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ELCDismissedELC Petition Number E003 of 2024

Thomson Kerongo & 4 Others v Kisii County Government & 19 Others

Environment and Land Court
1 October 2026
AOA. Omollo
1,823 words in judgment
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The bottom line

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The Kisii Environment and Land Court allowed a long-running land dispute to proceed, rejecting claims that earlier cases had already settled the matter.

What this practically means

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Executive summary

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The 11th to 20th Respondents, represented by James Ombati, applied under Order 2 Rule 15(1)(b), (c) and (d) of the Civil Procedure Rules and Sections 1A, 1B, 3A and 63(f) of the Civil Procedure Act to have the court uphold their preliminary objection or, in the alternative, strike out the Petitioners' petition as res judicata. They relied on Criminal Case No. 1425 of 1966 (and its appeal, Criminal Appeal No. 58 of 1966) and Kisii HCCC No. 69 of 1989, contending that ownership of parcel Nyaribari Chache/B/B/Boburia/3034 had been determined decades earlier and that titles subsequently issued to them remained undisturbed. The Petitioners opposed, arguing that neither former suit determined ownership of the suit parcel, that the parties differed, and that no final determination was made; the 1989 case was merely stood over generally after a surveyor's report. The Kisii County Government, through Douglas Makori, affirmed that records showed the land reserved for the 2nd Respondent school and later redesignated for a tea factory. The court framed a single question: whether the Applicants had demonstrated the threshold for res judicata under section 7 of the Civil Procedure Act. It found the criminal appeal did not mention the suit parcel and its competence to determine ownership was doubtful, while the 1989 HCCC did not fully determine the dispute. The application was dismissed with costs to the Petitioners.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicants have demonstrated the threshold for res judicata

Key legal issues

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01

Whether the petition is res judicata by virtue of Criminal Case No. 1425 of 1966 (and its appeal No. 58 of 1966) and Kisii HCCC No. 69 of 1989

Holding

The petition is not res judicata; the threshold under section 7 of the Civil Procedure Act was not met.

Reasoning

The court examined section 7 and its explanations, then compared the former suits with the petition. The criminal appeal concerned improper placement of boundary marks and directed negotiation to allow land for a school, without mentioning the suit parcel. The 1989 HCCC was stood over generally after a surveyor's report, and it is unclear whether the report resolved the dispute. The competency of the criminal court to determine ownership was also in doubt. Neither the ownership question nor the allotment/compensation question was determined in the former suits.

p. 9

Legal principles established

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  • A plea of res judicata requires that the matter in issue was directly and substantially in issue and determined in a former suit between the same parties; where the former proceedings did not conclusively determine the dispute, the plea fails.

Court orders

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  1. 1.The application dated 15th April 2026 is dismissed
  2. 2.Costs of the application awarded to the Petitioners

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AO
majority

Wrote the judgment

Jurisdiction invoked
Articles 22 and 23 of the Constitution (constitutional petition before the Environment and Land Court); interlocutory application under Order 2 Rule 15(1)(b), (c) and (d) of the Civil Procedure Rules and Sections 1A, 1B, 3A and 63(f) of the Civil Procedure Act

Relief refused

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Prayer to hear and uphold the preliminary objection dated 13th March 2026

The suit was found not to be res judicata

p. 9

Prayer to strike out and/or dismiss the Petitioners' Petition

The res judicata threshold was not demonstrated; the former suits did not determine the issues in the petition

p. 9

Costs

The application is dismissed with costs to the Petitioners.

Quotable passages

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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 light of the foregoing observations, I find that the present suit is not res judicata. The application is dismissed with costs to the Petitioners.
p. 9Disposition - dismissal of the striking-out application
None of the two issues was determined in the former cases cited by the applicants. In fact, the HCCC did not fully determine the dispute.
p. 9Res judicata - former suits did not determine the issues
The content of the judgment in criminal appeal no. 58 of 1966 shows these parties were charged with a criminal offence; hence, the competency of the court to determine the question of ownership is in doubt.
p. 9Competence of criminal proceedings to determine land ownership
It is not clear whether the survey report read out to the parties resolved the dispute.
p. 8HCCC No. 69 of 1989 - no final determination

Issues in the judgment

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minor

Inconsistent dates for the same letter

minor

Applicants labelled 11th to 20th Respondents though petition lists only 19 respondents

minor

Inconsistent spellings of the suit parcel number

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Thomson Kerongo & 4 Others v Kisii County Government & 19 Others", Case Analysis (2026). ELC Petition Number E003 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6242/eng@2026-10-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.