[2025] KEELC 4584 (KLR)

Njuki v Njiku & 3 others (Environment & Land Case 5 of 2020) [2025] KEELC 4584 (KLR) (19 June 2025) (Ruling)

Neutral citation: [2025] KEELC 4584 (KLR)

Republic of Kenya

In the Environment and Land Court at Kerugoya

Environment & Land Case 5 of 2020

JM Mutungi, J

June 19, 2025

Between

Taracira Micere Njuki

Applicant

and

Jane Wambui Njiku

1st Respondent

Alice Wathitha Ngunjiri

2nd Respondent

Joyce Wanja Nderitu

3rd Respondent

Sophia Muthoni Gichobi

4th Respondent

Ruling

1. The Applicant instituted the present suit vide a Notice of Motion dated 22nd January 2025 and predicated the same under Orders 9 Rule 9, Order 10 Rule 11, Order 22 Rule 25, Order 40 Rule 1, 2 and 4, Order 51 of the Civil Procedure Rules, Article 159 (2) of the Constitution, Sections 1A, 1B, 3A and 63C of the Civil Procedure Act, and all other enabling provisions of the law. The Applicant prayed for the following orders:-1. Spent2. That an order be granted allowing M/s Mutuma Kiugu & Company Advocates to come on record on behalf of the defendant/Applicant post-Judgment.3. That pending the hearing and determination of this Application inter partes, the Plaintiffs/Respondents be restrained, either by themselves, their agents, family members, relatives, and/or any other person acting under their instructions, from evicting or denying the Defendant/Applicant and her children access to and quiet possession of the matrimonial property known as Baragwe/Kariru/2545, or trespassing, entering, or otherwise interfering with the Applicant’s quiet occupation and possession of the same.4. That pending the hearing and determination of this application, the Respondents be restrained by way of a temporary injunction, either by themselves, their agents, family members, relatives and/or any other person acting under their instructions from transferring, alienating, disposing, selling, encumbering, assigning, subdividing, seeking new titles, or dealing in any other like manner with the property known as Baragwe/Kariru/2545. 5.That an order be granted to set aside the proceedings of 6th March 2024 and the order dated 21st March 2024 by Hon Justice Mutungi for the application to be heard afresh.6. That pending the hearing and determination of the Application dated 16th June 2023 inter partes, the Plaintiffs/Respondents be restrained, either by themselves, their agents, family members, relatives and/or any other person acting under their instructions, from evicting or denying the Defendant/Applicant and her children access to and quiet possession of the matrimonial property known as Baragwe/Kariru/2545, or trespassing, entering or otherwise interfering with the Applicant’s quiet possession of the same.7. That pending the hearing and determination of the Application dated 16th June 2023, the Respondents be restrained by way of a temporary injunction, either by themselves, their agents, family members, relatives and/or any other person acting under their instructions, from transferring, alienating, disposing, selling, encumbering, assigning, subdividing, seeking new titles, or dealing in any other like manner with the property known as Baragwe/Kariru/2545. 8.That a prohibitory order be issued prohibiting the Land Registrar, Kirinyaga County, from issuing new titles to the Respondents or dealing in any way with the land or its subdivision pending the hearing and determination of this Applicant.9. That a prohibitory order be issued prohibiting the Land Registrar, Kirinyaga County, from issuing new titles to the Respondents or dealing in any way with the land or its subdivision pending the hearing and determination of the Application dated 16th June 2023, if set aside.10. That a permanent injunction be issued restraining the Plaintiffs/Respondent, whether by themselves, their agents, family members, relatives or any other person acting under their instructions, from evicting or denying the Defendant/Applicant and her children access to and quiet possession of the matrimonial property property known as Baragwe/Kariru/2545, or trespassing, entering or otherwise interfering with the Applicant’s quiet occupation and possession.11. That a permanent injunction be issued restraining the Plaintiffs/Respondents, whether by themselves, their agents, family members, relatives, or any other person acting under their instructions, from transferring, alienating, disposing, selling, encumbering, assigning, subdividing, seeking new titles, or dealing in any other like manner with the property known as Baragwe/Kariru/2545. 12. That a stay of execution of the determination and ruling delivered on 6th March 2024 and the order issued on 21st March 2024 by Hon. Justice Mutungi be granted, pending the hearing and determination of this application and the application dated 16th June 2023. 13. That the commanding officer, Kerugoya Police Station, Kianyaga or the nearest elected police station do supervise compliance with this Honourable Court’s orders.14. That such other or further orders as this Honourable Court may deem fit and just be granted.15. That costs of this application be provided for.

