https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5086

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NYAHURURU ELC APPEAL NO. E018 OF 2024 SIMON KUNGU KIONGO (Suing as the Legal Representative of the Estate of the late KIONGO NJUGUNA…………......................................................…. APPELLANT VERSUS JAMES NJUGUNA GATONYE (Sued as the Legal Representative of the Estate of PETER GATONYE KAGIMBI…………………...............1ST RESPONDENT MARGARET NYAMBURA GICHUI T/A HOPE CLUB………………........................…....…2ND RESPONDENT IRENE NGINA CHEGE T/A SUNDOWN CLUB……..…3RD RESPONDENT JOSEPH WAHINYA GITHAUGA T/A TAIFA BUTCHERY………….......................……..4TH RESPONDENT PETER KARANJA MBUGUA T/A GENERAL TRADERS…………….................……5TH RESPONDENT THE CHIEF LAND REGISTRAR……………………..…..6TH RESPONDENT THE HONOURABLE ATTORNEY GENERAL……….….7TH NYAHURURU ELCA E018 OF 2024 – JUDGMENT 1 | P a g e RESPONDENT GLADYS ATWANI……………………………….....….……8TH RESPONDENT JUDGMENT (Being an Appeal from the Ruling and Order of Hon. C.M Muhoro delivered on 12th August 2024 in Nyahururu MELC No. 19 of 2024) Case before the lower Court 1. By a plaint dated 14th May 2024, the plaintiffs instituted a suit in the lower court to wit Nyahururu CMC ELC Case No. E019 of 2024 seeking judgment against the defendants for: - a) A declaration that parcel of land known as Nyahururu Parcel No. L.R No.6585/316 also known as I.R 20888/1 belongs to the estate of the late Kiongo Njuguna (prayer paraphrased); b) An order compelling the 6th defendant to issue a new certificate to the plaintiff upon satisfaction of the attendant requirements; c) A permanent injunction restraining the defendants, NYAHURURU ELCA E018 OF 2024 – JUDGMENT 2 | P a g e their agents or people acting under their instruction from alienating, leasing, letting, sub-letting and/or bequeathing parcel No. L.R No.6585/316 also known as I.R 20888/1 and fixtures thereto; d) An eviction order against the 1st to 5th defendants forthwith for trespassing on the parcel of land known as Nyahururu Parcel No. L.R No.6585/316 also known as I.R 20888/1 (prayer slightly paraphrased and corrected to suit the real intention of the parties as discerned from the pleadings and the case urged by the parties); e) General damages for loss of use of the parcel of land known as Nyahururu Parcel No. L.R No.6585/316 also known as I.R 20888/1 (hereafter referred to as the suit property) for 18 years; f) Costs of the suit. 2. As can be discerned from the averments/contentions on the face of the plaint, the plaintiffs’ case is premised on the grounds that the suit property belongs to the Estate of Kiongo Njuguna (deceased); that the 1st to the 5th defendants were allowed into NYAHURURU ELCA E018 OF 2024 – JUDGMENT 3 | P a g e the suit property as tenants of the deceased and not owners thereof; that the 1st to the 5th defendants have without any colour of right, attempted to have the title to the suit property reconstructed under the guise that they are the registered proprietors thereof. 3. Terming the actions of the 1st to 5th respondents complained of fraudulent and prejudicial to the interest of the Estate of his father, which he administers, the appellant instituted the suit referred to in paragraph 1 above seeking the orders listed therein. 4. Upon being served with the suit papers, the 4th and 5th defendants filed a statement of defence dated 13th June 2024, in which they acknowledge that their use and occupation of the suit property is as tenants but deny that they were tenants of the appellant’s father. Conversely, the 4th and 5th respondents aver that they entered the suit property as tenants of Peter Gatonye Kagimbi (deceased), whose Estate is administered by the 1 st respondent. NYAHURURU ELCA E018 OF 2024 – JUDGMENT 4 | P a g e 5. The 4th and 5th respondents further averred and contended that they filed suits in court namely, Nyahururu CMELC No. 295 of 2028 and 296 of 2018 against the 1st respondent and some other people named in those suits, in which suits, it was determined that there was no landlord-tenant relationship between them and the defendants in those suits, who included the appellant herein. 6. The 4th and 5th defendants further pleaded that the defendants in those suits, who included the appellant herein, were permanently restrained from trespassing on, evicting, threatening to evict or carrying out any activity whatsoever interfering with their occupation and use of a portion of the suit plot. (Emphasis mine). 