https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5339

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT CHUKA** **ELC LAND CASE NO. E009 OF 2024** **BERNARD BAITHUMBI KARARWA.................................PLAINTIFF** **=VERSUS=** **MURATHA MUCHEU.............................................1ST DEFENDANT** **JULIUS KIURA RUGERA.......................................2ND DEFENDANT** **JOSEPH MUTEGI NKABUNI..................................3RD DEFENDANT** **WILFRED MBAKA NKANABU................................4TH DEFENDANT** **M’NKANGA MURATHA.........................................5TH DEFENDANT** **JAPHET MWIANDI KIBANG’A ..............................6TH DEFENDANT** **PATRICK NGAI NKABUNI.....................................7TH DEFENDANT** **MERU SOUTH LAND REGISTRAR.........................8TH DEFENDANT** **THE HON ATTORNEY GENERAL...........................9TH DEFENDANT** **RULING** **Background** 1. The plaintiff initiated this suit on 26/7/2024 vide a plaint dated 15/7/2024. The plaint was amended on 16/5/2025. The effect of the amendments was to remove from the primary suit the following parties who had been sued as the 1st, 2nd and 4th defendants, respectively: (i) Muratha Mucheu; (ii) Julius Kiura Rugera; and (iii) Wilfred Mbaka Nkanabu. Besides removing the above parties from the primary suit, the amendments also removed parcel numbers **Karingani/Muiru/1201; 1565** and **1567** from the list of the parcels that were the subject matters of the suit. 2. Through the amended plaint, the plaintiff alleged that, through fraudulent engagement, the 3rd, 5th, 6th and 7th defendants caused themselves to be registered as proprietors of land parcel numbers **Karingani/Muiru/1205; 1206; 1566** and **1568**. He contended that the four defendants colluded with the 7th and 8th defendants to procure the said fraudulent registrations. 3. The plaintiff prayed for: (i) a permanent injunction restraining the four defendants against selling, trespassing on, interfering with or occupying the four parcels; (ii) an order cancelling the title deeds issued to the four defendants in respect of the four parcels; and (iii) costs of the suit. 4. The defendants filed a defence and counterclaim dated **15/5/2025,** in which they averred that they lawfully acquired their titles through a succession cause relating to the estate of their late father, Muratha Mucheu. They added that their parcels were subdivisions surveyed out of parcel number Karingani/Muiru/1075 and that the late Mucheu’s ownership of parcel number 1075 was conclusively affirmed by the Court of Appeal in a Judgment dated 8/7/2022 in **Nairobi Civil Appeal No. 37 of 2016** which involved the following parties: (i) Stanley Mbiuki [as the appellant]; (ii) Director of Land Adjudication [as the 1st respondent]; and (iii) Muratha Micheu [as the 2nd respondent]. The four defendants contended that the plaintiffs’ suit was *res judicata.* 5. The four defendants added that they had at all material times exercised dominion over their respective parcels, adding that the plaintiff occupied his family land, parcel number Karingani/Muiru/818. They contended that their titles were indefeasible. 6. By way of counterclaim, the four defendants sought: (i) a declaration that they were the lawful proprietors of the suit parcels; (ii) a declaration that the plaintiff’s suit was *res judicata* by dint of the Judgment in Nairobi Civil Appeal No 37 of 2016; (iii) a permanent injunction restraining the plaintiff and his agents/ servants or any other person against trespassing onto, encroaching upon, cultivating, alienating, selling, charging mortgaging, leasing or interfering with their enjoyment of the suit parcels; (iv) various categories of damages; and (v) costs of the suit. 7. The 7th and 8th defendants filed a statement of defence dated 15/11/2024, in which they denied fraud in the registration of the suit parcels. They averred that they discharged their statutory functions within the confines of the law. They urged the court to dismiss the plaintiff’s suit. **Application** 1. Subsequent to the foregoing, the 3rd, 5th, 6th and 7th defendants brought a notice of motion dated 21/5/2025, seeking an order striking out the plaintiff’s suit *in* *limine* for being *res* *judicata* by dint of the Judgment of the Court of Appeal in Nairobi Civil Appeal No 37 of 2016. The said application is the subject of this ruling. The application was opposed by the plaintiff. **Case of the Applicants** 1. The application was premised on the grounds outlined on the face of the motion and in the supporting affidavit sworn on 21/5/2025 by **Japheth Mwiandi Kibanga**. It was canvassed through written submissions dated 15/1/2026, expressed as filed by ***M/s Osur & Associates Advocates*** on behalf of the 6th defendant. The case of the applicants is that the suit parcels [Karingani/Muiru/1201, 1205, 1206, 1565, 1566, 1567 and 1568] are all subdivisions out of parcel number Karingani/Muiru/1075 which was lawfully registered in the name of their late father, Muratha Mucheu. The ownership of parcel number Karingani/Muiru/1075 was conclusively determined by the Court of Appeal in ***Nairobi Civil Appeal No 37 of 2016***, thereby extinguishing all adverse claims, including those advanced by the plaintiff’s predecessor. 2. The applicants contend that following the disposal of Civil Appeal No 37 of 2016 by the Court of Appeal, they obtained a confirmed grant of letters of administration relating to the estate of the late Muratha Mucheu and parcel number 1075 was subdivided and transmitted to the applicants, culminating in their titles. They argue that, given the above background, the plaintiff’s suit is *res judicata* and should be struck out. 3. The 7th and 8th defendants did not oppose the application. 