1.By a Notice of Motion dated 19th October, 2022 the 1st Defendant/Applicant filed an application seeking the following orders:a.That this suit be struck out for being res judicatab.That in the alternative, the Plaintiff’s suit be struck out for being an abuse of the process of the court.c.That the Plaintiff be condemned to pay the costs of the suit.
2.The application is premised on the grounds set out on the face of the Notice of Motion and the Applicant’s supporting affidavit. The main ground raised in the Applicant’s affidavit is that the Plaintiff filed suit vide Eldoret HCCC No. 34 of 1983 between the Plaintiff and the 1st Defendant/Applicant over the same subject matter which case was conclusively determined by the Honourable court vide an order dated 9th July 1985. A copy of the Plaint and the said order are annexed to the Applicant’s affidavit. It is therefore his contention that this suit is both res judicata and an abuse of the court process as it offends the provisions of section 7 of the Civil Procedure Act Chapter 21 of the Laws of Kenya and Order 15 Rule 2 of the Civil Procedure Rules.
3.In response to the application, the plaintiff filed Grounds of Opposition dated 20th February 2023 in which it raised the following grounds:i.That the application is an abuse of the court process.ii.That the application was filed despite the defendant’s advocates certifying before the Deputy Registrar on 7th September, 2022 that all the parties had complied and were ready for hearing.iii.That despite filing the application on 19th October, 2022 the Defendant waited until February 2023 to serve the Plaintiff who is ready for hearing of the main suit.iv.That the hearing date was given on 21st October 2022 even though the application seemingly had been filed on 19th October 2022 and thus the same should be deemed to have been overtaken by events.v.That the suit herein was filed on 7th June 2021 and the Defence filed on 29th September, 2021 thus the filing of the present application is a ploy by the Defendant’s counsel to seek an adjournment on 23rd February, 2023 when the matter coming up for hearing.vi.That the suit herein is not res judicata since it is challenging the consent judgment in Eldoret HCCC No. 34 of 1983 on the grounds that it was obtained by fraud.vii.That Eldoret HCCC No. 34 of 1983 is the subject matter of this suit.viii.That the facts deponed in the plaintiff’s pleadings are truthful.ix.That one of the prayers (a) in the plaintiff’s Plaint clearly addresses the issue of Eldoret HCCC No. 34 of 1983 thus the suit herein is not res judicata.x.That the suit follows the discovery of fraud as particularized in the Plaint after the proceedings in Eldoret HCCC No. 34 of 1983 on the 28th February 2018.xi.That there is clear jurisprudence and precedents from the Court of Appeal and the Supreme Court that a fraudulent judgment should be challenged through a fresh suit.xii.That the application herein and the suit is devoid of merit and should be dismissed with costs to the Plaintiff (sic).xiii.That the defendant will suffer no prejudice if the suit herein is heard and determined on merits.xiv.That it is in the interest of justice that the suit herein should be heard on its merits.
4.The application was disposed of by way of written submissions and the 1st Defendant and Plaintiff filed their submissions. The 2nd Defendant neither responded to the application nor filed any submissions.
1st Defendant/Applicant’s Submissions
5.In his submissions filed through the firm of Nyairo & Co Advocates the 1st Defendant submitted that the Plaintiff filed Eldoret HCCC No. 34 of 1983 claiming land parcel number 84091/1 and he had once again filed this suit seeking recovery of the said parcel of land. Learned counsel for the 1st Defendant identified two issues for determination namely; Whether this suit ought to be struck out for being res judicata and whether the plaintiff’s suit ought to be struck out for being an abuse of the court process.
7.It was her submission that in Eldoret HCCC No. 34 of 1983, the Plaintiff sought the following reliefs;a.An order that the defendant is a trespasser on a portion of 400 acres of land in L.R No. 84091/1 belonging to the plaintiffb.An order of eviction of the defendant from the said piece of landc.Mesne profitsd.Costs of this action and further or other relief as the court may deem fit to grant
8.The said suit was compromised through a consent order made on 9.7.1985 whereby it was agreed that 400 acres derived from land parcel number 84091/1 be transferred to the 1st defendant and the balance of 176 acres from the said parcel be transferred to the plaintiff. It was submitted that the parties complied with terms of the consent order.
