[2025] KEELC 2852 (KLR)

Mohamed & another (Suing as a Personal Representative of the Estate of Charo Karisa Mweri and the Estate of Dama Karisa Mweri) v Masha & 2 others (Environment & Land Case E012 of 2024) [2025] KEELC 2852 (KLR) (19 March 2025) (Ruling)

Neutral citation: [2025] KEELC 2852 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment & Land Case E012 of 2024

EK Makori, J

March 19, 2025

Between

Arab Farah Mohamed

1st Plaintiff

Karisa Charo Karisa

2nd Plaintiff

Suing as a Personal Representative of the Estate of Charo Karisa Mweri and the Estate of Dama Karisa Mweri

and

Rachel Dama Kadenge Masha

1st Defendant

District Land Registrar - Kilifi

2nd Defendant

Attorney General

3rd Defendant

Ruling

1. The 1st Defendant has raised a Preliminary Objection dated 4th October 2024 on two grounds as captured in her Notice of Preliminary Objection:a.This suit is res judicata Malindi ELC No.10 of 2017- Karisa Charo Karisa v Anas Hassan Musa, Mackstone Karisa Garama, Rachel Dama Kadenge Masha, District Land Registrar- Kilifi & Attorney General, which suit had been instituted by the 2nd Plaintiff in respect of the same suit property that is the subject matter of this case and which was heard and determined by this Court on 15th November 2022 and that this Court, therefore, lacks jurisdiction to entertain this suit by dint of section 7 of the Civil Procedure Act chapter 21 of the Laws of Kenya.b.This suit is also incompetent and void in law and is a mere ploy to circumvent the execution of the Judgment and Decree in the said ELC No. 10 of 2017.

2. The Preliminary Objection was opposed. The court directed parties to file written submissions. They complied.

3. From the materials and submissions placed before me, the issues I frame for the decision of this court are whether the Preliminary Objection is sustainable in that regard, whether this suit is res judicata Malindi ELC No.10 of 2017- Karisa Charo Karisa v Anas Hassan Musa, Mackstone Karisa Garama, Rachel Dama Kadenge Masha, District Land Registrar- Kilifi and Attorney General, and who should bear costs. The decision on these issues will determine the future course of this case and the rights of the parties involved.

4. Parties in this matter cited several judicial authorities to guide the court in determining whether we have a proper Preliminary Objection, whether the doctrine of res judicata should apply, and whether the court should decline to proceed.

5. As submitted by the parties, the principles upon which this court is invited to determine the merit of a notice of Preliminary Objection were set out in the oft-cited case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. This case established the criteria for a Preliminary Objection, and the court will unwaveringly adhere to these principles in its ruling.

6. The Court of Appeal in Attorney General & Ministry of State for Immigration & Registrar of Persons v Andrew Maina Githinji & Zachary Mugo Kamunjiga [2016] KECA 817 (KLR) reiterated the same position on what would constitute a Preliminary Objection and held as follows:“The test to be applied in determining whether the appellants’ Preliminary Objection met the threshold or not is what Sir Charles Newbold set out above in the Mukisa Case (supra). That is first, that the Preliminary Objection raises a pure point of law, second, that there is demonstration that all the facts pleaded by the other side are correct; and third, that there is no fact that needs to be ascertained.”

7. The thrust of a Preliminary Objection in this matter rests squarely on the jurisdiction of this court, as held by Nyarangi J.A, in Owners of the motor vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR:“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity, and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

8. A Preliminary Objection rests on the proposition that when raised, its fundamental achievement will have a bearing on disposing of a matter because it raises pure points of law. It also underscores the need for prudent time management as a court resource by summarily flagging frail and hopeless cases that, if admitted to full trial, would be a waste of judicial time and not serve the interests of justice. One will not be required to look elsewhere to find an answer as to whether a Preliminary Objection is sustainable or not but look at the pleadings and discover that the suit is a none starter – see the works of Ogola J. in DJC v BKL (Civil suit E021 of 2021) [2022] KEHC 10189 (KLR) (27 June 2022) (Ruling):

9. Mr. Shujaa, on behalf of the 1st Defendant, contends that in support of the first ground of objection, the 1st Defendant has availed herself of the pleadings, Judgment, and Decree in the former suit in her replying affidavit, sworn on 27th February 2024. The same pleadings, Judgment, and Decree in the former suit are also attached to the 1st Defendant's list of documents dated 4th October 2024.

10. He asserts that a perusal of the pleadings in the former suit shows that the suit was between the 2nd Plaintiff in this suit, who instituted that suit in his capacity as the administrator of the estate of Charo Karisa Mweri and the estate of Dama Karisa Mweri against Anas Hassan Musa, Mackstone Karisa Garama, Rachel Kadenge Masha, the District Land Registrar-Kilifi and the Attorney General. A reading of paragraphs 5 to 16 in the plaint in the former suit vis-a-vis paragraphs 22 to 31 in the plaint in the present suit shows that the matters or issues raised in both suits are the alleged fraud, illegality, and or mistake through which the 1st Defendant is alleged to have obtained registration of the suit land in her name. The pleadings in question show that the issues raised in the present suit were directly and substantially in issue in the former suit. No new issue has been raised in the present suit, and even if one had been, there is no reason why it could not have been raised in the former suit. A party in the former suit is not allowed to litigate in peace meal. A party is not allowed to choose and sue upon one cause of action at a time, reserving the other cause of action for subsequent litigation in the hope of obtaining a favorable outcome in the ensuing litigation.

