Luka & 3 others v Chairman Land Adjudication Committee, Leshuta

Land Adjudication Section & 6 others (Civil Appeal (Application)

E005 of 2022) [2023] KECA 1232 (KLR) (6 October 2023) (Ruling)
Neutral citation: [2023] KECA 1232 (KLR)

REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAKURU
CIVIL APPEAL (APPLICATION) E005 OF 2022
FA OCHIENG, LA ACHODE & WK KORIR, JJA
OCTOBER 6, 2023

BETWEEN
JIMMY PARNYUMBE LUKA ........................................................... 1ST APPLICANT
SLATI MARDADI .............................................................................. 2ND APPLICANT
NAIPERAI MASAGO ........................................................................ 3RD APPLICANT
KONANA KIRAISON ...................................................................... 4TH APPLICANT

AND
THE CHAIRMAN LAND ADJUDICATION COMMITTEE, LESHUTA LAND
ADJUDICATION SECTION ......................................................... 1ST RESPONDENT
THE DISTRICT LAND ADJUDICATION OFFICER, NAROK WEST DISTRICT,
NAROK COUNTY ........................................................................ 2ND RESPONDENT
THE DIRECTOR, LAND ADJUDICATION & SETTLEMENT .... 3RD
RESPONDENT
DEPUTY COUNTY COMMISSIONER, NAROK WEST SUB-
COUNTY ........................................................................................ 4TH RESPONDENT
CABINET SECRETARY MINISTRY OF LANDS ..................... 5TH RESPONDENT
THE ATTORNEY GENERAL ...................................................... 6TH RESPONDENT
MASAI MARA UNIVERSITY ..................................................... 7TH RESPONDENT

(An application for a temporary injunction pending hearing and determination

of an appeal from the ruling of the Environment & Land Court at Narok
(Mbogo, J.) dated 30th November, 2021 in ELC Cause No. E001 of 2021)

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 RULING

1. Before us is an application dated November 21, 2022in which the applicants pray for a temporary
injunction restraining the 7th respondent from developing, constructing, charging, disposing or in any
other manner dealing with all that parcel of land known as CIS MARA/LESHUTA/2585 measuring,
89.97 Ha (222.32 Acres), hereinafter, “suit land” pending the hearing and determination of the present
application and the intended appeal.

2. The application is brought under sections 3A and 38 of the Appellate Jurisdiction Act, Rules 5(2) (b),
41, 42 and 47 of the Court of Appeal Rules, 2010, articles 22, 23, 35 and 40 of the Constitution of Kenya
2010 and all other enabling provisions of the law. The application is premised on the grounds that:
the 1st respondent in violation of the applicants’ rights failed to conduct any public participation when
allocating 210 acres of the suit land to the 7th respondent. That this was done through manipulation by
the 7th respondent’s administration, and resulted in some of the registered members of the adjudication
section not being allocated any land. An objection against the 1st respondent was lodged by one, David
Kijuku Kedienye. The objection was dismissed by the 2nd respondent after a meeting between the 1st and
7th respondents. The 1st applicant led appeal No. 578 of 2020 against the decision to allocate suit land
to the 7th respondent, the appeal was dismissed by the 4th respondent without considering the plight of
the members who missed in the allocation. This prompted the applicants to le ELC Petition No. E001
of 2021. The petition was dismissed with costs. Aggrieved by the dismissal, the applicants have since
lodged an appeal against the decision of the court. Their application for conservatory orders to restrain
the respondents from processing any title in favour of the 7th respondent was dismissed. A title has since
been processed in respect of the suit land in favour of the 7th respondent, to the detriment of members
who were not allocated the suit land as their names were omitted in the nal adjudication register.
That the 7th respondent has since started developing the suit land and also fenced it. The applicants
averred further that unless the application is determined expeditiously and conservatory orders or an
injunction is issued, the 7th respondent will continue to develop the suit land while the members will
suer irreparable harm as they will be denied land which they are entitled to, thus rendering the appeal
nugatory. The failure to allocate any land to the members, in particular the members who are persons
with disabilities, rendered the members landless, squatters and destitute in a place they have known as
their ancestral and community land; this will only serve to perpetuate further historical land injustices.
It is in the interest of PWDS, who form a majority of the members, who missed out on land allocation
that the appeal should be set down for hearing on priority in order to protect their constitutional rights,
and to enable the applicants to canvass their appeal. The suit land has always been community land,
and no prejudice will be occasioned to the respondents as the said land is yet to be developed. They
urged that the status quo be maintained, and a temporary injunction do issue.

