Muturi & another v Wandere (Environment and Land Appeal 20 of 2023) [2026] KEELC 5346 (KLR) (19 August 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELCA NO.20 OF 2023** **DAVID SYMON MUTURI.....................................................1ST APPELLANT** **PETER MWANGI RITHO.....................................................2ND APPELLANT** **-VERSUS-** **KEN ISAAC MURAGURI WANDERE..................................RESPONDENT** ***(Appeal against the ruling and orders of Hon. M. N. Munyendo, Principal Magistrate at Othaya, in P.M. ELC No. E004 of 2022, delivered on 18th October 2023)*** **JUDGMENT** 1. The Appellants herein filed this appeal against the ruling and orders of Hon. M. N. Munyendo, the Principal Magistrate at Othaya, in **P.M. ELC No. E004 of 2022**, delivered on 18th October 2023. 2. The Memorandum of Appeal dated 16 November 2023 sets out the following grounds of appeal: 3. **That the learned magistrate erred in law and in holding that the suit was res judicata by misapprehending the law on the grant of representation and in whose estate the matter was filed in favour of, thereby committing an error and occasioning a miscarriage of justice.** 4. **That the learned magistrate erred in law and fact by failing to note that the parties before the court were fundamentally different and that the claims before the court differed from those in the High Court. A mere semblance cannot be equated with similarity.** 5. **That the learned magistrate erred in law and fact by failing to note that the estate in which the suit had been brought was different from that in which the suit before the High Court was brought, thereby invalidating the grant of representation in the estate of Humphrey Wandere Mwangi as if it were in the estate of Mwangi Wandere.** 6. This appeal was consolidated with **ELC No. E007 of 2024** by this Court (Olola J.) on 17th December 2024. 7. The suit before the Trial Court was instituted by Plaint dated 15th November 2022, in which the Plaintiffs, who are the Appellants herein, averred that at all times relevant to the suit, they have been residents, occupiers and in physical possession of all that parcel of land known as LR. No. Chinga/Kagongo/957, formally registered in the name of the late Mwangi Wandarua. 8. That the said LR. No. Chinga/Kagongo/957 was a subdivision of LR. No. Chinga/Kagongo/249, which initially belonged to the father of the plaintiffs herein and to the deceased Humphrey Wandere Mwangi, and was divided into parcel numbers Chinga/Kagongo/957, 958 and 959. 9. That while the transferees of LR. Nos. Chinga/Kagongo/958 and 959 were able to register their transfers of their parcels in their favour, the deceased was unable to do so owing to ill health and died on 22.5.1998 before the registration was completed. 10. The Plaintiffs, in an effort to collect and preserve their father’s estate, visited the Lands Office in Nyeri, where they discovered that the subject parcel, LR No. Chinga/Kagongo/957, was registered in neither their father’s name nor their deceased brother's. The record indicates that on 2nd February 1995, the land was registered in the 1st Defendant’s name, and a title was issued to him. 11. It was the Plaintiffs’ case that the Defendant had never lived on, occupied or possessed the said land. They averred that the Defendant’s registration as proprietor was illegal, irregular and null, as the land was still in the name of Mwangi Wandarua, who was still alive. The Plaintiffs accused the Defendant of fraud, irregularity and misrepresentation, and sought the following orders: 12. **A declaration that the Defendant's registration as proprietor of Chinga/Kagongo/957 was illegal, irregular and unsupportable in law.** 13. **Cancellation of the said entries, with direction to the Land Registrar, Nyeri County, to rectify the title Chinga/Kagongo/957.** 14. **In the alternative, and without prejudice to the foregoing, a declaration that the plaintiffs have become entitled to the land by adverse possession and that the land has been registered in the names of the Plaintiffs.** 15. The defendants filed a statement of defence and counter-claim dated 3rd April 2023, denying the plaintiffs' averments and stating that the Plaintiffs were hostile to him, his younger sister and their brother. That the title to the suit property, LR No. Chinga/Kagongo/957, was handed over to him by the late Humphrey Wandere when he was still a minor. He further stated that he could not have participated in any illegality or irregularity while a minor, and denied all the particulars of fraud. 16. In his counter-claim, the Defendant stated that the Plaintiffs placed a caution over the title of the suit property and refused him access to his land, causing him harm and anguish, as he cannot have free access to or develop his parcel, as is lawfully guaranteed. The Defendant prayed for the following orders in his counter-claim: 17. **The Plaintiff’s suit is dismissed with costs to the defendant.** 18. **The Land Registrar Nyeri be ordered to remove the caution placed by the defendants in the counter-claim against LR. No. Chinga/Kagongo/957.** 19. **The Defendants in the counter-claim, their agents, employees, family, and servants be permanently restrained from denying the plaintiff in the counter-claim access to and/or interfering with Chinga/Kagongo/957.** 20. **Costs of the counter-claim.** 21. **Any other relief that the Honourable Court shall deem fit to grant.** 22. The Defendant filed a Notice of Preliminary Objection dated 25th May 2023, contending that the suit is res judicata and that it ought to be dismissed with costs to the Defendant. 