Mara Makari Resort Limited v County Government of Narok & 2 others

4. Further, that this court do cite the County Government of Narok and the Department of Land, Housing, Physical Planning and Urban Development for Institutional contempt, cite Patrick Ole Ntuntu and Stephen Ole Minis, personally for willful and deliberate contempt of court and impose punitive sanctions upon them. 5. The Notice of Motion Application dated 23rd March 2026 seeks the following prayers: 6. a. Spent b. That pending the hearing and determination of this suit, this Honourable Court be pleased to issue a temporary order of stay of execution and/or implementation of the orders issued on 11th March 2026, by Lady Justice Lucy N. Gacheru in Narok ELC Case No. E028 of 2025: Mara Makari Resort Limited Versus County Government of Narok and 2 Others c. That this Honourable Court be pleased to set aside, discharge and/or vacate in entirety the Orders issued on 11th March 2026, by Lady Justice Lucy N. Gacheru in Narok ELC Case No. E028 of 2025: Mara Makari Resort Limited Versus County Government of Narok and 2 Others d. That the costs of this application be provided for. The Notice of Preliminary Objection dated 9th April 2026, was raised by the Plainti in opposition to the Notice of Motion Application dated 23rd March 2026, together with its grounds of opposition even dated, on the following grounds: a. That the plea of res judicata raised in the said Notice of Motion is incompetent in law, the Applicants having failed to plead and exhibit any judgement, decree or order capable of showing that Nairobi High Court Civil No. 163 of 2004, was heard and nally determined by a court of competent jurisdiction within the meaning of Section 7 of the Civil Procedure Act. b. The said plea of res judicata is, in any event, unsustainable in law because on the face of the Applicant’s own motion and annextures, the alleged former suit is not shown to have been between the same parties, or parties under whom they or any of them claim, litigating under the same title as required by section 7 of the Civil Procedure Act. c. Accordingly, and to the extent that the said Notice of Motion is predicated on the plea of res judicata, the same discloses no sustainable basis in law. Brief Background 7. The 1st and 2nd Defendants/Applicants led the instant Notice of Motion Application dated 23rd March 2025, because this court allowed the Plainti’s Notice of Motion Application dated 20th August 2025, which had sought for temporary and permanent injunctive and mandatory orders to enable it erect and operate a tented camp on L.R No. 15296, within Narok County. The Defendants failed to le a response to the said Application, and consequently, the same was allowed on 11th March 2026, as it was unopposed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5704/eng@2026-09-24 2

page 2 of 7

8. The 1st and 2nd Defendants’/Applicants have alleged and averred that they delayed in ling their response to the said Notice of Motion Application because they experienced diculties in retrieving critical historical documents dating back to the year 2004, which were not readily accessible. 9. Further, that the Plainti failed to disclose to this court the existence of Nairobi HCCC No. 163 of 2004: Makari Mara Limited vs County Council of Narok & Another, a suit involving the same parcel of land, and substantially similar issues of ownership and development and thus the present matter is res judicata. 10. The court directed the parties to canvass the three matters together through written submissions. The parties complied with the above directives. 11. Accordingly, the Plainti led two sets of written submissions through Nyiha, Mukoma & Co Advocates dated 24th July 2026 and 25th August 2026. The 1st and 2nd Defendants led their written submissions through Manyonge Wanyama& Co Advocates dated 3rd August 2026, in support of their Application dated 23rd March 2026, and in opposition to the Plainti’s Application dated 17th February 2026, and the Notice of Preliminary Objection dated 9th April 2026. 12. Upon perusal of the said applications, annexures thereto and the rival written submissions, the court nds the issues for determination are as follows; i. Whether the Plainti’s suit is res judicata ii. Whether the Plainti’s Application dated 17th February 2026, for contempt is merited iii. Whether the 1st and 2nd Defendants/Applicants have met the threshold for setting aside the orders of 11th March 2026, vide their Application dated 23rd March 2026? iv. Who bears the costs of these proceedings Analysis and Determination i.Whether the Plainti ’s suit is res judicata 13. Before dealing with this issue, the court will determine issue No.ii, on whether the Application dated 17th February 2026, is merited. This is because the Notice of Motion Application dated 17th February 2026, on contempt cannot be determined before the Notice of Motion Application dated 23rd March 2026, which seeks to set aside the Orders issued on 11th March 2026. 14. Having held so, the court nds and holds that issue No ii, or the Notice of Motion Application dated 17th February 2026, will remain mute until the court determines whether or whether not to set aside the Court Orders issued on 11th March 2026. 15. On whether the suit herein is Res judicata, the 1st and 2nd Defendants/Applicants have annexed the Plaint in Civil suit No. 163 of 2004: Makari Mara Limited vs County Council of Narok and Echotech Venture Limited, led with Chamber Summons Application, both dated 20th February 2004, marked ‘AM-1’ in support of their allegation that the Plainti’s suit is res judicata. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5704/eng@2026-09-24 3