3. The application was further supported by the adavit of the 1st applicant, the chairman of persons
living with disability within Narok County. He swore the adavit on behalf of the members of Leshuta
Adjudication Section and Maasai Mara Disability Self-Help Group. He reiterated the grounds on the
face of the application.

4. In a replying adavit sworn by Daniel M. Naikuni Nchorira, the 7th respondent’s Director,
Endowment Fund, the 7th respondent was of the view that the application as led was grossly
incompetent, fatally defective and an abuse of the court process, and the same should be dismissed.
This was so because the applicants had in Civil Application No. E082 of 2021 sought similar orders
as the present application, and the application was dismissed. That a similar application was also led

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 before the Environment and Land Court. The applicants’ application for stay having been dismissed, it
is improper for the applicant to move the court over the same matter. The 7th respondent was rightfully
allocated part of the suit land and it has nothing to do with those allegedly not allocated the suit land;
and it is unfair for the applicants to claim to stop the 7th respondent from developing land rightfully
allocated to it. The 7th respondent did not play any role in the allocation as the same was done by the 1st
to the 4th respondents. The applicants’ petition before the land court was rightfully dismissed. Further,
the applicants were not party to the objection proceedings whose outcome they allege to challenge.
Daniel further stated that the allocation was done in 2012 and as such it is not understandable why
the applicants alleged that the allocation committee was manipulated in November 2020. The 7th
respondent was of the view that the applicants have not demonstrated that they have an arguable
appeal, and that if the orders sought are not granted the appeal will be rendered nugatory. The
applicants have also not demonstrated that they will suer substantial loss. There are no squatters on
the suit land, the applicants are on a shing expedition. The landless members are not in occupation
of the suit land and the issuance of title does not the render the appeal nugatory as the court has
jurisdiction to cancel a title in the event the appeal is successful. The application is devoid of merit and
the same should be dismissed with costs.

5. Parties relied on their written submissions.

6. The applicants relied on the cases of Clerk, Nairobi County Assembly v Speaker,Nairobi County
Assembly & another [2021] eKLR and Stanley Kangethe Kinyanjui v Tony Ketter & others [2013]
eKLR in submitting that they had an arguable appeal. They were of the view that the grounds raised
in the memorandum of appeal were prima facie arguable without making substantive arguments.
They pointed out the ground where the learned Judge determined the petition without according
the applicants their right to information in compliance with the interim orders issued on March 15,
2021 in which the respondents were ordered to supply the applicants with copies of all the minutes,
documents, orders, decisions, proceedings and rulings of Leshuta Adjudication Section in respect of
the objection and the nal determination by the 4th respondent.

7. It was the applicants’ further submission that they had demonstrated that genuine and deserving
members were not allocated land, and that therefore their right to own property underarticle 40 of the
Constitution was infringed upon.

8. On the nugatory aspect, the applicants submitted that the 7th respondent had commenced fencing and
development of the suit land, and that unless the orders sought are granted, the 7th respondent will
continue to develop the suit land and members will suer irreparable harm. They urged the court to
consider the plight of the members, some of whom are persons living with disabilities. The suit land is
community land hence it would be just to maintain the status quo.

9. The applicants maintained that it is only fair, just and expedient that a temporary injunction is issued
to protect the constitutional and inalienable rights of the members who were not allocated land.

