Bonface K. Kefa & 332 Others v Kenya Petroleum Refineries & 6 others

BENJAMIN O. KISIMBA……………………..…….. 6TH DEFENDANT MOHAMED HASSAN ALI…………………..………. 7TH DEFENDANT RULING A. Background 1. There is a certain kind of case that arrives before a court wearing the robes of finality, insisting that the story has already been told and its ending long written. The 1 st and 5th Defendants say this suit is such a case, a reprise of an old drama fitted with new costumes and a fresh cast of names. The Plaintiffs, three hundred and thirty-three of them, say otherwise: that theirs is an account never yet heard in full, of homes built, children raised and decades lived upon the contested land near the petroleum and port installations at Changamwe. The parties before me carry a grievance whose age outstrips the memory of many who now argue it, and whose resolution demands nothing less than genealogical care. It is now incumbent upon this Court, sitting for the sixth time upon a controversy with a lineage stretching back over two and a half decades, to decide whose account of the story may proceed to trial and whose has already been spent. RULING: ELC/E028/2025 Page 2 of 42

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2. Yet the door of finality, however heavy, is opened and closed by a small and particular key, and that key is precision. A court does not shut out a litigant because a dispute is old, because the faces are familiar, or because the land lies in the same neighbourhood as land already fought over. It shuts the litigant out only when the several conditions of the statute converge: the same matter, between the same parties or their privies, litigating under the same title, already heard and finally decided by a competent court. Finality is indispensable to justice. But finality without identity is not adjudication; it is foreclosure. The herculean task this Ruling undertakes is therefore to draw that boundary firmly and to draw it exactly, parcel by parcel, and to resist with equal vigilance the two errors that lie on either side of it: permitting a determined claim to walk back into court in a borrowed coat, and burying an undetermined claim in the grave of a neighbouring parcel. 3. This Ruling determines two applications, both brought under section 41 of the Limitation of Actions Act, Cap 22, and Order 2 rule 15 of the Civil Procedure Rules. The 1st and 5th Defendants seek to strike out the Further Amended Plaint dated 5th September 2025 on the grounds that it is frivolous, vexatious and an abuse of the process of the Court, and ask the Court to find that the land in dispute, being public land RULING: ELC/E028/2025 Page 3 of 42

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vested in State Corporations, cannot be acquired by adverse possession. 4. By the Further Amended Plaint, the Plaintiffs, Bonface Kefa and 332 others, claim to have acquired Plot Nos. MN/VI/3957, MN/VI/2504, MN/VI/2505 and MN/VI/3974, situated within Port Reitz Ward, Changamwe Sub-County, Mombasa County, by adverse possession. They assert that the 1st Defendant is on the verge of evicting them and demolishing their homes in reliance upon the judgment in Mombasa HCCC No. 544 of 2000, Kenya Petroleum Refineries Limited v Hassan Ngoa & 53 others [2013] KEHC 4787 (KLR), delivered on 12th March 2013 (hereinafter HCCC No. 544 of 2000) in respect of Plot No. MN/VI/255/1. That asserted distinction between the parcel then determined and the parcels now pleaded is the hinge upon which this decision turns. 5. The Plaintiffs pray for judgment against the Defendants for the following reliefs, which I reproduce because the character of the reliefs is material to the applications now before the Court: a. A declaration that the Plaintiffs have lived and continue to live on Plot Nos. MN/VI/3957, MN/VI/2504, MN/VI/2505 and MN/VI/3974 within Port Reitz Ward, Changamwe Sub-County, Mombasa County, and have no other known place of residence; RULING: ELC/E028/2025 Page 4 of 42

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b. A declaration that the Plaintiffs are entitled to decent housing as a matter of right under the Constitution; c. A declaration that the Defendants acted unprocedurally and contrary to the Bill of Rights in attempting to take possession of the suit properties; d. An order directing the Defendants to compensate the Plaintiffs for all developments, improvements and investments on the suit properties, including houses, trees, fences and businesses, at market value in accordance with a valuation to be effected twelve months prior to eviction; e. In the alternative to prayer (iv), an order that the Defendants issue vacant possession of the suit properties and that the Registrar of Lands issue titles to the Plaintiffs forthwith; f. A declaration that the Defendants’ rights over the suit properties, together with all improvements thereon, were extinguished by operation of law upon expiry of twelve years of the Plaintiffs’ possession; g. A declaration occupation, that upon the suit expiry of twelve years of properties, together with all improvements thereon, were and are held in trust for the Plaintiffs; h. An order that the whole of the suit properties vest in the Plaintiffs and be registered in their names under section 38 of the Limitation of Actions Act, Cap 22; RULING: ELC/E028/2025 Page 5 of 42

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i. Revocation of any titles to the suit properties allocated to the Defendants; j. A permanent injunction restraining the Defendants, their agents and servants from interfering with the Plaintiffs’ enjoyment of the suit properties; k. An order restraining the Defendants from demolishing or destroying the Plaintiffs’ properties or evicting them or causing their eviction; l. General damages; m. Special damages of Kshs. 200,000 for a survey; n. Costs of the suit; o. Interest on all damages awarded at court rates from the date of judgment until payment in full; and p. An order that all payments be made by the Defendants jointly and severally. B. The applications 6. The first application, the Notice of Motion dated 6th February 2026, is brought by the 1st Defendant, Kenya Petroleum Refineries. It is expressed to be brought pursuant to Section 41 of the Limitation of Actions Act, Cap 22, Order 2 rule 15 of the Civil Procedure Rules and all other enabling provisions of the law, and is supported by the affidavit of Kadzo Kalama, the 1st Defendant’s Head of Legal RULING: ELC/E028/2025 Page 6 of 42