7. Besides terming the appellant’s suit res judicata the former suits, the 4th and the 5th defendants contended that the prayers sought against them could only be granted by the Business Premises Rent Tribunal and not the court seized with the suit. In essence, the 4th and the 5th respondents contended that the lower court lacked jurisdiction to hear the suit presented before it on account of res judicata and for want of subject matter jurisdiction. NYAHURURU ELCA E018 OF 2024 – JUDGMENT 5 | P a g e 8. Arising from their contention that the suit was res judicata the suits identified herein above and that the court lacked subject matter jurisdiction, the 4th and the 5th respondent filed a notice of preliminary objection dated 13th June 2024 seeking to strike out/dismiss the plaintiffs suit in limine on those grounds. 9. Pursuant to directions given to the effect that the preliminary objection be disposed of by way of written submissions, parties filed written submissions in respect of the preliminary objection. 10. Upon considering the grounds taken up in support of the preliminary objection and the submissions filed in respect thereof, the learned trial magistrate determined that the preliminary objection was merited and upheld it. In upholding the preliminary objection, the learned trial magistrate inter alia stated/held: - “This is a preliminary objection raised on a point of law on the ground that this matter is res judicata. The issue for determination is whether this suit falls on all fours of Section 7 of the Civil NYAHURURU ELCA E018 OF 2024 – JUDGMENT 6 | P a g e Procedure Act which stipulates as follows:… Courts have rendered many rulings on the doctrine of res judicata which essentially frowns upon the use of the courts to abuse processes. The moment the court comes to conclusion that the suit is res judicata, then the court should not shy away from pronouncing itself so. The judgment in Nyahururu CM ELC No. 295 of 2018 and CMC No. 296 of 2018 were availed to court. The 1st, 4th and 5th defendant’s contention that this matter has already been determined by a competent court of the same jurisdiction vide the two mentioned cases is sound as the subject matter and parties in the current suit are directly and substantially in issue in Nyahururu CMELC No. 295 and 296 of 2018 which were determined by a competent court. This court cannot sit on appeal on the said judgments… In the previous suits, the plaintiff and two others had been sued by the 4th and 5th defendant herein NYAHURURU ELCA E018 OF 2024 – JUDGMENT 7 | P a g e for L.R No. 6585/316 Nyahururu and in the current suit the plaintiff has sued the 4th, 5th defendants plus 5 others in respect of the same parcel of land and same orders which had been adjudicated upon. From the judgments it is clear that this is a case that falls on all fours within the doctrine of res judicata. Courts must always be vigilant to guard against litigants who tend to bring suits as new litigants or add others to circumvent the doctrine of res judicata…. I find that this suit is res judicata and an abuse of the court process. The preliminary objection has merit and hence upheld. Plaintiff’s case is dismissed with costs.” The Appeal 11. Dissatisfied with the decision of the trial magistrate, the plaintiff (now appellant) appealed to this court on the following grounds: - NYAHURURU ELCA E018 OF 2024 – JUDGMENT 8 | P a g e i) The Honourable Magistrate erred in facts and in law in determining that the dispute over Parcel Property No. Nyahururu Parcel No. L.R. No. 6585/316 also known as I.R. 20888/1 and fixtures has been determined yet there has never been such a determination of any competent Court as who is the owner of the said suit property. ii) THAT the Honourable Magistrate erred in fact and in law in finding that the Appellant was heard in Nyahururu CMELC No. 296 of 2018 and Nyahururu CMELC No. 295 of 2018 while the court record indicates that the Appellant was not present during the hearing of the subject suits. iii) THAT the Honourable Magistrate erred in fact and in law by failing to acknowledge that the ownership dispute is between the Appellant and the 1st Respondent principally and where the 1st Respondent was not a party in Nyahururu CMELC No. 296 of 2018 and Nyahururu CMELC No. 295 of 2018. NYAHURURU ELCA E018 OF 2024 – JUDGMENT 9 | P a g e iv) THAT the Honourable Magistrate erred in fact and in law when she determined a Notice of Preliminary Objection that was neither filed online, served upon the Appellant nor submitted upon without according the Appellant a chance to ventilate on that particular Notice of Preliminary Objection. v) THAT the Honourable Magistrate erred in fact and in law in finding that the parties in this case were the same as was in Nyahururu CMELC No. 296 of 2018 and Nyahururu CMELC No. 295 of 2018 while it is clear from the face of the record that 1st Respondent, 2nd Respondent, 3rd Respondent, 6th