Nyabando & 11 others v District Land Registrar Kisii County & 7 others

JOEL ATUTI ................................................................................... 7TH RESPONDENT ENOCK MOKUA .......................................................................... 8TH RESPONDENT (Being an appeal from the Ruling/Order of the Environment and Land Court at Kisii (J. M. Onyango, J.) Ruling dated 10th March 2020 in ELC JR. Application No. 4 of 2019) JUDGMENT 1. The genesis of this appeal traces to Judicial Review proceedings initiated against the respondents in the Environment and Land Court at Kisii, where pursuant to leave granted on the 16th December 2019, the appellants sought orders of prohibitions and mandamus against the 1st and 2nd respondents herein. 2. The appellants sought to prohibit the 1st respondent from undertaking any dealings on LR No. Central Kitutu/Mwamanwa/2037,2038,2039 and 2040, the 1st and 2nd respondent from using two dierent maps over the same parcel of land in this case LR Central Kitutu/Mwamanwa/ 2037, 2038, 2039 and 2040 being sub-divisions of land parcel Nos. Central Kitutu/Mwamanwa/558 and Central Kitutu/ Mwamanwa/2227, 2228, 2229, 2230, 2231, 2232, 2233, 3404, 3419, 3448, 3449 and 3450 being subdivisions of land parcel No. Central Kitutu/Mwamanwa/557. 3. The appellants also sought mandamus orders directing the 1st and 2nd respondent to establish clear boundaries between land parcels No. Central Kitutu/Mwamanwa/557 & 558 using the original aerial map; that the 1st and 2nd respondent establish clear records and maps for parcel No. Central Kitutu/ Mwamanwa/557 & 558 and that the 1st and 2nd respondent cancel and/or amend or correct the records and maps to cancel the title relating to LR No. Central Kitutu/Mwamanwa/2037, 2038, 2039 and 2040. 4. The Judicial Review motion was strenuously opposed by the 3rd – 8th respondents who were the interested parties before the trial court in their respective replying adavits. The 3rd respondent went a step further and led a Notice of Preliminary Objection against the Judicial Review motion averring that the proceedings were res judicata Kisii ELC Case No. 120 of 2014 wherein a judgment was delivered on the 17th July 2010 and a subsequent ruling on the 14th November 2014. 5. In its determination of the Preliminary Objection raised by the 3rd respondent, the trial court, (Onyango, J.) found the same to be merited and proceeded to strike out the application for Judicial Review with costs to the respondents herein. 6. Aggrieved by that decision, the appellants appealed to this court vide their memorandum of appeal dated 16th July 2020 raising 11 grounds of appeal, some of which were repetitive and similar that revolved around the nding of trial judge that the Judicial Review proceedings were res-judicata the proceedings and ndings in Kisii High Court Case No. 120 of 2004. 7. At the hearing of the appeal, Mr. Ombachi Counsel for the appellants argued that the issues in the Judicial Review application were completely separate from High Court Civil Case No. 120 of 2004. That the current dispute arose because the Land Registrar and surveyor unprocedurally introduced a new map sheet, creating parcels No. 2037 to 2040 in place of parcel No. 557, eectively taking away the appellants' land; that the existence of parcel No. 557 was already established in a 1987 Resident Magistrate's case and supported by the Land Registrar's own historical records and when questioned by the Court, Mr. Ombachi asserted that his clients were not parties to the 2004 suit. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1951/eng@2026-09-25 2