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Department, sworn on the same date. The 1 st Defendant seeks: a. That this Court be pleased to strike out the Plaint and its attendant documents for being frivolous, vexatious and an abuse of the Court’s time; b. That this Honourable Court be pleased to find and hold that the suit properties, being public land vested in State Corporations, are not capable of acquisition by way of adverse possession; and c. That the costs of the application be provided for. 7. The motion is grounded on the contention that the 1st Defendant is a State-owned enterprise; that the land relevant to its claim forms part of petroleum processing, storage and related infrastructure; and that MN/VI/2504 is registered in or vested in the 1st Defendant. It is further pleaded that the parent parcel MN/VI/255 was subdivided into MN/VI/255/1 and MN/VI/2504, and that the title remained in respect of the parent parcel while a deed plan evidences the subdivision. The 1st Defendant invokes section 41 and relies on the history of HCCC No. 544 of 2000 and Mombasa ELC No. E017 of 2025, Alnord Kazungu & 151 others v Kenya Petroleum Refineries Limited (hereinafter ELC No. E017 of 2025), which suit she avers was dismissed as Res Judicata to HCCC No. 544 of 2000. She asserts that the present suit amounts to forum shopping and abuse of process. RULING: ELC/E028/2025 Page 7 of 42

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8. The second application, the Notice of Motion dated 16th February 2026, is brought by the 5th Defendant, Kenya Ports Authority. It is also expressed to be brought pursuant to Section 41 of the Limitation of Actions Act, Cap 22, Order 2 rule 15 of the Civil Procedure Rules and all other enabling provisions of the law, and is supported by the affidavit of Ephantus Waweru Rugethe, its Asset Management Officer, sworn on the same date. The 5th Defendant seeks: a. That this Court be pleased to strike out the Plaint and its attendant documents for being frivolous, vexatious and an abuse of the Court’s time; b. That this Honourable Court be pleased to find and hold that the suit properties, being public land vested in a State Corporation, are not capable of acquisition by way of adverse possession; and c. That the costs of the application be provided for . 9. The 5th Defendant asserts that it is a State Corporation established to manage and operate Kenya’s seaports and inland waterways. It maintains that MN/VI/3794 and MN/VI/3957 are registered in its name and form part of its operational land, containing critical petroleum installations, pipelines and other infrastructure. It contends that the land is public land and is therefore immune from acquisition by adverse possession under Section 41 of the Limitation of Actions Act. Both applications pray that the Plaint be struck RULING: ELC/E028/2025 Page 8 of 42

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out as frivolous, vexatious and an abuse of the process of the Court, with costs. 10. The applications themselves disclose an important difficulty. The Further Amended Plaint identifies four parcels, including MN/VI/3974. Both applications and the supporting affidavits identify the fourth parcel as MN/VI/3794. The 5th Defendant has annexed title documents in respect of MN/VI/3794 and MN/VI/3957. No party has placed before the Court material establishing whether MN/VI/3794 and MN/VI/3974 are separate parcels, alternative descriptions, a transposition of figures, or otherwise connected. That discrepancy is not peripheral. It lies at the centre of the applications, for the Court is asked to preliminarily determine the public character, legal immunity and prior litigation history of land which has not been identified with a single voice. C. The Plaintiffs’ response 11. The Plaintiffs opposed both applications through replying affidavits sworn by Bonface Kefa, the 1st February 2026 and 18th Plaintiff, on 8th March 2026. They accept that Plot MN/VI/255/1 was the subject of earlier litigation, but maintain that the four parcels presently in dispute have not themselves been the subject of a concluded ownership suit. They further depose that the Plaintiffs’ houses do not sit upon pipeline installations, and that the structures which did so were removed following the judgment in HCCC No. 544 of 2000. It is their assertion that an action for adverse RULING: ELC/E028/2025 Page 9 of 42

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possession may properly lie against land registered in the name of a corporate proprietor. 12. The Plaintiffs contend that parcel identity, subdivision history, actual occupation and the public character of the land are questions requiring certified titles, deed plans, mutation instruments and survey material, and, if necessary, a site visit. They urge the Court to hear the matter to its conclusion rather than dispose of it on affidavit assertion alone. D. Directions on submissions 13. When the applications came up for directions, the Court ordered that they be canvassed by way of written submissions. The 1st Defendant filed submissions and a list of authorities dated 17th April 2026. The Plaintiffs filed a consolidated set of submissions dated 28th addressing both applications. The 5th April 2026 Defendant filed no separate submissions, resting upon the grounds set out on the face of its Motion and the supporting affidavit of Ephantus Waweru Rugethe. 14. I have had the benefit of the pleadings, the affidavits, the submissions, the authorities cited and the earlier decisions placed before the Court. The record discloses a substantial litigation history touching upon occupation and infrastructure land in the Port Reitz–Changamwe area. That history is relevant. But the Court, conscious of the history, RULING: ELC/E028/2025 Page 10 of 42

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must decide these applications upon the record placed before it and by the statutory tests which govern them, not by the mere age or familiarity of the controversy. E. Issues for determination 15. From the pleadings, applications and submissions on record, the following issues arise for determination: 1. The identity, extent and legal character of the land in dispute; 2. Whether the suit, or any severable part of it, is barred by res judicata; 3. Whether Section 41 of the Limitation of Actions Act has been established in relation to each pleaded parcel; 4. Whether any surviving claim is frivolous, vexatious or otherwise an abuse of the process of the Court; and 5. What consequential orders ought to issue. F. The genealogy of this dispute 16. Before the Court can properly analyse the issues for determination and inter alia answer whether the doctrine of res judicata applies, it must first assemble, in chronological order, the relevant litigation history touching upon the land. A court confronted with a plea of res judicata cannot content itself with the description a party gives to earlier cases. It must ascertain what was actually pleaded, what was actually in issue and what was finally decided. A genealogy is not a RULING: ELC/E028/2025 Page 11 of 42

