https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5056

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC APPEAL NO. E177 OF 2024** **JANE WAMUYU WABOBOAPPELLANT** **-VERSUS-** **WANJIRU MUKURIA KIRONYO1ST RESPONDENT** **UMAGARA WIYONERE CO. LTD2ND RESPONDENT** ***(Appeal from the Judgment of the Chief Magistrate's Court at Milimani*** ***(Hon. L. Njora, SPM) delivered on 3rd October 2024*** ***in Milimani CM ELC No. E1488 of 2018)*** **JUDGMENT** 1. This is an Appeal from the judgment of the Chief Magistrate's Court at Milimani (Hon. L. Njora, Senior Principal Magistrate) delivered on 3rd October 2024 in *Milimani CM ELC No. E1488 of 2018*, by which the learned trial magistrate dismissed, with costs, the suit filed by the Appellant. She did so without determining the rival claims upon their merits, holding that the question of ownership of the suit property had already been determined in *Milimani CMCC No. 7242 of 2007*, in a judgment to which, as she found, the Appellant had been a party and which had not been set aside. 2. The Appellant, Jane Wamuyu Wabobo, was the plaintiff in the court below. The 1st Respondent, Wanjiru Mukuria Kironyo, and the 2nd Respondent, Umagara Wiyonere Co. Ltd, were respectively the 1st and 2nd defendants. The dispute concerns a parcel of land measuring approximately fifty feet by fifty feet within Mwiki/Kasarani, described by the Appellant as Plot No. 703 on L.R. No. 8469/4 (“the suit property”) and by the 1st Respondent as Plot No. 53 on L.R. No. Mwiki/Kasarani/8469/4. Whether those two descriptions denote one parcel or two distinct parcels lies at the very heart of the controversy between them. 3. The procedural history of the suit is of some importance. It was instituted in this court by a plaint dated 16th May 2016 and filed on 30th June 2016, and was there numbered Nairobi ELC No. 726 of 2016. By an order made on 26th April 2017 the suit was transferred to the Chief Magistrate's Court at Milimani for hearing and disposal, and was renumbered Milimani CM ELC No. E1488 of 2018, under which number it proceeded to trial and judgment. 4. Being aggrieved by the judgment of 3rd October 2024, the Appellant lodged a notice of appeal dated 4th October 2024 and filed on 7th October 2024, and on the same day bespoke the typed proceedings of the trial court. The appeal was then brought by a memorandum of appeal dated 6th November 2024 and filed on 8th November 2024. It was canvassed by way of written submissions, which the parties duly filed. **The case before the trial court** ***(i) The pleadings*** 5. By her plaint the Appellant pleaded that at all material times she was the registered owner of Plot No. 703 on L.R. No. 8469/4 measuring 50 x 50 feet at Mwiki/Kasarani, which she had purchased from the 2nd Respondent; that upon purchase she took possession but erected no structures upon it; that on or about June 2005 the 1st Respondent trespassed upon the suit property and constructed kiosks, built a playground and planted trees; that upon being called upon to vacate the 1st Respondent declined, asserting that she had herself purchased the property from the 2nd Respondent; and that the 2nd Respondent, though notified, failed to address the matter. She particularised encroachment, trespass and nuisance, and prayed for an order of eviction against the 1st Respondent, a permanent injunction, an order directing the 2nd Respondent to facilitate issuance of a title deed to her, and costs. 6. The 1st Respondent's statement of defence, dated 14th December 2022 and drawn by Githinji, Kimamo & Co. Advocates, denies the claim. She pleads that although no suit is pending between the parties there is a concluded suit, *Milimani CMCC No. 7242 of 2007 Mrs. Wanjiku Mukuria Kironyo v S. G. Maina, Umagara Wiyonere Company Limited & Jane Wamuyu*, in which, she avers, judgment was delivered ordering the cancellation of Plot Certificate No. 703 issued to the Appellant and declaring the same a nullity. She denies encroachment and trespass, and avers that the plot she occupies is Plot No. 53 on L.R. No. Mwiki/Kasarani/8469/4, purchased by her in 1989, and not Plot No. 703. She prays that the suit be dismissed with costs. 7. By a Reply to Defence dated 9th June 2023 the Appellant joined issue with the defence, denied its averments, reiterated the particulars of encroachment, trespass and nuisance pleaded in her plaint, and put the 1st Respondent to strict proof. ***(ii) The preliminary objection and its withdrawal*** 8. The plea of *res judicata* was first raised by a notice of preliminary objection dated 19th April 2017 and filed on 21st April 2017, while the suit still bore its original number. Its grounds were that the matter had already been adjudicated upon in CMCC No. 7242 of 2007, that the doctrine of *res judicata* applied, and that the suit was an abuse of the process of the court. The decree in the earlier suit was annexed to it. 9. In answer to that objection the Appellant swore a replying affidavit on 3rd October 2017. She deposed that she was the 3rd defendant in *Milimani CMCC No. 7242 of 2007*; that she was never served with summons in that suit nor informed of any of its proceedings; that a hearing notice dated 16th November 2010 invited only the 1st and 2nd defendants to a formal proof hearing; that the affidavit of service sworn by Patrick Mbaya on 1st February 2011 confirms that only the 1st and 2nd defendants were served; that on 2nd February 2011 the plaintiff in that suit the present 1st Respondent of her own motion withdrew the suit as against her; and that judgment was thereafter entered on 12th April 2011 against the 1st and 2nd defendants only. She deposed that she first learnt of that judgment when she was served with the preliminary objection in the present proceedings. 