https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3985

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA** **ELCLC NO. E001 OF 2025** **WANJA WANJOHI MWANGI ……………………………….. 1ST PLAINTIFF** (Suing as the legal representative of the estate of Wanjohi Mwangi, deceased, and on her own behalf) **DANIEL KARIUKI WANJOHI ……………………………….. 2ND PLAINTIFF** **EZEKIEL NGARI WANJOHI ………………..……………….. 3RD PLAINTIFF** **VERSUS** **JANE NJERI NGARI ………………………………………… 1ST DEFENDANT** **HANNAH WAMWIRA NGARI ………………………... 2ND DEFENDANT** **ANDREW MURIMI MURIUKI …………………………… 3RD DEFENDANT** **JOHN MURAGE NJUE …………………………………… 4TH DEFENDANT** **RULING** ***[Notice of Preliminary Objection dated 10th April 2025]*** 1. The defendants filed the Notice of Preliminary Objection dated 10th April 2025 raising the grounds that this suit is res judicata pursuant to **Section 7 of the Civil Procedure Act**, the issues herein having allegedly been heard and determined in **Kerugoya High Court Civil Appeal No. 46 of 2018** that was between the same parties and over the same subject matter; that the suit is fatally defective, misconceived, incompetent, and an abuse of the court process and ought therefore to be struck out with costs. 2. The preliminary objection was canvassed through written submissions. The learned counsel for the defendants and plaintiffs filed their submissions dated the 3rd September 2025 and 2nd September 2025 respectively that the court has considered. 3. In support of the preliminary objection, the counsel for the defendants submitted inter alia that the principle of res judicata bars a court from trying a matter that has already been directly and substantially determined in a former suit between the same parties by a court of competent jurisdiction. Counsel argued that the doctrine serves the purpose of preventing endless litigation and promoting finality in judicial proceedings. Counsel drew the Court’s attention to paragraph 20 of the plaint, where the Plaintiffs expressly pleaded that they had filed the present suit because the issue of customary trust had neither been pleaded nor determined in **Baricho Succession Cause No. 418 of 2016**. It was submitted that, notwithstanding that averment, the issue of customary trust was, in fact, raised before the **High Court in Civil Appeal No. 46 of 2018** and was determined by the appellate court. 1. Counsel submitted that after the Plaintiffs failed to establish dependency in the succession proceedings, they introduced the issue of customary trust before the appellate court, and that the learned Judge addressed the same. It was therefore argued that the issue of customary trust had already been placed before a court of competent jurisdiction and conclusively determined. Counsel further submitted that the Plaintiffs ought not to be afforded another forum to litigate the same issue and that litigation must come to an end. The Court was urged to find that the suit is barred by the doctrine of res judicata and to strike it out with costs so as to prevent multiplicity of suits and forum shopping. 1. In opposition to the preliminary objection, the counsel for the plaintiffs framed one issue for determination of whether the Preliminary Objection had merit, and submitted inter alia that **Section 7 of the Civil Procedure Act** bars a court from trying a suit, or issue that has previously been directly and substantially in issue in a former suit between the same parties, and which has been heard and finally determined by a court of competent jurisdiction. It was submitted that the matters in issue in the present suit are different from those that were before the court in **Baricho Succession Cause No. 418 of 2016**. Counsel argued that the central issue in the present proceedings is whether Ngari Mwangi Mocha held **LR Mwerua/Kagioni/359** in trust for Wanjohi Mwangi, and that issue was neither pleaded nor determined in the succession proceedings, as expressly noted in the judgment in **Kerugoya High Court Civil Appeal No. 46 of 2018***.* 1. Counsel therefore submitted that the issue raised in the present suit has never been heard and finally determined by a court of competent jurisdiction, and consequently, the suit does not offend **Section 7 of the Civil Procedure Act**. Counsel further submitted that the dispute before this Court concerns the determination of a customary trust, an issue which the probate court in the succession proceedings lacked jurisdiction to conclusively determine. Reliance was placed on ***In re Estate of Mbai Wainaina (Deceased)* [2015] KEHC 6978**, where the Court held that probate proceedings are not the appropriate forum for the determination of ownership disputes and declarations of trust over land and that such matters ought to be ventilated through a substantive suit before the Environment and Land Court. Counsel consequently urged the Court to find that the Preliminary Objection lacks merit and to dismiss it with costs. 1. The issues arising from the preliminary objection for the court’s determinations are as follows: 1. *Whether the present suit is barred by the doctrine of res judicata under* ***Section 7 of the Civil Procedure Act****.* 2. *Who pays the costs.