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warrant for guilt by association. It tells the Court what has been determined, and, just as importantly, what has not. 17. The first suit Kenya Petroleum Refineries Limited v Hassan Ngoa & 53 others [2013] KEHC 4787 (KLR), hereinafter HCCC No. 544 of 2000, was filed by plaint dated 26th September 2000. By judgment delivered on 12th March 2013, the Court found Kenya Petroleum Refineries Limited to be the registered proprietor of Plot No. MN/VI/255/1, rejected the adverse-possession claim before it and ordered the defendants to vacate. The judgment found that petroleum pipelines crossed the land then in dispute. That judgment has not been set aside. It determined MN/VI/255/1. 18. The second proceeding was John Omolo Oracha & 3 others v Kenya Petroleum Refineries Ltd & 3 others [2016] KEHC 3267 (KLR), Mombasa ELC Petition No. 250 of 2015. The petitioners acted for themselves and for residents of Port Reitz occupying several identified parcels, among them MN/VI/2504 and MN/VI/255/1. They challenged eviction, invoked constitutional rights and sought injunctive relief, alternative accommodation compensation. By a ruling dated 30th or June 2016, the petition was struck out as res judicata to HCCC No. 544 of 2000. The significance of this second suit, for present purposes, lies in the parcels it expressly named. RULING: ELC/E028/2025 Page 12 of 42

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19. The third suit was John Omolo Oracha & 3 others v Kenya Petroleum Refineries Ltd & 3 others [2017] KECA 622 (KLR), Civil Appeal No. 70 of 2016. The appellants conceded that the earlier suit and the petition concerned the same suit property but argued that the causes of action and the parties differed. On 31st March 2017, the Court of Appeal dismissed the appeal and affirmed the application of res judicata. It held, in substance, that matters which might and ought to have been advanced in the earlier litigation could not be reopened under another form, and that representative litigation may bind those claiming the same common right. 20. In arriving at that conclusion, the Court of Appeal drew upon its earlier reasoning in William Koross (Legal Representative of Elijah C.A. Koross) v Hezekiah Kiptoo Komen & 4 others, Civil Appeal No. 223 of 2013 (Eldoret), a decision instructive on three fronts. The first is the philosophical foundation of the doctrine, the Court of Appeal there having reflected upon why the law insists on finality and upon the mischief that would follow were parties permitted to relitigate the same grievance indefinitely under different guises. The second is the treatment of what constitutes a cause of action for the purposes of Explanation 4 to Section 7 of the Civil Procedure Act, that court emphasising that a matter which might and ought to have been made a ground of attack or defence in the former suit is deemed to have been directly and substantially in issue in RULING: ELC/E028/2025 Page 13 of 42

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that suit, so that a litigant cannot escape the bar merely by holding back an argument or a fact that could and should have been raised the first time round. The third is the standing of res judicata as a ground of preliminary objection, that court affirming, consistently with the celebrated test in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696, that a plea of res judicata is a pure point of law properly raisable by preliminary objection where it can be determined on the pleadings without resort to disputed facts. That final qualification is not ornamental. It is the very qualification upon which a substantial part of the present applications founders. 21. The fourth proceeding was Mombasa ELC No. E017 of 2025, Kalu & 151 others v Kenya Petroleum Refineries (Land Case E017 of 2025) [2025] KEELC 1224 (KLR). The plaintiffs here and therein, by plaint dated 14th February 2025, claimed beneficial ownership of Plot No. MN/VI/255/1 and sought to restrain the defendant and compel vacant possession in their favour. By ruling dated 12th March 2025, the court found that the parcel litigated in that suit was one and the same as that determined in HCCC No. 544 of 2000, and, in light of the binding Court of Appeal decision, struck out all averments and prayers touching on ownership and possession of MN/VI/255/1. It is material to observe what that court did not do. It did not strike out the action in its entirety. It expressly left the plaintiffs at liberty to amend their pleadings so as to pursue RULING: ELC/E028/2025 Page 14 of 42

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any remaining, untainted claim. A court asked today to strike out the whole of a successor suit must reckon with the fact that a sister court, only last year, deliberately preserved precisely such a remainder. 22. The fifth suit was ELC No. E001 of 2025, Kenya Petroleum Refineries Limited v Ngoa & 53 others (Environment and Land Case E001 of 2025) [2025] KEELC 4241 (KLR), arising from the transfer of the original HCCC No. 544 of 2000 file. An application for stay of execution was struck out on 4th June 2025 because it had been filed by counsel who had not properly come on record after judgment. That ruling concerned representation. It determined title to no parcel now before me. 23. The present suit is therefore not born in an empty field. It is, on this reckoning, the sixth in a lineage running back over a quarter of a century. Certain Plaintiffs appear to correspond with litigants in the earlier lineage. For instance it appears that persons numbered from the 184th to the 333rd Plaintiff in this suit correspond to persons numbered 1 st to 152nd in ELC No. E017 of 2025, and that the 21st Plaintiff herein, Valentine Samba, was also the 3rd appellant in Civil Appeal No. 70 of 2016 and a petitioner in ELC Petition No. 250 of 2015. 24. If that correspondence is borne out, as it appears to be from the record, then a substantial core of the present Plaintiffs are not strangers to this litigation history but its returning RULING: ELC/E028/2025 Page 15 of 42

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protagonists, no different in substance from the Kahoro family whose forty-year contest over a single Gilgil parcel, Nakuru HCCC No. 156 of 1983 and its successor Nakuru ELC No. 113 of 2012, was finally shut in Kahoro & 2 others (Suing on their own behalf and on behalf of the members of Twendane Company Limited) v Kanyamwi Trading Company Limited (Civil Appeal 62 of 2018) [2025] KECA 941 (KLR), where the Court of Appeal observed that a suit cannot, like a chameleon, camouflage to green in the morning, brown in the afternoon and yellow in the evening, depending upon where its majestic walk has taken it, and held that a claim dressed as a fresh adverse possession suit over land already finally determined between the same parties amounted to nothing more than an abuse of the process of the court. 25. History of that kind matters, and I do not treat it lightly. But history supplies context; it does not supply a substitute for the statutory test. The chameleon changes its colour; it does not change the tree it sits in. The doctrine bites where the litigant returns to the same tree wearing a new colour, and it is therefore to the identity of the trees, which is to say of the parcels, that I now turn. The same litigant may be barred from relitigating one parcel and yet remain entitled to be RULING: ELC/E028/2025 Page 16 of 42