10. The objection did not, however, proceed to a ruling. Directions were given for submissions, and the matter came up on several occasions for that purpose. On 16th November 2018, when it came up to confirm the filing of submissions, counsel then appearing for the 1st Respondent informed the court that he wished to withdraw the preliminary objection and that the matter be set down for hearing. The trial court thereupon marked the preliminary objection as withdrawn, recorded that the parties had fully complied, certified the case ready for hearing, and directed that hearing dates be taken at the registry. I shall return to this. ***(iii) The course of the trial*** 11. The trial itself was long delayed, in part by the death of all the directors of the 2nd Respondent, a matter which occupied the court over several mentions between 2019 and 2021. The hearing eventually proceeded on 31st January 2024 recorded in the typed proceedings as 31st January 2023, evidently in error, the date having been fixed on 16th January 2024 for the 31st of that month. On that day the Appellant testified as PW1 and Ephraim Njunge Muhoro testified as PW2, and the Appellant's case was closed. The defence hearing commenced on the same day, the 1st Respondent taking the stand; but her evidence was not concluded, an objection having been taken to the production of copies of her documents and an adjournment having been granted to enable her to avail the originals. 12. The 1st Respondent was recalled on 1st August 2024, when she produced the original plot certificate and receipt and was cross-examined. On 7th August 2024 the 2nd Respondent's advocate, Mr. D. K. Wanyoike, who had been summoned by the court, gave evidence and was cross-examined by both counsel. The defence case was thereupon closed, directions were given for written submissions, and judgment was reserved to 18th September 2024. It was ultimately delivered on 3rd October 2024. ***(iv) The evidence*** 13. The Appellant's evidence was that she bought the suit property from one James Gathechere, who had himself acquired it from the 2nd Respondent in February 1986, and that on 15th January 1993 the directors of the 2nd Respondent cancelled his certificate and sealed and signed a share or plot certificate in her favour. She was shown the beacons and was issued with a beacon certificate in 2005. Her documentary exhibits include the plot certificate issued by the 2nd Respondent in respect of Plot No. 703, 50 x 50 feet in L.R. 8469/4 Kasarani, dated 15th January 1993; a beacon certificate dated 11th November 2005 in respect of Sub Plot No. 703 on L.R. No. 8469/4 in the name of Jane Wamuyu; a letter dated 13th December 2005 from Mr. S. G. Maina, Chairman and Director of the 2nd Respondent, to the Kasarani Chief identifying Plot No. 703 as lying next to the Maji Mazuri plot and confirming that it had been beaconed by the company's surveyor; correspondence passing between the Appellant, the Kasarani Chief, the District Officer and the police during 2005 and 2006; and a letter dated 16th August 2007 from E. A. Ngaira, Advocate, acting for the 2nd Respondent, copied to the 1st Respondent and requiring her to vacate Plot No. 703. She told the court that the property has no title to date, that her vendor is deceased, and that she pursued the matter through the chief, the police and the Directorate of Criminal Investigations at Kasarani without success before instructing counsel in 2015. 14. PW2, Ephraim Njunge Muhoro, a farmer and pastor, adopted his witness statement and said that he had witnessed the directors sign the certificate and that at that time nothing had been built upon the plot, a modern structure having come up in the early 2000s. He conceded in cross-examination that he did not see money change hands, that he did not himself sign, and that he cannot read maps. 15. The 1st Respondent's evidence, developed in her witness statement of 14th December 2022 and in her oral testimony, is that on 28th December 1989 she purchased Plot No. 53, measuring 50 x 50 feet in L.R. No. Mwiki/Kasarani/8469/4, from one Jane Wangari Kimotho for KES 25,000, the vendor being an allottee of the 2nd Respondent; that by a letter dated 22nd December 1989 the vendor informed the 2nd Respondent of the sale and requested a transfer; that upon payment of the requisite fees the 2nd Respondent issued her with a plot certificate for Plot No. 53 under its common seal, signed by three directors, on 19th January 1990; that she was then shown the plot on the ground by the vendor and by Mr. S. G. Maina, took possession in 1990, fenced it and developed it into a playground, nursery and kitchen for the Maji Mazuri Children's Home; that in November 2006 she paid KES 18,000 as title fees and was issued with receipt No. 806; and that it was an attempt to destroy her developments that led her to institute CMCC No. 7242 of 2007. Her vendor was not called as a witness. In cross-examination she said that the certificate she had produced was for Plot No. 53 but spoke of Plot No. 703; that in CMCC No. 7242 of 2007 she had produced the judgment and that there had been judgment against the 3rd defendant; and that she had not directed the withdrawal of the suit against the 3rd defendant. 