Stephen Otieno Owino, Joyce Nyakero and George Kimutai (Suing as the officials and members of Yasego Society) v Meron Limited & another

fencing, removing, destroying, alienating, trespassing, offering as security, demolishing houses and/or in any way interfering with Land Reference No 28401 Pending the hearing of this suit. ii. That this Honourable court do order appropriate compensation for the unlawful demolition of the applicant's home. iii. That this Honourable Court be pleased to grant such further orders as it shall deem fit and expedient in the circumstances of this case. iv. That the costs of this application be provided. 2. The Motion is premised on the grounds set out on its face and is supported by the affidavit of Peter Ndungu Mutiga, sworn on an even date, who deponed that he is the secretary of Yasego Society and is duly authorized, by virtue of that position, to swear the affidavit on its behalf. 3. He averred that the Applicants have occupied L.R. No. 28401, hereinafter “the suit property,” for more than 12 years and that this possession and occupation has been open, continuous, exclusive and uninterrupted throughout that period, a fact which has at all material times been within the Respondents’ knowledge. 4. He stated that the Respondents had previously threatened to evict the Applicants and other members from the suit ELC OS NO. E010 OF 2024 RULING 2

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property, prompting the court to issue restraining orders which were subsequently discharged. He contended that circumstances have since changed materially because the Respondents, in disregard of the law, proceeded to demolish their homes without issuing them with a valid eviction notice as required under Section 152E of the Land Act, 2012. 5. Mr. Mutiga further averred that the Respondents were aware that the suit was scheduled for hearing on 13 th July 2026, and that the Applicant intended to seek an order for the court to visit the suit property to ascertain the nature and extent of its occupation. He stated that the eviction and demolition were deliberately undertaken to obliterate evidence of that occupation, including old buildings, homes, churches and other social amenities situated on the property. 6. He further stated that the Respondents had embarked on fencing the suit property following the demolition, with the calculated intention of permanently excluding the Applicant and rendering its members destitute. In his view, these developments constitute a material change in circumstances requiring the court’s intervention to prevent further waste of the suit property before the suit is heard and determined. 7. The deponent also alleged that the Respondents had engaged in excessive and wanton destruction of property without any lawful justification and in violation of the protection of property guaranteed under Article 40 of the Constitution. ELC OS NO. E010 OF 2024 RULING 3

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He stated that they would consequently seek appropriate compensation for the loss occasioned by that destruction. 8. He asserted that the interests of justice require the preservation of the available evidence to enable the court to reach a properly informed and balanced determination. He therefore urged the court to restrain the Respondents from any further interference with the suit property. 9. In opposition to the Motion, the 2 nd Respondent filed a notice of preliminary objection dated 28th May 2026, premised on the grounds that: i. None of the prayers in the application have been sought in the originating summons and there is no jurisdiction to make such orders. See Morris & Company Limited versus Kenya Commercial Bank Limited and others [2003] 2 EA 605. ii. The issue of injunctive relief is res judicata. There has already been a determination that the plaintiffs have not established a prima facie case to warrant the grant of an injunction. iii. The court is functus officio with regard to the issue of injunctive relief. iv. There is no valid application or evidence before the court. ELC OS NO. E010 OF 2024 RULING 4

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10. The 2nd Respondent, through its Director, David Mucai Kunyiha, also swore a replying affidavit dated 29 th May, 2026. He deponed that on 14 th February, 2024, the Applicants filed a Motion dated 14th February, 2024 seeking, inter-alia, an order of injunction preventing their eviction from the suit property. Vide a ruling dated 13 th June, 2024, the court (Oguttu Mboya) dismissed the same contending that the Applicant had not demonstrated a prima facie case with a probability of success. 11. On 11th November, 2025, the Applicants filed another application seeking an order of temporary injunction preventing their eviction from the suit property. The court (Kullow J) considered the application ex-parte and on 13 th November, 2025, issued a temporary injunction restraining the Respondents from selling, transferring or in any manner interfering with the suit property. 12. On 17th November, 2025, the 2nd Respondent filed a Motion seeking to set aside Kullow J’s order and by a ruling delivered on 12th October, 2026, this court allowed the Motion and set aside Kullow J’s order aforesaid. The Applicants now seeks to have the court set aside that decision or alternatively grant a temporary injunction. 13. According to Mr. Kunyiha, prior to the institution of the present suit, the 2nd Respondent had filed ELC No. E139 of 2023, Langton Investment vs Meron Limited, the Chief ELC OS NO. E010 OF 2024 RULING 5