10. Opposing the application, the 7th respondent reiterated that the present application is similar to Civil
Application No. E082 of 2021 and therefore, an abuse of the court process. The 7th respondent
proceeded to submit that the Leshuta Adjudication Section was declared in 2008 and it applied for
allocation. In 2012, it was allocated 210 acres, being the suit land. The process of adjudication has been
ongoing. However, in 2021 the applicants faulted the allocation made to the 7th respondent, through
an appeal to the Minister for Land and later by way of the ELC Petition E001 of 2021.

11. On whether or not an injunction should be issued, the 7th respondent submitted that it is the registered
proprietor of the suit land and the application before court does not meet the requisite conditions for

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 grant of the orders sought. In that regard the 7th respondent relied upon the case of Nguruman Limited
v Jan Bonde Neilsen & 2 others [2014] eKLR).

12. The 7th respondent was of the view that the applicants had not demonstrated that they have an arguable
appeal or that if the appeal succeeds, it will be rendered nugatory. The 7th respondent cited the case
of Hassan Guyo Wakalo v Straman EA Limited [2013] eKLR to support its case. The 7th respondent
further submitted that the applicants had not established that they would suer irreparable harm if the
orders sought are not granted. The members who were not allocated land are not settled on the suit
land and the issuance of title to the 7th respondent is a process that can be reversed. The 7th respondent
submitted that the applicants have not satised that condition for grant of stay, as set out in the case
of Stanley Kangethe Kinyanjui v Tony Ketter & others (supra). The 7th respondent further submitted
that the applicants have no legal right over the suit land, whereas the 7th respondent has the legal right,
as the registered owner.

13. The 1st to 6th respondents did not le a reply to the application or submissions thereof.

14. We have carefully considered the application, the grounds in support thereof, the various adavits,
submissions, authorities cited and the law. We note with utmost concern that the applicants herein,
led Civil Application No. E082 of 2021 seeking an order for stay of execution of the judgment in ELC
Petition No. E001 of 2021. In a ruling dated April 28, 2022the applicants’ application was dismissed
with costs. The applicants have now moved this court seeking an injunction.

15. In the application before us, the 7th respondent’s argument is that the present application raised similar
issues which had been considered and determined in Civil Application No. E082 of 2021. It is quite
unfortunate that neither party deemed it pertinent to submit further on the issue.

16. The substantive law on res judicata is found in section 7 of the Civil Procedure Act cap 21 which
provides 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. The Black’s law Dictionary, 10th Edition denes “res judicata” as:

“ An issue that has been denitely settled by judicial decision…the three essentials are (1) an
earlier decision on the issue, (2) a nal Judgment on the merits and (3) the involvement of
same parties, or parties in privity with the original parties …”

18. It is trite that a person may not commence more than one action in respect of the same or a substantially
similar cause of action and the court must attempt to resolve multiple actions involving a party and
determine all matters in dispute in an action so as to avoid multiplicity of actions. In order to decide
whether the issues in this application are res judicata, we have to look at the decision claimed to
have settled, the issues in question and the entire application and the instant application to ascertain;
what issues were determined in the previous application, whether or not the issues are the same in
the subsequent application and whether the issues were covered by the decision, and whether or not
the parties are the same or are litigating under the same title and that the previous application was
determined by a court of competent jurisdiction.

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19. In the case of Siri Ram Kaura v M.J.E. Morgan, CA 71/1960 (1961) EA 462 the then EACA stated
that:

“ The law with regard to res judicata is that it is not the case, and it would be intolerable if
it were the case, that a party who has been unsuccessful in litigation can be allowed to re-
open that litigation merely by saying, that since the former litigation there is another fact
going exactly in the same direction with the facts stated before, leading up the same relief
which I asked for
before, but it being in addition to the facts which I have mentioned, it ought now to be
allowed to be the foundation of a new litigation, and I should be allowed to commence a
new litigation merely upon the allegation of this additional fact. The only way in which that
could possibly be admitted would be if the litigant were prepared to say, I will show that this
is a fact which entirely changes, the aspect of the case, and I will show you further that it was
not, and could not by reasonable diligence have ascertained by me before ...
The point is not whether the respondent was badly advised in bringing the rst application
prematurely; but whether he has since discovered a fact which entirely changes the aspect of
the case and which could not have been discovered with reasonable diligence when he made
his rst application.
It is therefore not permissible for parties to evade the application of Res judicata by simply
conjuring up parties or issues with a view to giving the case a dierent complexion from the
one that was given in the former suit.”