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heard concerning another. Identity of persons, without identity of the matter, does not complete the plea. G. Analysis and determination Issue 1: The identity, extent and legal character of the land in dispute 26. This is the turning point of the applications. Before the Court can decide whether a claim is barred, whether public land is immune from adverse possession, or whether the Plaint is abusive, it must know what land is actually in issue. Land litigation begins with land identification. Where the identity of the res is uncertain, every subsequent conclusion risks being built upon sand. 27. The land described in the Further Amended Plaint is MN/VI/3957, MN/VI/2504, MN/VI/2505 and MN/VI/3974. The land conclusively determined in HCCC No. 544 of 2000 was MN/VI/255/1. The 1st Defendant says that MN/VI/255/1 and MN/VI/2504 arose upon subdivision of parent MN/VI/255. Its affidavit further states that no titles were issued for the subdivisions and that title remains in respect of MN/VI/255, while a deed plan records the subdivision. The 5th Defendant, for its part, produces grants in its name for MN/VI/3794 and MN/VI/3957. Yet the Plaint does not claim MN/VI/3794; it claims MN/VI/3974. 28. The material before the Court therefore does not yet provide a coherent legal and cadastral account of the land. It does RULING: ELC/E028/2025 Page 17 of 42

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not establish, with the precision demanded by the applications: a. the original extent, boundaries and present register status of MN/VI/255; b. the subdivisions issued from MN/VI/255, the dates and instruments by which they were created, and whether they matured into separately registered titles; c. the exact legal between and spatial MN/VI/255, relationship MN/VI/255/1 and MN/VI/3957 and MN/VI/2504; d. whether MN/VI/2505, MN/VI/3974 fall within, overlap with, derive from, or are wholly separate from MN/VI/255 and its subdivisions; e. whether MN/VI/3794 and MN/VI/3974 are distinct parcels, alternative descriptions or the product of an error; and f. the full extent of any Government, public, petroleum, port or infrastructure land said to be derived from MN/VI/255 or otherwise occupied by the Plaintiffs, including the boundaries of any established pipeline reserve. RULING: ELC/E028/2025 Page 18 of 42

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29. These are not technicalities. The 1st Defendant asks the Court to hold that land is public and therefore immune from adverse possession. The 5th Defendant asks the Court to do the same in respect of land for which it produces grants. Both ask the Court to terminate the Plaint at the preliminary threshold. But neither the public character of land nor the identity of a prior res can be determined by atmosphere. The land register, title instrument, deed plan, mutation record and survey plan are not peripheral documents in such a contest. They are the documents that make the contest intelligible. 30. The Court cannot tell, upon affidavit assertion alone, which parts of the historic MN/VI/255 remain vested in the 1st Defendant; which parts became or were recorded as MN/VI/255/1 and MN/VI/2504; what land is held by the 5th Defendant under MN/VI/3794 and MN/VI/3957; whether MN/VI/3974 is a separate parcel; and, critically, whether the Plaintiffs’ claimed occupation lies within any land that was previously adjudicated or within any legally established public-infrastructure reserve. 31. The public interest pleaded by the Applicants does not diminish the need for proof. It intensifies it. The Court must know, once and for all, the expanse of public land, if any, upon which the Applicants rely; the legal source of that public character; the limits of the petroleum or port reserve; and the relationship between that land and the occupation RULING: ELC/E028/2025 Page 19 of 42

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now alleged. A court cannot protect a public reserve whose boundaries have not been demonstrated, nor extinguish a claim over land which has not been shown to be within it. 32. I therefore find that the identity, extent and legal character of the land in controversy, and in particular the full expanse of any public or infrastructure land said to arise from MN/VI/255, cannot be determined finally from the affidavit material now before the Court. It must be established through primary registry and documentary disclosure controversy, through survey leaves appropriate a records, and, genuine physical expert evidence if or inspection. Issue 2: Whether the suit, or any severable part of it, is barred by res judicata 33. Section 7 of the Civil Procedure Act 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 parties litigating under the same title, before a competent court which heard and finally decided the matter. The elements are conjunctive. They travel together or they do not travel at all. 34. The prerequisites of a successful plea are now authoritatively settled. In John Florence Maritime Services Limited & another v RULING: ELC/E028/2025 Cabinet Secretary for Transport Page 20 of 42 and

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Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR), the Supreme Court, building upon Independent Electoral and Boundaries Commission v Maina Kiai & 5 others [2017] eKLR, required a previous suit in which the matter was directly and substantially in issue; the same parties or parties litigating under the same title; a competent court that heard and finally decided the matter; and the same matter raised afresh in the subsequent suit. The Supreme Court there added a discipline of the first importance to the present applications: the court invited to apply the doctrine must examine the prior decision, the whole of the pleadings and record of the former proceeding, and the pleadings in the suit before it. Res judicata is not established by the label a litigant attaches to a suit. And a comparison cannot be conducted upon documents that are not before the Court. Res judicata is established by comparison, not by label. 35. Each of those elements deserves careful, unhurried application here, for res judicata is a plea of finality and finality is not a currency to be spent loosely. The Court of Chancery in Henderson v Henderson (1843-60) All ER 378 stated the governing principle in words that have lost none of their force: “that where a matter has been the subject of litigation and adjudication by a competent court, the parties are required to bring forward their whole case, and will not, save in special circumstances, be permitted to reopen the same subject in a fresh suit RULING: ELC/E028/2025 Page 21 of 42