11. Mr. Kavita, on behalf of the 1st and 2nd Plaintiffs, avers that there is a marked difference between this suit and the former suit. The matter for determination, according to the 1st and 2nd Plaintiffs, is who is the actual and undefeated title holder for the land parcel sighted herein severally as Kilifi/Mtondia/709. Is it Charo Karisa Mweri and Dama Karisa Mweri or the 1st Defendant herein?

12. He believes that this matter was not brought for determination in the suit that the 1st Defendant mentioned in her written submissions. The specificity of the allegations of fraud and malicious intent on the part of the 1st Defendant is so well outlined in the 1st and 2nd Plaintiffs’ particulars of fraud, making them distinct from those in the former suit.

13. The doctrine of res judicata is prescribed in Section 7 of the Civil Procedure Act Chapter 21 of the laws of Kenya 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.”

14. Section 7 of the Act prevents this court from hearing a case if the issue has already been fully addressed and resolved in a prior case involving the same parties or their successors, litigating under the same title in a court with authority to decide such matters.

15. As correctly highlighted by Mr. Shujaa, the Court of Appeal, in the case of The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others [2017] eKLR, outlined the elements that must be satisfied where a party has raised the bar of res judicata as follows:a.The suit or issue was directly and substantially in issue in the former suit.b.The former suit was between the same parties or parties under whom they or any of them claim.c.The parties were litigating under the same title.d.The issue was heard and finally determined in the former suit.e.The Court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.

16. Mr. Shujaa rightly submitted that It is trite that res judicata not only applies to points upon which the court was required by the parties to determine but also to every point that properly belonged to the subject of litigation and which the parties, exercising diligence, might have brought forward at the time. In the case of Henderson v Henderson [1843]67 ER 313 quoted with approval in the case of Mburu Kinyua v Gachini Tutu [1978] KLR 69, it was held as follows:“Where a given matter becomes the subject of litigation in, and of 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 in special circumstances ) permit the same parties to open the same subject of litigation in respect of the matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertence, or even accident omitted part of their case. The plea of res judicata applies except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce judgment but to every point which properly belonged to the subject of litigation and which parties exercising reasonable diligence, might have brought forward at the time.”

17. In the former suit reported as Karisa v Musa & 3 others [2022] KEELC 14846 (KLR), this court (Odeny J.), in the judgment delivered on 15th November 2022, decided as follows:“The 3rd Defendant has produced proof that she is the registered owner of the suit land by exhibiting a title deed which is prima facie evidence that she is the absolute and indefeasible owner as provided for under Section 26(1) of the Land Registration Act as follows: -“The certificate of title issued by the registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge except: -a.On the ground of fraud or misrepresentation to which the person is proved to be a party orb.Where the certificate of title has been acquired illegally, unprocedurally, or through a corrupt scheme.13. The Defendant’s title can only be impeached if it is proven that she acquired it fraudulently, unprocedurally, or through misrepresentation, which in this case has not been proven14. Registration of a proprietor gives such a person the absolute ownership as provided for under section 24(a) of the Land Registration Act 2012. I therefore find that the 3rd Defendant has proved her counterclaim and is therefore allowed and issue the following specific orders: -a.The Plaintiff to give vacant possession of the 3rd Defendant’s parcel of land known as Title No Kilifi/ Mtondia/709 within 45 days failure to which eviction order to issueb.An order is hereby issued for demolition of any structure or houses constructed by the Plaintiff on the said parcel of land within 45 daysc.An order of permanent injunction is hereby issued against the Plaintiff, restraining the Plaintiff by himself, his servants, or agents from erecting any structures or houses on the said parcel of land known as Title No Kilifi/ Mtondia/ 709 and from selling or alienating the said parcel of land or from dealing with the said parcel of land in any manner.d.Costs of this suit and interest thereon at Court rates.”

18. The current suit seeks to relitigate matters that were already decided in the former suit, as highlighted by the final orders of this court. The fraud associated with the 1st Defendant was discussed and adjudicated in the former suit. I can see from the application for injunction dated 30th January 2024, in the interlocutory proceedings, that it significantly sought a temporary injunction directed at the respondent from alienation, sale of land Parcel Kilifi/Mtondia/709, as well as a temporary stay of the decree and orders issued by Odeny J (Dr) in ELC No. 10 of 2017 - Karisa Charo Karisa v Anas Hassan Musa & 3 others, the OCs Kilifi to enforce the orders. This court declined to grant the orders in a ruling dated 11th July 2024, citing, among other grounds, that it would amount to sitting as an appellate court on a matter already decided by a competent court of coordinate jurisdiction.

19. As submitted by Mr. Shujaa, the enforcement of the decree in the former suit necessitated the filing of this suit. This court cannot sit as an appellate court to review, reassess, or reconsider a decision of a competent court of equal jurisdiction, as invited to do in this matter. I down tools.

20. The upshot is that the Preliminary Objection dated 4th October 2024 is hereby allowed to the extent that the current suit is hereby struck out with costs for running afoul of the doctrine of res judicata.

DATED, SIGNED, AND DELIVERED VIRTUALLY AT MALINDI ON THIS 19TH DAY OF MARCH 2025. E. K. MAKORIJUDGEIn the Presence of:Mr. Kavita, for the PlaintiffsMr.Shujaa, for the 1st DefendantMs. Ekiru, for the 2nd and 3rd DefendantsHappy: Court Assistant