[2025] KEELC 2950 (KLR)

Murang’a Road Motor Mart Limited v King’ori & 5 others (Environment & Land Case E038 of 2022) [2025] KEELC 2950 (KLR) (26 March 2025) (Ruling)

Neutral citation: [2025] KEELC 2950 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E038 of 2022

CA Ochieng, J

March 26, 2025

Between

Murang’a Road Motor Mart Limited

Plaintiff

and

Jane Wairimu King’ori

1st Defendant

Tabitha Waruguru Maina

2nd Defendant

Nancy Waturi Njonjo

3rd Defendant

Director of Survey Ministry of Lands

4th Defendant

Nairobi City County Government

5th Defendant

OCPD Buruburu Police Station

6th Defendant

Ruling

1. What is before Court for determination is the 5th Defendant’s Notice of Motion application and Notice of Preliminary Objection both dated the 27th February 2024. In the Notice of Preliminary Objection, it contends that the Court lacks jurisdiction to hear and determine this suit for reasons that it is res judicata Nairobi ELC No. 1382 of 2o16 as consolidated with Nairobi ELC 174 of 2017 and Nairobi ELC 2067 of 2011 and that the suit also offends the sub judice rule.

2. In the Notice of Motion application, the 5th Defendant seeks the following orders:a.Spent.b.Spent.c.Spent.d.This Honourable court be pleased to mark and/or declare this suit res judicata and the issues directly and substantially at issue in this suit as ventilated, litigated, heard, determined and settled by Hon. Oguttu Mboya-Judge of this Hon. Court in his judgment delivered on 22nd May 2023 in Nairobi ELC 1382 of 2016 (As consolidated with Nairobi ELC 174 of 2017 and Nairobi ELC 2067 of 2011. e.That this Honourable Court be pleased to mark and /or declare the issues directly and substantially at issue in this suit as Res-sub-judice to the appeal lodged by the plaintiff herein in the Court of Appeal at Nairobi and that the issues directly and substantially at issue in this suit shall be ventilated, litigated, heard, determined and settled by the court of appeal.f.This Honourable court be pleased to dismiss and strike out this suit for lack of jurisdiction and for contravening the res-judicata and res-subjudice doctrines.g.That this Honourable Court be pleased to grant/issue any other orders/directions as may be just and expedient with a view to dispensing justice.h.Costs to be provided.

3. The application is premised on the grounds on the face of it and the supporting affidavit of W S Ogola, 5th Defendant’s acting County Solicitor. He contends that on 22nd May 2023, Hon. Justice Oguttu Mboya delivered a judgment in Nairobi ELC Case No. 1382 of 2016 as consolidated with NRB ELC 174 of 2017 and Nairobi ELC 2067 of 2011 between the Plaintiff herein and some other parties. Further, that the claim in the consolidated suit was that the Plaintiff herein, Rockville Junior Academy Limited and Trustees of the Kenya Industrial Research & Development Staff Retirement & Group Assurance (KIRDI) were claiming leasehold ownership from the 5th Defendant herein in respect to LR 107/1133 and /or LR No.107/1/1133 situated in Umoja Innercore, which is one and the same as the suit property herein being LR No. 107/1133.

4. He points out that some of the parties in the consolidated suit are also parties in the instant suit and that issues directly and substantially in issue, being ownership of the suit property, have been directly and substantially in issue in the consolidated suit, which was settled. Further, that proceedings in this suit will contravene the provisions of Sections 6, 7 & 8 of the Civil Procedure Act. He argues that the judgment in the consolidated suit determined the issues in contention herein being ownership by the Plaintiff of the suit property LR 107/1133 as in its judgment, the Court confirmed that the suit property in the matter was LR No. 107/1133 instead of LR No. 107/1/1133 and declared it, to belong to the Kenya Industrial Research & Development Staff Retirement & Group Life Assurance. Further, it ordered that the Certificate of Lease for LR No. 107/1133 issued to the Plaintiff, be cancelled.

5. He reiterates that the Plaintiff herein who is also the Plaintiff in the consolidated suit has preferred an Appeal to the impugned judgment and since the issues herein are the ones directly and substantially in issue in the said appeal, this matter offends the sub -judice rule.

6. The application is opposed by the Plaintiff vide the replying affidavit of its director, Francis Ng’ang’a Mundiwhere he deposes that parties in Nairobi ELC No. 1382 of 2016 and in the instant suit are different except the Plaintiff and the 5th Defendant. Further, that the two suits are significantly different especially on the orders sought. He insists that the judgment in the said suit was stayed by the Court of Appeal in Civil Application No. E360 of 2023 with interim orders baring execution of the judgement delivered by Hon. Justice Oguttu Mboya.