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8. On their part, Mr. Nyambati and Awiti argued in favour of the respondents. Mr. Nyambati argued that a previous judgment by Justice Asike-Makhandia in Case No. 120 of 2004 explicitly conrmed that parcel No. 557 was never adjudicated and did not ocially exist. He alleged that the appellants obtained subdivisions of Parcel No. 557 fraudulently, and the Land Registrar subsequently canceled them upon discovering the fraud. He disputed the claim that the parties were dierent, stating that the plainti in the 2004 case was the late father of the current appellants asserting that the appellants were merely "wearing a dierent garment" to reopen a matter their family already lost. On his part, Mr. Awiti, representing the County Government of Kisii, stated they were wholly relying on Mr. Nyambati's submissions. However, when interrogated by the Court, on where exactly the trial Judge conducted the formal legal analysis to establish that the parties in both suits were legally identical for res judicata to apply, Mr. Nyambati could not pinpoint the analysis. 9. The appeal was disposed of by way of written submissions. The appellants argued that trial Judge erred in dismissing their suit on the grounds of res judicata and subjudice as the 2004 suit was an eviction/trespass claim regarding parcel No. 558 and did not query or decide the existence of parcel No. 557 whereas the Judicial Review focused entirely on a new administrative fraud specically, the illegal creation of RIM Sheet No. 7, which occurred after the 2004 case concluded. That none of the appellants or their predecessors were parties to, or served in, the 2004 suit. 10. That the Trial Judge wrongly entertained a Preliminary Objection on issues that were not pure points of law as the dispute involved heavily contested facts that required detailed probing, interrogation of conicting adavits, and a review of the 1987 judgment, none of which the judge performed. The appellants thus submitted that their appeal was merited and that the court ought to restore the Judicial Review proceedings before the ELC for its nal determination. 11. Conversely, the 1st respondent submitted that the ownership and validity of parcels Nos. 557, 558, and all resultant subdivisions were already extensively litigated and decided in Kisii HCCC (ELC) No. 120 of 2004 by Justice Asike Makhandia (as he then was) and a subsequent application for review was also rejected by Justice S. Okongo (as he then was); that public interest demands litigation come to an end thus litigants cannot evade res judicata by introducing cosmetic shifts, changing legal forms like framing a property dispute as a Judicial Review application, or adding minor causes of action. Further, that the appellants previously led a notice of appeal against the 2004 judgment but they failed to pursue it, and as such cannot bypass that abandoned appeal by ling a fresh Judicial Review application. 12. That the High Court was right to strike out the suit at the preliminary stage as the pleadings clearly referenced disputes already nalized in the 2004 suit, the issue raised a pure point of law regarding res judicata and jurisdiction, which legally justied shutting down the suit immediately. 13. That the High Court’s ruling was legally sound and that the Land Registrar acted in compliance with an existing court order thus as the appellants' underlying suit is entirely res judicata, the court ought to nd this appeal completely unmerited and dismiss it with costs to the respondents. 14. This is a rst appeal. The Court’s mandate as the rst appellate court is to re-evaluate the evidence, assess it and reach a conclusion. We draw from Rule 31(1) of the Court of Appeal Rules 2022 which provides that: 1. On an appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the Court shall have power: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1951/eng@2026-09-25 3

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a. to re-appraise the evidence and to draw Inferences of fact. In Selle vs. Associated Motor Boat Co., [1968] EA 123, our mandate was expressed thus: “An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briey put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s ndings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif vs. Ali Mohamed Sholan (1955), 22 E. A. C. A.) 15. We have carefully considered this appeal. As a preliminary, we note that the appellants impugned the ruling of the trial court on grounds that the preliminary objection contained issues that were not pure points of law as the dispute involved heavily contested facts that required detailed probing. 16. We reiterate that this was not pleaded in the Memorandum of Appeal and was introduced in the appellants’ submissions. It is trite that parties are bound by their pleadings and consequently a court is restricted to issues raised by parties in their pleadings. Consequently, issues not anchored on pleadings are beyond the interrogation of a court. 17. Turning to the substance of this appeal, it is evident that this appeal turns on whether the trial judge erred in sustaining the preliminary objection to the judicial review application petition raised by the 1st respondent that the petition violated the doctrine of res judicata. 18. The doctrine of res judicata is provided for in section 7 of the Civil Procedure Act, as follows: “ 7. Res judicata 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 nally decided by such court…” 19. Section 7 prohibits the court, in absolute terms, from hearing a suit which raises issues that have already been heard and nally determined by a court of competent jurisdiction in an earlier suit between the same parties or parties claiming under them. The rationale behind the doctrine of res judicata rests on the principles that litigation must come to an end, and that the court cannot be asked to determine the same issue over and over. 20. In John Florence Maritime Services Ltd & Another v Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021] KESC 39 (KLR) (CIV) (6 August 2021) (Judgment) held as follows on the doctrine: “ The rationale behind res-judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1951/eng@2026-09-25 4

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over the same matter. Res-judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes condence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably.” (See also William Koross v. Hezekiah Kiptoo Komen & 4 Others [2015] eKLR). 21. Subsequently, in Kenya Commercial Bank Ltd v Muiri Coee Estate & Another [2016] eKLR the Supreme Court explained that: “ Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights… The doctrine of res judicata, in eect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and ecacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.” 22. There are two other important principles to bear in mind as regards the doctrine of res judicata, which are relevant to this appeal. The rst is that the doctrine applies not only to the issues raised in the rst suit, but also to all issues which, by reasonable diligence, the parties ought to have raised in that rst suit. 23. Accordingly, parties are required to bring forward their entire claims in the rst suit rather than to litigate the issues in instalments. Thus, if, from the nature of the case, an issue ought to have been raised in the rst suit but due to accident, inadvertence or negligence it was not raised, the court will not allow it to be raised subsequently. In Henderson v Henderson [1843] 67 ER 313, Wigram VC held as follows on the principle: …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 to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time”. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1951/eng@2026-09-25 5