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Land Registrar and the Director of Land Administration. 14. It was deposed that in that suit, the 2 nd Respondent sought, among other reliefs, a declaration that it is the registered proprietor of L.R. No. 28401; a declaration that the purported fraudulent subdivision of the property was unlawful; an order directing the Chief Land Registrar and the Director of Land Administration to cancel any titles or certificates issued pursuant to that subdivision; and a permanent injunction restraining the 1st Respondent from dealing with the property. 15. On 4th March, 2026, the court (Mwangi J) delivered a judgment in the foregoing matter in favour of the 2 nd Respondent directing that it is the legitimate proprietor of L.R. No. 28401; that the fraudulent sub-division of the suit property is illegal and void and an order directing the Chief Land Registrar and Director of Land Administration to cancel any titles issued on account of the fraudulent transfer and sub-division, permanent injunctive orders restraining the 1 st Defendant from in any manner dealing with the suit property and damages for trespass amounting to Kshs 54,000,000. 16. According to the 2nd Respondent, following the delivery of the judgment aforesaid, the 2nd Respondent’s counsel by letters dated 17th March, 2026, and 13th April, 2026 wrote to the Inspector General of Police requesting his office to facilitate ELC OS NO. E010 OF 2024 RULING 6

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the enforcement of the decree issued on 4 th March, 2026 and that the steps taken by the 2nd Respondent towards enforcement of the decree issued on 4th March 2026 are lawful and are pursuant to valid court orders issued by a court of competent jurisdiction. 17. The Applicant did not file submissions as at 2 nd September, 2026 having been granted three (3) days from 13 th July, 2026 to file a further affidavit and submissions. 18. The 2nd Respondent filed submissions dated 29th July 2026. Counsel submitted that an interlocutory injunction may only be granted in aid of, and as ancillary to, substantive relief sought in the main proceedings as explained in Morris & Company Limited vs Kenya Commercial Bank Limited & others [2003] 2 EA 605 and Cyclo Systems Kenya Limited vs Kibuwa Enterprises Limited [2021] KEHC 13354 (KLR). 19. In this instance, it was submitted, the temporary injunction sought is unsustainable because the Originating Summons contains no corresponding prayer for a permanent injunction. 20. On res judicata, counsel referred to Section 7 of the Civil Procedure Act and submitted that the Applicants entitlement to interlocutory injunctive relief had already been heard and conclusively determined. Counsel maintained that the present application is the Applicants’ third attempt ELC OS NO. E010 OF 2024 RULING 7

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to obtain substantially the same relief and is therefore barred by the doctrine of res judicata. Reliance was placed on John Florence Maritime Services Limited & another vs Cabinet Secretary for Transport and Infrastructure & 3 others [2015] KECA 472 (KLR) and Uhuru Highway Development Limited vs Central Bank of Kenya & 2 others [1996] KECA 102 (KLR) for the proposition that res judicata applies equally to interlocutory applications. 21. Counsel further submitted that the court is functus officio because granting the orders sought will require it to reconsider and reverse both the ruling of Oguttu Mboya J dismissing the Applicants application for an injunction and the ruling of this court discharging the subsequent ex parte orders. 22. Citing Telkom Kenya Limited v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited) [2014] KECA 600 (KLR), counsel contended that the court cannot undertake a fresh meritbased determination of an issue already conclusively decided. 23. It was submitted that the Applicants have not established any ground for review under Order 45 Rule 1, as the alleged post-ruling demolitions do not constitute new evidence or sufficient reason and were, in any event, unsupported by admissible evidence linking them or the photographs to the ELC OS NO. E010 OF 2024 RULING 8