16. The 2nd Respondent's witness, Mr. D. K. Wanyoike, described himself as the advocate of the 2nd Respondent and the only person remaining with the company's records, all its directors having died. He produced a witness statement and list of documents dated 2nd August 2024 and testified that, according to the company's records, the suit plot was allocated to the Appellant; that the plot occupied by the 1st Respondent is the plot recorded in the company's books as belonging to the Appellant; and that the company had written to the 1st Respondent on several occasions requiring her to give vacant possession. Cross-examined on behalf of the 1st Respondent, he said that according to the maps in his possession Plot No. 703 and Plot No. 53 are two distinct plots; that he had visited the ground and had the maps but had never done so in the company of a surveyor, having relied upon the report of a Mr. Ndege; that he had checked the company's records in respect of Plot No. 703 but not in respect of Plot No. 53; and that each party holds documents of ownership. **The Judgment appealed from** 17. The learned trial magistrate framed three issues for determination: who, as between the Plaintiff and the 1st Defendant, is the bona fide owner of the suit property; whether the Plaintiff is entitled to the remedies sought; and who should bear the costs of the suit. Having set out sections 107, 108 and 109 of the Evidence Act upon the burden of proof, and having summarised the rival positions in two sentences, she disposed of the suit in a single paragraph, in these terms: *“I have examined the court's record, and there is a decree on record showing plot certificate number 703, issued by the 1st and 2nd Defendant in the said suit, to the Plaintiff herein was cancelled. In light of this judgment, and which the Plaintiff herein was a party, and which has not been set aside, the Plaintiff's claim relating to ownership of the suit property lacks merit, and on the basis of the existence of decision from a court of competent jurisdiction which has not been set aside.”* 18. Upon that footing she dismissed the Appellant's suit and awarded the 1st Respondent the costs of it. The second and third issues she had framed were not further addressed, and the evidence of the 2nd Respondent's witness is nowhere mentioned in the judgment. **The Memorandum of Appeal** 19. The Appellant advanced eight grounds of appeal. In substance they reduce to the following complaints: that the learned trial magistrate erred in law and in fact in (a) finding the suit *res judicata*; (b) failing to appreciate that a preliminary objection founded upon *res judicata* had earlier been raised, heard and determined, and that no appeal had been preferred against that ruling; (c) in effect assuming appellate powers over, and reopening, an issue already determined at the interlocutory stage; (d) failing to consider the relevant and pertinent issues in the suit; (e) disregarding the evidence on record and the Appellant's submissions; (f) acting in a biased manner and failing to appreciate the dispute before the court; and (g) arriving at an erroneous decision unsupported by law and fact. 20. The Appellant seeks orders that the appeal be allowed and the impugned judgment set aside; that this court declare her the legitimate owner of Plot No. 703 on L.R. No. 8469/4; that the 2nd Respondent be directed to facilitate issuance of the title deed to her; and that she be awarded the costs of the appeal and of the court below. **Submissions** ***(i) The Appellant's submissions*** 21. The Appellant's central submission is that the doctrine of *res judicata* was inapplicable and, in any event, that the learned magistrate had no power to revisit it at the judgment stage. She contends that a preliminary objection upon that ground had been raised and dismissed; that no appeal or review was taken against that ruling; and that the magistrate was accordingly *functus officio* and could not reopen the issue *suo motu*. Upon the substance, she submits that the elements of *res judicata* under section 7 of the Civil Procedure Act were not met: that the earlier suit was founded upon a contractual dispute whereas the present suit is founded upon continuing trespass and the violation of proprietary rights; that she was not served and was not a party at the material time, the suit against her having been withdrawn on 2nd February 2011, so that she is not bound by the resulting judgment; and that the parcel claimed by the 1st Respondent, Plot No. 53, is distinct from the suit property, Plot No. 703. 