7. He contends that the instant suit is properly before this court for determination and the key ingredient’s necessary to invoke the doctrines of res –judicata and res-sub judice have not been met, most importantly the fact that the Defendants herein claim to own Land Reference Numbers Nairobi Block 166/492, 489 and 490, which properties did not feature anywhere in the judgement /pleadings filed in ELC No. 1382 of 2016.

8. The application was canvassed vide written submissions.

Submissions 9. The 5th Defendant in his submissions reiterates his averments in theplaint and argues that this suit is sub judice. He insists that a plain reading of Section 6 of the Civil Procedure Act bars a court from hearing and determining a suit where the matter in issue is also directly and substantially in issue in a previously instituted suit, where such suit is pending before the same court /any other court having jurisdiction to grant the relief sought. To this end, it relies on the case of Khalif v Principal Secretary Ministry of Lands & Physical Planning & 4 Others; National Land Commission & Another (Interested Parties) [2018] eKLR.

10. It also submits that the ultimate determination of the Court of Appeal concerning the Plaintiff’s ownership of LR 107/1133 would in essence operate as res-judicata on the issue of ownership since if it upholds Hon. Justice Oguttu Mboya’s decision, the suit herein would basically have no legs to stand on, as the Plaintiff would have no capacity to claim reliefs sought in the first place. To support its arguments, it relied on the following decisions: Kenya Bankers Association v Credit Society Limited v Kinatwa Prestige Ltd [2021] eKLR and David Ndii & other v Attorney General & Others [2021] eKLR.

11. It contends that so long as the judgement delivered by Hon. Justice Oguttu Mboya stands, the issue of the Plaintiff’s ownership of the property known as Nairobi/Block LR 107/1133 has been heard and determined with finality against it. Further, the Plaintiff has no standing to institute this or any other proceedings claiming any rights or interest over the said property. To support this argument, it relied on the case of Ndii & Others v Attorney General & Others (Petition E282, 397, E400, E401, E416 & E426 OF 2020 & 2 OF 2021 (Consolidated) [2021] KEHC 9746 9KLR).

12. It reiterates that the contestation as to the actual location of the 1st to 3rd Defendants’ properties known was Nairobi/Block 166/492,498 and 490 respectively, which properties are allegedly resultant subdivisions of LR No. 11379 /3 (Embakasi) vis a vis the location of the suit property herein, Nairobi/Block 107 /1133 is an issue in this suit that was not in the consolidated suit.

13. In its submissions, the Plaintiff insists that for res judicata to apply, the matter must have been raised and either expressly or implicitly acknowledged or contested in the prior suit. That in essence, the doctrine of res juridicata requires that the matter be identical to what was previously contested between the same parties and that it was resolved on its merits by a court with proper authority, which is not the case herein, as the prayers in the instant suit and in the consolidated suit are different.

14. On whether the suit is sub judice, it contends that the two matters concern entirely different properties thus there is no overlap in the subject matter, as parties in the dispute are significantly different. It points out that the 5th Defendant’s role in both matters is different, its interests are not in jeopardy and are not the subject of the court’s determination in both proceedings to justify the plea of sub judice. It relied on the decisions of Daniel Kipkemoi Bett v Joseph Rono [2022] eKLR and Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR to support this argument

Analysis and Determination 15. Upon consideration of the instant Notice of Motion application and Notice of Preliminary Objection, respective affidavits and rivalling submissions, the issues for determination is whether this suit is res judicata Nairobi ELC No. 1382 of 2016 as consolidated with Nairobi ELC 174 of 2017 and Nairobi ELC 2067 OF 2011 and sub judice Civil Application No. E360 of 2023.

16. On raising of a preliminary objection, the court in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 held that:“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 a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure 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.”

17. The doctrine of res judicata is anchored at section 7 of the Civil Procedure Act 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.”

18. The Civil Procedure Act provides explanations with respect to the application of the res judicata rule. Explanations 1-6 states thus:“Explanation. — (1) The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.Explanation. — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.Explanation. — (4) 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.Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.Explanation. — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.’’

19. In Stephen Wanganga Njoroge Vs Stanley Ngugi Njoroge & Another (2017) eKLR the Court referred to the case of Uhuru Highway Development Ltd V Central Bank & Others, CA No. 36 of 1996 where the Court of Appeal stated thus:“in order to rely on the defence of res judicata, there must be a previous suit in which the matter was in issue; the parties must have been the same or litigating under the same title; a competent court must have heard the matter in issue and the issue is raised once again in the fresh suit.’

