https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4497

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELCLC CASE NO. E004 OF 2025** **KASALU NZIOKA MWILU……..…………………………………….PLAINTIFF** **VERSUS** **JOYCE NDUNGE MUTEI……………………………......………DEFENDANT** **RULING** **Introduction** 1. **If a person, though defeated at law, sues again, he should be answered,** ***"You were defeated formerly."*** This ancient wisdom, drawn from Katyayana's text and preserved in the Mitakshara, captures the essence of the doctrine of *res judicata* that has guided civilized legal systems for millennia. 2. This Ruling addresses the Notice of Motion dated 9th May 2025, filed by the Defendant/Applicant under Section 7 of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules and other applicable laws. The Application seeks to strike out the present suit on the basis that it is barred by the doctrine of *res judicata.* 3. The Applicant contends that the issues raised herein were directly and substantially determined in **Machakos Environment and Land Court (ELC) Case No. 2 of 2016, Kasalu Nzioka Mwilu v Joyce Ndunge Mutei,** wherein judgment was delivered on 8th February 2023. 4. The Application is supported by the affidavit of **Joyce Ndunge Mutei,** sworn on 8th May 2025, and opposed by the Replying Affidavit of **Kasalu Nzioka Mwilu,** sworn on 20th May 2025. 5. Both parties filed written submissions, which I have considered. The Applicant’s submissions are dated 15th June 2026, and the Respondent’s are dated 18th June, 2026. **The Applicant’s case** 1. The Applicant asserts that both suits involve the same parcel of land, Mavoko Town Block 3/2592 (formerly Lukenya Block 3/638), and seek substantially the same relief, namely cancellation of the Applicant’s title. 2. The Applicant further submits that, although the Respondent now acts as legal representative of the Estate of Kalondu Nzioka, she is litigating under the same title and seeks to revisit matters already determined. 3. It is further submitted that although the Respondent has now instituted these proceedings as the legal representative of the Estate of Kalondu Nzioka, she is litigating under the same title and seeks to reopen matters that were finally determined in the earlier proceedings. 4. The Applicant submits that the present suit is an attempt to circumvent the finality of the judgment delivered on 8th February 2023, and that the Respondent is seeking another opportunity to litigate the same matter. **The Respondent’s case** 1. The Respondent opposes the Application on four principal grounds. First, it is submitted that the present suit has been instituted in her capacity as the legal representative of the Estate of the late Kalondu Nzioka, whereas the former proceedings were commenced in her personal capacity. 2. Secondly, the Respondent contends that the Applicant has not shown any commonality between the two suits apart from the parties’ identities. Thirdly, she argues that fraud was neither pleaded nor addressed in the earlier proceedings. 3. Lastly, it is submitted that although the suit property had already been subdivided when the former suit was instituted, those subdivisions have not been cancelled and the present suit seeks orders reverting the land to the estate to facilitate its distribution. **Issues for determination** 1. I have considered the Application, the affidavits, the pleadings and the written submissions filed by the parties. In my view, the sole issue for determination is whether the present suit is barred by the doctrine of *res judicata* as provided for under Section 7 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya. 1. The doctrine of *res judicata* is one of the oldest and most fundamental principles known to the law. It is a rule of universal application, pervading every well-regulated system of jurisprudence. As the Supreme Court of India observed in **Canara Bank v N.G. Subbaraya Setty, AIR 2018 Supreme Court 3395:** *"****Roma locuta est; causa finita est. Rome has spoken, the cause is ended. Rome spoke through her laws. One of the pillars of Roman law is contained in the maxim res judicata pro veritate accipitur (a thing adjudicated is received as the truth)."*** 1. This maxim rests upon two fundamental principles of public policy. The first is expressed in the maxim *interest reipublicae ut sit finis litium*—it concerns the State that there be an end to law suits. The second is *nemo debet bis vexari pro una et eadem causa*—no man should be vexed twice over for the same cause. 2. The rationale underpinning the doctrine was succinctly explained by the Supreme Court in ***John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR,*** where the Court observed: ***"The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of Court's limited resources and timely termination of cases. It promotes stability of judgments and predictability, which are essential ingredients in maintaining respect for justice and the rule of law.”