https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5129

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCLC NO. E521 OF 2025** **LUCY NJERI MAINA (Suing on behalf of the estate of** **PETER MAINA WAIGWA (Deceased) …………………………... 1ST PLAINTIFF** **FLORENCE WANJIRU KIBE ……………………………….…… 2ND PLAINTIFF** **DOKI INVESTMENTS LIMITED………………………….……… 3RD PLAINTIFF** **HARRISON KAMORE KAGUTA ……………………….…….… 4TH PLAINTIFF** **CHARLES MWANDIHI ………………………………….…….... 5TH PLAINTIFF** **VIRGINIA NDUTA KANYONGORO ………………………….. 6TH PLAINTIFF** **JOSEPH NGUNJIRI ………………………………………….…. 7TH PLAINTIFF** **MARGARET KAMAU …………………………………..………. 8TH PLAINTIFF** **PHILIP KIONDO …………………………………………..……..9TH PLAINTIFF** **VERSUS** **NAIROBI CITY COUNTY GOVERNMENT……………………. DEFENDANT** **RULING** 1. By a Notice of Motion dated 13th October 2025, brought under Order 40 Rules 1, 2, 3 & 4, Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 2, 3A, and 63(c) of the Civil Procedure Act, the Plaintiffs seek the following orders: 1. ***Spent*** 2. ***The Defendant/Respondent be ordered to provide the Plaintiffs/Applicants with an urgent accommodation and or shelter in the circumstances now that they have been evicted and are in the cold pending hearing and determination of the application and or suit herein.*** 3. ***This Honourable Court be pleased to order the Defendant/Respondent, its servants, agents, representatives and or employees to allocate the Plaintiffs/Applicants another plot of the same size, space and value and put up respective structures thereon for the respective Plaintiffs/Applicants until the hearing and determination of this application and or suit.*** 4. ***An order that the demolition notice and demolition thereto, encroachment, eviction, reallocation and putting up or building illegal structures thereto was illegally, negligently, facilitated by the Defendant/Respondent and the Defendant/Respondent be made liable for the damages and sufferings, loss caused to the Plaintiffs/Applicants as a result of the outcome of Court cases in NAIROBI ELC CASE NO. E439 OF 2021 and NAIROBI ELC CASE NO.114 OF 2009, respectively, the intended civil appeals related to the suit PLOTS NOS. 1 - 14 SITUATED ON LR. NO.209/4844/124 - OFF JOGOO ROAD, MBOTELA within NAIROBI pending hearing and determination of the application and/or suit herein.*** 5. ***The Defendant/Respondent be ordered to re-allocate the Plaintiffs/Applicants another parcel of land of the same value, space and acreage upon putting up accommodation and structures to each of the Plaintiffs/Applicants due to the Defendant/Respondent's failure and or negligence to defend the Plaintiffs/Applicants' rights in court despite being properly made a party and served with the previous court proceedings stated above in respect of PLOTS NOS. 1 - 14 SITUATED ON LR. NO.209/4844/124 - OFF JOGOO ROAD, MBOTELA within NAIROBI pending hearing and determination of the application and/or suit herein.*** 6. ***In the alternative further the Defendant/Respondent be ordered to pay the Plaintiffs/Applicants compensation of an equivalent of the value of the suit property known as PLOTS NOS. 1 - 14 SITUATED ON L.R. NO.209/4844/124 – OFF JOGOO ROAD, MBOTELA within NAIROBI, which is to be divided amongst the Plaintiffs/Applicants upon a valuation report by a reputable surveyor.*** 7. ***This Honourable court be pleased to compel the Defendant/Respondent, its agents, servants, employees and/or representatives to in the interim provide the Plaintiffs/Applicants with alternative accommodation or shelter pending hearing and determination of the application and/or suit herein and the order of this Court be supervised and or enforced with assistance of OCS MAKONGENI POLICE STATION and DEPUTY COUNTY COMMISSIONER MAKADARA respectively.*** 8. ***The costs of this application be provided for.*** 2. The application is based on the grounds appearing on its face together with the supporting affidavit of Lucy Njeri Maina, the 1st Plaintiff, sworn on even date. **THE APPLICANTS CASE** 1. The deponent averred that together with her family and relatives, they were allocated the suit plots known as Plot Nos. 1 to 14 on L.R No. 209/4844/124, located off Jogoo Road, Mbotela, Nairobi. She averred that they initially settled on the suit property as informal settlers in 1965 and have remained in continuous occupation ever since. She further averred that, through the intervention of the Government of Kenya and the then City Council of Nairobi in 2002, the suit plots were formally allocated to them, and they were issued letters of allotment by the Defendant. 