22. Upon the merits, the Appellant submits that she proved ownership through her documentary evidence, corroborated by her witness and by the 2nd Respondent's records and counsel, while the 1st Respondent failed to call her alleged vendor, Jane Wangari Kimotho, thereby inviting an adverse inference. She relies upon sections 24, 25 and 26 of the Land Registration Act, 2012, and upon **Willy Kipsongok Morogo v Albert K. Morogo [2017] eKLR;** upon section 3(1) of the Trespass Act and upon *Halsbury's Laws of England*; and upon **Duncan Nderitu Ndegwa v Kenya Pipeline Company Limited & Another [2013] eKLR and Philip Ayaya Aluchio v Crispinus Ngayo [2014] eKLR** upon the measure of damages for trespass. ***(ii) The 1st Respondent's submissions*** 23. The 1st Respondent urges the court to dismiss the appeal. She submits that the Appellant, though granted audience in two courts, has failed to furnish any viable proof of ownership, and that under sections 107 to 109 of the Evidence Act the burden of proof lay upon her; she relies upon **Mwalambe (Suing as the Legal Representative of the Estate of Lwambi Mwalambe Beponda) v Chief Land Registrar & 4 Others; Rashid & 6 Others (Interested Parties) [2024] KECA 751 (KLR).** She submits that the question of ownership has already been determined against the Appellant, that no prior judgment has been set aside, and that the present proceedings amount to an impermissible collateral attack and to forum shopping, relying upon **Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank Ltd [2014] eKLR.** Upon costs she relies upon **Reid, Hewitt & Co v Joseph and Myres v Defries (1880) 5 Ex D 180.** **Analysis and Determination** 24. This being a first appeal, the court is under a duty to reconsider and re-evaluate the evidence tendered before the trial court and to draw its own conclusions, bearing in mind that it neither saw nor heard the witnesses and making due allowance in that regard as enumerated in **Selle & Another v Associated Motor Boat Company Ltd [1968] EA 123; Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR.** 25. Where, however, a trial court has disposed of a suit upon a threshold footing without reaching the merits, the primary task of the first appellate court is to test the correctness of that threshold determination. If it is upheld, the merits do not arise. If it is set aside, the question of the appropriate consequential order falls to be considered. That is the position here. 26. Having considered the memorandum of appeal, the record and the submissions, the issues that fall for determination are: (i) whether the learned trial magistrate was precluded from determining the question of *res judicata* at the judgment stage; (ii) whether she erred in finding the suit *res judicata*; (iii) whether she failed to determine the issues she had framed and to consider the evidence on record; (iv) whether the allegation of bias is made out; (v) what consequential orders ought to follow; and (vi) costs. ***(i) Whether the trial court could determine res judicata at the judgment stage*** 27. The Appellant's first complaint is not that *res judicata* was wrongly decided upon the merits, but that it ought not to have been decided at all at the judgment stage, an earlier preliminary objection upon the same point having, as she says, been dismissed and left unchallenged. She contends that the court was *functus officio* and had, in effect, sat on appeal against its own ruling. 28. That argument fails at the threshold, and it fails upon the facts. The typed proceedings now before the court show that the preliminary objection was never determined at all. It was filed on 21st April 2017; directions for submissions were given; and on 16th November 2018 counsel for the 1st Respondent applied to withdraw it so that the matter might be set down for hearing. The court acceded to that application, marked the objection withdrawn, and certified the case ready for hearing. There is therefore no ruling upon *res judicata*: no determination that the suit was, or was not, barred; nothing from which an appeal or a review could have been taken; and nothing which the learned trial magistrate can be said to have reopened or sat in appeal over. The factual premise of grounds 2, 3 and 4 is simply not made out. 29. Lest it be thought that the matter turns upon an accident of procedure, I add that the position would have been no different had the objection been heard and dismissed. *Res judicata* is not a mere procedural technicality; it goes to the competence of the court to try the suit. Section 7 of the Civil Procedure Act is framed in mandatory and prohibitory terms: 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, and has been heard and finally determined by such court. A matter that is *res judicata* deprives the court of jurisdiction to try it; and want of jurisdiction may be raised at any stage of the proceedings, including at the judgment stage, and may be raised by the court upon its own motion: **Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1; John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR).