, the following elements must be demonstrated: a. There is a former Judgment or order which was nal; b. The Judgment or order was on merit; c. The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5897/eng@2026-09-21 5

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d. 18. There must be between the rst and the second action identical parties, subject matter and cause of action.” The respondents in Petition No 23 of 2012 were: (i) District Land Adjudication and Settlement Ocer, Tigania; (ii) The Principal Secretary for Lands; and (iii) the Attorney General. The gravamen in the petition was that the petitioner had a subsisting 33 year lease over the suit land and the respondents had ignored the petitioner’s subsisting lease and had proceeded to initiate the statutory adjudication process over the suit land. Disposing the petition, this Court [P M Njoroge J] rendered a ruling (sic) dated 2/10/2013 in which it declared the respondents’ actions as unconstitutional and issued a permanent injunction restraining the respondents from continuing with the land adjudication process. 19. Subsequent to that, the Attorney General led a post- judgment/post-disposal application dated 29/7/2015, inviting the court to interpret the permanent injunction granted vide the ruling of 2/10/2013. This Court [P M Njoroge J] heard the application and disposed it through a ruling dated 31/7/2017 in which it claried that the permanent injunction issued in the ruling of 2/10/2013 ceased to exist upon expiry of the 33 year lease in 2015. 20. It is clear from the foregoing that through Petition No 23 of 2012, the petitioner sought to enforce its subsisting 33 year lease in the suit land. 21. The court has also considered the evidentiary materials presented in relation to Petition No 3 of 2018. The petition was dated 6/4/2018 and was amended on 14/12/2021. The respondents in the petition were: 22. (i) The District Land and Settlement Ocer, Tigania East and West Districts; (ii) The County Government of Meru; (iii) The Meru County Commissioner; (iv) The Attorney General; and (v) The National Land Commission. The case of the petitioner in the said petition was that the National Land Commission had refused to renew its expired lease and the respondents were subdividing the suit land and oering new leases to third parties. The petitioner sought the following reliefs in Petition No 3 of 2018: a. A declaration that 1st, 2nd and 3rd respondents’ actions in relation to the petitioner’s said ranch land (measuring approximately 33,000 acres) are unconstitutional, arbitrary, wrongful, null and void and should be stopped forthwith; aa (i) A declaration be issued to the eect that the refusal by the 5th respondents to renew, for a further term, the lease over a parcel of ranch land measuring around 33,000 acres situate at Tigania West Constituency, Meru County in favour of the petitioner is discriminatory, unconstitutional, ultra vires its powers and a violation of the petitioner’s fundamental rights and freedoms and is therefore a nullity. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5897/eng@2026-09-21 6

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aa (ii) An order of prohibition by way of judicial review be issued against the respondents prohibiting them or any ocer from their oces or any ocer in an oce with a similar mandate as theirs, from subdividing, transferring, oering for lease, allocating and or in any other manner interfering with the petitioner’s proprietary rights over a parcel of ranch land measuring around 33, 000 acres situate at Tigania West Constituency, Meru County. aa (iii) An order of mandamus by way of judicial review be issued directing and commanding the 5th respondent therein to renew the lease over a parcel of ranch land measuring around 33,000 acres situate at Tigania West Constituency, Meru County for a further term of 33 years in favour of the petitioner. aa (iv) A conservatory order by way of injunction be issued directed to the respondent’s prohibiting them or any ocer from their oces or any ocer in an oce with a similar mandate as theirs, from subdividing, transferring, oering for lease, allocating and or in any other manner interfering with the petitioner’s proprietary rights over a parcel of ranch land measuring around 33,000 acres situated at Tigania West Constituency, Meru County except in favour of the petitioner. 23. b) An order of injunction restraining the respondents by themselves, their employees, agents, representatives, and/or anybody else whomsoever acting for/or behalf from continuing with the said Adjudication process and or any other acts of interference in relation to the petitioner’s said ranch land measuring approximately 33, 000 acres until the lease renewal processes in respect thereto are completed. c) Cost of this petition and interest at court rates. d) Any other relief or order that this court may deem t in the special circumstances of this matter. The respondents in the present petition are: (i) The National Land Commission; (ii) The Principal Secretary, Ministry of Lands; (iii) The Hon Attorney General; and (iv) The County Government of Meru. The case of the petitioner is that the National Land Commission and the County Government of Meru have refused to renew its lease and the Department of Lands has caused the suit land to be declared an adjudication section. They seek the following reliefs against the respondents: a. A declaration that petitioners right in Article 35, 40 47 of the Constitution were infringed by the respondent. b. An order or certiorari do issue to remove and quash the decision made by the 2nd respondent through its servants to give a notice of declaration of an adjudication section during the term of the lease by the petitioner. c. An order of certiorari do issue to remove and quash an subsequent title deed issued as a result of the said declaration of any adjudication section in the petitioner suit land after the court declared the said adjudication as illegal, null and void https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5897/eng@2026-09-21 7