9.Counsel submitted that the plaintiff has now filed suit seeking inter alia the following orders:a.An order declaring that the 1st defendant is illegally in occupation, use and possession of L.R No.84091/1 and ownership of the title by the 1st defendant is null and voidb.A declaratory order that the title deed(s) issued to the 1st defendant herein in respect of that parcel of land known as L.R No. 84091/1 and any resultant sub-divisions were procured through fraud, misrepresentation and unprocedurally and the same be cancelled forthwith and the status of the register be restored to the name of the Plaintiff.c.A permanent injunction do issue restraining the 1st defendant, his servants, agents and/or representatives or persons acting on his behalf from re-entering, occupying and/or interfering with the plaintiff’s use, occupation and possession of that parcel of land known as L.R No. 84091/1.
10.It is counsel’s contention that both suits seek recovery of the parcel of land known as. L.R NO. 84091/1 owned by the 1st Defendant. It is her further contention that the order issued on 9th July, 1985 in Eldoret HCCC No. 83 of 1983 determined all the issues raised in the plaint and revisiting the same issues in this case would amount to the court sitting on appeal on its own decision. She is of the view that the plaintiff is trying to circumvent the legal hurdles he would face if he sought to set aside the consent order obtained in Eldoret HCCC No. 83 of 1983 by filing this suit and this suit is therefore res judicata.
11.Reliance was placed on the case of E.T v Attorney General & Another  eKLR where the court held as follows:
12.It was further submitted that the suit should be struck out for being an abuse of the court process as the plaintiff initially filed Eldoret HCCC No. 34 of 1983 after which it filed a complaint before the National Land Commission Historical Injustice Committee. The decision of the National Land Commission was quashed by this Honourable court in Eldoret Judicial Review Miscellaneous Application No. 7 of 2019.
13.Counsel relied on the case of Ephraim Miano Thamaini v Nancy Wanjiru Wangai & 2 Others  eKLR where the court held that:
14.Counsel took issue with the fact the Respondent had not filed a Replying Affidavit and had only filed Grounds of opposition which by law ought to be restricted to issues of law. It was counsel’s contention that the Respondent’s Grounds of Opposition contained mere facts whose source was not disclosed and they were therefore mere allegations from the bar.
15.Reliance was placed on the case of Kennedy Otieno Odiyo & 12 Others v Kenya Electricity Generating Co. Limited  eKLR and Africa Merchant Assurance Company Limited v Titus Kinyanjui Kienjeku  eKLR for the proposition that Grounds of opposition address only issues of law and do not constitute evidence that can suffice in rebutting the facts raised in the supporting affidavit.
16.The Plaintiffs submissions were filed through the firm of Bitok & Sambu Advocates. Learned counsel for the Plaintiff submitted that in this case the Plaintiff’ seeks to set aside the consent orders issued on 9th July 1985 by Justice V. V Patel in Eldoret High Court Civil Case No. 34 of 1983 on the grounds that the said orders are fraudulent and illegal as the 2nd Defendant was neither a shareholder nor a director of the Plaintiff company and thus had no powers to enter into a consent with the 1st Defendant on behalf of the company. He relied of the case of Richard K.Bunei & 8 Others T/A Geo Estate Development Services v Lorien Ranching Company Limited & 799 Others (being sued on behalf of themselves and behalf of alleged 795 members)  eKLR where the Court of Appeal faced with a similar situation cited with approval the case of Hip Foong v Neotia & Company AC 888 where the Privy Council held as follows:
17.It was counsel’s submission that the facts in this case are similar to the ones in Richard K. Bunei & Others T/A Geo- Estate Development Service (Supra). He submitted that the Plaintiff cannot be faulted for filing the present suit as this is the only acceptable way of assailing the alleged fraudulent judgment in HCCC No.34 of 1983. Regarding the delay in filing the suit, he opined that the same has been explained at paragraph 11 of the Plaint where he averred that the file had been missing from the registry until 2020 when the plaintiff obtained the proceedings in
18.In response to the 2nd Defendant’s criticism that he ought to have filed a Replying Affidavit instead of only filing Grounds of Opposition, counsel submitted that since the application is challenging the suit for being res judicata which is a pure point of law, the same ought to have been filed as a Preliminary Objection rather than an application.
Issues for Determination
19.Having considered the Notice of Motion, supporting affidavit, Grounds of Opposition and rival submission, the main issues for determination are twofold:i.Whether the suit herein is res judicataii.Whether the suit is an abuse of the process of the court.