** Jurisdiction cannot be conferred upon a court by acquiescence, by waiver, or by an earlier erroneous ruling. 30. There is a further answer. The dismissal of a preliminary objection founded upon *res judicata* is very often not a determination that the suit is not *res judicata*; it is frequently a determination that the objection cannot be disposed of as a preliminary point of law because it turns upon facts the pleadings, proceedings and judgment in the earlier suit which must be established by evidence. A preliminary objection, properly so called, consists of a pure point of law argued upon the assumption that the facts pleaded are correct; it cannot be raised where anything has to be ascertained, or where the court is invited to exercise a discretion: **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696.** This case illustrates the point exactly: the plea could not be resolved without the record of the earlier suit, which nobody produced in 2017 and which has been produced only upon this appeal. 31. For these reasons grounds 2, 3 and 4 fail. It is one thing to say that the learned trial magistrate was entitled to decide the question. It is quite another to say that she decided it correctly. To that I now turn. ***(ii) Whether the suit was res judicata*** 32. The elements that must co-exist before a suit is held to be *res judicata* are settled. As restated by the Supreme Court in **John Florence Maritime Services (supra)** and by the Court of Appeal in **Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR,** there must be (i) a matter directly and substantially in issue in the subsequent suit which was directly and substantially in issue in a former suit; (ii) a former suit between the same parties, or between parties under whom they or any of them claim; (iii) parties litigating under the same title; (iv) a former suit heard and finally determined; and (v) competence in the court that determined the former suit to try the subsequent suit. These elements are conjunctive, not disjunctive: the absence of any one of them is fatal to the plea. 33. These are not matters of assertion. *Res judicata* is a plea in bar which must be pleaded and proved, and the burden of establishing it lies upon the party who raises it here the 1st Respondent in accordance with the ordinary principle that he who asserts must prove: sections 107 to 109 of the Evidence Act. To discharge that burden it was necessary to place before the court so much of the record of *Milimani CMCC No. 7242 of 2007* as would enable a comparison of the matters directly and substantially in issue in the two suits, an identification of the parties between whom the earlier matter was decided, and a satisfaction that the earlier suit was heard and finally determined as between the parties now before the court. What was placed before the trial court was the decree, and nothing more. A decree records the result of a suit; it does not record how that result was arrived at, against whom the suit was contested, or whether a particular defendant remained a party at the moment judgment was pronounced. 34. That deficiency has now been cured. The plaint, the amended plaint, the typed proceedings and the judgment in the earlier suit form part of the record of this appeal. They admit of no ambiguity, and I set out what they show. 35. *The earlier suit.* By a plaint dated 21st August 2007 and filed on 22nd August 2007, the present 1st Respondent sued S. G. Maina as 1st defendant, Umagara Wiyonere Company Limited as 2nd defendant, and one Jane Wangari Kimotho as 3rd defendant. Her claim was to Plot No. 53 on L.R. No. 8469/4 Kasarani, which she pleaded she had bought from Jane Wangari Kimotho by an agreement of 28th December 1989. She pleaded that in October 2005 the 3rd defendant had trespassed upon the plot claiming it under a certificate No. 703. She prayed for a declaration that she was the legitimate bona fide owner of Plot No. 53; a declaration that Plot Certificate No. 703 was a nullity and an order cancelling it; a permanent injunction; damages for trespass; and costs and interest. By an amended plaint filed pursuant to leave and amended on 10th September 2007, the name of Jane Wangari Kimotho was struck out from the title and the present Appellant, Jane Wamuyu, was brought upon the record as 3rd defendant. 36. *The course of that suit.* On 19th March 2008 interlocutory judgment was entered against the 1st and 2nd defendants for failure to enter appearance or file a defence. Little of substance then occurred for two years. On 14th April 2010 an ex parte hearing was stood over generally, the plaintiff having omitted to bring her original documents. On 2nd February 2011, before Hon. M. K. Kiema, Resident Magistrate, counsel for the plaintiff applied to withdraw the suit as against the 3rd defendant. The court recorded the order in these terms: “Suit against 3rd defendant is hereby marked as withdrawn with no order as to costs.” Immediately thereafter, and on the same day, the plaintiff gave evidence in the absence of any defendant, produced her sale agreement and her certificate, said that she had been in physical occupation for twelve years, and abandoned her prayer for damages. 