https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3032

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA** **ELC NO. E038 OF 2024** **COUNTY GOVERNMENT OF KIRINYAGA …………………… PLAINTIFF** **VERSUS** **RACHAEL WAMBURA KIBUGA ………………………..… 1ST DEFENDANT** **ESTHER WANJIRU KIBUGA ……………………….….… 2ND DEFENDANT** **JACKSON KATHUTWA KIBUGA ………………………... 3RD DEFENDANT** **CHARLES DICKENS MWANGI …………………………... 4TH DEFENDANT** **JOSEPH MURIITHI NJOKA ……………………………... 5TH DEFENDANT** **NTHURIMA JANE KARIMI ……………………………... 6TH DEFENDANT JACINTA WAIRIMU RUGAITA ………………..………... 7TH DEFENDANT** **LILIAN KAGENDO MURIITHI …………..……………….. 8TH DEFENDANT** **TARCISIO MWANGI GAKUNJU ………..……….…….... 9TH DEFENDANT** **ASUNTA WANJIKU MWANGI ……..…………..………. 10TH DEFENDANT** **RULING** ***[1st to 3rd and 5th, 6th & 8th defendants’ preliminary objections dated 4th July 2025 & 24th September 2025 respectively]*** 1. The 1st to 3rd defendants filed the notice of preliminary objection dated 4th July 2025, raising the following grounds: 1. That the suit is res judicata as the issue of ownership of **Land Parcel Mwerua/Baricho/292 and Kirinyaga/Gathingiriri/230** was determined in **Embu Law Court civil suit 320 of 1990.** 2. That the suit is time-barred and statutorily extinguished under the **Limitations of Actions Act**. 3. That the suit is frivolous, vexatious and an abuse of the court process and ought to be dismissed with costs to the 1st to 3rd defendants. 2. On their part, the 5th, 6th and 8th defendants filed the notice of preliminary objection dated the 24th September 2025 raising the following grounds: 1. That the issue of the land in question, **Mwerua/Baricho/292** had been heard and conclusively determined in previous proceedings, being **Embu CMCC No. 320 of 1990**, and is therefore res judicata. 2. That the suit is an abuse of court process as it seeks to re-litigate a matter that had already been judiciously determined in contravention of the principles of res judicata as enshrined under **Section 7 of Civil Procedure Act Chapter 21 of Laws of Kenya.** 3. The court on 29th September 2025 issued directions on filing and exchanging submissions on the two preliminary objections. The learned counsel for the 1st to 3rd defendants, 5th, 6th & 8th defendants filed their submissions dated the 20th January 2026 and 5th February 2026 respectively, which the court has considered. During the mention of 10th February 2026, the learned counsel for the plaintiff requested for and was granted 14 days to file and serve their submissions. As I prepare this ruling today the 27th April 2026, which is over 70 days from 10th February 2026, no submissions for the plaintiff has been traced on the CTS or the physical record. 4. The issues raised in the two preliminary objections for the court’s determinations are as follows: 1. *Whether the issues raised in this suit were subject matter in* ***Embu CMCC No. 320 of 1990****, and if so, whether the suit is res judicata.* 2. *Who should pay costs?* 5. The court has carefully considered the grounds on the preliminary objections, submissions by the learned counsel, superior court decisions cited thereon, the pleadings and come to the following determinations: 1. That though the 1st to 3rd defendants had raised three grounds of suit being res judicata, statute time barred, and the suit being frivolous, vexatious and an abuse of the court process, the learned counsel submitted on only one ground, that is, res judicata. The court will therefore take that the other two grounds were abandoned. The two grounds on the 5th, 6th & 8th defendants' notice of preliminary objection amount to only one ground that the suit is res judicata. Therefore, out of the two preliminary objections, only one ground of whether the present suit is res judicata and a contravention of **Section 7 of the Civil Procedure Act, Chapter 21 of Laws of Kenya** is for consideration and determination by the court. Both counsel have in their submissions extensively addressed the principle of res judicata and its effect on a suit if upheld. Their main basis for contending that the suit is res judicata is because the issue of ownership of the **Mwerua/Baricho/292,** suit property, was settled in favour of the 1st defendant herein, through the court’s judgement delivered on 28th May 1991 in **Embu PMCC No. 320 of 1990**. That position has not been challenged or rebutted by the plaintiff or any other party. There is also no contention at all that the court that dealt with **Embu PMCC No. 320 of 1990** was without jurisdiction in the matter, or that its decision was subsequently reviewed, or successfully appealed against. * 1. The learned counsel for 5th, 6th and 8th defendants have further submitted that the court in that judgement held that: 1. *The 1st defendant still retained a free hold title in* ***Land Mwerua/Baricho/292.