Analysis and Determination
20.The doctrine of res judicata is contained in section 7 of the Civil Procedure Act Cap 21 of the Laws of Kenya which provides as follows:
21.In Eldoret HCCC No. 34 of 1983, the Plaintiff sued the 1st Defendant herein claiming that he was a trespasser on land parcel number 84091/1. It thus sought an order that the defendant is a trespasser on a portion of 400 acres of land in L.R No. 84091/1 belonging to the plaintiff; an order of eviction against the defendant as well as mesne profits.
22.The said suit was compromised by a consent order dated 9th July 1985 between Julius Tirop Too (2nd Defendant) and most of the shareholders of the plaintiff company on one hand and the 1st Defendant on the other hand. According to the said consent order which is annexed to the 1st defendant’s supporting affidavit as annexture “PKT2,” the terms of the consent were as follows:
23.In the instant suit, the Plaintiff has alleged at paragraph 10 of the plaint as follows:
24.The Plaintiff has listed the particulars of fraud at paragraph 10(a)-(f) of the Plaint as follows;
25.The Plaintiff seeks the following reliefs:
26.It is clear from paragraph 10 of the Plaint and the reliefs sought in the plaint that even though the suit touches on the same subject matter, being land parcel No. 84091/1 between the plaintiff and the 1st Defendant, the main relief sought in this suit is that the consent order dated 9th July 1985 be set aside as it was obtained by fraud. The said consent order has never been challenged by the parties and this aspect of the suit is not res judicata. That being the position, the proper way for the plaintiff to challenge the impugned judgment is by way of a new action to set aside the said judgment.
27.In arriving at this conclusion I am guided by the case of Richard K.Bunei & 8 Others T/A Geo Estate Development Services v Lorien Ranching Company Limited & 799 Others (being sued on behalf of themselves and behalf of alleged 795 members)  eKLR where the Court of Appeal held as follows:
28.I will now proceed to consider whether the suit is an abuse of the court process. It has been submitted that the plaintiff’s suit is an abuse of the court process as the plaintiff filed Eldoret HCCC No. 34 of 1983 followed by complaint before the Land Commission Historical Injustice Committee whose decision was quashed by this court in a determination made in Eldoret ELC Judicial Review Misc Application No. 7 of 2019. According to the 1st defendant, all the issues raised by the Plaintiff have been determined.
29.In Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 Others Civil Appeal No. 25 of 2002  KLR 229, the Court of Appeal held that:
30.Granted that the Plaintiff has filed other cases relating to land parcel number 84091/1 against the 1st Defendant, can it be said that this suit is frivolous, vexatious, oppressive and wanting in bona fides? I have already held that the cause of action is this suit is different from Eldoret HCCC No. 34 of 1983 as it seeks to set aside the judgment in the said case on grounds of fraud. It is not clear what the complaint before the National Land Commission was but it appears that the plaintiff was complaining about the manner in which the 1st defendant acquired the suit property. Although the process before the National Land Commission was not a judicial process, the matter found itself before this court when the 1st defendant challenged the decision of the National Land Commission by way of Judicial Review.
31.This is therefore the third time that the court is being asked to adjudicate over the dispute between the plaintiff and the 1st defendant relating to land parcel No. 84091/ after a period of 36 years. However, in view of the fact that the plaintiff has raised the issue that the consent judgment dated 9th July 1983 was obtained by fraud, this court cannot dismiss this suit as being frivolous. I am of the view that the interest of justice would be served if the plaintiff is given the opportunity to prove the serious allegations he has raised in the plaint subject to any other legal hurdles that it may be required to overcome.
32.Before I conclude, it would be remiss of me not to touch on the question of adequacy of plaintiff’s Grounds of Opposition in responding to the issues raised in the supporting affidavit. It is trite that Grounds of Opposition should be confined to points of law rather than facts. See the cases of Kennedy Otieno Odiyo & 12 Others( supra) and Africa Merchant Assurance Company Ltd v Titus K. Kienjeku (supra).The thrust of this application being that the suit is res judicata, ground 6 has addressed the same by stating that the suit is not res judicata since it is challenging the judgment in Eldoret HCCC No. 34 of 1983. This being a point of law, no evidence was required to rebut this assertion as it can be discerned from the pleadings.
33.The upshot is that the application lacks merit and it is hereby dismissed.
34.The costs of this application shall be in the cause.