37. *The judgment.* Judgment was delivered on 12th April 2011. It is short, and I set it out in full: *“Interlocutory judgment was entered in this suit on 19/3/2008 as against the 1st and 2nd defendants. The suit against the 3rd Defendant was withdrawn on 2/2/2011. On its merits, I note that the plaintiff is the owner of the suit premises. A sale agreement to that effect as adduced in evidence. The plaintiff's case is unopposed and is allowed in terms of prayers (a), (b), (c) and (e).”* 38. Three things appear upon the face of that judgment. First, it was given upon interlocutory judgment and formal proof and not after a contested hearing: the court expressly recorded the plaintiff's case as unopposed. Secondly, it was given against the 1st and 2nd defendants alone. Thirdly, and decisively, the suit against the 3rd defendant the present Appellant had been withdrawn some ten weeks earlier, upon the plaintiff's own application, and the judgment says so in terms. 39. It follows that the factual premise upon which the judgment under appeal rests is not supported by the record. The learned trial magistrate proceeded upon the basis that the earlier judgment was one to which “the Plaintiff herein was a party.” At the moment when that judgment was pronounced the Appellant was not a party to the earlier suit at all. She had been released from it by the very litigant who now invokes it against her. I do not attribute the error to the learned magistrate: what the 1st Respondent placed before her was the decree, which upon its face names Jane Wamuyu as 3rd defendant and records the cancellation of her certificate, and which is silent as to service, appearance, withdrawal and the nature of the hearing. But the error is nonetheless an error, and it goes to the root of the decision. 40. I should record, because it bears upon the burden of proof, that when the 1st Respondent was cross-examined upon this very question in the court below she told the trial court that there had been judgment against the 3rd defendant and that she had not directed the withdrawal of the suit against her. The record of the earlier suit shows that answer to be mistaken. The withdrawal was made upon the application of her own advocate and was recorded by the court in terms. 41. Applying the settled elements to that material, at least three of them are wanting. 42. **Identity of parties.** At the moment when judgment was pronounced in CMCC No. 7242 of 2007 the Appellant was no longer a party to it, the plaintiff having, of her own motion, discontinued against her some ten weeks earlier. A plaintiff who elects to withdraw her suit against a defendant cannot afterwards be heard to say that the same defendant is bound by the judgment she went on to obtain against the remaining defendants. Discontinuance is a release, not an adjudication; and the Rules themselves proceed upon that footing, Order 25 rule 1 of the Civil Procedure Rules, 2010 providing that a discontinuance or withdrawal shall not be a defence to any subsequent action. If the withdrawal is itself no defence to a subsequent action, the judgment obtained after it can hardly be a bar to a subsequent action by the person against whom the claim was withdrawn. 43. It may be said that the Appellant claims “under” the 2nd Respondent, against which judgment was entered, and is therefore bound as a person litigating under the same title. I do not think that argument avails. A person is bound as claiming under a party where his interest is derived from that party in circumstances placing him in privity of estate or title with the litigant, typically where the derivative interest is acquired after the earlier proceedings have been commenced. The Appellant's claim rests upon a certificate issued in January 1993, some fourteen years before CMCC No. 7242 of 2007 was filed; her interest was not acquired *pendente lite*. More fundamentally, she was joined in that suit in her own right, as a separate defendant asserting a separate title, and was then released from it. The very fact that she was sued as a distinct party is inconsistent with the proposition that her interest was represented by, and concluded against her through, a co-defendant. 44. **A hearing and final determination as between these parties.** As against the Appellant the earlier suit was not determined at all; it was abandoned. There was no trial of the issue of her title, no evidence directed to it, and no finding upon it. What was determined on 12th April 2011 was determined against Mr. S. G. Maina and the 2nd Respondent, upon formal proof, in a case which the court itself recorded as unopposed, and in the Appellant's absence. 45. **Identity of the matter directly and substantially in issue.** The earlier suit was a claim to Plot No. 53. The present suit is a claim to Plot No. 703. The 1st Respondent's own case, both in her defence and in her evidence, is emphatic that Plot No. 53 and Plot No. 703 are different parcels and that she has never occupied Plot No. 703; and the 2nd Respondent's witness testified that, upon the company's maps, the two are distinct plots. If that is right, the subject matter of the two suits is not the same and the plea must fail upon this element also. If it is wrong if the two numbers denote one and the same physical parcel that can be established only by evidence and by a finding of fact, which is precisely the inquiry that the plea of *res judicata* was invoked to prevent. A court cannot assume identity of subject matter in order to shut out the very inquiry by which identity would have to be established. 