2. The Applicant’s case is that she married the late Njuki Miano in 2011, following the death of his first wife. She claims that the land parcel Baragwe/Kariru/2545 was registered jointly in her name and her late husband’s name. The Applicant explained that her husband passed away on 20th December 2014, following which she was registered as the sole owner of the suit land. The Applicant averred that her stepdaughters filed the instant suit seeking orders that she held the suit land in trust for them to the extent of one (1) Acre that allegedly their father held and prayed for the determination of the trust and transfer of one (1) acre to themselves. The Court entered Judgment in favour of the Respondents and ordered the suit land to be partitioned and the portion of one (1) acre transferred to the Respondents. The Applicant filed a Notice of Appeal in the Court of Appeal but her application for extension of time to file the Appeal out of time was dismissed by the Court of Appeal. The Applicant averred that the Respondents applied for execution of the decree which application was heard and determined by the Court on 6th March 2024 and was allowed. The Applicant further averred that the Respondents are using the orders issued by the Court to evict her from her matrimonial home. While she acknowledges that the Respondents are entitled to the one acre they were awarded by the Court, she prays that they leave her matrimonial home undisturbed. The Applicant prays that the Court grant her this order; otherwise, she will face eviction from her home.

3. The Respondents filed their Replying Affidavit dated 6th February 2025. The Respondents averred that the Applicants application was fatally defective, overtaken by events, and an abuse of the court process. They asserted that parties are bound by their pleadings, actions, and inactions, and that the incompetence or misconduct of a legal representative cannot justify the exercise of the court's discretion. The Respondents emphasized that litigation was intended that it should come to an end and that parties have a legitimate expectation that court processes and procedures adhere to a timelines and are not open-ended.

4. The Respondent maintained that the Court correctly determined that the Applicant held one (1) acre of the suit land in trust for them. They averred that the Applicant filed a Notice of Appeal dated 3rd August 2021, following the Judgment but failed to take the necessary steps to lodge the Appeal in time and that her application for an extension of time at the Court of Appeal was dismissed. Additionally, the Respondents pointed out that on 9th August 2021, the Applicant filed an application for a stay of execution of the decree before this Court which was dismissed. They contended that the current application for a stay of execution is res judicata. The Respondents averred that the Applicant refused to execute the Land Control Board forms, mutation forms, and transfer documents to give effect to the Court Judgment which led them to file their application dated 16th June 2023 which application was heard and determined, resulting in the execution of the court decree and the completion of subdivision.

5. The Respondents asserted that the Applicant was not left destitute since she retained one acre of the suit land. They asserted that the Applicant has no right to prevent them from utilizing their ancestral land and further asserted there was no contradiction in the Ruling and judgment, and maintained that their application dated 16th June 2023, was heard inter parties, and there were no valid grounds to warrant setting aside of the orders granted by the Court.

6. The Applicant filed her written submissions dated 22nd March 2025. Counsel for the Applicant argued that Hon. Justice E.C. Cherono had issued a final Judgment on the issues in this case and further submitted that this Court's Ruling made on 6th March 2024 allegedly ordered the excision of the Respondents’ one acre on the land where the matrimonial home, of the Applicant was located which was not ordered in the Judgment and hence in effect was unprocedurally altering the Judgment delivered by Hon. Justice Cherono. The Appellant argued such alteration could only be had through an Appeal against the Judgment and/or review of the Judgment.

7. The Applicant’s Counsel further submitted the Applicant was entitled to protection of the matrimonial property and in support of this submission placed reliance on the provisions of Section 35 of the Law of Succession Act, Cap 160 of the Laws of Kenya. The Applicant argued the subdivision ought to have been carried out equitably such that her matrimonial home was protected and not interfered with.

8. The Respondents filed their written submissions dated 22nd March 2025. The Respondents submitted the Applicants instant application was resjudicata as it was materially seeking similar orders as sought in the Applicant’s previous application for stay dated 9th August, 2021 which was heard and determined by the Court. The Respondents further submitted the decree of the Court had been executed and land parcel Number Baragwe/Kariru/2545 had been subdivided into land parcels Baragwe/Kariru/4289 and 4290 each measuring one (1) acre and hence no order of injunction or stay could be granted to prevent what had already been done from being done. Simply put, the application by the Applicant had been overtaken by events.

9. The Respondents in support of their submission that the application was res judicata placed reliance on the Case of John Florence Maritime Services Ltd & Another –vs- CS for Transport & Infrastructure & Others (2015) eKLR where the Court held:-“The rationale behind res judicata is based on public interest that there should be an end to litigation, coupled with the interest to protect a party from facing repetentative litigation over the same subject matter. Res judicata ensures the economic use of the Court’s limited resources and timely termination of cases Courts are already clogged and overwhelmed. They can hardly spare time to repeal themselves on issues already decided upon. It promotes stability of Judgments of concurrent Courts. It promotes confidence in the Courts and predictability which is one of the essential ingredients in maintaining respect for Justice and the Rule of Law. Without res judicata, the very essence of the rule of Law would be in danger of unravelling uncontrollably.”

10. In the same case the Court went on to hold as follows:-“----Cause of action res judicata extends to a point which might have been made but was not raised and decided in the earlier proceedings. In such a case, the bar is absolute unless fraud or collusion is alleged. Issue of res judicata may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant and one of the parties seeks to reopen the issue.”

11. The Respondents in regard to the issue of grant of injunctive orders submitted that they were incapable of being granted, the Judgment having been executed and the land the subject matter being Baragwe/Kariru/2545 having been duly subdivided and new title numbers Baragwe/Kariru/4289 and 4290 created. The Respondents further submitted the Respondents application dated 16th June 2023 was heard interpartes and determined and there was no valid ground to set aside the orders issued by the Court on 6th March 2024 allowing the application. The Respondents further argued the Applicant’s prayer for stay of execution of the orders granted by the Court on 6th March 2024 could not be granted as the Judgment/decree had already been executed.