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merely because part of the case was, through negligence or inadvertence, omitted the first time.” The former East African Court of Appeal echoed the same principle in Gurbachan Singh Kalsi v Yowani Ekori, Civil Appeal No. 62 of 1958, adding that “a cause of action comprises every fact necessary to be proved to support the plaintiff’s right to judgment, not merely the evidence adduced in support of it”. It put the matter with characteristic bluntness in Siri Ram Kaura v M J E Morgan, Civil Application No. 71 of 1960, [1961] EA 462: “it is intolerable that a litigant unsuccessful in earlier proceedings should be permitted to reopen the same contest merely by pointing to some additional fact pointing in the same direction and seeking the same relief, unless that fact is shown entirely to change the complexion of the case and could not, by reasonable diligence, have been discovered earlier.” 36. Explanation 4 to Section 7 embodies constructive res judicata, meaning that a party may not reserve a ground which properly belonged to an earlier controversy and later deploy it to reopen the same dispute. Explanation 6 binds persons interested in a right claimed in common where others have bona fide litigated that right on their behalf. To like effect is Republic v Registrar of Societies, Kenya & 2 others; Kirima & 2 others (Ex parte) [2017] KEHC 9603 (KLR), holding that the mere addition of parties or the cosmetic alteration of pleadings does not defeat res judicata RULING: ELC/E028/2025 Page 22 of 42

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where the added parties peg their claim to the same title as parties in the earlier suit, such addition being, in that court’s memorable phrase, mere decoration and dressing. So too Bank of Africa Kenya Limited & another v TSS Investment Limited & 2 others [2024] KECA 410 (KLR), where the Court of Appeal sitting at Mombasa held that it mattered not that the parties resisting the plea were not identical to the parties in the earlier suits, so long as those earlier suits raised issues similar to those in contention, over the same subject matter and on the same cause of action. Those explanations and those authorities prevent evasion. What they conspicuously do not do is abolish the requirement that the right, the title and the subject matter be the same. In Bank of Africa the subject matter was one charge over identified parcels, and it was common ground throughout. Here the subject matter is the very thing in dispute. 37. Two further principles govern the remedy sought rather than the doctrine invoked. First, Order 2 rule 15 of the Civil Procedure Rules empowers the Court to strike out or amend a pleading, or a severable part of a pleading, that discloses no reasonable cause of action, is scandalous, frivolous or vexatious, may prejudice or delay the fair trial of the action, or is otherwise an abuse of process. But since D.T. Dobie & RULING: ELC/E028/2025 Page 23 of 42

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Company (Kenya) Limited v Joseph Mbaria Muchina & another [1980] eKLR it has been settled that this jurisdiction is reserved for the plain and obvious case, and that where a genuine issue of fact can be resolved by evidence the Court should choose adjudication over extinction. Secondly, the burden of establishing res judicata lies upon the party asserting it. That party must place before the Court material sufficient to identify what was pleaded, contested and finally decided before. Familiarity with an earlier dispute is no substitute for that proof. The stronger the remedy sought, the more exact must be the premise on which it rests. 38. The proper unit of analysis is not “the pipeline corridor” in the abstract. It is each parcel, each legal interest, each group of claimants and each issue said to have been determined. Land is not fungible. A parcel is not a place on a map merely; it is a juridical person of sorts, with boundaries, a register, a mutation history and an identity of its own. Neighbourhood is not identity. Common ancestry is not sameness. A shared infrastructure corridor does not fuse separate titles into a single res. Section 7 requires identity, not affinity. Plot No. MN/VI/2504 RULING: ELC/E028/2025 Page 24 of 42

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39. MN/VI/2504 stands upon a different footing from the other parcels. It was expressly named in ELC Petition No. 250 of 2015. That petition was brought by the petitioners for themselves and for residents occupying listed Port Reitz parcels. It challenged the legal consequences of eviction and sought constitutional, injunctive and compensatory relief of the same essential character as that presently advanced. It was struck out as res judicata, and that outcome was affirmed by the Court of Appeal in Civil Appeal No. 70 of 2016. Distinct from the other three pleaded parcels, upon this parcel the Applicants are on solid ground. 40. The present pleadings again invoke residence, threatened eviction, housing rights, compensation, possession, title and restraint of eviction over MN/VI/2504. The procedural costume has changed, from constitutional petition to adverse-possession plaint, but the proprietary contest and the protective reliefs sought over that parcel remain materially the same. Explanation 4 prevents the Plaintiffs from advancing now a ground that properly belonged to that earlier controversy, while Explanation 6 binds those claiming the same common right through the representative residents who litigated it. 41. Nor can it be said that a fresh limitation period has since matured. This suit was filed in 2025, and any adverse possession said to have ripened before the 2016 determination was a ground available to be pleaded in the RULING: ELC/E028/2025 Page 25 of 42

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earlier representative proceedings. It cannot now furnish a second entry into the same contest. Here, and here alone among the four parcels, the substitution of a new plot number for an old claim does not transform the complexion of the dispute; it merely relocates the same claim, advanced by the same community of interest, a few numbers along the same corridor. I am fortified in that conclusion by the reminder in Thiba Min. Hydro Co. Ltd v Josphat Karu Ndwiga [2013] KEHC 2017 (KLR) that it is not the form in which a suit is framed but its substance that governs, and that courts must guard against the multiplication of proceedings between substantially the same parties over the same subject matter, which clog the wheels of justice and offend the overriding objective. 42. I therefore find that the claims touching ownership, possession, adverse possession, trust, extinguishment or revocation of title, compensation founded upon asserted proprietary entitlement, and restraint of eviction, in relation to Plot No. MN/VI/2504, are res judicata. To that limited but important extent, the applications succeed. Plot Nos. MN/VI/2505, MN/VI/3957 and MN/VI/3974 43. The conclusion is otherwise for the remaining three parcels, MN/VI/2505, MN/VI/3957 and MN/VI/3974. I pen uneasily as I do not reach this difference simply. The instinct of a court confronted with a sixth suit is to bring the cycle to an end. But instinct is not a ground of decision. None of the RULING: ELC/E028/2025 Page 26 of 42