46. I would add this. Even taking the 1st Respondent's case at its highest that the judgment of 12th April 2011 ordered the cancellation of Plot Certificate No. 703 and declared it a nullity that does not improve her position upon this appeal. The order cancelling that certificate was made against the 1st and 2nd defendants after the holder of the certificate had ceased to be a party and in her absence. An order purporting to cancel a person's document of title, made in proceedings from which she had been released and of which she had no notice, is made in the teeth of the principle *audi alteram partem* and of Article 50(1) of the Constitution. Whatever its effect as between the plaintiff and the defendants who remained, such a judgment cannot found a plea of *res judicata* against her, for the whole rationale of the doctrine is that a party has already had her day in court. This Appellant never had one. 47. It was submitted for the 1st Respondent that the present suit is an impermissible collateral attack upon a subsisting judgment, and that the Appellant's remedy lay in applying to set that judgment aside rather than in instituting fresh proceedings. The principle relied upon is sound but does not fit these facts. It applies where a party seeks to impugn a judgment which binds her. Where a judgment does not bind a person at all, she does not attack it collaterally by asserting rights which it never touched; and she can hardly be required to apply to set aside a judgment in a suit to which, at the time it was given, she was not a party. **Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank Ltd [2014] eKLR** does not assist the 1st Respondent upon these facts. 48. I should make clear what I am not deciding. I do not set aside, vary or pronounce upon the judgment in CMCC No. 7242 of 2007, which is not before me and which remains a judgment of a court of competent jurisdiction as between the parties who remained bound by it. I hold only that it does not operate as a bar under section 7 of the Civil Procedure Act as between the Appellant and the 1st Respondent. 49. It follows that the plea of *res judicata* was not established, and that the learned trial magistrate erred in upholding it and in dismissing the suit without determining the real questions in controversy between the parties. Grounds 1 and 8 succeed. ***(iii) Failure to determine the issues framed and to consider the evidence*** 50. Grounds 5 and 6 complain that the learned trial magistrate failed to consider the relevant and pertinent issues in the suit and disregarded the evidence on record and the Appellant's submissions. Having now read the judgment alongside the proceedings, I am constrained to hold that these grounds are made out. 51. The learned magistrate framed three issues. She determined only the first, and upon a footing which the record does not support. The second issue whether the Appellant was entitled to the remedies sought was never addressed at all; and the answer given to the first did not, upon the view she took, make it unnecessary to consider the evidence, for she had heard the whole of it. 52. Further, the judgment's account of the hearing is incomplete. It records that the Appellant and PW2 testified and that “the Defendant's case also proceeded on the same date,” the 1st Defendant having adopted her witness statement and list of documents. In truth the 1st Respondent's evidence was interrupted on that day and completed only when she was recalled on 1st August 2024; and, more significantly, the 2nd Respondent's witness gave evidence on 7th August 2024 and was cross-examined by both counsel. His evidence given upon the basis of the records of the very company which issued both certificates, and going directly to the identity of the parcels and to who was allocated what is nowhere mentioned in the judgment. A judgment which omits all reference to the evidence of one of the three witnesses who testified, and that the witness of a party, cannot be said to have considered the evidence on record. 