https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3368

Ndungu v Kariuki & 4 others (Environment and Land Case E022 of 2026) [2026] KEELC 3368 (KLR) (Environment and Land) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3368 (KLR) Republic of Kenya In the Environment and Land Court at Naivasha Environment and Land Environment and Land Case E022 of 2026 MC Oundo, J June 4, 2026 Between Beatrice Wangari Ndungu Applicant and Lucy Nyambura Kariuki 1st Respondent Jeff Michael Kihonge 2nd Respondent Schola Njeri Ndungu 3rd Respondent Stella Wanjiku Ndungu 4th Respondent The Land Registrar Naivasha 5th Respondent Ruling 1.Before me for determination is an Application dated 12th February, 2025, brought pursuant to the provisions of Order 40 of the civil procedure rules and other enabling legislation where the Applicant herein seeks an order of temporary injunction restraining the 1st to 4th Defendants, whether by themselves, agents, servants, or any person claiming through them, from selling, transferring, charging, leasing, developing, sub-dividing or in any way dealing with Plot No. 304 pending hearing and determination of the suit. 2.The Application was supported by the grounds therein and the Supporting Affidavit of 1st April 2026, sworn by the Applicant Beatrice Wangari Ndungu, who deponed that she was the beneficiary of the estate of the late Simon Ndungu Kihonge (who passed away in 1993). Following succession proceedings (Succession Cause No. 1638 of 1993), a Grant of Letters of Administration was confirmed on 10th June 2016, allocating Plot Nos. 303 and 304 to her, which Grant has never revoked. 3.She asserted that she holds the valid title to Plot No. 304 and has never transferred, assigned, or legally dealt with the property with anyone, including the Defendants. 4.That she discovered that the 1st to 4th Respondents had been registered as proprietors of Plot No. 304 without her consent, which registration she claims was irregular, unlawful, and breached the confirmed succession Grant. 5.That the 5th Respondent illegally issued a certificate of title to the Defendants despite her holding a valid title for which the Respondents were allegedly in the process of subdividing the disputed land. 6.She deponed that unless the Court intervenes, the 1st to 4th Respondents may deal with the property, sell it, or otherwise dispose of it, thereby causing her irreparable loss. 7.That she had a strong prima facie case that her proprietary rights were equal to those of the 1st to 4th Respondents, for which the balance of convenience favors granting the orders sought to preserve the status quo pending hearing and determination of this suit. That she had brought the application in good faith and in the interest of justice. She sought the same to be allowed. 8.In response to the Application, the 1st to 4th Respondents via their Notice of Preliminary Objection, dated the 8th April 2026 and brought pursuant to the provisions of Section 6 and 7 of the Civil Procedure Act, Order 2 Rule 15 of the Civil Procedure Rules and under Order 51 Rule 14 1(b) of the Civil Procedure Rules sought that the application be struck out in limine, arguing that it was fatally defective, frivolous, vexatious, and an abuse of the court process. 9.The Respondents argued that the core substance of this dispute had already been conclusively determined by the same Court in ELCLC /E054/ 2025 via a Ruling dated 19th March 2026 where both cases stem from the same succession matters in Nairobi HCSC No. 1638 of 1993 and Court of Appeal Civil Appeal No. 305 of 2018 regarding the Estate of Simon Ndungu Kihonge, where the Applicant was an active participant and Administratrix. 10.That the Court of Appeal in Civil Appeal No. 305 of 2018 had already issued binding orders regarding the properties being Plots No. 303, 304, 311, and 312, totalling approximately 12 acres, where the appellate court ordered that the land be shared equally among the Applicant and the four Defendants, thus giving each party 2.4 acres. 11.The Respondents argue that this court therefore had no jurisdiction to vary or interfere with orders from the Court of Appeal. That in line with the Court of Appeal's directive, the Respondents transferred their respective shares in Plots 304, 311, and 312 to themselves. This left the Applicant with Plot No. 303, which contains her matrimonial home and satisfies her 2.4-acre share, with a remaining 0.6 acres to be excised for the Respondents. 