Respondent and 7th Respondent were not parties to the said suits. vi) THAT the Honourable Magistrate erred in fact and in law in finding that the issues in Nyahururu CMELC No. 296 of 2018 and Nyahururu CMELC No. 295 of 2018 are similar to the issues raised in Nyahururu CMELC No. E019 of 2024, which principally sought to set the NYAHURURU ELCA E018 OF 2024 – JUDGMENT 10 | P a g e record straight on the issue of ownership and where in the interim the rent payable was to be kept in a neutral account pending hearing and determination of the question of ownership. vii) THAT the Honourable Magistrate erred in fact and in law by not focusing on the main dispute before Court of ownership and focused on the issues of tenancy as were raised by 4th and 5th Respondent in Nyahururu CMELC No. 296 of 2018 and Nyahururu CMELC No. 295 of 2018 and determined in absence of the Appellant herein. viii) THAT the Honourable Magistrate erred in fact and in law in making a finding that the Appellant was a party in Nyahururu CMELC No. 296 of 2018 and Nyahururu CMELC No. 295 of 2018, while the truth of the matter is that though in Nyahururu CMELC No. 296 of 2018 and Nyahururu CMELC No. 295 of 2018 the Appellant appears to be sued in his personal capacity, the suit herein is brought in a representative capacity and NYAHURURU ELCA E018 OF 2024 – JUDGMENT 11 | P a g e where the Appellant is appearing as an Administrator of the Estate of the Late Kiongo Njuguna (Deceased). ix) THAT the Honourable Magistrate erred in fact and in law in holding that Nyahururu CMELC No. 296 of 2018, Nyahururu CMELC No. 295 of 2018 and Nyahururu CMELC No. E019 of 2024 raise the same issues while it is apparently clear that neither the 4th Respondent nor the 5th Respondent claimed ownership of the suit property and which was the main dispute in CMELC No. E019 of 2024. x) THAT the Honourable Magistrate erred in fact and in law in finding that parties in Nyahururu CMELC No. 296 of 2018, Nyahururu CMELC No. 295 of 2018, Nyahururu CMELC No. E019 of 2023 and Nyahururu CMELC No. E019 of 2024 are the same without recognizing that Mary Njogu and John Njuguna who were parties in Nyahururu CMELC No. 296 of 2018, Nyahururu CMELC No. 295 of 2018 are not parties in Nyahururu CMELC No. E019 of 2024. NYAHURURU ELCA E018 OF 2024 – JUDGMENT 12 | P a g e 12. The appellant seeks the following reliefs/orders: - i) An order setting aside, varying and/or totally reviewing the decision of the Honourable C.M. Muhoro dated 12th August, 2024 granting the 1st, 4th and 5th Respondents' Notice of Preliminary Objection and dismissing the Appellant's case with costs; ii) Direction that the matter be heard inter partes at the main trial for the Honourable Court to make a determination as to who is the bona fide proprietor of Parcel Property No. Nyahururu Parcel No. L.R. No. 6585/316 also known as I.R. 20888/1; iii) Direction that pending the hearing and determination of the question of who is the bona fide proprietor of Parcel Property No. Nyahururu Parcel No. L.R. No. 6585/316 also known as I.R. 20888/1 and fixtures thereto, the Respondents by themselves, their servants, agents, or any other person be restrained from selling, advertising, NYAHURURU ELCA E018 OF 2024 – JUDGMENT 13 | P a g e publishing, alienating, leasing, letting, sub-letting and/or bequeathing the suit property herein; iv) The respondents be condemned to bear the costs of the appeal. 13. Pursuant to directions to the effect that the appeal be disposed of by way of written submissions, parties to the appeal filed submissions, which I have read and considered. Analysis and determination 14. As pointed out herein above, the dispute which culminated into the instant appeal arises from the determination of the trial court that the suit presented before the Court was res judicata. 15. That being the case, this appeal turns on an issue of law, namely whether the issue of res judicata is a pure point of law that could be taken up in the manner the 4th and the 5th respondents did. 16. Concerning that issue, I will not re-invent the wheel but will rely on the persuasive decision in the following cases: - NYAHURURU ELCA E018 OF 2024 – JUDGMENT 14 | P a g e i) Henry Wanyama Khaemba vs Standard Chartered Bank Ltd & another (2014) e KLR where the Court stated/held: - “…That re-statement of the limited scope of a preliminary objection brings me to the point where I hold that the Preliminary Objection by the 1st Defendant is not a true Preliminary objection in the sense of the law. The issues of res judicata, duplicity of suits and suit having been spent will require probing of evidence as it is already evident from the submissions by the 1st defendant. They are incapable of being handled