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final decisions identified before me has been shown, by the comparison of pleadings, issues and dispositive orders which John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) requires, to have finally determined title, adverse possession or the right of occupation over those three parcels MN/VI/2505, MN/VI/3957 or MN/VI/3974. HCCC No. 544 of 2000 determined MN/VI/255/1. They were not among the parcels named in ELC Petition No. 250 of 2015. The ruling in ELC No. E017 of 2025 addressed MN/VI/255/1 and left room for any claim not affected by that ruling. ELC No. E001 of 2025 determined representation by counsel and nothing more. 44. The Applicants’ answer rests partly on common ancestry and common infrastructure that MN/VI/2504 was created alongside MN/VI/255/1 upon subdivision of the parent MN/VI/255. But common ancestry is not identity. Even taking that assertion at its full value, it establishes derivation from a common parent; it does not establish identity between the resulting subdivisions. Two children may share a parent and remain two persons, with separate names, separate lives and separate accountabilities. So it is with land. Without the mutation instrument, the deed plans, the historical registers and the cadastral evidence, this Court cannot judicially transform one subdivision into another. So that even if MN/VI/2504 and MN/VI/255/1 arose from MN/VI/255, the RULING: ELC/E028/2025 Page 27 of 42

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Court cannot MN/VI/3957 thereby or conclude MN/VI/3974 is MN/VI/2505, that the same land as MN/VI/255/1, or that the previous judgment determined rights in each of them. Here, not even a shared parentage has been demonstrated, as their historical and spatial relationship to MN/VI/255/1 is simply asserted, and no parcel-by-parcel comparison of the former pleadings, the present pleadings and the issues actually adjudicated has been placed before me. That conclusion would require the cadastral proof which is presently absent. The gap cannot be crossed by describing the parcels as members of one “land family”. A family resemblance is evidence that invites inquiry. It is not a finding that forecloses one. 45. The deficiency is greatest in relation to MN/VI/3974. The Plaintiffs claim MN/VI/3974. The 5th Defendant asserts title to MN/VI/3794 and MN/VI/3957. The Court cannot strike out a claim to one parcel on the strength of a title to another. The unexplained digit is not a typographical inconvenience. It is a question of the identity of the res. 46. What, then, of the correspondence of names, plaintiffs 184 to 333 answering to plaintiffs 1 to 152 in ELC No. E017 of 2025, and Valentine Samba appearing in three proceedings across a decade? The apparent correspondence between some Plaintiffs in the present suit and litigants in prior proceedings bears evidence that some litigants have returned and it may bear materially upon credibility, costs, RULING: ELC/E028/2025 Page 28 of 42

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abuse of process and the reach of any issue estoppel. But ELC No. E017 of 2025 MN/VI/255/1. concerned Therefore, a person bound in respect of MN/VI/255/1 does not, by that fact alone, forfeit the right to establish an independent claim over another legally distinct parcel. Privity answers the question who may be bound. It does not answer the question what was decided. The doctrine requires both answers, and here I find that only one of them has been supplied. 47. I am not persuaded to find the whole of this action as frivolous and abusive merely because some parties and some prayers recur. Abuse of process is a real and necessary jurisdiction, and this Court will not hesitate to exercise it where the material warrants; but it is not an evidential shortcut. If the three remaining parcels are proved to be aliases, subdivisions or physical overlays of land already adjudicated, the law will act decisively and this Court will say so in terms. On the present material, that conclusion would rest upon suspicion dressed as proof, and a litigant’s door is not to be closed upon a suspicion. 48. The claim concerning MN/VI/2504 is therefore barred as stated above. The plea of res judicata is not, however, established in relation to MN/VI/2505, MN/VI/3957 and MN/VI/3974 as based on the present record. RULING: ELC/E028/2025 Page 29 of 42

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Issue 3: Whether section 41 of the Limitation of Actions Act has been established 49. Both Applicants invoke Section 41 of the Limitation of Actions Act as an independent ground for striking out the suit. They pleaded that the suit properties are public land, or land lawfully held, used or occupied by State organs, falling within Section 41 of the Limitation of Actions Act, Cap 22, and are for that reason incapable of acquisition by adverse possession, however long or however genuine the Plaintiffs’ occupation. Section 41(a)(i) provides that the Act does not enable a person to acquire title to, or any easement over, Government land or land Government. The legal otherwise proposition is enjoyed by the settled and its interpretation is not left to conjecture. Where the provision applies, time cannot mature into private title. 50. The Court of Appeal has affirmed the exclusion without deviation. In Sammy Mwangangi & 10 others v Commissioner of Lands & 3 others [2018] KECA 800 (KLR), the Court held it to be trite law that one cannot claim adverse possession against Government land by virtue of Section 41, that a claim for adverse possession can only be maintained against a registered owner, and that: “It is a well settled principle that a claim for adverse possession can only be maintained against a registered owner; nor can one claim adverse possession against public land … We reiterate that if the land is registered RULING: ELC/E028/2025 Page 30 of 42

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in favour of the Government the doctrine of adverse possession would not apply to it and the claim would fail.” 51. That position was restated with equal firmness in Kioko & another v Mulinge & another (Civil Appeal 447 of 2019) [2025] KECA 274 (KLR), where the Court of Appeal held that “Section 41 excludes land in the name of the government from being claimed using the doctrine of adverse possession. In this case, the appellants’ claim that they were in possession of the suit properties for the 30 years cannot be used to obtain government property.” Thirty years of continuous occupation could not defeat the State’s title, because the statute removes such land from the operation of the doctrine altogether, irrespective of the length or character of the possession asserted. 52. The rationale for so uncompromising a rule is not difficult to discern, and it bears restating with emphasis. Public land, and in particular land dedicated to strategic national infrastructure such as petroleum pipelines and port installations, is held by the State not for itself but in trust for the people of Kenya as a whole, pursuant to Article 62 of the Constitution. To permit private parties to whittle away at such land through the slow accretion of unlawful occupation would be to allow individual encroachment to defeat a trust held for the collective and enduring benefit of the nation. It RULING: ELC/E028/2025 Page 31 of 42