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24. The second principle is that parties will not be permitted to evade the doctrine of res judicata by adding new parties or introducing a new cause of action so as to seek the same remedy as that sought in the rst suit. In Kenya Commercial Bank Ltd (supra), the Supreme Court stated: “ 59 25. …Courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle…The Courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the Court. The test is whether the plainti in the second suit is trying to bring before the Court in another way and in a form of a new cause of action which has been resolved by a Court of competent jurisdiction.” This Court, dierently constituted, identied the elements of the doctrine of res judicata in the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR as follows; “ …for the bar of res judicata to be eectively raised and upheld on account of a former suit, the following elements must all be satised, as they are rendered not in disjunctive, but conjunctive terms; a. the suit or issue was directly and substantially in issue in the former suit; b. that former suit was between the same parties or parties under whom they or any of them claim; c. those parties were litigating under the same title; d. the issue was heard and nally determined in the former suit; and e. the court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” 26. In the circumstances, it behooves us to give a brief summary of Kisii Civil Case No. 120 of 2004. This was a case initiated by one Jemimah Bitutu Gai & Elijah Nyangami Gai who sued one Richard Nyabando, Ongubo Osindi and Christopher Maubi Okindo Nyabando seeking to evict them from land parcel known as LR No. Central Kitutu/Mwamanwa/558 as well as restricting them from interfering in any way with the said property. 27. In their defence, the defendants denied the claim averring that the portion they were adjudged to have trespassed on by the plaintis was their portion of land adjudicated and demarcated as LR No. Central Kitutu/Mwamanwa/557 which the plaintis had fraudulently merged with their own land parcel No. 558. 28. In his judgment delivered on the 17th July 2010, Makhandia, J, (as he then was), held that the plaintis had proved their case whereas the defendants failed to prove their allegation of fraud nor the existence of LR No. Central Kitutu/Mwamanwa/557. The learned judge thus upheld the plaintis claim. 29. Aggrieved by this decision, the 2nd defendant therein, Ongubo Osindi lodged a Notice of Appeal on the 30th June 2010 however this appeal was never pursued by the defendants. Three years later, the 2nd defendant vide an application dated 7th June 2013 sought to review and set aside the judgement of 17th July 2010 however this application was similarly dismissed. It is with this background that the Judicial Review application was brought before the trial court leading up to the now impugned ruling subject of this appeal. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1951/eng@2026-09-25 6

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30. From the record, there is no doubt that Kisii HCC No. 120 of 2004 was heard and fully determined vide a judgement entered on the 17th July 2010 and the subsequent challenge of the judgement vide a review application similarly heard and determined vide a ruling of 14th November 2014. At all times, this was a court of competent jurisdiction and no evidence to the contrary has been placed before us. 31. As regards the parties, while the parties in the two cases appear to be dierent. Mr. Nyambati, counsel for the respondents, asserted during the hearing that although the appellants appeared dierent in the judicial review proceedings, the plainti in the 2004 case was the late father of the current appellants and as such the appellants were wearing dierent legal garb seeking to reopen a matter their family already lost. Although the appellants denied formal participation in the 2004 suit, the record strongly suggests they claim though persons who were defendants in that suit. We reiterate that the mere addition, alteration or modication of parties to a suit does not defeat the doctrine of res judicata. 32. As regards the subject matter, in Kisii HCCC No. 120 of 2004, the plainti therein sought to evict the 1st appellant’s relative from parcel Central No. Kitutu/Mwamanwa/558. The issues canvassed therein as raised by the defendants therein associated with the appellants herein was the existence of Parcel No. Central Kitutu/Mwamanwa/557 which the court held did not exist. 33. In the Judicial Review proceedings before the trial court, the appellants sought orders that would in essence if successful recreate parcel Central No. Kitutu/Mwamanwa/557 whilst eectively extinguishing parcel No. 558. This is a decision which in essence would have altered the decision initially granted in Kisii HCCC No. 120 of 2004 and sustained in the review sought. The trial court would have thus been sitting on appeal of a court of concurrent jurisdiction which is untenable in law. 34. Like the trial court, we are satised that the addition of new parties and causes of action as well as the framing of the new suit as a judicial review is nothing short of a poorly contrived stratagem to defeat the doctrine of res judicata, which the courts have consistently warned against. The central question which the appellants sought to cure in the judicial review application was resolved by the High Court in the Kisii HCC No. 120 of 2004. That issue is plainly and simply settled and closed, and is therefore res judicata. The only challenge that can be lodged against the decision passed in Kisii HCC No. 120 of 2004 is vide an appeal. 35. We are satised that the gravamen of the judicial review proceedings was to reopen issues that were directly and substantially in issue in Kisii HCCC No. 120 of 2004 and were nally determined by a court of competent jurisdiction. The learned Judge, therefore, committed no error in upholding the preliminary objection grounded on res judicata. Accordingly, the appeal fails and is dismissed with costs. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. H. A. OMONDI ....................................... JUDGE OF APPEAL L. KIMARU ....................................... JUDGE OF APPEAL JOEL NGUGI ....................................... https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1951/eng@2026-09-25 7

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JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1951/eng@2026-09-25 8

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