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d. An order of mandamus compelling the 1st and the 3rd respondent to expediate and undertake the necessary action for the renewal and/or extension of lease of the petitioner. e. A declaration that the extension of lease by the defunct County Council of Nyambene dated 26th September 2001 is still valid. f. A permanent injunction be issued restraining the 2nd respondent by themselves, agents, servants employees or otherwise from undertaking any adjudication on the petitioners ranch. g. Mesne prots. h. Any other relief that this honourable court may deem just and fair to order. i. That the costs of this petition be provided for. 24. It does emerge from the pleadings and from the Judgment in Meru ELC Petition No 3 of 2018 that the question as to whether the petitioner was entitled to a renewal of the 33 year lease that expired in 2015 was the central issue in the said petition. It is clear from the amended petition herein that the central issue that the petitioner has invited this court to determine in the present petition is whether the petitioner is entitled to a renewal of the lease that expired in 2015. 25. It is also clear from the evidence before this court that the National Land Commission; the Principal Secretary - Ministry of Lands; the Attorney General; and the County Government of Meru who were sued as respondents in Meru ELC Petition No 3 of 2018 have all been sued as respondents in the present petition. 26. Lastly, it does emerge from the evidence presented by the County Government of Meru that Meru ELC Petition No 3 of 2018 was disposed through a merit Judgment rendered by Yano J on 15/2/2023. Through the said Judgment, this court dismissed the petition for lack of merit. 27. This court having dismissed Meru ELC Petition No 3 of 2018 for lack of merit, the recourse available to the petitioner was an appeal to the Court of Appeal. Instead of the petitioner pursuing that avenue, they led a fresh petition raising the same issue of renewal of the lease and invited this same court to hear and determine the same issue for the second time. Regrettably, this court does not have jurisdiction to entertain the issue of renewal of the lease. 28. For the above reasons, the court agrees with the applicants that the central issue raised in this petition (renewal of the 33 year lease that lapsed in 2015) was litigated in Meru ELC Petition No 3 of 2018 and was disposed by this Court (Yano J) vide a merit Judgment dated 15/2/2023. Consequently, it is the nding of this court that this petition is res judicata and the Court has no jurisdiction to entertain it. The result is that the petition is struck out. 29. In tandem with the general principle on costs [See Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR], the petitioner shall bear costs of the petition. DATED, SIGNED AND DELIVERED AT MERU THIS 21ST DAY OF SEPTEMBER, 2026. B M EBOSO [MR] ELC JUDGE In the Presence of: Mr Mbaya for the 1st – 11th Interested Parties. Mr Baptisa Mwirigi for the 4th Respondent [the County Government of Meru]. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5897/eng@2026-09-21 8

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Mr Muriungi for the Petitioner. Court Assistant – Mr E. Tupet https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5897/eng@2026-09-21 9

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