4. The plaintiff opposed the application through his replying affidavit dated 27/102025. His case is that the application is an afterthought, misconceived, a waste of the court’s time and a scheme to derail the court from hearing the main issues in the suit. The plaintiff adds that Civil Appeal No 37 of 2016 was between **Stanley Mbiuki** and **Muratha Micheu**. He states that Civil Appeal No 37 of 2016 involved parcel number 1075 while the present suit involves parcel numbers Karingani/Muiru/1201, 1205, 1206, 1565, 1566, 1567 and 1568. 5. The plaintiff adds that it was “only when the applicants wanted to process their titles that they discovered the unprocedural registration by the defendants/applicants” . It is the case of the plaintiff that parcel number 1075 belongs to Mutitho Mucheri and at no time has it been subdivided. He urges the court to dismiss the application **Analysis and Determination** 1. The court has considered the application, the response to the application and the submissions tendered on the application. The court has also considered the legal framework and the jurisprudence relevant to the key issue in the application. The only issue falling for determination in the application is whether the primary suit by the plaintiff is *res judicata*. 1. The common law doctrine of *res judicata* has been enacted as part of Kenya’s statute law under **Section 7** of the **Civil Procedure Act** which provides as follows: ***“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 finally decided by such court.”*** 1. Kenya’s Parliament has gone a step further to enact the following explanatory notes to assist the courts when called upon to interpret or apply the doctrine of res judicata: ***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.*** ***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.*** 1. The Supreme Court outlined the tenor and import of the doctrine of *res judicata* in ***Kenya Commercial Bank Vs Muiri Coffee Estate Limited & another [2016] eKLR*** in the following words: ***“Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of all constitutional rights.”*** 1. The **Supreme Court** added thus: ***"The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry; 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 efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily drag 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 fruits for one party, and liability for another party conclusively."*** 1. In ***Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR),*** the Court of Appeal explained the doctrine in the following words:- ***“Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, 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 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.”*** 1. Have the applicants at this stage placed before court evidentiary materials to warrant the striking out of this suit *in limine* on the ground of *res judicata*? The first evidentiary obligation which the defendants bore was to place before court evidence demonstrating the relationship/kinship between **Bernard Baithambu Kararwa** (the plaintiff) and **Stanley Mbiuki** who was the appellant in Civil Appeal No 37 of 2016. The court has looked at the affidavit sworn in support of the application. No attempt was made to demonstrate the relationship between the plaintiff and Stanley Mbiuki. 2. The second evidentiary obligation which the defendants bore was to place before court evidence showing that the parcels that are the subject matters in this suit are subdivisions surveyed and registered out of parcel number 1075. Whereas an attempt was made with a view to fulfilling the obligation, the relevant annexure [*the green card relating to parcel number 1075*] was omitted from the documents that were uploaded at the time of filing the application. Consequently, the said green card has not been exhibited. The result is that even if this suit is res judicata, the evidence proving res judicata has not been placed before court at this point. 3. The court notes that the plaintiff has been mean in terms of disclosing “**the family**” he alleges to own the suit land [*See paragraphs 6 - 9 of the amended plaint in which the plaintiff has repeatedly made reference to “family” but has withheld the identity of the family*]. It was, nonetheless, the duty of the defendants, as the applicants in the application under consideration, to unmask the plaintiff and make out a case for striking out the suit *in* *limine*. Regrettably, the defendants did not place the relevant evidentiary materials before the court. 4. Given the above circumstances, the court takes the view that the merits of the question as to whether the primary suit by the plaintiff is res judicata by dint of the Judgment of the Court of Appeal in Nairobi Civil Appeal No 37 of 2016 is one to be determined by the court upon trial. In taking the above view, the court has taken into account the fact that *res judicata* is a legal bar and cannot be wished away. Secondly, there subsists a counterclaim by the defendants raising the issue of ownership of the suit parcels. 1. Consequently, it is the finding of the court that, at this interlocutory stage, the defendants have not demonstrated that the primary suit by the plaintiff is *res judicata*. It is the further finding of the court that the issue should be canvassed through proper evidence during trial. The application is rejected and dismissed. Costs of the application shall be in the cause. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 18TH DAY OF AUGUST, 2026.** **B M EBOSO [MR]** **ELC JUDGE** **In the Presence of:** Ms Bett holding brief for Mr Osur for the 3rd – 7th Defendants. Mr Otieno for the Plaintiff Mr. E. Tupet – Court Assistant