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suit property. Reliance was placed on Accredo AG & 3 others vs Steffano Uccelli & another [2017] eKLR, National Bank of Kenya Limited vs Njau [1997] KECA 71 (KLR), Mbugua & 85 others vs Ministry of Lands & 59 others [2025] KECA 1134 (KLR) and Republic vs Advocates Disciplinary Tribunal ex parte Apollo Mboya [2019] eKLR. Analysis and determination 24. Having considered the pleadings and submissions, the issues that arise for determination are: i. Whether the preliminary objection is competent and merited? And if not? ii. Whether the Applicants are entitled to the injunctive orders sought? 25. The 2nd Respondent has raised an objection to the competence of this Motion. It asserts that the same is barred by the doctrine of res judicata, that the court is functus officio in respect of such relief, that the orders sought are not anchored in the Originating Summons, and that there is no valid application or evidence before the court. 26. The law with respect to preliminary objections is now well settled. Law JA in Mukisa Biscuits Manufacturing Co. Ltd. vs. West End Distributors (1969) EA 696 at 700 stated that: ELC OS NO. E010 OF 2024 RULING 9

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“…a ‘preliminary objection’ consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 27. Newbold, P further held as follows: “A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing butt unnecessarily increases costs and, on occasion, confuse the issues. This improper practice should stop.” 28. The Supreme Court in the case of Hassan Ali Joho & Another vs Suleiman Said Shahbal & 2 Others [2014] eKLR re-affirmed the principles as set out in the Mukisa Case(supra) stating: ELC OS NO. E010 OF 2024 RULING 10

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“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 29. It is apparent from the foregoing that a preliminary objection should raise pure points of law, argued on the assumption that all facts pleaded by the other side are correct. However, it cannot be raised if any facts have to be ascertained from elsewhere or if the court is called upon to exercise judicial discretion. Further, the objection should be capable of disposing off the suit. 30. Beginning with res judicata, the substantive law thereof is found in Section 7 of the Civil Procedure Act, which provides that: ELC OS NO. E010 OF 2024 RULING 11

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“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 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.” 31. The doctrine of res judicata prohibits a court from relitigating matters that have been conclusively determined between the same parties, or those claiming under them, over the same issues, by a court of competent jurisdiction. It operates as a jurisdictional bar and, where the material facts are undisputed and ascertainable from the pleadings alone without recourse to extraneous evidence, it raises a pure point of law capable of determination at the preliminary stage. 32. Intricately tied to this is the concept of functus officio. The Black's Law Dictionary, 9th Edition defines functus officio as: “[having performed his or her office] (of an officer or official body) without further authority or legal competence because the duties and ELC OS NO. E010 OF 2024 RULING 12

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functions of the original commission have been fully accomplished.” 33. In Odinga vs Independent Electoral & Boundaries Commission & 3 others (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) (Ruling), the Supreme Court, while expounding on the doctrine, cited an excerpt from an article by Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law,” [2005] 122 SALJ 832 that: “The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter…The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.” 34. This too, is a jurisdictional question capable of determination at a preliminary stage where the material facts are uncontested and can be ascertained from the pleadings ELC OS NO. E010 OF 2024 RULING 13

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without recourse to evidence. In this case, the pleas of res judicata and functus officio arise from previous determinations made in this very suit concerning the Applicant’s entitlement to interlocutory injunctive relief. They are as such properly brought. 35. The 2nd Respondent further objects that none of the injunctive prayers sought in the present motion are contained in the Originating Summons and that the court therefore lacks jurisdiction to grant them. In the court’s view, this is equally a proper preliminary question. Whether an interlocutory injunction may issue where there is no corresponding substantive relief in the originating proceedings is a question of law that can be determined by examining the pleadings and the reliefs sought, without undertaking an inquiry into contested facts or weighing evidence. 36. The same cannot, however, be said of the objection that “there is no valid application or evidence before the court.” Framed in those broad terms, the objection does not disclose a pure point of law. This will necessarily require an examination of the affidavits, annexures and other materials placed on record, including an assessment of their admissibility, relevance and evidential value. Such an inquiry goes beyond the permissible scope of a preliminary objection. ELC OS NO. E010 OF 2024 RULING 14

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37. Moving now to the merits and beginning with res judicata, the same as aforesaid finds its statutory foundation in Section 7 of the Civil Procedure Act. In the case of John Florence Maritime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), the Supreme Court delved into an in-depth discussion of the concept thus: “...The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows:… where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but ELC OS NO. E010 OF 2024 RULING 15