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would invert the very policy Section 41 was enacted to protect: that critical infrastructure serving millions of Kenyans, the pipelines that carry the nation’s fuel supply and the port installations that sustain its trade, should never be held hostage to the equities of individual settlement, however sympathetic those equities may be. The doctrine of adverse possession rewards vigilance and punishes neglect on the part of a private landowner who sleeps upon his rights; it was never designed, and this Court will not permit it to be repurposed, as an instrument for stripping the State of land dedicated to the public good. 53. All of that is settled law, and I affirm it without reservation. But the proposition of law is not the disputed question in these applications. The question is not whether Section 41 exists. It is whether the Applicants have established the facts that bring each surviving parcel within its ‘exclusion’ field. More particularly, if, and from what date, that exclusion attaches to each of these parcels. The section is absolute within its proper field; it does not prove the boundaries of that field. A party invoking it must establish the particular parcel, its proprietor, its legal character, the relevant ownership and use history, the basis and history of the Government’s ownership or enjoyment, or of the land’s public purpose and status, and the period during which that status existed in relation to the pleaded limitation period or when the alleged adverse possession is said to have run. RULING: ELC/E028/2025 Page 32 of 42

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54. That last requirement, the temporal one, is not a technicality, and the Applicants’ own authority demonstrates why. In Karima v Kenya Airways Limited (Civil Appeal E015 of 2023) [2025] KECA 1966 (KLR), delivered on 21st November 2025, the Court of Appeal sitting at Mombasa did indeed reiterate that “adverse possession cannot run against government land”. But the Court went on to hold, and this is the part of the judgment that speaks to the present case: “Accordingly, the statutory clock could not begin to run until 4th July 1994, when the suit land was alienated and a Certificate of Title issued to the respondent, a private entity. From that date, the suit land ceased to be government land and became susceptible to claims under adverse possession.” 55. The lesson of Karima is therefore double-edged, and a court would do the Applicants no service by reading only its first half. Section 41 protected that land while it remained Government land; and it ceased to protect it upon alienation to a titled corporate proprietor, from which date time began to run. Kenya Airways Limited is a company in which the State holds a substantial interest, and the Court of Appeal nevertheless characterised it, for the purpose of Section 41, as a private entity holding an alienated title against which RULING: ELC/E028/2025 Page 33 of 42

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the clock ran. Kenya Petroleum Refineries is likewise a limited liability company. Kenya Ports Authority is a statutory corporation whose premises and property are, by its constituting Act, vested in or placed at the disposal of the Authority. It may very well be that these parcels answer to Article 62(1)(b) of the Constitution as land lawfully held, used or occupied by a State organ, and thus to Section 41. That is a serious argument and it may in the end prevail. But it is an argument that requires the constitutional, statutory and title instruments to be examined, not assumed; and it cannot be resolved by the bare characterisation of a proprietor as public in an affidavit sworn by that proprietor’s own officer. 56. Turning to the material actually before me, the affidavits assert registered title and public use, and I do not doubt that they are sworn in good faith. But the record does not disclose a complete set of certified current and historical registers, official searches, grants or leases, mutation forms and deed plans for all four pleaded parcels. No cadastral overlay identifies the Plaintiffs’ structures against registered boundaries or against any pipeline wayleave or reserve. 57. The 1st Defendant’s material raises an unresolved question concerning the legal relationship between its title to MN/VI/255 and the alleged subdivisions MN/VI/255/1 and MN/VI/2504. Its assertion that MN/VI/2504 is a sister RULING: ELC/E028/2025 Page 34 of 42

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subdivision of MN/VI/255/1 is unaccompanied by the mutation instrument Defendant’s material that would includes prove grants it. in The 5th respect of MN/VI/3794 and MN/VI/3957. But the Plaint as presently drawn includes MN/VI/3974. There remains the unexplained discrepancy between MN/VI/3794 and the pleaded MN/VI/3974, so that the very parcel over which registered ownership is deposed may not be the parcel over which the Plaintiffs sue. The Court cannot apply Section 41 to an uncertain subject. Nor can it determine, without the complete register history and survey record, whether the Plaintiffs’ alleged occupation is within land held by either State Corporation or within a defined infrastructure reserve. 58. It is true, and I acknowledge it, that the Plaintiffs have produced no rival title, no deed plan and no survey. That omission will weigh heavily against them at trial, for the ultimate burden of proving every element of adverse possession is theirs and it is a burden not lightly discharged. But their failure to prove their case does not relieve the Applicants of the duty to prove theirs. An applicant who asks a court to terminate a suit before trial, upon a statutory bar, must establish the affirmative facts that bring the bar into play before obtaining a summary declaration and summary termination under section 41. 59. For completeness, I should add that it is no answer for the Plaintiffs to invoke the right to accessible and adequate RULING: ELC/E028/2025 Page 35 of 42

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housing under Article 43(1)(b) as a shield against Section 41 where that section is shown to apply. That right, real and weighty as it is, does not convert land dedicated to petroleum and port infrastructure into land available for private acquisition by long occupation; it is a right to be vindicated through the State’s progressive realisation of housing policy, resettlement and planning, and not through the back door of a doctrine Parliament has expressly excluded. Were it otherwise, every settlement upon public land, however extensive or long-standing, would ripen automatically into a constitutional entitlement defeating the State’s title, a proposition with which no court exercising jurisdiction over land can safely align itself. The Plaintiffs’ constitutional pleadings do not enlarge the scope of adverse possession. They simply do not answer the question whether Section 41 applies, and that question remains to be answered on evidence. 60. Accordingly, I do not reject the Section 41 defence. It is good law, it is squarely raised, and it may well prove decisive of this entire suit. I hold only that it has not been established, parcel by parcel and period by period, with the certainty required to strike out the surviving claims without a hearing. Issue 4: Whether any surviving claim is frivolous, vexatious or an abuse of process RULING: ELC/E028/2025 Page 36 of 42