23. When the matter came up for submissions on the preliminary objection on the 4th of October 2023, Counsel for the Defendant referred to Item No.10 on the Plaintiff’s list of documents and to the Plaint dated 8th April 2005, highlighting that the subject matter in that suit, LR No. Chinga/Kagongo/957, was the same, as were the particulars of fraud and the prayers sought. Counsel also highlighted that the matter was transferred from the High Court at Nairobi to the Nyeri ELC Court and became **ELC Case No. 14 of 2020**. The judgment in that suit was delivered, and the Plaintiff’s suit was dismissed. The Defendant argued that the suit was res judicata. 24. In response, Counsel for the Plaintiffs submitted that the Defendant did not participate in the previous proceedings. It was also highlighted that the 1st Plaintiff in the earlier suit had filed the suit in the capacity of legal representative of Mwangi Wandarua, which led to the suit being dismissed, noting that in the present suit, the same claim had been filed on behalf of Humphrey Wandere (Deceased). Thirdly, it was submitted that the parties are different. Counsel also submitted that the Court's decision was not based on the substantive merits of the case; finally, it was submitted that the claim of adverse possession was premature, as the required period had not yet passed. 25. The Trial Court delivered its ruling on 18 October 2023, finding that the previous suit had been heard and determined on the merits, and that the Plaintiffs are now barred from re-litigating the same matter, as the suit is now res judicata. It then dismissed the suit with costs. It is this decision that the Plaintiffs herein seek to appeal from. 26. The parties filed their respective submissions, which the Court has duly read and considered. **Analysis and Determination** 1. The issue for determination in this appeal is whether the suit in the trial court, **Othaya P.M ELC No. E004 of 2022**, offended the doctrine of res judicata, as found by the Trial Court. 2. The test for determining the application of the doctrine of res judicata in any given case is set out in Section 7 of the Civil Procedure Act CAP 21, which provides 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.*** ***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.”*** 1. In the matter of E.T. v. Attorney General & another [2012] KEHC 5506 (KLR), it was determined that: **“The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi s NBK & Others (2001) EA 177 the court held that “parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit”.** **In that case the court quoted Kuloba J, (as he then was) in the case of Njanju vs Wambugu and another Nairobi HCC No. 2340 of 1991 (unreported) where he stated: If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift in every occasion he comes to court, then I do not see the use of doctrine of res judicata…..”** 1. Utilizing the criteria outlined above, let us evaluate the preceding case concerning the lawsuit filed before the Trial Court in the current appeal. The former lawsuit was initiated at the High Court in Nairobi, **Civil Case No. 403 of 2005**. The Plaintiff was the same 1st Appellant as in the present case, Mr. David Symon Muturi. However, in the former case, he filed as the personal representative of Mwangi Wandarua (Deceased). In contrast, in the present case, the Plaintiffs litigate in their personal capacity and on behalf of the estate of Humphrey Wandere Mwangi (Deceased). 2. The 1st Defendant in the previous case was the same as the 1st Respondent herein, though he did not appear in the proceedings. The judgment in the previous case was rendered on June 30, 2022, whereby the Court determined that the Plaintiff failed to establish any entitlement to the subject land and did not identify any fraudulent activity in the registration of the land in the 1st Defendant's name. 3. Therefore, although the Appellants herein contended that the suit was not adjudicated on its substantive merits, it is evident that the Court indeed examined the suit on its substantive merits. 4. It is also evident that the parties are the same, except for the addition of the 2nd Appellant in the suit before the Trial Court herein. The subject matter in both files was the same property, LR No. Chinga/Kagongo/957, and both files alleged fraud. 5. The Appellants argue that they were not litigating under the same title. In the former suit, the 1st Appellant sued as the personal representative of his father, Mwangi Wandarua (Deceased). In contrast, in the present suit, the Appellants sued as the representatives of Humphrey Wandere Mwangi (Deceased), their brother. 6. However, it is my considered view that the Appellants were not litigating under different titles in this case, since in both cases the aim was to litigate under the estate of the owner of the subject land, LR No. Chinga/Kagongo/957. Therefore, the title is the same. 7. Further, I am of the view that the addition of the claim of adverse possession does not sanitise the suit from being res judicata. I agree with the Trial Magistrate that the 1st Appellant had the opportunity of adding the claim of adverse possession in the former suit, since by the time the judgment was delivered in 2022, any adverse possession rights would have crystallised by then. 8. In the case of **Uhuru Highway Development Ltd v Central Bank of Kenya & another (Civil Appeal 36 of 1996) [1996] KECA 102 (KLR) (12 November 1996) (Judgment)**, the Court of Appeal held that: ***“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, 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 parties to form an opinion and pronounce a judgement, 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. Therefore, in my considered opinion, the inescapable conclusion is that the Learned Trial Magistrate did not err in her decision that the suit before the court was res judicata, for the reasons set out above. 2. The appeal is without merit and is hereby dismissed with costs. **Dated, signed, and delivered virtually at Nyeri on this 19th day of August 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Mr. Karweru for the Appellants** **Mr. Munene for the Respondent** **Denis - Court Assistant**