12. I have reviewed and considered the Applicant’s Notice of Motion application dated 22nd January 2025 together with the Supporting Affidavit, the Replying Affidavit in opposition and have considered the submissions made by the parties. The application seeks the exercise of discretion on the part of the Court to set aside its orders granted on 6th March 2024 and to allow the Notice of Motion dated 16th June 2023 filed by the Respondents to be heard a fresh. The issue for determination is singularly whether the Applicant is entitled to the exercise of the Court’s discretion in her favour.

13. To contextualise the application before me it is essential to give a brief background of the matter.

14. The Respondents filed an Originating Summons dated 30th December 2019 against the Applicant (Respondent in the Originating Summons) where inter alia they sought orders against the Applicant that she held a portion of 1 Acre of land parcel Baragwe/Kariru/2545 previously held jointly by the Applicant and their deceased father in trust. The Respondents sought that the trust be determined and the portion of one (1) acre be transferred to them. The Applicant filed a Replying Affidavit in opposition to the Originating Summons where she averred the land parcel Baragwe/Kariru/2545 was registered in the joint names of herself and her husband who she had married in 2011. She deponed that following the death of her husband she was registered as the sole proprietor of the suit land and she denied the Respondents were entitled to claim a portion of the land from her.

15. The suit was heard before Hon. Justice Cherono who rendered a Judgment on 23rd July, 2021 and issued the following orders:-1. The Defendant/Respondent is holding the suit property land parcel No. Baragwe/Kariru/2545 in trust for herself and the Applicants/Plaintiffs.2. The Respondent holds half a share (1 Acre) out of land parcel No. Baragwe/Kariru/2545 in trust for the Applicants.3. The Land Registrar Kirinyaga County to excise one (1) acre out of land parcel Number Baragwe/Kariru/2545 and register in the joint names of the Applicants.4. Each party to bear their own costs of the suit.

16. The Applicant’s application in the Court of Appeal for extension of time to file a Memorandum of Appeal and Record of Appeal out of time was dismissed on 28th November 2024. The Applicants application for stay of execution of the Judgment pending the hearing and determination of the Intended Appeal was dismissed by Hon. Justice Cherono on 28th February, 2023. The Court of Appeal did not make any order of stay of execution and on 21st January, 2025 following the dismissal of the application for extension of time to file the Appeal, the Court of Appeal, held they lacked jurisdiction to entertain the application for stay in the absence of any Appeal and dismissed the application before them.

17. The Respondents Notice of Motion dated 16th June 2023 basically was seeking enforcement of the Judgment that the Court delivered on 23rd July 2021, the Applicant’s application for stay having been dismissed. The application came before me for hearing on 16th October 2023 when the Applicants Counsel informed the Court there was a pending Appeal and the matter was adjourned for the Court to be advised of the status of the Appeal. On 23rd November 2023 the application was fixed for hearing on 6th March 2024 and on the date both Counsel for the parties attended. Upon hearing Counsel and perusing the record I made the following Ruling/Order:-“Having perused the Notice of Motion dated 16th June 2023, the Replying Affidavit and further Affidavit, I find no basis upon which the application can be resisted. The Defendant’s application for stay of execution was dismissed by the Court and the Plaintiff is entitled to execute. I allow the application dated 16th June 2023 as prayed and authorise the Deputy Registrar to execute such documents as may be necessary to give effect to the decree herein.”

18. The Respondents application dated 16th June 2023 sought no more than to give effect to the Judgment of the Court which had not been stayed. The Judgment carried no conditions on the orders that were issued. The effective order was that the Defendant/Applicant in the instant application was found to be holding one (1) acre of the suit land in trust and the Court ordered the trust to be determined and the land to be subdivided and one half share comprising one (1) acre to be transferred to the Respondents. There was no clarification as to how the land was to be subdivided. The land has since been subdivided and the orders sought by the Applicant cannot be granted. The Court on the basis of the material that was before it on 6th March 2024 made what it considered was the appropriate determination and there can be no basis to set aside the orders made. The parties were duly represented and if a party was aggrieved by the decision, the option would have been to Appeal against the Ruling/Order.

19. The issue of whether or not the property was matrimonial property did not fall to be considered by the Court and cannot be considered by the Court even at this stage. The issues that were for determination were considered and determined, by the Trial Judge at the time he rendered his Judgment. It is not open for the Court to re open the Judgment to consider matters that were not pleaded and never formed issues for determination by the Court.

20. It is my determination therefore that the Applicant’s application dated 22nd January 2025 is misconceived and that the orders prayed for are incapable of being granted principally because the Judgment and decree has been executed and was executed before the Applicant filed the present application.

21. The application lacks merit and is dismissed. Parties to bear their own costs of the application.

JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT KERUGOYA THIS 19THDAY OF JUNE 2025. J. M. MUTUNGIELC - JUDGE