*** 2. *The County Council of Kirinyaga had no right of ownership.* 3. *The restrictions that were placed by the Land Registrar Kirinyaga to be removed forthwith.* I have perused the copy of the judgement delivered on 28th May 1991 and ruling of 16th November 2015 in **Embu PMCC No. 320 of 1990** attached to the 9th & 10th defendants’ list of documents filed herein dated 3rd June 2025, and noted the following: * + 1. That the previous suit was between the 1st defendant herein as the plaintiff, the Hon. Attorney General and Ruth Karuana as the 1st and 2nd defendants respectively. 2. **Land Parcel Mwerua/Baricho/292**, which is the suit property herein, was also one of the subject matters in that suit. 3. That orders issued inter alia to the effect that the Kirinyaga County Council, the predecessor to the plaintiff herein, had no right of ownership of the suit property and hence incapable of purporting to transfer the letter of allotment to 2nd defendant were issued. 1. That as the plaintiff herein has opted not to counter the defendants’ submissions on their preliminary objections, the court will take it that the Hon. Attorney General, the 1st defendant in the previous suit, was sued on behalf of the County Council of Kirinyaga. It is also noted that the plaintiff herein opted not to file any submissions despite being the initiator of this suit. I have also perused the record and noted the plaintiff has not filed replies to the statements of defence dated 3rd June 2025 and 4th July 2025 filed by the 9th & 10th and 1st to 3rd defendants or in any other way countered the averments in the said statement of defence. It follows therefore that the said defendants’ averments at paragraph 8 of the 9th & 10th defendants’ defence alluding to proceedings in **Embu PMCC No. 320 of 1990** remains unchallenged. Further, the averments in paragraphs 23 and 24 of the 1st to 3rd defendants’ defence on the existence of **Embu PMCC No. 320 of 1990** and its effect to this suit also remains unrebutted. * 1. That it is trite as borne by the decision in the case of ***Mukisa Biscuit Manufacturing Limited versus West End Distributors Limited* (1969) EA 696**, that preliminary objections should only raise issues of law which has been pleaded or which arises by clear implication out of pleadings filed and which if argued may dispose of the suit. Such a preliminary objection does not require the court to ascertain contested facts by receiving and considering evidence. That as it is clear this suit is about ownership of the suit property, which issue was decided in **Embu PMCC No. 320 of 1990** vide the judgement delivered on 28th May 1991, in favour of the 1st defendant herein, the preliminary objection on the ground of this suit being res judicata is upheld. It follows that the court is without jurisdiction to hear and determine the instant suit as it would amount to a contravention of **Section 7 of the Civil Procedure Act, chapter 21 of Laws of Kenya.** * 1. Under **Section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya,** costs follow the events unless where the court for good cause orders otherwise. That as the 1st to 3rd and 5th, 6th, & 8th defendants have succeeded in their respective preliminary objections, they are entitled to costs. 1. Flowing from the foregoing determinations, the court finds and orders as follows: 1. **That the preliminary objection dated 4th July 2025 by the 1st to 3rd defendants and that dated the 24th September 2025 by the 5th, 6th & 8th defendants has merit and is upheld.** 2. **That the plaintiff’s suit is therefore struck out with costs.** It is so ordered. **DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 20TH DAY** **OF MAY 2026.** **S. M. Kibunja** **ELC JUDGE** **In the presence of:** Plaintiff – No Appearance Defendants – M/s Wambui for 1st to 3rd Defendants Kinyua/Charles - Court Assistant **S. M. Kibunja** **ELC JUDGE**