as preliminary objection. Courts of law have always had a well-founded quarrel with parties who resort to raising preliminary objections improperly…” ii) Okiya Omtatah Okoiti v Attorney General & another (2022) KEHC 2787 (KLR) where the Court NYAHURURU ELCA E018 OF 2024 – JUDGMENT 15 | P a g e stated: - “On the procedure for raising the plea of res judicata, the Supreme Court alluded to the position that the plea is anchored on evidential facts and that such facts ought to be properly raised in a matter…” iii) Stephen Njuguna Mwendwa v Peter Mwicigi Mwangi (2021) KEELC 1633 (KLR) the Court stated/held:- “…As noted above, a Preliminary Objection should not be raised on issues that would require the Court to probe evidence and ascertain facts. In order for the Court to make a determination on whether the Application is Res Judicata, the called is called upon to probe evidence and ascertain facts and therefore the Court finds that an issue of res judicata is not a NYAHURURU ELCA E018 OF 2024 – JUDGMENT 16 | P a g e preliminary objection properly raised.” iv) George Kamau Kimani & 4 others vs. County Government of Trans Nzoia & another (2014) e KLR where the Court stated/held: - “…One cannot raise a ground of res judicata by way of preliminary objection. The best way to raise a ground of res judicata is by way of Notice of Motion where pleadings are annexed to enable the Court determine whether the current suit is res judicata…”. 17. Because evidence was required to determine whether the suit filed by the appellant is res judicata the previous suits, I find and hold that the learned trial magistrate’s treatment of the preliminary objection presented before him as a pure point of law, an error of law warranting interference with his decision by this Court. NYAHURURU ELCA E018 OF 2024 – JUDGMENT 17 | P a g e 18. Whilst the learned trial magistrate has, in his decision made reference to the judgment referred to in the preliminary objection, it is noteworthy that those judgments were not procedurally introduced to the record of the Court. The learned trial magistrate fell into error when he made reference and relied on those judgments in determination of questions of fact arising therefrom when the same had not been procedurally made part of the record of the court and the appellant accorded an opportunity to be heard on the said issues of fact. 19. Whereas in his Memorandum of Appeal the appellant has urged this court to direct that the matter be heard inter parties at the main trial for the Honourable Court to make a determination as to who is the bona fide proprietor of the suit property and to restrain the respondents by themselves, their servants, agents, or any other person from selling, advertising, publishing, alienating, leasing, letting, sub-letting and/or bequeathing the suit property herein pending the hearing and determination of the question of who is the bona fide proprietor of the suit property and fixtures thereto; noting that those issues were not NYAHURURU ELCA E018 OF 2024 – JUDGMENT 18 | P a g e addressed by the lower court, I reverse them for hearing and determination on their merits by the trial court. 20. For avoidance of doubt, I wish to make it clear that this court has not determined that the appellant’s suit is not res judicata the former suits. Just like the trial court lacked the basis for making that determination for want of evidence, this court has no evidence properly placed before the court record, upon which, it can make determination of the question as to whether the suit hereto is res judicata the former suits. If the respondents still think the issue or some of the issues raised in the suit hereto are res judicata, they are at liberty to still raise them with the trial court but through the proper procedure. 21. The upshot of the foregoing is that I allow the appeal in the following terms: i) An order do issue and is hereby issued setting aside the decision of the Honourable C.M. Muhoro dated 12th August, 2024 granting the 1st, 4th and 5th respondents' notice of preliminary objection and dismissing the NYAHURURU ELCA E018 OF 2024 – JUDGMENT 19 | P a g e appellant's case with costs; ii) Costs of defending the notice of preliminary objection and this appeal be and are hereby awarded to the plaintiff/appellant. 22. Orders accordingly. Judgement dated, signed and delivered at Nyahururu this 30th day of July, 2026 through Microsoft teams. L. N. WAITHAKA JUDGE In the presence of:- Mr. Paul Macharia for the Appellant Ms. Mwangi for the 1st ,2nd,4th and 5th Respondents N/A for the 3rd, 6th and 7th Respondents Court Assistant: Bedan NYAHURURU ELCA E018 OF 2024 – JUDGMENT 20 | P a g e NYAHURURU ELCA E018 OF 2024 – JUDGMENT 21 | P a g e