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61. Order 2 rule 15 permits the Court to strike out or amend a pleading, or a severable part of it, where it is frivolous, vexatious or otherwise an abuse of process. The jurisdiction is exceptional. Under D.T. Dobie & Company (Kenya) Ltd v Muchina & another [1980] KECA 3 (KLR), striking out is reserved for a plain and obvious case. Where a genuine factual question can properly be resolved through evidence, the Court should ordinarily choose adjudication over extinction. 62. The history of repeat litigation is troubling and warrants firm case management. The Court will not permit the earlier determination over MN/VI/255/1, or the present determination over MN/VI/2504, to be re-litigated by fragmentation, re-labelling or strategic omission. But the surviving claims concern parcels not shown, on the present material, to have been finally determined. The applications seek the strongest remedy on evidence which does not yet precisely identify the territory to which the remedy is said to apply. 63. I therefore decline to strike out the surviving claims as frivolous, vexatious or abusive. That conclusion does not exonerate any party from proving its case. It means only that the Court cannot, consistently with the principles governing a summary remedy, terminate claims over land whose boundaries, legal status and relationship to earlier litigation have not been demonstrated by the primary records. RULING: ELC/E028/2025 Page 37 of 42

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Issue 5: What consequential orders ought to issue 64. The uncertainty disclosed by these applications must not be carried into another decade of litigation. The identity and extent of MN/VI/255, its alleged subdivisions, the land held by the 5th Defendant, the claimed pipeline and port reserves, and the relationship of all those interests to the Plaintiffs’ alleged occupation must now be put beyond doubt. 65. The appropriate course is an early, disciplined completion of pleadings and disclosure, followed by disposition of the case in a manner that frames land identity, legal character, public status and the applicability of Section 41 as central issues for trial. That course will allow the Court to determine, upon a complete record, the expanse of land which is truly public or devoted to critical infrastructure and to distinguish it from any land not proved to fall in that category. 66. A site visit is not the first step. Courts do not visit land to discover what parties have failed to plead or map. The documentary cadastre must first be assembled. If a residual physical controversy remains unclear, then the Court may give appropriate directions for a joint survey, expert evidence or inspection on defined terms of reference as it deems appropriate. RULING: ELC/E028/2025 Page 38 of 42

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H. Conclusion and disposal 67. In the final reckoning, this is a case about the discipline that finality imposes upon even the most sympathetic of grievances, and about the equal discipline that precision imposes upon even the most exasperated of courts. Justice is not served by allowing an old claim to live forever, dressed each time in fresh pleadings and a new set of numbers. Neither is it served by burying a new claim in the grave of a neighbouring parcel. Six suits, twenty-six years and hundreds of names later, the temptation to close the whole account with a single stroke is considerable, and I have felt it. The law’s answer is therefore neither wholesale permission nor wholesale extinction. It is a measured order: final where finality has been proved, and open where proof is still required. As to MN/VI/2504, the chapter is closed. As to the remaining three parcels, the Applicants may yet close it, but they must first do so upon the registers, the mutations and the deed plans rather than upon resemblance and assertion. 68. For the foregoing reasons, the Notice of Motion dated 6th February 2026 and the Notice of Motion dated 16th February 2026 are allowed in part, and the Court makes the following orders: a. All averments Amended Plaint and prayers dated 5th in the Further September 2025, insofar as they assert ownership, possession, RULING: ELC/E028/2025 Page 39 of 42

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adverse possession, trust, extinguishment or revocation of title, compensation founded upon proprietary entitlement, or restraint of eviction in relation to Plot No. MN/VI/2504, are hereby struck out as res judicata. b. The applications to strike out the claims concerning Plot Nos. MN/VI/2505, MN/VI/3957 and MN/VI/3974, as Res Judicata and to declare those claims incapable of acquisition by adverse possession under section 41 of the Limitation of Actions Act, are declined at this stage. c. Within fourteen (14) days of this Ruling, the Plaintiffs shall file and serve a Re-Amended Plaint confined to Plot Nos. MN/VI/2505, MN/VI/3957 and MN/VI/3974. It shall append a verified schedule identifying, for each Plaintiff: the parcel claimed; the approximate area and location occupied; the date and manner of entry; the person or entity against whose title time is alleged to have run; and participation, representation or claimed interest in any prior proceeding concerning the land. d. Within fourteen (14) days after service of the ReAmended Plaint, the 1st, 4th and 5th Defendants shall file and serve certified current and historical registers, grants or leases, official searches, mutation instruments, deed plans, survey plans RULING: ELC/E028/2025 Page 40 of 42

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and all other primary records relied upon to establish the genealogy, extent and legal character of MN/VI/255 from its root, and the surviving suit specifically parcels. address the The documents relationship shall between MN/VI/255, MN/VI/255/1 and MN/VI/2504; the status of MN/VI/2505, MN/VI/3957, MN/VI/3974 and MN/VI/3794; and the full extent, use, enjoyment and boundaries of any Government, public, petroleum, port or infrastructure reserve said to affect the surviving claims. e. A pre-trial conference is slated for 24th November 2026, at which the Court shall settle the central issues for trial and give such further directions as may be necessary. f. Nothing in this Ruling stays, varies or impedes execution of any valid decree concerning Plot No. MN/VI/255/1, nor does it authorise action upon Plot Nos. MN/VI/2505, MN/VI/3957 or MN/VI/3974 otherwise than in accordance with the law and any subsisting court order. g. Costs of the two applications shall abide the outcome of the surviving suit. h. The matter shall be mentioned on 24th November 2026 for compliance and further directions. RULING: ELC/E028/2025 Page 41 of 42

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DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT MOMBASA THIS 1 st DAY OF OCTOBER 2026. ........................................................ B. A. AKELLO, OGW JUDGE In the presence of: Gillian — Court Assistant Yose for the Plaintiffs/Respondents Ziwa for 1st and 5th Defendants RULING: ELC/E028/2025 Page 42 of 42

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