[2025] KEHC 4594 (KLR)

Mwaura & another v Muhia (Civil Appeal E163 of 2024) [2025] KEHC 4594 (KLR) (3 April 2025) (Ruling)

Neutral citation: [2025] KEHC 4594 (KLR)

Republic of Kenya

In the High Court at Thika

Civil Appeal E163 of 2024

FN Muchemi, J

April 3, 2025

Between

Stephen Chege Mwaura

1st Appellant

Cecilia Wanjiru Mwaura

2nd Appellant

and

David Kinyanjui Muhia

Respondent

Ruling

Brief facts 1. Coming up for determination is the respondent’s Notice of Preliminary Objection dated 11th November 2024 based on grounds that the appeal is res judicata, incompetent, superfluous, fatally defective, misconceived, lacks merit and tantamount to abuse of the court process. The respondent argues that there is a prevailing judgment issued by a competent court in the High Court of Nairobi Civil Appeal No. 220 of 1982 and Court of Appeal Nairobi Civil Application No. Nai 26 of 1995 on the ownership of the suit property LR No. Kiganjo/Gatei/269. The respondent states that the said judgment and ruling are still in force and have never being overturned by a higher court. Thus the issue of ownership of LR No. Kiganjo/Gatei/269 is res judicata.

2. Parties disposed of the preliminary objection by way of written submissions.

The Respondent’s Submissions. 3. The respondent relies on Section 7 of the Civil Procedure Act and submits that the ownership of LR No. Kiganjo/Gatei/269 has been conclusively determined in previous proceedings namely High Court of Nairobi Civil Appeal 220 of 1982 which adjudicated on the ownership of the suit property and determined that he (the respondent) is the rightful owner and Court of Appeal of Nairobi in Civil Application No. Nai 26 of 1995 which affirmed the High Court’s decision and reinforced that the ownership of the suit property was settled.

4. The respondent refers to the case of Kisabuli & Another (Suing as administrator of the Estate of Halima Wamukoya Kisabuli) vs M Oriental Bank Limited [2024] KEHC 5407 (KLR) and submits that the appellants are attempting to revive already concluded issues. Furthermore, the subject matter of the suit is similar to the mentioned cases which were never overturned. The appellants have not rebutted any of those aversions. Thus, the respondent argues hat the appellants’ attempt to relitigate the matter amounts to an abuse of the court process. To support his contentions, the respondent relies on the cases of Independent Electoral and boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR and John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR and submits that the present appeal and application are an attempt to reopen the matter that was conclusively determined.

5. The respondent refers to the case of Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd [1989] KLR 1 and submits that the present court has no jurisdiction to entertain the appeal as the ownership of the suit property has been conclusively determined by the High Court in Civil Appeal 220 of 1982 and affirmed in the Court of Appeal in Civil Application No. Nai 26 of 1995. The respondent further submits that the appellants are yet to demonstrate their interest in the suit property as they claim that the original owner of the suit property who sold it to him was their deceased father one Mwaura Chege, yet they have not provided any information that they are administrators in the estate of the deceased or their relationship with him. They are squatters on the suit property and have prevented him from enjoying quiet possession of his property and the fruits of the judgment.

6. The Appellants’ Submissions.

The Law Whether the preliminary objection is sustainable. 7. The case of Mukisa Biscuits Manufacturing Ltd vs West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a preliminary objection. The court observed thus:-…..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.

8. Sir Charles Newbold P. stated:-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 has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop.

9. Similarly the Supreme Court in the case of Hassan Ali Joho & Another vs Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013 [2014] eKLR 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.

10. Further in the case of Hassan Nyanje Charo vs Khatib Mwashetani & 3 Others, [2014] eKLR the court held that:-Thus a preliminary objection may only be raised on a ‘pure question of law.’ To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.

11. It is trite that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law.

12. The respondent argues that the instant appeal is res judicata as the ownership of LR. No. Kiganjo/Gatei/269, the subject of the instant appeal, has already determined by both the High Court in HCCA Nairobi No. Civil Appeal 220 of 1982 and afirmed by the Court of Appeal in Nairobi Civil Application No. Nai 26 of 1995.

13. The doctrine of res judicata is anchored in Section 7 of the Civil Procedure Act. It provides:-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 issue has been subsequently raised, and has been heard and finally decided by such court.

14. The Court of Appeal in The Independent Electoral and Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR held:-For the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;a.The suit or issue was directly and substantially in issue in the former suit.b.That the former suit was between the same parties or parties under whom they or any of them claim.c.Those 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.

15. From the foregoing, it is clear that for res judicata to suffice, a court should look at all the four corners set out above namely; the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suits; the former suit must have been between the same parties or parties under whom they claim; the parties must have litigated under the same title; the court which decided the former suit must have been competent and the former suit must have been heard and finally decided by the court in the former suit.

16. The appellants instituted this appeal on 11th July 2024 where they sought to appeal from the decision of Honourable D. N. Musyoka in Gatundu MCC E036 of 2022 delivered on 12th June 2024. The respondent instituted the suit in the trial court seeking for a declaration that he is the sole owner of the suit land LR. No. Kiganjo/Gatei/269 absolutely. The trial court in rendering its judgment found that the respondent was the rightful owner of the suit property and further stated there had been many cases since 1981 regarding the suit property, Kiganjo/Gatei/269 which cases had gone up to the High Court and the court confirmed that the plaintiff is the sole registered owner of the suit property.

17. I have further perused the record and noted the respondent has annexed a copy of the judgment and ruling of High Court Nairobi Civil Appeal 220 of 1982 and Court of Appeal Nairobi Civil Application No. Nai 26 of 1995. The High Court in Nairobi on 8/8/1984 held that Gitau Kamwema, son of the deceased, admitted having sold the deceased land Kiganjo/Gatei/269 to one David Kinyanjui Muhia and asked the court to order that the said land be registered in the name of David Kinyanjui Muhia. The court ordered that Kinyanjui do succeed to the deceased land as there were no contestants over it. The said order was made on 21/7/1981 and no appeal was lodged. The court went ahead to summarily reject the appeal as the applicant in that case opted to lodge a second application for review of the order of 29th October 1982 and the suspicious circumstances surrounding the appeal. An appeal was lodged in the Court of Appeal by Mwaura Chege against the orders made on 8/8/1984 but the applicant, the respondent herein, put in an application to strike out the appeal. The court struck out the appeal as the respondent had not taken any steps all those years to file an appeal and he had not obtained a certificate of delay from the High Court to entitle him to an automatic extension of time. Thus, as it stands, the High Court in Nairobi already determined the ownership of the suit property Kiganjo/Gatei/269 and the appeal that was lodged against the decision was struck out by the Court of Appeal. In the circumstances, this court has no jurisdiction to determine this appeal that has been determined by another High Court judge and judgment confirmed by the court of Appeal being courts of competent jurisdiction determined the matter. This appeal is therefore res judicata and is hereby struck out with costs to the appellant.

18. Accordingly, the notice of preliminary objection dated 11th November 2024 has merit and is hereby upheld. This appeal is hereby struck out with costs to he respondent.

19. It is hereby so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 3RD DAY OF APRIL 2025. F. MUCHEMIJUDGE