* 2. The court has carefully the grounds on the preliminary objection, submissions by the learned counsel, superior court decisions cited, the pleadings and come to the following determinations: 1. The Plaintiffs commenced the present suit by way of a plaint dated 10th January 2024 seeking for inter alia, a declaration that a customary trust exists in favour of the estates of Wanjohi Mwangi (deceased) and Ngari Mwangi Mocha (deceased) over **Land Parcel LR Mwerua/Kagioni/359**. They also seek a declaration that Ngari Mwangi Mocha held the suit property in trust for himself and Wanjohi Mwangi, cancellation of entries numbers 8, 9, and 10 in the green card relating to the suit property, and transfer of one-half share of the land to the administrators of the estate of Wanjohi Mwangi. Their case as pleaded, is that the suit land was first registered on 15th September 1972 in the name of Ngari Mwangi Mocha, now deceased, who was a brother to Wanjohi Mwangi, also deceased. The 1st Plaintiff is pleaded to be the widow of Wanjohi Mwangi, while the 2nd and 3rd Plaintiffs are his children. The Plaintiffs aver that the suit property was clan land given to Ngari Mwangi Mocha to hold in trust for himself and his brother Wanjohi Mwangi. They further aver that following the death of Wanjohi Mwangi, Ngari Mwangi Mocha settled the 1st Plaintiff and her children on the suit property, where they have continued to reside and develop the land without objection. * 1. The Plaintiffs further pleaded that following the death of Ngari Mwangi Mocha on 15th January 1995, the 1st and 2nd Defendants instituted **Baricho Succession Cause No. 418 of 2016** and obtained grants of letters of administration intestate on 20th February 2017. Upon learning of the succession proceedings, the Plaintiffs entered a caveat and later filed an affidavit of protest against confirmation of the grant after the 1st and 2nd Defendants proposed distribution of **LR Mwerua/Kagioni/359** and **LR Kiine/Nguguini/1046** without including the Plaintiffs. The Plaintiffs pleaded that the protest was dismissed on 5th July 2018, and the court adopted the mode of distribution proposed by the petitioners. Thereafter, the 1st and 2nd Defendants were registered as proprietors of **LR Mwerua/Kagioni/359** on 10th July 2018 and subsequently transferred the same to the 3rd and 4th Defendants on 20th July 2018. * 1. Aggrieved by the decision in the succession cause, the Plaintiffs filed **Kerugoya High Court Civil Appeal No. 46 of 2018.** One of the grounds of appeal was that the trial court failed to find that Ngari Mwangi Mocha held half of **LR Mwerua/Kagioni/359** in trust for his younger brother Wanjohi Mwangi and that the same therefore did not form part of the estate of the deceased. In a judgment delivered on 18th October 2023, *Hon. Justice R. Mwongo* dismissed the appeal. On the issue of dependency, the learned Judge held that the appellants had failed to prove dependency upon the deceased. On the issue of customary trust, the learned Judge observed that the issue had neither been pleaded nor deliberated upon before the trial court and therefore could not properly arise on appeal. The learned Judge consequently held that the issue of customary trust was an afterthought and could not feature as a subject of the appeal. * 1. It is against that background that the Plaintiffs instituted the present suit, contending that the issue of customary trust has never been substantively heard and determined by a court of competent jurisdiction. 2. The doctrine of *res judicata* is codified under **Section 7 of the Civil Procedure Act, Chapter 21 of Laws of Kenya**, 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.*** ***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.“*** The rationale behind the *res judicata* doctrine is the public interest in the finality of litigation. A party ought not to be vexed twice over the same dispute and courts must guard against multiplicity of proceedings over matters already conclusively determined. The doctrine further extends not only to matters that were actually determined, but also to matters which properly belonged to the subject of litigation, and which parties exercising reasonable diligence, ought to have brought forward. * 1. In the case of ***John Florence Maritime Services Limited & another versus Cabinet Secretary Transport & Infrastructure & 3 Others* (Petition 17 of 2015) (2021) KESC 39 (KLR) (CIV)** the Supreme Court delved into an in-depth discussion of the concept of *res judicata* thus; ***“…The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows:… 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, 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 a Judgment, 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” [emphasis supplied].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 versud James Nderitu Githae & 2 Others, (2010) eKLR, under five distinct heads:*** 1. ***The matter in issue is identical in both suits;*** 2. ***The parties in the suit are the same;*** 3. ***Sameness of the title/claim.*** 4. ***Concurrence of jurisdiction; and*** 5. ***Finality of the previous decision.”*** 1. In the present case, there is no dispute that the parties herein participated in **Baricho Succession Cause No. 418 of 2016** concerning the estate of Ngari Mwangi Mocha. It is also not disputed that the suit property, **LR Mwerua/Kagioni/359,** formed part of the estate in those proceedings and that the Plaintiffs herein lodged a protest against confirmation of the grant, claiming an interest in the property. The protest was dismissed, and that decision was subsequently upheld by the **High Court in Kerugoya High Court Civil Appeal No. 46 of 2018.