page 3 of 7

16. The Court has considered Section 7 of the Civil Procedure Act which states 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 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.” 17. From the above, the ingredients of res judicata are rstly, that the issue in dispute in the former suit between the parties must be directly or substantially be in dispute between the parties in the suit where the doctrine is pleaded as a bar. Secondly, that the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title and lastly that the court or tribunal before which the former suit was litigated was competent and determined the suit nally. 18. The Court of Appeal rendered itself in the case of John Florence Maritime Services Ltd & another v Cabinet Secretary for Transport and Infrastructure & 3 others (Civil Appeal 42 of 2014) [2015] KECA 472 (KLR) (31 July 2015) (Judgement) as follows: “ The doctrine of res judicata has two main dimensions: cause of action res judicata and issue res judicata. Res judicata based on a cause of action, arises where the cause of action in the latter proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. Cause of action res judicata extends to a point which might have been made but was not raised and decided in the earlier proceedings.” 19. While applying the foregoing holding to the present case, and just by looking at the caption in the present case and Civil Case No. 163 of 2004, the parties are the not the same . The Plainti in the former suit, Civil Case No. 163 of 2004 is Mara Makari Ltd, and the Plainti herein is Mara Makari Resort Ltd, which was incorporated in 2010, as per the Certicate of incorporation attached to the pleadings. Further, the 2nd Defendant in the former suit is Echotech Venture Limited, which is not a party in the present suit. The County Government of Narok which is the natural legal successor of the 2nd Defendant in Civil Case No. 163 of 2004 being County Council of Narok, is the only party that runs across the two cases. 20. In the case of Interim County Secretary, Government of Kakamega v Republic; Adam & another (Ex parte) (Civil Appeal 14 of 2015) [2017] KECA 581 (KLR) (31 March 2017) (Judgment), at Paragraph 32, the Court of Appeal in Kisumu stated thus: [Paragraph 32] “The Constitution and the County Governments Act do not have a provision, in express terms, to the eect that the County Government is the successor to local authorities. However, Section 33 of the Sixth Schedule to the Constitution provides that an oce or institution established under this Constitution is the legal successor of the corresponding oce or institution, established under the former Constitution or by an Act https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5704/eng@2026-09-24 4

page 4 of 7

of Parliament in force immediately before the eective date, whether known by the same name or a new name.” 21. The Omission of Echotech Venture Limited and inclusion of other parties in the present suit clearly shows that the parties are not the same, and having a similar name does not mean parties are the same. Mara Makari Ltd was in existence in 2004, while Mara Makari Resort Ltd was incorporated in 2010. 22. Further, in the case of Gandhi vs Director of Public PROSECUTIONS & 3 Others [2018] KEHC 6100 (KLR) Mativo J (as he then was) stated thus: [Para 19] “However, it is trite that the mere addition of parties in a subsequent suit or omission of a party or party's as has happened in this case 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.” 23. However, the above scenario does not apply to this suit since the Plainti are not the same. Accordingly, the court nds and holds that the parties in Civil Case No. 163 of 2004 and the present suit are not the same. 24. The second limb for consideration is whether the two suits concern the same subject matter. Upon perusal of the Plaint dated 20th August 2025, in the present proceedings and the Plaint dated 20th February 2004 in Civil Case No. 163 of 2004, it is apparent that the dispute in both suits relates to the proprietorship of Land Parcel No. 15296 Narok. It is evident that the subject matter in the two suits is one and the same, but being claimed by dierent Plaintis against dierent Defendants, and the cause of action is also dierent. Therefore, this second limb is not satised. 25. The next essential consideration is whether the issues in dispute were heard and nally determined in the previous proceedings. A perusal of the Supporting Adavit sworn on 23rd March 2026 by one Allan Meing’ati in support of the Application dated 23rd March 2026, does not disclose the existent of any Judgment, Decree or Court Order issued in Civil Case No. 163 of 2004. Therefore, this court cannot nd and hold with certainty the fate of Civil Case No. 163 of 2004, or whether the issues raised were determined with nality. 26. Consequently, this Court is unable to ascertain with certainty the fate of the said suit or, more importantly, whether the issues raised therein were heard and conclusively determined. For the above reasons, this Court nds and holds that there is no sucient basis upon which this Court can nd that the matter in issue herein was heard and nally determined in the previous proceedings. 27. Therefore, the court nds and holds that the 1st and 2nd Defendants have not established that the Plainti’s instant case is res judicata. SUBPARA ii. Whether the 1st and 2nd Defendants/Applicants have met the threshold for setting aside the orders of 11th March 2026 28. It is evident that the court issued the orders of 11th March 2026, because the Defendants had delayed or failed to le a Response to the Plainti’s Application dated 20th August 2025. The power of this Court to set aside its own orders is discretionary and must, in the circumstances of each case, be exercised judiciously upon sucient cause being demonstrated. See Order 12 Rule 7 of the Civil Procedure Rules. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5704/eng@2026-09-24 5