2. She averred that following the allocation, she and her family constructed residential and commercial structures on the suit plots while awaiting approval of their building plans by the Defendant. She asserted that they have remained the beneficial owners, allottees and occupiers of the suit plots and have consistently paid land rates and rents as they fell due. She further averred that the suit property is their only home and source of livelihood, and that following the demolition of their houses and other structures on 17th January, 2025, they were rendered homeless and forced to sleep by the roadside. 3. She further averred that the Defendant had negligently, unlawfully and clandestinely re-allocated the suit property to a third party, who subsequently demolished their houses and structures on 17th January, 2025, without any lawful authority or their consent. She stated that the Plaintiffs had been involved in Nairobi ELC Case No. E439 of 2021, against the third party, while the Defendant had separately litigated against the same third party in **Nairobi ELC Case No. 114 of 2009**, in which the Plaintiffs were neither joined nor aware. She contended that the third party's claim in the latter proceedings related to Plot No. L.R No. 209/4844/59/R, but the decree drawn from the judgment was altered to reflect Plot No. L.R No. 209/4844/124, being the suit plots, with the knowledge and consent of the Defendant/Respondent. 4. She further averred that in Nairobi ELC Case No. E439 of 2021,judgment was delivered in favour of the third party, and an eviction decree wasissued and executed on 17th January, 2025. She contended that throughout those proceedings, including applications in the Court of Appeal vide **COAAPPL/E578 of 2024** and **COAAPPL/E595 of 2024**, which were dismissed, the Defendant failed to disclose that it had allocated the suit plots to the Plaintiffs. She contended that the Defendant/Respondent's failure to defend their interest amounted to misconduct and negligence, which directly caused their loss. 5. The deponent stated that while pursuing their leases over the suit property, they discovered documents and correspondence showing that the documents relied upon by the third party did not originate from the Defendant. She further averred that the Defendant had previously granted them approval to develop the suit plots. 6. She asserted that the third party unlawfully entered the suit property and demolished their homes without the consent of either the Plaintiffs or the Defendant, who had allocated the plots. She argued that although the Defendant was involved in both Nairobi ELC No. 114 of 2009 and Nairobi ELC No. E439 of 2021, it failed to take any steps to protect their interests. 7. The deponent contends that unless the orders sought are granted, the Plaintiffs will continue to suffer losses due to the Defendant’s alleged omissions, negligence and double allocation of the suit property. She further contended that the Defendant, its servants, agents and representatives, acting in collusion with the third party, demolished their houses, businesses and other structures and denied them access to the suit property. **THE DEFENDANT’S CASE** 1. The Defendant opposed both the suit and the application through a Notice of Preliminary Objection dated 18th November 2025, raising the following grounds: * 1. ***That the entire suit and application are barred by the doctrine of res judicata under Section 7 of the Civil Procedure Act.*** 2. ***That the issues raised in the present suit and application were directly and substantially in issue in two prior proceedings, namely Nairobi ELC Case No. 114 of 2009, Kimemia Engineering Co. Ltd v City Council of Nairobi, and Nairobi ELC Case No. E439 of 2021, Lucy Njeri Maina & Others v Kimemia Engineering Co. Ltd & Others, in which final judgments were rendered by courts of competent jurisdiction between the same parties or parties litigating under the same title, and which judgments remained valid and binding.*** 3. ***THAT the reliefs regarding ownership, compensation, resettlement and possession of the suit properties were conclusively determined.*** 4. ***THAT the suit and application offend the principle of finality and should be struck out with costs.*** 2. The preliminary objection was canvassed by way of written submissions. **THE DEFENDANT’S SUBMISSIONS** 1. The Defendant filed its submissions dated 18th November 2025. 2. On behalf of the Defendant, Counsel submitted that the proceedings herein are barred by the doctrine of res judicata as the issues have already been heard and determined against the Plaintiffs. 