12.The Respondents further asserted that the Environment and Land Court lacked the jurisdiction to handle, alter, or determine matters arising from the administration and distribution of a deceased person's estate, which jurisdiction exclusively belonged to the Family Division of the High Court under the Law of Succession Act. 13.That granting the temporary injunction or status quo orders would amount to this court unlawfully and unconstitutionally attempting to overrule, stay, or alter the final authority of the Court of Appeal. 14.The application was disposed of by way of written submissions herein summarized as follows: Applicant’s written submissions. 15.In her submissions dated the 24th April 2026, the Applicant argued that the Defendants' Preliminary Objection is incompetent because it did not raise pure points of law. Instead, it invited the court to determine highly contested factual matters, such as whether the land was lawfully transferred, if the Plaintiff received her fair share, and if the registration was proper. That resolving these issues required the court to examine evidence, thus going beyond the scope of a preliminary objection. She cited the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 where the court had held that a Preliminary Objection ‘’……..raises pure points of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.’’ 16.The Applicant disputed the claim that this was a succession matter belonging exclusively to the Family Division, clarifying that she was not seeking a redistribution of the deceased’s estate, but was challenging the legality of the Defendants’ current registration and land subdivision. That because the root of the dispute was land ownership and alleged fraud, the Environment and Land Court (ELC) was properly seized of jurisdiction. 17.She relied on the provisions of Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act to submit that the court had the authority to determine disputes relating to land titles and interests. 18.The Applicant argued that the suit was not res judicata because the previous succession proceedings dealt with the distribution of the estate, whereas the current suit addresses subsequent, fresh causes of action, specifically, whether the Defendants’ registration was done unlawfully without her consent, and the imminent threat of them subdividing the land. She relied on the decision in the case of Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others, [2017] eKLR where five strict, conjunctive elements required to sustain a plea of res judicata were outlined to wit :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 finally 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.’’ 19.She then sought that she be awarded costs and the Respondents' Preliminary Objection be dismissed so that the main application can be heard on its merits. Reliance was placed on the decision in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others [2013] eKLR to support the position that costs follow the events. 1st to 4th Respondents’ submissions. 20.The 1st to 4th Respondents’ submissions dated 25th April 2026 in support of their Preliminary Objection dated 8th April 2026 were that the Environment and Land Court (ELC) lacked jurisdiction to hear or determine this dispute. They argued that the issue of ownership and distribution of the properties being Plots No. 303, 304, 311, and 312 had already been fully litigated and determined through succession and appellate court proceedings. 21.They contended that under Article 162(3) of the Constitution and Section 13(2) of the Environment and Land Court Act, the ELC handles land use, titles, and environment disputes, but it cannot arrogate to itself the powers to manage, vary, or distribute a deceased person's estate, which falls under succession law. Citing the decision in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, they submitted that a court’s jurisdiction flowed strictly from the Constitution or legislation and cannot be self-arrogated That ‘the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.’ 