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

a. THAT this Honourable Court do hear and uphold the 11 th to 20th Defendants' preliminary objection contained in the notice dated 13th March 2026. b. THAT in the alternative, and without prejudice to prayer b above, this Honourable Court do strike out and/or dismiss the Petitioners Petition herein. c. THAT costs of this Application and the Petition case be provided for. d. THAT any other remedy and/or orders that the court deems fit and just in the circumstances. 2. The application is premised on the grounds listed on its face inter alia; 1. The Petition herein is res judicata as it offends the provision of section 7 of the Civil Procedure Act in that there are previous suits determined by the Magistrate and High Courts in Kisii whose judgments against the Plaintiffs herein remain undisturbed and therefore binding. 2. Accordingly, this Honourable Court lacks jurisdiction to entertain the current suit as the same is a demurrer. 3. This Honourable Court is further enjoined by the Constitution and the overriding objective in ensuring efficient use of available judicial and administrative resources and hence strike out this suit in limine. 2

page 2 of 9

3. The application is also supported by the affidavit sworn on the same date by James Ombati, sued as the 12th Respondent in the Petition. He deposed that in 1966 the local administration attempted to acquire the suit land; however, following proceedings taken in Criminal Case No. 1425 of 1966, the court ruled that the acquisition was illegal and found that the land belonged to them. He avers that in another case Kisii HCCC case no. 69 of 1989 between Moraa w/o Ombati and 4 Others versus Gusii County Council, the issue of ownership was heard and determined and no appeal was filed against this decision. 4. THAT following these judicial determinations, the Gusii County Council (predecessor to the 1st Respondent) formally acknowledged the land ownership issue in a letter dated 14th June 2004 to forfeit its claims, confirming that the court had reinstated ownership to the original owners in 1966. 5. The 11th to 20th Respondents assert that the suit parcel was consequently subdivided and legal titles issued to them. That this petition is challenging their titles which is an attempt to re-open issues of land ownership and public land status that were settled 60 years ago which makes this petition as frivolous and vexatious. They attached copies of judgments in the two cited cases. 6. The application is opposed by the Petitioners through the replying affidavit of Thomson Kerongo (1st Petitioner) sworn on 20th April, 2026. 3

page 3 of 9

He deposed that the application is misconceived and stated the conditions which must be met before a matter can be declared as res judicata. Mr Kerongo deposes that he has perused the proceedings and judgment in the cases cited by the Applicants (Cr. Case 1425 of 1966; Civ case no 69 of 1989) and find the cases donot satisfy the requirements of res judicata. 7. They contend that none of the said cases determined the issue of ownership or rights relating to land parcel NYARIBARI CHACHE/B/B/BUBURIA/3034, which is the subject of the present Petition. Secondly, that the parties in those cases are not similar to the parties in this suit. Thirdly, that no final determination was made. 8. They aver that in civil case no 69 of 1989, an order was made for the District surveyor to visit the disputed land amongst others. The surveyor filed his report on 2nd February, 1989 after which the matter was stood over generally. THAT following the absence of any determination, the Clerk of the defunct Gusii County Council, by a letter dated 14th June 2004 addressed to the Managing Director of Kenya Tea Development Agency Ltd, confirmed that the suit property had reverted to the original owners, which, according to them, is the 2nd Respondent. 9. The 1st Respondent also filed a replying affidavit dated 14th July, 2026 sworn by Douglas Makori, its Director of Land Administration. He affirmed that according to the existing records, the suit land was reserved in favour of the 2nd Respondent school. On 6th November, 2003, under 4