3. Counsel submitted that in **ELC No. E439 of 2021, Peter Maina Waigwa & 21 Others v Kimemia Engineering Construction Co. Ltd, Nairobi City County & Others,** judgment was delivered by Justice J.O. Mboya on 4th April 2024, declaring the 1st Defendant therein as the lawful and legitimate proprietor of L.R No. 209/4844/124. The Court further ordered the Plaintiffs to vacate and hand over vacant possession of the suit property within 120 days, failing which they would be evicted without further recourse to the Court. Counsel submitted that the Plaintiffs in the present suit are the same parties who were ordered to vacate in that matter. Counsel further submitted that Nairobi City County was a party to those proceedings, defended the suit unsuccessfully, and that no appeal has been preferred against that judgment. 4. Counsel further relied on Kimemia Engineering Construction Limited v County Government of Nairobi & Others, ELC 114 of 2009, [2025] KEELC 6372 (KLR), where Justice J. Omange, in a ruling dated 13th February 2025, dismissed the Applicant’s application for failing to present all material facts to the Court. 5. Counsel submitted that the ownership of the suit property has already been conclusively determined by a Court of competent jurisdiction. Counsel contends that the Plaintiffs' failure to disclose the existence and outcome of the previous proceedings amounts to forum shopping. In conclusion, Counsel urged the Court to dismiss the suit with costs to the Respondents. To support his submissions, Counsel relied on the list of authorities attached to the submissions. **THE PLAINTIFFS’ SUBMISSIONS** 1. The Plaintiff filed their submissions dated 11th March 2026. 2. On behalf of the Plaintiffs/Respondents, Counsel submitted that the sole issue for determination is whether the suit is barred by the doctrine of res judicata outlined in Section 7 of the Civil Procedure Act. 3. Counsel relied on **Abok James Odera v John Patrick Machira, Civil Application No. Nai. 49 of 2001** to outline the requirements for a successful plea of res judicata, namely, there must have been a previous suit where the same matter was in issue; the parties were the same or litigating under the same title; the matter was heard by a competent court; and the same issue had been raised again in a new suit. Counsel further submitted that the burden of proving res judicata lay on the Defendant. 4. Counsel argued that although ownership of the suit property had been determined in previous proceedings, the present claim is based on the tort of negligence and not on the issue of ownership. Counsel contended that the Defendant failed to discharge the burden of proving res judicata as it did not demonstrate the existence of a previous suit between the same parties in which a tort claim was determined. 5. Counsel submitted that the Plaintiffs’ case was that the Defendant failed to protect and defend their occupation of the suit property despite being fully aware that they had lawfully occupied the suit property for over thirty years with the Defendant’s knowledge and consent. 6. Counsel noted that this was the first time the Court was asked to address the Defendant/Respondent's negligent conduct in both **ELC No. E439 of 2021, Peter Maina Waigwa & 21 Others v Kimemia Engineering Construction Co. Ltd**, and **ELC No. 114 of 2009, Kimemia Engineering Construction Co. Ltd v County Government of Nairobi**. Counsel maintained that the issue of negligence was neither addressed nor determined in those proceedings. 7. Counsel urged the Court to apply the principle established in **D.T. Dobie & Co. (Kenya) Ltd v Joseph Mbaria Muchina & Another [1980] eKLR,** where the Court of Appeal held that a court should sustain rather than summarily dismiss a suit and that no suit should be dismissed summarily unless it is so hopeless that it clearly discloses no reasonable cause of action or is beyond redemption. Counsel urged the Court to find that the plea of res judicata is not sustainable and to dismiss the preliminary objection. **ANALYSIS AND DETERMINATION** 1. Having considered the preliminary objection and the rival submissions, the only issue for determination is whether the present suit is barred by the doctrine of res judicata. 