22.The Respondents further argued that the suit was a clear case of res judicata under Sections 6 and 7 of the Civil Procedure Act. The High Court Family Division, In re Simon Ndung’u Kihonge (Deceased) [2016] KEHC 4570 (KLR)) and the Court of Appeal in Civil Appeal No 305 of 2018 had already issued a final, binding judgment on 5th February 2021, ordering the 12 total acres to be shared equally, that is, 2.4 acres each. 23.Furthermore, this Court had already issued a ruling on these exact elements on 19th March 2026 in ELCLC No. E054 of 2025. They submitted that the Applicant was engaging in unlawful forum shopping and risking contradictory rulings between concurrent courts. They placed reliance on the decision in Bundotich v. Managing Director Kenya Airways Authority and Another (2007) 2 E.A 90 where the court had observed that running identical or heavily overlapping cases side by side in different courts was a waste of judicial time and created a dangerous possibility of inconsistent verdicts. 24.The Respondents countered the Applicant’s claim that the objection involved contested facts by asserting that their objection raised a pure point of law, specifically, the challenge to the court's jurisdiction, which could be argued on the assumption that the facts in the pleadings are correct and are fully capable of disposing of the entire suit at the threshold. Reliance was placed on the case in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd. (1969) EA 696, citing Law J.A. and Newbold P. to establish that a proper Preliminary Objection consists of a pure point of law, such as an objection to jurisdiction or limitation, which, if argued, may completely dispose of the suit without the exercise of judicial discretion. 25.They also cited the decision in Nitin Properties Ltd v. Singh Kalsi & another [1995] eKLR to reiterate that a Preliminary Objection must be argued on the assumption that all facts pleaded by the opposing side are correct and requires no further ascertainment of facts. 26.In conclusion, the Respondents submited that they have proved that both the Plaint and Application were bad in law and represent a gross abuse of the court process. They sought that their Preliminary Objection be allowed and the suit be struck out with costs. Determination. 27.I have considered the Plaintiffs' application, the Defendants’ response by way of a preliminary Objection, the submissions by counsel, the authorities cited and the applicable law. 28.The Applicant’s case is that she was a beneficiary of the estate of the late Simon Ndungu Kihonge (who passed away in 1993). Following succession proceedings in Succession Cause No. 1638 of 1993, a Grant of Letters of Administration was confirmed on 10th June 2016, allocating her Plots Nos. 303 and 304. That she holds the valid title to Plot No. 304 and has never transferred, assigned, or otherwise dealt with the property with anyone, including the Respondents, who have now been fraudulently registered as proprietors of Plot No. 304 and are allegedly in the process of subdividing the disputed land. She therefore filed an application seeking a temporary injunction to restrain the 1st to 4th Defendants/Respondents from selling, transferring, charging, leasing, developing, subdividing, or dealing with Plot No. 304 pending the hearing and determination of the main suit. 29.In response to her application, the 1st to 4th Respondents, through their Preliminary objection, sought that both the Application and the suit be struck out in limine for not only being Res judicata, a Ruling dated 19th March 2026 in ELCLC No. E054 of 2025, but both cases stemmed from the same succession matters in Nairobi HCSC No. 1638 of 1993 and Court of Appeal Civil Suit No. 305 of 2018 regarding the Estate of Simon Ndungu Kihonge, in which the Applicant was an active participant and Administratrix, and in which binding orders were issued regarding the properties being Plots Nos. 303, 304, 311, and 312, totalling approximately 12 acres. The appellate court ordered that the land be divided equally between the Applicant and the four Defendants (2.4 acres each). The Respondents argued that the ELC had no jurisdiction to vary or interfere with the Court of Appeal's orders. 30.The Applicant filed no response, but in her submissions, she contended that her suit was not res judicata because, whereas the previous succession proceedings dealt with the distribution of the estate, the current suit was meant to address subsequent, fresh causes of action, specifically, whether the Defendants’ registration was done unlawfully without her consent, and the imminent threat of them subdividing the land. 31.Having given a background summary of the issues in question, I find the matters arising for my determination to be as follows: i. Whether the current suit is Res judicata, ELCLC No. E054 of 2025, Nairobi HCSC No. 1638 of 1993 and Court of Appeal Civil Suit No. 305 of 2018. 