Misooma Investments Group Limited v Haris Prem Mohan
The bottom line
#Kenya's Environment and Land Court dismissed Misooma Investments' appeal, allowing a registered landowner's trespass suit to proceed because earlier cases over unregistered plots did not bar it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the original suit, namely Isiolo CMELC No. E016 of 2025, was barred by the doctrine of res judicata
- 2.Whether the original suit is prohibited by the doctrine of sub judice or otherwise
Key legal issues
#Whether the original suit was barred by res judicata
No. The previous suits concerned unsurveyed plots A and B, whereas the current suit concerns registered title LR No. 7918/767; ownership rights flowing from the certificate of title were never determined with finality.
The court held that neither the lower court nor the ELC in Appeal 3 of 2024 could determine ownership rights flowing from a certificate of title that had not been issued. The previous suits were anchored on letters of allotment over unsurveyed plots. The issues in the new suit - trespass and recovery by a registered owner - were never in issue previously, so the res judicata test fails.
Whether the original suit was prohibited by the doctrine of res sub judice
No. The pending notices of appeal concerned the findings that no rights could accrue from letters of allotment and that the unregistered plots were public land, not the registered title, its validity, or trespass.
Applying the KNCHR v Attorney General ingredients, the court found the issues sought to be appealed did not overlap with the issues in the original suit. The elements of sub judice - same subject matter, same parties, pending suits - were not established. The respondent also contended the notices of appeal stood withdrawn under Rule 85(1) of the Court of Appeal Rules.
Scope of the first appellate court's jurisdiction
The court is mandated to re-evaluate the totality of evidence but may only depart from trial court findings on the established grounds of no evidence, perversity, misapprehension or demonstrable error of principle.
Relying on Odera v Machira and the authorities quoted therein (Mwana Sokoni, Peters v Sunday Post), the court restated that the jurisdiction of the first appellate court is circumscribed by Section 78 of the Civil Procedure Act and cannot be exercised for the mere asking.
Legal principles established
#- A first appellate court must undertake a fresh and exhaustive scrutiny of the evidence but may only depart from the trial court's factual findings where they are based on no evidence, are perverse, based on misapprehension, or on a demonstrable error of principle
- Res judicata does not apply where the suit property, now registered under a certificate of title, was not the subject of the previous suits and ownership rights flowing from registration were never determined
- The party invoking res sub judice must establish more than one suit over the same subject matter, one instituted before the other, both pending before competent courts, and between the same parties or their representatives
Court orders
#- 1.The Appeal be and is hereby Dismissed
- 2.The Ruling of the Learned Trial Magistrate dated the 05.03.2026 and the consequential order arising therefrom, be and are hereby Affirmed
- 3.Costs of the Appeal be and are hereby awarded to the Respondent
- 4.Costs in terms of clause (iii) shall be agreed upon and in default be taxed in the conventional manner
- 5.The original suit, namely Isiolo CMELC No. E016 of 2025, ought to proceed for hearing and determination on merits, albeit before a Magistrate other than Hon. Lucy Mutai – Chief Magistrate
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Isiolo Magistrate Court (Chief Magistrate's Court)
- Isiolo Magistrate Court ELC No. E016 of 2025 (ruling on notice of motion dated 27.10.2025)
- Jurisdiction invoked
- First appeal from the magistrates' court under Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya
Relief refused
#Allow the appeal and set aside the impugned ruling
The trial magistrate correctly found the suit was not barred by res judicata; the appeal was devoid of merits
Strike out the original suit on grounds of res judicata and res sub judice
The issues in the original suit were neither directly nor substantially in issue in the previous suits, and the elements of sub judice do not exist
Costs
Costs of the Appeal awarded to the Respondent, to be agreed upon and in default taxed in the conventional manner
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In a nutshell, I find and hold that the issues vide Isiolo CMELC E016 of 2025, were neither directly nor substantially in issue in the previous suit.
The elements that underpin the doctrine of res sub judice do not exist.
The Appeal be and is hereby Dismissed.
The Ruling of the Learned Trial Magistrate dated the 05.03.2026 and the consequential order arising therefrom, be and are hereby Affirmed.
the original suit, namely; Isiolo CMELC No. E016 of 2025, ought to proceed for hearing and determination on merits, albeit before a Magistrate other than Hon. Lucy Mutai – Chief Magistrate.
Issues in the judgment
#Header dates the ruling appealed from as 05.03.2016, contradicting the body and orders which say 05.03.2026
Memorandum of appeal dated 23.03.2025 predates the ruling of 05.03.2026 it challenges
Grounds of appeal cite Isiolo ELCA No. 3 of 2014 while the body refers to Isiolo ELC Appeal Number 3 of 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Misooma Investments Group Limited v Haris Prem Mohan", Case Analysis (2026). ELC Case Number E009 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5884/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.