2. The law on Preliminary Objections is well settled. A Preliminary Objection must be based on a pure point of law. In **Mukisa Biscuits Manufacturing Company Ltd v West End Distributors Ltd [1969] EA 696,** Law JA stated; ***“So far as I’m aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which, if argued as a preliminary point, may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”*** 1. Further on, **Sir Charles Newbold JA** stated; ***“The first matter relates to the increasing practice of raising points which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurrer. It raises a point of law which is argued on the assumption that all the facts pleaded by the other side are correct.it cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.”*** 1. In **Oraro v Mbaja (2005) eKLR, Ojwang J** (as he then was) described it as follows; ***“I think the principle is abundantly clear. “A Preliminary Objection” correctly understood is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and, in any event, to be proved through the process of evidence. An assertion which claims to be a Preliminary Objection and yet it hears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed.”*** 1. The legal framework governing the doctrine of res judicata is outlined in **Section 7 of the Civil Procedure Act** 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. In **John Florence Maritime Services Limited & another vs. Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR,** the Supreme Court held that: ***“We reaffirm our position, as in the Muiri Coffee case, that the doctrine of res judicata is based on the principle of finality, which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog 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 fruit for one party, and liability for another party, conclusively.”*** 1. The Supreme Court further laid down the principles that must be demonstrated to invoke the doctrine in a civil matter as follows: “***For res judicata to be invoked in a civil matter, the following elements must be demonstrated:*** ***a) There is a former Judgment or order which was final;*** ***b) The Judgment or order was on merit;*** ***c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and*** ***d)There must be between the first and the second action identical parties, subject matter and cause of action. (See Uhuru Highway Developers Limited v Central Bank of Kenya & others [1999] eKLR and See the decision of the Court of Appeal in Nicholas Njeru v Attorney General & 8 others Civil Appeal 110 of 2011 (2013) eKLR).*** 1. The Defendant contends that the present suit is barred by Section 7 of the Civil Procedure Act because the issues raised herein were conclusively determined in Nairobi ELC Case No. 114 of 2009, Kimemia Engineering Co. Ltd v City Council of Nairobi, and Nairobi ELC Case No. E439 of 2021, Peter Maina Waigwa & Others v Kimemia Engineering Co. Ltd & Others. 2. In **ELC Case No. E439 of 2021,** the dispute concerned ownership of L.R No. 209/ 4844/124, which is the suit property herein. The 1st Plaintiff was one of the Plaintiffs, and the Defendant was joined as the 2nd Defendant. Judgement was delivered on 4th April 2024 in favour of the 1st Defendant. The Plaintiffs were ordered to vacate the suit property within 120 days. 3. In **ELC Case No. 114 of 2009,** judgment was delivered on 21st March 2011 in favour of the Plaintiff, Kimemia Engineering Construction Co. Ltd, granting it vacant possession of L.R No. 209/4844/59/R. A subsequent application by the Plaintiff herein and twenty-one others to set aside that judgment and to consolidate the suit with ELC E439 of 2021 was dismissed by a ruling delivered by Omange J on 13th February 2025. The Court found that the Applicants had failed to demonstrate a connection between the two properties. 4. Upon consideration of the Plaint filed in the present matter, this Court finds that although the suit property and the parties are similar to those in previous proceedings, the cause of action is different. 5. The Plaintiffs are not challenging the ownership of the suit property. Instead, their claim is based on the tort of negligence: They argued that the Defendant failed to mount an effective defence in the two previous suits, which led to their eviction. The cause of action now before this Court was neither raised nor determined in any of the prior proceedings. 6. The fourth element necessary to support a plea of res judicata, which is the identity of cause of action, is therefore not satisfied. Consequently, I find that the plea of res judicata has not been proven. 7. In light of the foregoing, I find that the preliminary objection lacks merit and is hereby dismissed with costs. **RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 31ST DAY OF JULY 2026** **…………………………………….** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF**: Ms Nyang for the Plaintiffs Achola for the Defendant Vena– Court assistant