Nyoe & 36 others v Black Trap Products Limited (Enviromental and Land Originating Summons E005 of 2025) [2026] KEELC 168 (KLR)

action is alleged to be motivated by malice and fraud, and the applicants fear irreparable harm. They claim ownership of the land through adverse possession, proprietary estoppel, and constructive trust. Unfortunately, they availed illegible photographs to this court. 3. On service, the respondent strenuously opposed the motion through the afidavit deposed by Ramji Shamji Patel, sworn on 20th May 2025, where he states that the respondent is the registered owner of the suit property. The respondent has been in possession of the property since March 1991 and has consistently paid the land rent, receiving receipts for these payments. However, the property was illegally invaded and encroached upon by Mavoko Land Development Company Limited (“Development Co.”), which also attempted to dispose of it to unknown third parties, harming the respondent. To address this invasion, the respondent filed a lawsuit against Mavoko Land Development Company, the Land Registrar of Machakos, the Chief Land Registrar, and the Attorney General in the Machakos ELC Case No. E087 of 2021: Black Trap Products Ltd vs Mavoko Land Development Co. Ltd & 3 Others (“previous case”), whereby judgment was entered in its favour against the Development Co. 4. In quick rejoinder, a further afidavit was sworn by Philip Mbuvi Nyoe on 9th June 2025, wherein he maintained that the previous case did not bind the applicants as it was a judgment in personam and not in rem in respect of the applicants who were not parties to the suit. Moreover, they had no notice of the previous case and, thus, it was unenforceable against them. 5. The motion is canvassed by written submissions that were well received by this court from Mss Mulwa & Mulwa Advocates, for the applicants, dated 9th June 2025, and PJ Kakad & Co. Advocates for the respondent, dated 12th September 2025. Therefore, after identifying and considering the issues for determination, this ruling will, later in its analysis and decision, consider the arguments contained in the rival submissions regarding the specific issue and also take into account the law and judicial precedents. 6. Accordingly, having reviewed the motion, its grounds, afidavits, annexures, as well as the opposing submissions, the ensuing issues, which will be addressed separately, that emerge for resolution are: a. Whether the suit is res judicata. b. Whether the plaintifi has met the threshold to warrant the grant of injunctive relief. And they shall soon be addressed in this court’s analysis and determination. a. Whether the Suit is Res Judicata. 7. As submitted by both counsel, the legal framework on the doctrine of res judicata is found in our Section 7 of the Civil Procedure Act in the following terms: “ No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” 8. In illuminating on this doctrine, the learned authors of Mulla, Code of Civil Procedure, 18th Ed. 2012, page 293 explained the purpose of the doctrine and its exceptions in the following words: “ The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/168/eng@2026-01-27 2

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is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.” 9. In addressing this principle in the decision Kenya Commercial Bank Limited & another v Muiri Cofee Estate Limited & 3 others [2016] KESC 6 (KLR) that has been relied upon by the defendant’s counsel, the Supreme Court of Kenya explicated as follows: “ 52. 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.” This decision went further at paragraph 54 by stating: “ 54. The doctrine of res judicata, in efiect, 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 eficacy 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.” In the persuasive decision of Gladys Nduku Nthuki v Letshego Kenya Limited; Mueni Charles Maingi (Intended Plaintiff) [2022] KEHC 2227 (KLR) that the applicants have cited, the court, in addressing the issue of parties in the present suit and previous suit, stated as follows on the trite law: “ 42. However, it is trite that the mere addition of parties in a subsequent suit does not necessarily render the doctrine of res judicata inapplicable since a party cannot escape the said doctrine by simply undertaking a cosmetic surgery to his pleadings. If the added parties peg their claim under the same title as the parties in the earlier suit, the doctrine will still be invoked since the addition of the party would in that case be for the sole purpose of decoration and dressing and nothing else. Under explanation 6 to section 7 of the Civil Procedure Act, where persons litigate bona fide in respect of a public right claimed in common by themselves and others, all persons interested in such right shall, for the purposes of the section, be deemed to claim under the persons so litigating.” 10. In the circumstances of this case, the defendant submitted to the court its decision in the previous case, the plaint and the Development Co’s defence, among various other documents. The submission of these documents is appropriate, as when the doctrine of res judicata arises in a dispute, the court is obliged to examine the decision, pleadings, and records of the previous case that is alleged to have resolved the issues in question, ascertain the issues that were decided in the previous case, assess whether these are identical to those in the current case, establish if the parties involved are the same or if they are litigating under the same title, and verify whether the previous case was adjudicated by a court with competent jurisdiction. 11. Having considered this previous case in relation to the current one, the court's jurisdiction in the earlier case, which ultimately resolved the matter on the merits, is clear. Therefore, this court needs only to evaluate the remaining criteria, which include: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/168/eng@2026-01-27 3