53. I make these observations with a full appreciation of the pressures under which the magistrates' courts labour and of the burden of the lists they carry. But these parties had litigated this suit for eight years and had given evidence on three separate hearing days. They were entitled to a determination of the questions they came to court to have decided. Grounds 5 and 6 succeed. ***(iv) The allegation of bias*** 54. Ground 7 alleges that the learned trial magistrate acted in a biased manner. An allegation of judicial bias is a serious one. It must be particularised and established; it is not made out by the mere fact that a judicial officer has decided against the party making it, nor by the fact that the decision is shown on appeal to have been wrong. Nothing in the memorandum of appeal particularises the allegation, and nothing in the record before me supports it. Indeed, the error into which the learned magistrate fell upon the central question is readily explained by what she was given: the decree alone, which conceals the very facts that determine the matter. Error, and error induced by an incomplete presentation, is not bias. Ground 7 is rejected, and I would discourage the making of such allegations without a proper foundation. ***(v) The appropriate consequential orders*** 55. The Appellant invites this court to go further and to declare her the legitimate owner of the suit property and to direct the 2nd Respondent to facilitate issuance of title to her. The whole of the evidence taken at the trial is now before me, and I have therefore considered with care whether this court should determine the suit finally rather than return it. I have concluded that it should not, for four reasons. 56. First, the trial court made no findings of fact and expressed no view upon the credibility of any witness. A first appellate court re-evaluates evidence which has been received and assessed below; it does not decide at large, and for the first time, questions which the trial court never reached. Secondly, the decisive question in the suit whether Plot No. 703 and the parcel physically occupied by the 1st Respondent are one and the same, or two distinct parcels differently numbered was not resolved by any independent evidence. No surveyor was called by either side; the 2nd Respondent's witness, who spoke to the company's maps, frankly conceded that he had never visited the ground in the company of a surveyor and had relied upon the report of another. Thirdly, the 1st Respondent's vendor, whose alleged sale is the foundation of her title, was not called, and the effect of that omission is a matter for the tribunal of fact. Fourthly, and following from the second, the interests of justice may well require further evidence upon the identification of the parcels on the ground, which this court, sitting on appeal, is not the appropriate forum to receive. 57. The proper course is therefore to set aside the dismissal and to remit the suit for determination upon its merits. That course is expressly provided for. Section 78(1)(b) of the Civil Procedure Act empowers an appellate court to remand a case; and Order 42 rule 24 of the Civil Procedure Rules, 2010 provides that where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point, and the decree is reversed on appeal, the appellate court may remand the case, direct what issues are to be tried, and send a copy of its judgment and order to that court with directions to re-admit the suit under its original number and proceed to determine it; and the rule further provides that the evidence recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. The evidence having already been taken over three hearing days and the parties having filed submissions, it would be a needless waste of time and expense to order a trial *de novo*. The suit will accordingly be remitted for judgment upon the evidence already recorded, with liberty to the trial court to recall any witness or to receive such further evidence, including the evidence of a surveyor, as it may consider necessary in the interests of justice. 58. Although I have rejected the allegation of bias, the learned trial magistrate has already expressed a concluded view upon the threshold question, I therefore direct that the suit be placed before another magistrate of competent jurisdiction. ***(vi) Costs*** 59. Costs follow the event: section 27 of the Civil Procedure Act. The appeal having succeeded, the Appellant is entitled to the costs of it. The contest upon this appeal has been between the Appellant and the 1st Respondent, the 2nd Respondent having taken a position below which was consistent with the Appellant's case. The costs of the appeal will accordingly be borne by the 1st Respondent alone. As the suit is remitted for determination, the costs in the court below ought properly to abide the outcome. **Disposition** 60. In the result, I make the following orders: **(i) The appeal be and is hereby allowed.** **(ii) The judgment and decree of the Chief Magistrate's Court in Milimani CM ELC No. E1488 of 2018, delivered on 3rd October 2024, be and are hereby set aside.** **(iii) The suit is remitted to the Chief Magistrate's Court at Milimani, for determination upon the merits on the evidence already recorded, with liberty to the trial court to recall any witness or to receive such further evidence as it may consider necessary in the interests of justice.** **(iv) The suit shall be placed before another magistrate of competent jurisdiction.** **(v) The 1st Respondent shall bear the costs of this appeal. Costs in the trial court shall abide the outcome of the suit.** ***DATED, SIGNED and DELIVERED VIRTUALLY THIS 31st DAY OF JULY, 2026.*** **E. K. WABWOTO** **JUDGE** **In the presence of:** **N/A for the Appellant.** **Mr. Mwangi h/b for Mr. Githinji for the 1st Respondent.** **N/A for the 2nd Respondent.** **Court Assistants; David and Atika.**