*** 1. The doctrine is anchored in **Section 7** of the Civil Procedure Act, Cap. 21 of the Laws of Kenya, 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 finally decided by such court.”*** 1. Explanation (4) to Section 7 of the Act, expands the reach of the doctrine in the following terms: ***"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."*** 1. Explanation (4) to Section 7 therefore extends application of the doctrine of *res judicata* to issues that, with reasonable diligence, should and ought to have been raised in former proceedings. This doctrine promotes public interest by ensuring finality in litigation and discouraging parties from fragmenting their claims across multiple suits. 2. The principle has its origins in the English decision in ***Henderson v Henderson (1843) 67 ER 313****.* The *'Henderson Principle'* was approvingly referred to and applied by the Supreme Court in ***John Florence Maritime Services Ltd*** (supra) as the underlying principle for *res judicata*. The Supreme Court reproduced the following oft-cited passage: ***"...where a given matter becomes the subject of litigation in and adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward. The plea of res judicata applies... not only to points upon which the Court was actually required to pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."*** 1. The effect of the foregoing principles is that the law does not permit litigation by instalments. Parties are therefore required to bring forward, in one proceeding, every ground of claim or defence arising from the transaction in dispute. Once that controversy has been finally determined by a court of competent jurisdiction, it cannot be reopened. 2. Whether a plea of *res judicata* succeeds in any particular case depends on whether its constituent elements have been established. In***John Florence Maritime Services Limited & Another (supra),*** the Supreme Court restated the constituent elements that must be established before a court can conclude that a suit is barred by the doctrine of res judicata. The Court stated: ***“[86] We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter, the following elements must be demonstrated:*** * + 1. ***There is a former Judgment or order which was final;*** 2. ***The Judgment or order was on merit;*** 3. ***The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and*** 4. ***There must be between the first and the second action identical parties, subject matter and cause of action.”*** 1. Guided by the foregoing principles and the constituent elements identified by the Supreme Court, I now turn to examine whether the Applicant has established the constituent elements of *res judicata* under Section 7 of the Civil Procedure Act. **Comparison of the former and present suits** 1. To determine whether the plea of *res judicata* is established, it is necessary to compare the pleadings in this suit with the judgment from the former proceedings. A plea of *res judicata* cannot be sustained solely on the basis that two suits appear similar. The record must demonstrate that the matters directly and substantially in issue were formerly litigated and determined with finality. 2. Accordingly, I have reviewed the Plaint in this suit and the judgment in **Machakos ELC Case No. 2 of 2016.** Although the Applicant did not exhibit the pleadings in the former suit, the judgment sufficiently identifies the issues for determination, the reliefs sought and the court's findings thereon, thereby providing an adequate basis for the comparative analysis required under Section 7 of the Civil Procedure Act. 3. In **Machakos ELC Case No. 2 of 2016,** the Plaintiff was **Kasalu Nzioka Mwilu,** who sued **Joyce Ndunge Mutei,** the Defendant herein. In the present suit, the Plaintiff is **Kasalu Nzioka Mwilu** while the Defendant is **Joyce Ndunge Mutei**. In substance, the parties are identical. 4. Both suits concern the same parcel of land, namely **Mavoko Town Block 3/2592** (formerly Lukenya Block 3/638). 5. The judgment in the former suit records that the Plaintiff sought the following reliefs: 6. ***An order for cancellation of title deed parcel No. Lukenya Block 3/638 in the names of the Defendant and then be registered in favour of the Plaintiff.*** 7. ***Costs of the suit.*** 8. In the present suit, the Plaintiff seeks the following orders against the Defendant, reproduced verbatim from the Plaint: 9. ***An Order that the tittle deed No. Mavoko Town Block 3/2592 be cancelled and be registered in the estate of Kalondu Nzioka or/and in alternative be reverted to estate of Nzioka Mwilu (Deceased);*** 10. ***Costs of the suit.*** 11. A comparison of the reliefs sought in the former and present suits shows that they are substantially similar. In each suit, the Plaintiff seeks the cancellation of the Defendant's title and consequential orders concerning the registration of the suit property. 