page 4 of 9

minute 22/2003, the Rianyamwamu Community applied for change of user for the development of Rianyamwamu Tea Factory. 10.He deposes that the application was tabled by the area Councillor, Mr Peter Mogire. After deliberating on the application, the Gusii County Council approved the application and redesignated L.R. Nyaribari Chache B/B/Boburia/3034 for the establishment of a tea factory instead of a nursery school as earlier planned. They did a letter to KTDA dated 14 th June 2004 for compensation of the affected individuals. 11. The 2nd to 10th Respondents did not file any response to the application. Submissions: 12.I have read and considered the application, the replying affidavits and the submissions filed by the 11th to 20th Respondents (dated 10th August 2026) and the Petitioners dated (20th April, 2026) in support of and against the application. The only question for determination is to find out whether the Applicants have demonstrated the threshold for res judicata. 13.Section 7 of the Civil Procedure Act clearly spells out the threshold to be met for a suit to be declared res judicata under the explanations thus; Explanation. - (1) The expression "former suit" means a suit which has been decided before the suit in question, whether or not it was instituted before it. 5

page 5 of 9

Explanation. - (2) For the purposes of this section, the competence of a court shall be determined Irrespective of any provision as to right of appeal from the decision of that court. Explanation - (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation - (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation. - (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. 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. 14.In this instance, the Applicants cite two cases as grounds for urging the court to find that the petition is res judicata. The first case cited, Criminal Appeal No 58 of 1966, is a decision resulting from an appeal in criminal case number 1425 of 1966. The appellate court found that the procedure 6

page 6 of 9

used to place the boundary marks that the appellants uprooted was improper. The court directed the Chief and the Committee members to peacefully negotiate with the Appellants to allow land for the school. The order does not mention the land number in question. 15.What makes one understand the land parcel in dispute is the letter dated 14th June 2004 drawn by Gusii County Council and addressed to the Managing Director KTDA. The letter states thus; “RE: LAND PARCEL NO. B/B/BOBURZA/3034-RIANYAMWAMU TEA FACTORY: This is to confirm that the Council has reverted ownership of land parcel No. B/B/Soburia/3034 to the original owner as per the court ruling in the Magistrate's Criminal Appeal Case No. 58 of 1966 Kisii A.C. Criminal Case No. 1425 of 1966. Therefore, the Council has no objection to the direct payment of compensation to the original landowners for the land on which you plan to construct Rianyamwamu Tea Factory. Therefore, you can go ahead with your plans for the Tea Factory and the Council supports your development agenda for the area.” 16.In the other case of HCCC no. 69 of 1989, the proceedings show that through a consent order made on 2 nd October, 1997, the District Surveyor 7

page 7 of 9

was directed to visit the disputed land i.e. B/B/Boburia/3964, 3965, 471, 452, 453 and 3034 and establish actual position on the ground. Report to be filed within 90 days. This report was filed and its contents/award read out/expalined to the parties on 6th October 1999. An order is made after the reading of the award standing the matter generally. It is not clear whether the survey report read out to the parties resolved the dispute. 17.In the current Petition, the Petitioners claim that the 1st, 2nd, 3rd, 4th and 5th Respondents conspired with the 6th Respondent to deregister the defunct Gusii County Council from the register in the 6th Respondent offices to 9th Respondent on 31st December, 2003 without due process. 18.The Petitioners aver that the 9th Respondent and all the squatters are still in the suit land NYARIBARI CHACHE/B/B/BOBURIA/3034, occupying it with impunity despite the 6th Respondent reverting the land to the defunct Gusii County Council and being notified of an illegal occupancy in the suit property, illegally encroached fraudulently. 19.In summary, the Petitioners are challenging the process of how the land changed from being public land reserved for Rianyamwamu Primary School to the 9th Respondent and the other occupants. The inference one draws from this argument is that, following the decision in Criminal Appeal No. 58 of 1966, the owners referred to in that case allowed land for the Community school. Whether they were subsequently compensated 8

page 8 of 9

by the 9th Respondent as proposed in the letter dated 12th June 2004 or whether the land was allotted to the current owners by the defunct Gusii County Council as alleged by the Petitioners is the crux of this dispute. 20.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. 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. 21. 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. Dated, Signed and Delivered at Kisii this 1st day of October, 2026. A. OMOLLO JUDGE 9

page 9 of 9