32.The Supreme Court of Kenya in Dina Management Limited vs County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment) held as follows:“The doctrine of res judicata was founded on public policy and was aimed at achieving two objectives namely, that there must be finality to litigation and that the individual should not be harassed twice with the same account of litigation. The doctrine of res judicata may be pleaded by way of estoppel so that where a judgment had been delivered, subsequent proceedings were estopped. Where res judicata was pleaded by way of estoppel to an entire cause of action, rather than to a single matter in issue, it amounted to an allegation that all the legal rights and obligations of the parties were concluded by the earlier judgment, which may have involved the determination of questions of law as well as findings of fact, that was a form of action estoppel. Res judicata, was embodied in section 7 of the Civil Procedure Act.The elements to be proven before a court could arrive at the conclusion that a matter was res judicata were to be conjunctive rather than disjunctive before a suit or an issue was to be deemed res judicata on account of a former suit. It must be demonstrated that there was a former judgment which was final, it was on merit and by a court having jurisdiction and had identical parties, subject and cause of action.” 33.It must be noted, therefore, that the doctrine of res judicata is not a mere technicality that can be cured by invoking Article 159 (1)(d) of the Constitution, but is a matter of substantive law and jurisdiction. It is a pillar of the judicial system that serves the greater public interest in finality and the efficient use of judicial resources. 34.In order, therefore, to decide as to whether the Plaintiff’s current case is res judicata, ELCLC No. E054 of 2025, Nairobi HCSC No. 1638 of 1993 and Court of Appeal Civil Suit No. No. 305 of 2018, the court of law, as is trite of me, should always look at the decision claimed to have been settled, the issues in question and the entire pleadings of the previous case and the instant case to ascertain;i.What issues were really determined in the previous case;ii.Whether they are the same in the subsequent case and were covered by the decision of the earlier case.iii.Whether the parties are the same or are litigating under the same title, andiv.whether the previous case was determined by a court of competent jurisdiction. 35.In order to so determine, on the first issue, I have looked at this court’s ruling of 19th day of March 2026 in Naivasha ELCLC No E054 of 2025 where the court had held as follows;‘’I have considered the Court of Appeal’s Judgement in Nairobi Court of Appeal Civil Appeal No. 305 of 2018, herein reported as Jane Nyambura Ndungu v Beatrice Wangari Ndungu & 2 others [2021] KECA 1017 (KLR) At paragraph 12 of the judgment, the Court of Appeal had stated as follows:“The trial court, W. Musyoka, J., heard and analysed the evidence before him, identifying that the bone of contention revolved around the distribution of the commercial properties specifically LR No. 1144/469 (Othaya Annex Hotel), Naivasha/Maraiguchu/Block 1/921, Naivasha/ Mwichiringiri/ Block 4/2633 and Naivasha/Mwichiringiri/ Block 4/2634.13.Ultimately, the learned Judge entered judgement as follows:…………………………………..30.In the end I direct that the estate of the deceased be distributed as follows:i.That the survivors of the first and fourth houses (Beatrice Wangari, Lucy Nyambura, Michael Kihonge, Schola Njeri and Stella Wanjiku) shall share Naivasha Mwichiringiri/Block 4/303, 304, 311 and 312, Plot No. 4 Elburgon, equally, with the tractor registration mark and number. KHD 742 going to Beatrice Wangari and Lucy Nyambura jointly.’’At paragraph 51 of the judgement, the Court of Appeal had held as follows;‘’We now revert to the mode of distribution. We uphold the mode of distribution made by the learned Judge, save for the distribution of the two commercial properties, namely, LR NO.1144/469 and LR NO. 1144/249. We appreciate the fact that all the houses are angling for a stake in the two commercial properties. In redistributing these properties, we are guided by the contents of the parties’ affidavits on the proposed modes of distribution.’’Following the court's judgment, the certificate of confirmation of grant in the High Court at Nairobi in Succession Cause No. 1638 of 1993, was further amended on the 8th November 2021, wherein the heirs of the suit properties herein, being Beatrice Wangari Ndungu, Lucy Nyambura Ndungu (the 2nd Defendant) Michael Kihonge, Schola Njeri and Stella Wanjiku, were to have equal shares.The Court of Appeal’s judgment hereinabove specifically names Naivasha/Mwichiringiri/Block 4/311 and 312 at paragraph 13 and directed “...the survivors of the first and fourth houses... shall share Naivasha Mwichiringiri/Block 4/303, 304, 311 and 312... equally.” These are the exact "suit properties" the Plaintiffs are now litigating. Since the Court of Appeal upheld the distribution of these specific plots to the 2nd Defendant and others, the "ownership" issue has been finalized and the Plaintiff’s suit regarding these two parcels of land, I find, is res judicata. ‘’ 36.From the above extract of a ruling in Naivasha ELCLC No E054 of 2025, it is not in dispute that this court explicitly looked at the Court of Appeal judgment in Nairobi CA Civil Appeal No. 305 of 2018 where appellate court explicitly directed that the four combined plots (303, 304, 311, and 312) totaling 12 acres be split equally (2.4 acres each) among the survivors of the first and fourth houses, which includes both the Applicant and the Defendants. Because the root issue, who is entitled to what portion of these exact parcels, was finalized by the Court of Appeal and certified in the amended Grant on 8th November 2021, the substratum of the current suit is identical. 37.I find that the parties in the current suit are identical to those in ELCLC No. E054 of 2025, Nairobi HCSC No. 1638 of 1993, and COACA No. 305 of 2018. Both the Applicant and the 1st to 4th Respondents in the current suit are litigating as a beneficiary/administratrix of the late Simon Ndungu Kihonge’s estate. The legal identities and capacities have not shifted. 38.The extract from the ruling in ELCLC No. E054 of 2025 was devastatingly clear on this point, where the ELC judge explicitly held:“Since the Court of Appeal upheld the distribution of these specific plots to the 2nd Defendant and others, the 'ownership' issue has been finalized and the Plaintiff’s suit regarding these two parcels of land, I find, is res judicata." 39.Because a court of competent jurisdiction in the ELCLC No. E054 of 2025 already issued a formal finding that this exact ownership dispute is barred by res judicata, the Applicant is legally prohibited from asking the exact same court tier to re-evaluate that conclusion. 40.The Applicant’s attempt to circumvent res judicata by arguing that the registration of the 1st to 4th Respondents on Plot 304 was done without her consent, constituting a new cause of action, was countered by the Respondents’ argument that their registration on Plots 304, 311, and 312 was the direct, lawful execution of the Amended Confirmation of Grant dated 8th November 2021. Because they took their 2.4-acre allocations out of those blocks and left the Applicant with her 2.4-acre share on Plot 303 (where her matrimonial home sits), their actions were not a fresh fraud, as they were the direct implementation of a superior court order and therefore a party cannot claim a fresh cause of action merely because the opposing party has successfully acted upon and implemented a prior, valid court decree. 41.By trying to file a new suit and seeking temporary injunctions over Plot 304, the Applicant, I find, is engaging in classic forum shopping to re-litigate an adverse outcome under a slightly altered legal narrative and therefore allowing this suit to bypass res judicata would directly offend the precedent set in Dina Management Limited case (Supra). 42.I thus find that the prior ruling in ELCLC No. E054 of 2025 acts as a complete and impenetrable bar to the current suit. The ownership, distribution fractions, and title validity of Plots 303, 304, 311, and 312 are legally dead issues (functus officio). Any attempt by the current court to grant the temporary injunctions requested would be an unconstitutional overreach and an unlawful attempt to reverse the finality of both Case E054 of 2025 and the Court of Appeal. 43.In the end, I find as follows:i.The 1st to 4th Respondents’ Notice of Preliminary Objection dated 8th April 2026 is hereby allowed.ii.The Plaintiff/Applicant's Chamber Summons Application for a temporary injunction and the main Plaint dated 1st April 2026 are hereby struck out in limine for being res judicata and a gross abuse of the judicial process.iii.Costs are awarded to the 1st to 4th Respondents. DATED AND DELIVERED VIA MICROSOFT TEAMS AT NAIVASHA THIS 4TH DAY OF JUNE 2026.M.C. OUNDOENVIRONMENT & LAND COURT – JUDGE