** 2. There is equally no dispute that in the appeal proceedings, the Plaintiffs attempted to raise the issue that Ngari Mwangi Mocha held the suit property in trust for Wanjohi Mwangi. Indeed, one of the grounds of appeal faulted the trial court for failing to find that the deceased held half of **LR Mwerua/Kagioni/359** in trust for his younger brother, Wanjohi Mwangi. Ordinarily, such circumstances would invite serious consideration of the plea of *res judicata*, particularly because the dispute concerns the same parcel of land and substantially the same parties. However, the inquiry does not end there. The Court must further determine whether the issue now before it was heard and finally determined by a court exercising competent jurisdiction over the subject matter in question. 3. The Plaintiffs’ present claim is not merely one of dependency in succession proceedings. The substantive reliefs sought are declarations that a customary trust existed over **LR Mwerua/Kagioni/359**, cancellation of entries in the land register, and transfer of a defined proprietary interest in the suit property. Those are questions relating to ownership and interests in land. 4. The succession court in **Baricho Succession Cause No. 418 of 2016** was exercising probate jurisdiction under the Law of **Succession Act chapter 160 of Laws of Kenya**. Its mandate was principally confined to the administration and distribution of the estate of the deceased and the determination of persons beneficially entitled thereto. While such a court could determine issues incidental to succession, it was not sitting as the Environment and Land Court to conclusively adjudicate competing proprietary interests founded on customary trust. 5. This position finds support in **Rule 41(3) of the Probate and Administration Rules,** which contemplates that where questions arise concerning identity, share, or estate of a person claiming beneficial interest which cannot conveniently be determined within succession proceedings, such issues may be set aside for determination in separate proceedings. It is also consistent with the decision relied on by the Plaintiffs, in ***In re Estate of Mbai Wainaina (Deceased)* [2015] KEHC 6978,** where the Court observed that disputes concerning ownership of property and declarations of trust are more appropriately resolved through substantive proceedings before the Environment and Land Court. 6. Significantly, the judgment of *Hon. Justice R. Mwongo* in ***High Court Civil Appeal No. 46 of 2018*** cannot be said to have determined the issue of customary trust on its merits, as it expressly stated that: *“Accordingly, since the issue was never pleaded or deliberated upon as an issue in the trial court, it cannot now feature as a subject for appeal in the High Court.”* The appellate court therefore declined to entertain the issue of customary trust because it had neither been pleaded nor determined before the subordinate court. In effect, the appellate court did not undertake a substantive adjudication on whether or not a customary trust existed over the suit property. * 1. The Defendants’ argument that the Plaintiffs ought to be barred because they attempted to raise the issue in prior proceedings is appreciated. Indeed, *res judicata* may in appropriate cases apply to matters that could and ought to have been raised earlier. However, that principle cannot be applied in isolation from the requirement that the issue must have been heard and finally determined by a court of competent jurisdiction. 2. In the present case, even assuming the Plaintiffs ought to have properly pursued their claim by way of a substantive suit in the Environment and Land Court at an earlier stage, the determinative factor is that no court exercising competent jurisdiction over declarations of trust and ownership of land has substantively adjudicated upon the issue of customary trust as framed in the present suit. 3. Accordingly, while the Court is mindful of the policy underpinning *res judicata* and discourages piecemeal litigation, it finds that the essential ingredient of a prior final determination of the issue by a competent court has not been satisfied. In the premises, the Court finds that the Defendants have not established the plea of ***res judicata* under *Section 7* of the Civil Procedure Act**, and the Notice of Preliminary Objection dated 10th April 2025 is therefore without merit. 4. Under ***Section 27* of the Civil Procedure Act Chapter 21 of Laws** of Kenya, costs follow the event unless otherwise directed by the court on good grounds. As the defendants have failed in their preliminary objection, they will bear the plaintiffs’ costs. 1. In view of the foregoing conclusions on the defendants’ preliminary objection, the court finds and orders as follows: 1. *That defendants’ preliminary objection dated 10th April 2025 is without merit and is rejected.* 2. *The defendants to bear the plaintiffs’ costs.* It is so ordered. **DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 1ST DAY OF JULY 2026** **S. M. Kibunja** **ELC JUDGE** **In the presence of:** Plaintiffs – Mr. Magee Defendants – 2nd & 4th Defendants Kinyua/Charles - Court Assistants **S. M. Kibunja** **ELC JUDGE**