20. In The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others [2017] eKLR, this
court, constituted dierently, held that:

“ For the bar of res judicata to be eectively raised and upheld on account of a former suit, the
following elements must 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.

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.”
Thecourt went on to state as follows:

“ The rule or doctrine of res judicata serves the salutary aim of

bringing nality to litigation and aords parties closure and respite
from the spectre of being vexed, haunted and hounded by issues and
suits that have already been determined by a competent court. It
is designed as a pragmatic and commonsensical protection against
wastage of time and resources in an endless round of litigation at
the behest of intrepid pleaders hoping, by a multiplicity of suits and

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 fora, to obtain at last, outcomes favourable to themselves. Without
it, there would be no end to litigation, and the judicial process
would be rendered a noisome nuisance and brought to disrepute
or calumny. The foundations of res judicata thus rest in the public
interest for swift, sure and certain justice.”

21. Mulla, Code of Civil Procedure, 18th Ed. 2012 p.293 states:

“ The principle of nality 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
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.”

22. The Supreme Court in the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited &
another [2016] eKLR stated that:

“ 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.”

23. A perusal of the application shows that indeed that applicants led an application before this Court
dated December 10, 2021seeking an order of stay of execution of the Decree and Orders of Mbogo J.,
issued in Narok ELC Constitutional Petition No. E001 on 30 November 2021. The application was
led pursuant to the provisions ofsection 3A of the Appellate Jurisdiction Act, Rules 5(2)(b), 41, 42 &
47 of the Court of Appeal Rules, 2010 and articles 22, 23, 35 and 40 of the Constitution. It has also not
escaped our keen eye that the grounds and the adavit in support of the application herein are similar
to the application dated December 10, 2021.

24. Thiscourt, in the ruling dated April 28, 2022made a determination with respect to the said application.
The court determined that the application lacked merit and dismissed the same with costs. Addressing
our minds on the orders sought in this application, we hold the considered view, that regardless of
the terms or words employed thereunder, the same were ultimately geared towards stopping the 7th
respondent from acquiring title and from taking possession of the suit and; and also from developing
it. Whether the applicants sought an injunction or an order for stay of execution, we hold the view that
the substratum of the applications had been determined conclusively.

25. Therefore, the issue of a preservative order under Rule 5(2)(b) was directly and substantially in issue
in the ruling dated April 28, 2022 hence could not be raised again, even with the use of judicial
craftsmanship.

26. The present application is between the same parties over the same subject matter, supported by the
same grounds. It is our considered view that this matter is res judicata. The application before us is
frivolous and an abuse of the court process.

27. As it stands, the present application is for striking out. Nevertheless, we would have made the following
nding had the application before us been competent.

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28. The jurisdiction of this court under Rule 5(2)(b) is original, independent and discretionary. In Stanley
Kangethe Kinyanjui v Tony Keter & 5 others (supra) this Court laid down the principles for grant of
the orders sought as follows:

“ That in dealing with Rule 5(2)(b), the court exercises original and discretionary jurisdiction
and that exercise does not constitute an appeal from the judge’s discretion to this court.”
The rst issue for our consideration is whether the intended appeal is arguable. This court
has often stated that an arguable ground is not one which must succeed but it should be
one which is not frivolous; a single arguable ground of appeal would suce to meet the
threshold that an intended appeal is arguable.”

29. The Supreme Court in Teachers Service Commission v Kenya National Union of Teachers, Sup. Ct.
Appl. No. 16 of 2015 considered the nature and scope of the jurisdiction of this Court under Rule
5(2) (b) as follows:

“ It is clear to us that Rule 5(2)(b) is essentially a tool of preservation. It safeguards the

substratum of an appeal, if invoked by an intending appellant, in consonance with principles
developed by that Court over the years…Rule 5(2)

(b) of the Court of Appeal Rules, 2010 is derived from article 164(3) of the
Constitution. It illuminates the Court of Appeal’s inherent discretionary
jurisdiction to preserve the substratum of an appeal, or an intended appeal.”