20. While, in the Supreme Court of Kenya case of John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), it was held that:“Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 Others, (2010) eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.” Emphasis Mine

21. In the current scenario, the Plaintiff instituted this suit seeking various orders. In its Plaint, the fulcrum of the dispute revolved around ownership of land reference number Nairobi/ Block 107/1133 (Umoja). Further, the parties in this suit are: Muranga Road Motor Mart Limited; Jane Wairimu Kingori; Tabitha Waruguru Maina; Nancy Waturi Njonjo; Director of Survey; Ministry of Lands, Kenya; Nairobi County Government and OCPD Buruburu Police Station. Except for introducing new parties, I note the Chief Land Registrar, Director of Survey and Nairobi City Council were also parties in the consolidated suit.

22. The Plaintiff admits that both the 5th Defendant and itself were parties to the aforementioned consolidated suit. Further, it did not deny that the suit property herein and the one in the consolidated suit is the same. It however argues that there are parties herein who were not in the consolidated suit claiming other parcels of land. The 5th Defendant insists that the location of the parcels being claimed by other parties in this suit, is the exact location of the suit property herein.

23. On perusal of the pleadings herein and the ones in the consolidated suit, I note in the judgement delivered by Justice Oguttu Mboya, the issue of the Plaintiff’s ownership of the property known as Nairobi/Block LR 107/1133 had been determined. Further, that Judgement is still valid as it is yet to be overturned by the Court of Appeal. From the impugned Judgement, the Court confirmed that the suit land is LR No. 107/1133 and not LR No. 107/1/1133. Further, that, it belonged to the Kenya Industrial Research & Development Staff Retirement & Group Life Assurance and directed that the Certificate of Lease in favour of the Plaintiff, be cancelled. The Plaintiff insists that the Court of Appeal granted an Order of Stay of execution but I opine that the said orders does not invalidate a judgment.

24. Based on the facts before Court, while relying on the decisions cited as well as the legal provisions quoted, and applying them to the circumstances at hand, I find that the fulcrum of the dispute herein is similar to the one in Nairobi ELC Case No.1382 of 2016 as consolidated with NRB ELC 174 of 2017 and Nairobi ELC 2067 of 2011. The Plaintiff herein was the Plaintiff in the consolidated suit and has not disputed that no one was litigating on its behalf.

25. However, I note from the Plaint herein, it seeks to restore the status quo ante, by bringing in new parties being 1st to 3rd Defendants who own LR Nos. Nairobi Block 166/492, 489 and 490, resultant subdivisions of LR No. 11379/3 (Embakasi), but I opine that since it was a party to the previous consolidated suit, it cannot bring in a fresh suit wherein it once more seeks proprietary rights and introduce new parties who acquired resultant subdivisions of a parcel of land, situated where the suit property is.

26. To my mind, these issues should have all been ventilated upon in the consolidated suit. In my view, the Plaintiff cannot turn around to re litigate on its title which was cancelled, yet there is a judgement and a pending appeal in respect to the said dispute. I find that a competent court indeed heard and determined the matter in issue herein.

27. It is my trite that Litigation must come to an end and the Plaintiff should not be allowed to bring forth another suit on the same title, whose validity had been dealt with. Further, that since there is a judgement which is yet to be overturned, the Plaintiff has no standing to institute this or any other proceedings claiming any rights or interest over the suit property.

28. In the circumstances, I find that the instant suit is indeed res judicata and opine that no amount of cosmetic facelift can give it a different face.

29. On the issue whether this suit is sub judice, I wish to rely on the legal provisions governing the same as contained in Section 6 of the Civil Procedure Act, which provides as follows:“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”

30. The Supreme Court in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR stated that:“The term sub judice is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub judice rule is to stop the filing of multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of sub judice must therefore establish that; there is more than one suit over the same subject matter, that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.”

31. I note the Plaintiff has not denied that there is a pending appeal whose fulcrum revolves around determination of the ownership of the suit property herein. In applying the legal provisions, I have cited above to the circumstances at hand, I find that since there is still a pending Appeal that relates to the subject matter herein, this suit is hence sub judice.

32. In the circumstances, I find the 5th Defendant’s Notice of Motion application and Notice of Preliminary Objection both dated the 27th February 2024 merited and will allow them.

33. I proceed to strike out this suit with costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26th DAY OF MARCH 2025CHRISTINE OCHIENGJUDGEIn the presence of:Gitahi Njuguna for Plaintiff/RespondentIrene Odhiambo holding brief for Bake for 5th DefendantWere for 1st – 3rd DefendantsAllan Kamau for 4th and 6th DefendantsCourt Assistant: Joan