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to every point which properly belonged to the subject of litigation, and exercising reasonable diligence, brought forward at the which the parties, might time” have [emphasis supplied].” 38. Guided by the foregoing, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question and ascertain whether the parties are the same, or are litigating under the same title; whether the issues are the same and whether the previous case was fully determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa vs James Nderitu Githae & 2 others, (2010) eKLR, under five distinct heads: “(i) the matter in issue is identical in both suits; (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.” 39. In this case, the doctrine is as regards an application within the same suit so the similarity of the parties and competence of the court is not in issue. In the application dated 14 th February 2024, the Applicants sought temporary injunctive orders restraining the Respondents from selling, transferring, developing, evicting, removing or demolishing ELC OS NO. E010 OF 2024 RULING 16

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its members’ houses and structures on L.R. No. 28401 pending determination of the suit. 40. It was the Applicant’s position that its members had occupied the suit property for over twelve years and had thereby acquired prescriptive rights over it. They contended that the Respondents had threatened to evict them and other members by issuing notices requiring them to vacate within seven days, which notices were said to contravene the mandatory eviction procedures under the Land Act. The court determined the matter finding that a prima facie case had not been established and as such, the plea for injunctive relief was unmerited. 41. Significantly, that was not the last time the question came up before this court. On 11th November 2025, the Applicants once again sought an injunction restraining the Respondents from evicting them and other members or otherwise interfering with their occupation of the suit property, this time on the basis of a fresh alleged threat of eviction. 42. Ex parte injunctive orders were issued on 13 th November 2025, but upon application by the 2nd Respondent, this court, in its ruling of 12th February 2026, revisited the history of the matter and found that the renewed application sought substantially the same interlocutory relief that had already been declined. ELC OS NO. E010 OF 2024 RULING 17

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43. In that ruling, the court expressly rejected the Applicants’ contention that the fresh threat of eviction constituted a new cause warranting another application for an injunction. The court found that the ruling of 13th June 2024 had conclusively determined the Applicants’ entitlement to temporary injunctive relief and that the subsequent application offended the doctrines of res judicata and functus officio. It accordingly discharged the ex parte injunction, holding that the renewed application disclosed no new material facts or radical change in circumstances and instead sought to reopen and relitigate an issue already determined. 44. The present Motion is, in substance, a further attempt to obtain the same interlocutory protection. The distinction now advanced is that the eviction which was previously threatened has since occurred, structures have allegedly been demolished and the Respondents have commenced fencing the suit property. In the court’s view, that does not create a new issue for purposes of the doctrine of res judicata. 45. Put differently, the Applicants cannot avoid the effect of the earlier rulings by recasting what was previously an apprehended eviction as a completed or continuing eviction. Having unsuccessfully sought to restrain the threatened eviction, and having subsequently made a second unsuccessful attempt to secure the same protection on the basis of a renewed threat, the Applicants cannot now rely ELC OS NO. E010 OF 2024 RULING 18

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upon the eventual occurrence of that eviction as a basis for a third application for substantially similar injunctive relief. To permit that course would afford the Applicants yet another bite at the cherry and undermine the principle of finality underlying res judicata. 46. The reliance on the alleged non-compliance with Section 152E of the Land Act does not alter that conclusion. From the outset, the Applicants case was that their eviction would be unlawful for want of compliance with the statutory eviction procedure. Indeed, in the Motion dated 14 th February 2024, the Applicants expressly challenged the eviction notices on the basis that they violated the provisions of the Land Act. That issue therefore formed part of, or at the very least properly belonged to, the controversy placed before the court when interlocutory protection against eviction was first sought. 47. This does not mean that an alleged breach of the statutory eviction procedure is without a remedy. If the Applicants maintain that the manner in which the eventual eviction and demolition were undertaken violated Section 152E of the Land Act or occasioned compensable loss, they remain at liberty to pursue such remedies as may be available in law. 48. Ultimately, the court finds that the present Motion is res judicata. The preliminary objection succeeds and the Motion dated 12th May, 2026 is dismissed with costs. ELC OS NO. E010 OF 2024 RULING 19

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Dated, signed and delivered virtually in Nairobi this 8 th day of October, 2026. O. A. Angote Judge In the presence of: Mr. Muriithi for Mr. Kiragu Kimani (SC) for 2nd Defendant Mr. Kalwa for Plaintiffs Mr. ndegwa for Bwire for 1st Defendant Court Assistant: Tracy ELC OS NO. E010 OF 2024 RULING 20

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