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12. (a) the parties involved are the same, (b) the issue in dispute is identical in both cases, and (c) the parties are litigating under the same title or claim. As regards test (a), this court has reviewed the documents from the previous case and concludes that some of the parties are the same as in the current matter. Specifically, the respondent was the plaintifi in the previous case, where it sued the Development Co. along with three government entities as codefendants. Its absence in the previous case is the only reason the applicants in this current suit claim the suit is not res judicata. However, their argument cannot prevail because, under Explanation 6 of Section 7 of the Civil Procedure Act, they may be deemed parties to the previous case if they meet the legal threshold. This provision of the law states: “ Explanation. — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.” 13. So, what does the judgment in the previous case and pleadings inform us? In the previous case, the respondent contended that Development Co. had illegally disposed of and sold the suit property to third parties unknown to it and, therefore, it (Development Co.), along with its employees, servants, agents, purchasers, lessees, and lessors, unlawfully trespassed on the suit property without its consent. In its defence, the Development Co. pleaded that the occupants of the suit property are its squatters and pleaded adverse possession. In the present case, regarding their occupancy in relation to the Development Co., the applicants have deposed as follows in one of their afidavits: “ 4. That the Applicants bought and occupied difierent portions of the subject parcel of land measuring difierent acreages from difierent owners in the period ranging from the year 2000 to 2025 and have for the intervening period since then carried extensive developments and lived peacefully therein for over 12 years… 38. That since the year 2000, Mavoko Land Development Co. Ltd has sold various portions of the subject parcel of land including but not limited to the Applicants herein only.” 14. Following this analysis and in adopting the dicta in Gladys Nduku (supra), the applicants cannot distance themselves from the previous case, as the claims by Development Co were in common not only to it/them but also with those claiming an interest through it, either as its purchasers, “its squatters” or otherwise. Moreover, the applicants could not simply stand by and watch the battle waged between the Development Co. and the respondent herein in the previous case without intervention if they needed to. 15. Regarding test (b), this court finds no dificulty in concluding that the issue in the previous case pertained to the same property involved in the current matter. Consequently, the court determines that the subject matter in dispute remains identical. Concerning test (c), it is noted that in the previous case, the Development Co. asserted adverse possession on behalf of the occupants of the property, referring to them as “its squatters.” Additionally, the applicants herein have sworn that their parcels of land were derived from the Development Co. and are also asserting adverse possession. Therefore, the claim is the same. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/168/eng@2026-01-27 4

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16. It appears that the respondent’s execution of the judgment in the previous case was the catalyst for the initiation of this suit. The applicants have now brought new parties into this suit to circumvent enforcement, which this court will not permit, as it would constitute an abuse of the judicial process. Accordingly, this court finds that the present Suit Is res judicata and represents an abuse of court process. This finding renders a determination of issue (b) unnecessary. Ultimately, this court strikes out the suit, and as is well-established law, costs follow the event; the respondent shall be awarded costs for the notice of motion dated 18th February 2025 and of the entire suit. This file is hereby marked as closed. Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 27TH DAY OF JANUARY, 2026. HON. A. Y. KOROSS JUDGE Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Ms Kanja Court Assistant Miss. Kioko holding brief for Mr. Mulwa for Applicants. Miss. Anyango Opiyo for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/168/eng@2026-01-27 5

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