12. The judgment delivered on 8th February 2023 framed the issue for determination as whether the Plaintiff was entitled to the reliefs sought in the Plaint. Those reliefs included the cancellation of the Defendant's title to Lukenya Block 3/638 and its registration in favour of the Plaintiff. By dismissing the suit, the Court necessarily rejected the Plaintiff's challenge to the Defendant's title and upheld the Defendant's proprietorship over the suit property. 13. Against the foregoing factual backdrop, I now proceed to examine whether the Defendant has established the constituent elements of the doctrine of *res judicata*. **Whether the former proceedings were finally determined by a court of competent jurisdiction** 1. The first requirement under Section 7 of the Civil Procedure Act stipulates that the former proceedings must have resulted in a final determination by a court of competent jurisdiction. 2. The material placed before the Court demonstrates that the dispute between the parties formerly came before the Environment and Land Court in **Machakos ELC Case No. 2 of 2016, Kasalu Nzioka Mwilu v Joyce Ndunge Mutei.** Following a full hearing on the merits, judgment was delivered on 8th February 2023 by Nyukuri J. The suit was determined on its merits and culminated in a final judgment disposing of the controversy between the parties. 3. There is no evidence that the judgment delivered on 8th February, 2023 has been reviewed, varied or set aside on appeal. It therefore remains a valid and binding determination capable of founding a plea of *res judicata*. 4. Accordingly, the former proceedings resulted in a final determination by a court of competent jurisdiction, thereby satisfying the first two statutory requirements under Section 7. **Whether the parties in the present suit are the same as those in the former proceedings** 1. The third element for consideration is whether the parties in the present suit are the same as those in the former suit, or whether they are litigating under the same title. 2. **Section 7** of the Civil Procedure Act provides that the subsequent suit must be "between the same parties, or between parties under whom they or any of them claim, litigating under the same title." 3. In the present case, the parties are identical in name. In Machakos ELC Case No. 2 of 2016, the Plaintiff was **Kasalu Nzioka Mwilu** and the Defendant was **Joyce Ndunge Mutei**. In the present suit, the Plaintiff is **Kasalu Nzioka Mwilu** and the Defendant is **Joyce Ndunge Mutei**. There can be no doubt, and indeed it is not disputed, that the parties bear the same names in both suits. 4. The Respondent’s argument is that although the names of the parties are identical, the present suit has been instituted in a different capacity. She contends that she now sues as the legal representative of the Estate of Kalondu Nzioka, whereas in the earlier proceedings she sued in her personal capacity. It is her submission that this change in capacity removes the suit from the ambit of the doctrine of *res judicata.* 5. The central issue is not the Plaintiff’s description in the pleadings, but whether she is litigating under the same title. The phrase "litigating under the same title" in Section 7 refers to the legal character of the interest asserted, rather than the formal description in the pleadings. 6. Applying the test in Section 7 of the Civil Procedure Act to the present case, the Plaintiff challenges the Defendant's title to the same parcel of land and seeks the same substantive relief that was sought in the former proceedings, namely cancellation of the Defendant's title. 7. Although the Plaint indicates that the Plaintiff is acting as the legal representative of the **Estate of Kalondu Nzioka**, this designation does not change the substance of the dispute. In both proceedings, the Plaintiff challenges the Defendant's title to the same parcel of land and seeks cancellation of that title. The nature of the claim remains unchanged, notwithstanding that the Plaintiff now sues in her representative capacity as the legal representative of the Estate of Kalondu Nzioka. 8. In the circumstances, the Court is not persuaded that the Respondent's change in the capacity in which she has instituted these proceedings is sufficient to take away the dispute from the operation of the doctrine of *res judicata*. To hold otherwise would permit a litigant to circumvent the statutory bar imposed by Section 7 of the Civil Procedure Act by recasting the capacity in which proceedings are instituted while advancing the same proprietary claim against the same party. Such an interpretation would be inconsistent with the object of Section 7 of the Civil Procedure Act, which is to prevent the re-litigation of disputes that have already been determined with finality. 