page 5 of 7

29. In the present case, the explanation advanced by the 1st and 2nd Defendants for their failure to le a response within the prescribed time is that they experienced diculties in retrieving critical historical documents dating back to the year 2004, which documents were allegedly not readily accessible. Is this explanation plausible or sucient to warrant the court to use its discretion and set aside its orders of 11th March 2026?. 30. The 1st and 2nd Defendants/Applicants have alleged that the suit property is in ordinarily a breeding ground for Rhinos and the development intended to be caried out by the Plainti would injure the ecosystem. That they delayed in replying to the Application, as they sought for the documents to support that allegations and position. 31. Having considered the material placed before the Court, the court nds and holds that the allegations of whether the Plainti’s parcel of land is a Rhinos breeding ground cannot be determined in this application, nor can it be wished away. Evidence will have to be called, and tested through the usual cross examination to test the credibility of the same. For now, it remains probable, or not probable, and the parties should be granted an opportunity to advance their case 32. In the circumstances, the Court nds and holds that explanation advanced for the delay does constitute sucient cause to warrant the exercise of this Court's discretion in favour of the 1st and 2nd Defendants/ Applicants. 33. Having carefully considered the instant Notice of Motion dated 23rd March 2026, the court nds it merited and that it meets the threshold for setting aside of exparte orders issued on 11th March 2026. The court is guided by the ndings in the following cases; Patel vs EA Cargo Handling Services Ltd (1974) EA 75, and Shah vs Mbogo ( 1968) EA 93, where the court held that judicial discretion to set aside orders is intended to prevent injustice or hardship resulting from accident, inadvertence or excusable error. 34. Accordingly, this court nds and holds that the Notice of Motion Application dated 23rd March 2026 , is merited, and the said Application is allowed entirely in terms of prayers Nos 2 and 3. iii. Who bears the costs of these proceedings? 35. Section 27(1) of the Civil Procedure Act provides that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. Though, the main suit is yet to be determined, and the exparte orders of 11th March, 2026, having been set aside, and the Notice of Motion Application dated 20th August 2025, shall now proceed to be heard and determined through inter-parties hearing, the court nds and holds that the Plainti/Respondent is entitled to costs of this Application dated 23rd March, 2026. 36. Consequently, the court proceeds to issue the following orders: i. The Notice of Motion Application dated 23rd March 2026, is found merited and allowed in terms of prayers Nos 2 and 3. ii. The Notice of Motion Application dated 20th August 2025, to be set down for hearing, and be determined after inter-parties hearing. iii. The suit is found not to be Res-judicata, thus the Notice of Preliminary Objection dated 9th April 2026, by the Plainti is upheld. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5704/eng@2026-09-24 6

page 6 of 7

iv. The Notice of Motion Application dated 17th February 2026, is stayed or held in abeyance awaiting the hearing and determination of the Notice of Motion Application dated 20th August 2025. v. Costs of the applications is awarded to the Plainti/Respondent. It is so Ordered. DATED, SIGNED AND DELIVERED VIRTUALLY, AT NAROK THIS 24TH DAY OF SEPTEMBER 2026. L. Gacheru Judge Delivered online in the presence of Elijah Meyoki …Court Assistant Mr Badbess holding brief for Mr Nyiha for Plainti/ Applicant/ Respondent Mr Nyakundi holding brief for Mr Wanyama 1st, 2nd and 3rd Defendants/Applicants/ Respondents L. Gacheru Judge. ELC CASE NO. E028 OF 2025 Page 5 of 5 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5704/eng@2026-09-24 7

page 7 of 7