30. Be that as it may, the applicant has an obligation to prove that there is an arguable appeal, that is,
the appeal is not frivolous and upon satisfying that principle, the applicant has the additional duty to
demonstrate that the appeal if successful, would be rendered nugatory should the orders sought not
be granted. In Trust Bank Limited & ano v Investech Bank Limited & 3 others, Civil Application Nai
258 of 1999 (unreported) this Court stated that:

“ The jurisdiction of thecourt under Rule 5(2) (b) is original and discretionary and it is trite
law that to succeed an applicant has to show rstly that his appeal or intended appeal is
arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay
the appeal or intended appeal, if successful will be rendered nugatory. These are the guiding
principles but these principles must be considered against facts and circumstances of each
case…” Emphasis ours.

31. In determining whether the appeal or the intended appeal is arguable or not, this Court need not
determine whether or not the same was likely to succeed; it is sucient that it raises a serious question of
law or a reasonable argument deserving consideration by the court. (See: Dennis Mogambi Mang’are
v Attorney General & 3 others,Civil Application No. NAI 265 of 2011 (UR 175/2011).

32. As to whether the intended appeal will be rendered nugatory, it is trite that the factors which can render
an appeal nugatory are to be considered within the circumstances of each particular case and in doing
so, the court is bound to consider the conicting claims of both sides. It is common ground that the 7th
respondent was allocated the suit land and has since been issued with a title. The applicants’ contention
is that the suit land should not have been allocated to the 7th respondent and instead it should have
been allocated to the members of the group of the persons living with disabilities, in Narok County.
The said members are not in occupation of the suit land. In as much as their contention is with regard
to the title issued to the 7th respondent, the applicants are amenable to have their members being given
land elsewhere as had been promised by adjudication committee. In other words, the interest of the

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 applicants is to be given some land, which they can own. It does not have to be the suit land. If the
orders sought are not granted they will remain in the same position they are in at the moment. They
are not in occupation of the suit land, and therefore they cannot be evicted therefrom. Furthermore,
there is no complaint that the 7th respondent may dispose of the suit land. If anything, the applicants
conrm that the 7th respondent was developing the said land.

33. We nd that the applicants have failed to demonstrate the hardships, if any which they might suer
if the orders sought were not granted, would be out of proportion to any suering which the 7th
respondent might undergo while waiting for the hearing and determination of the appeal. In Reliance
Bank Ltd v Norlake Investments Ltd [2002] E.A. 227, this Court stated that:

“ To refuse to grant an order of stay to the applicant would cause to it such hardships as would
be out of proportion to any suering the respondent might undergo while waiting for the
applicants appeal to be heard and determined.” (Emphasis ours).

34. In the circumstances of the present application, we are of the view that the main issue revolves around
land. Land can be quantied in monetary terms and therefore the applicants can be compensated
in damages in the event the intended appeal is successful. Similarly, nothing prevents the court from
cancelling the title that was issued to the 7th respondent.

35. In the result, the applicants have demonstrated that the intended appeal is arguable but they have failed
to establish that it will be rendered nugatory if the instant application is dismissed and the appeal
succeeds. The applicants have therefore, failed to demonstrate the existence of both limbs as required
by Rule 5(2)

(b) of this Court’s Rules and as was held in the cases of Republic v Kenya Anti- Corruption
Commission & 2 others [2009] KLR 31 and Reliance Bank Ltd v. Norlake Investments Ltd
(supra).

36. The upshot is that we decline to grant an injunction against the respondents. The application is
accordingly dismissed with costs to the respondents.
Orders accordingly.
DATED AND DELIVERED AT NAKURU THIS 6TH DAY OF OCTOBER, 2023.
F. OCHIENG
………………………………
JUDGE OF APPEAL
L. ACHODE
………………………………
JUDGE OF APPEAL
W. KORIR
………………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed

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DEPUTY REGISTRAR

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