9. For the foregoing reasons, I hold that the Plaintiff is litigating under the same title within the meaning of Section 7 of the Civil Procedure Act. The third constituent element of the doctrine of *res judicata* is therefore established. **Whether the present suit arises from the same cause of action as the former proceedings** 1. The fourth and final element for consideration is whether the present suit is founded upon the same cause of action as the former proceedings. 2. In **Machakos** **ELC Case No. 2 of 2016, Kasalu Nzioka Mwilu v Joyce Ndunge Mutei,** the Plaintiff challenged the Defendant’s title to Lukenya Block 3/638. The Plaintiff sought the cancellation of the Defendant’s title and the registration of the property in her own name. Accordingly, the validity of the Defendant’s title was the central and substantive issue before the court. 3. In the present suit, the Plaintiff seeks the following orders against the Defendant, reproduced verbatim from the Plaint: 4. ***An Order that the tittle deed No. Mavoko Town Block 3/2592 be cancelled and be registered in the estate of Kalondu Nzioka or/and in alternative be reverted to estate of Nzioka Mwilu (Deceased);*** 5. ***Costs of the suit.*** 6. A comparison of the reliefs sought in both suits demonstrates that they arise from the same cause of action. In each case, the Plaintiff seeks to challenge the Defendant's title to the same parcel of land and to obtain orders divesting the Defendant of that title. The variation in the alternative prayer does not constitute a different cause of action. 7. The Respondent contends that the present suit does not fall within the ambit of the doctrine of *res judicata* for two reasons. First, she asserts that the suit is based on allegations of fraud that were neither pleaded nor determined in the earlier proceedings. Second, she maintains that the suit property has since been subdivided and that the current proceedings seek restoration of the land to facilitate the administration and distribution of the estate. 8. I am unable to accept either contention. Explanation (4) to Section 7 of the Civil Procedure Act prevents a party from circumventing *res judicata* by raising issues that, with reasonable diligence, should have been addressed in the earlier proceedings. Such matters are considered to have been directly and substantially in issue in the former suit. 9. Applying that principle, the allegations of fraud do not advance the Plaintiff's case. The Defendant's registration, which is alleged to have been fraudulent, occurred in 2014 and formed the very foundation of the Plaintiff's challenge in **Machakos ELC Case No. 2 of 2016.** If the Plaintiff believed that the registration had been procured by fraud, that allegation ought to have been pleaded and prosecuted in the former proceedings. Indeed, the judgment in that suit expressly observed that no particulars of fraud had been pleaded or proved. 10. The same reasoning applies to the alleged subdivisions. The Plaintiff acknowledges that the suit property had already been subdivided before the institution of the former suit. **Paragraph 56** of the judgment in Machakos ELC Case No. 2 of 2016 records that the subdivision occurred on 2nd January 2016, before those proceedings were commenced. The subdivisions were therefore not subsequent events capable of giving rise to a fresh cause of action but were matters that, with reasonable diligence, ought to have been placed before the Court in the earlier proceedings. 11. From the foregoing analysis I am persuaded that the allegations of fraud and the subdivisions relied upon by the Plaintiff do not establish a distinct cause of action. These matters form part of the same controversy regarding the Defendant's title that was the subject of Machakos ELC Case No. 2 of 2016 and should have been advanced in those proceedings. The statutory bar under Section 7 of the Civil Procedure Act therefore applies in full. 12. For the foregoing reasons, I hold that the present suit is founded upon the same cause of action as the former proceedings. Accordingly, the fourth constituent element of the doctrine of *res judicata* is established. 13. As each of the constituent elements of Section 7 of the Civil Procedure Act has been satisfied, the present suit is *res judicata* and is therefore barred. The Respondent, having lost in the earlier proceedings, cannot sue again on the same cause. She must be answered in the words of the ancient sages: *"You were defeated formerly."* 14. Accordingly, I make the following orders: 15. ***The Notice of Motion dated 9th May 2025 is allowed.*** 16. ***The Plaint dated 16th January 2025 is hereby struck out as being res judicata.*** 17. ***The Respondent shall bear the costs of the application as well as the costs of the suit.*** It is so ordered. **Delivered and Dated at Machakos this 16th day of July, 2026.** **HON. J. N. KUYIONI** **JUDGE** **16.07.2026** **Ruling delivered virtually through Microsoft Teams Video Conferencing Platform** In the presence of; Catherine Court Assistant. Mr. Musyimi holding brief for Mr. Mutinda for Defendant. Mr. Tamata for Plaintiff.