https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4075

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC CASE NO. E025 OF 2022** **LIDIES NJOKI NYAGA ………………………………….. 1ST PLAINTIFF** **TIMOTHY KINYUA NYAGA ……………………………… 2ND PLAINTIFF** **TRUPHENA WAWIRA NYAGA ………………………….. 3RD PLAINTIFF** **ESTHER MUTHONI NYAGA ……………………………… 4TH PLAINTIFF** **JANE NJERI NYAGA ………………………………………. 5TH PLAINTIFF** **CATHERINE KAARI NYAGA ……………………………... 6TH PLAINTIFF** **VERSUS** **MICHAEL NYAGA NTHIGA …………………………….. 1ST DEFENDANT** **FAITH NJOKI WAMBOGO ………………………………. 2ND DEFENDANT** **THE DISTRICT LAND REGISTRAR EMBU …………… 3RD DEFENDANT** **THE HONOURABLE ATTORNEY GENERAL ………….. 4TH DEFENDANT** **RULING** 1. The 2nd defendant – FAITH NJOKI WAMBOGO – raised a preliminary objection in this suit via a notice dated 3/2/2024 filed in court on 8/2/2024. The objection is as follows: 2. *That the suit is res judicata on account that the subject matter herein was heard and determined by the Honourable court in Runyenjes PMCC No. 82 of 2015 and Embu ELC A No. 18 of 2018.* 3. *That the plaintiffs’ suit offends the mandatory provisions of Section 7 of the Civil Procedure Act (Cap 21).* 4. *That the plaintiffs’ suit ought to be struck out with costs.* 5. The 2nd defendant is among three (3) others – MICHAEL NYAGA NTHIGA (1st defendant), THE DISTRICT REGISTRAR EMBU (3rd defendant), and the HONOURABLE ATTORNEY GENERAL (4th defendant) - sued by six plaintiffs – LIDIES NJOKI NYAGA (1st plaintiff), TIMOTHY KINYUA NYAGA (2nd plaintiff), TRUPHENA WAWIRA NYAGA (3rd plaintiff), JANE NJERI NYAGA (5th plaintiff) and CATHEREINE KAARI NYAGA (6th plaintiff) – in relation to ownership of land parcel No. Kagaari/Kanja/3508 *(“disputed land”* here after). More specifically, the plaintiffs are contesting the change of ownership of the disputed land from 1st defendant to 2nd defendant. The 3rd and 4th defendant are brought on board because of the role they played in effectuating that change. The plaintiffs have instituted the suit because they allegedly have rights and/or interests that were overlooked and/or disregarded while the change was being effected. The various prayers asked for by the plaintiffs show that they clearly want a reversal of that change. The reversal itself entails change of ownership. 6. The defendants filed their defences in which they mainly denied the plaintiffs’ claim. But the 1st defendant’s defence admits crucial aspects of the plaintiff’s’ case. Further, the 1st defendant lodged a counter-claim against the 2nd defendant. Notably also, the 2nd defendant’s defence against the plaintiff’s suit also came with a counter-claim against the 1st defendant. 7. The objection before this court was raised because there was a case in the lower court at Runyenjes in which the 1st defendant and another person were the plaintiffs while 2nd, 3rd, and 4th defendants were among the parties sued. The suit was essentially a contestation of the same change of ownership which is being contested in this suit. The 1st defendant, as plaintiff then, lost the suit. He filed an appeal before this court, which he also lost. 8. The objection herein was canvassed by way of written submissions. The 2nd defendant’s submissions are dated 15/5/2024. The 2nd defendant submitted that the pleadings in the present suit raise matters or issues that were decided upon in Runyenjes Civil Case No. 82 of 2015 and Embu ELCA No. 18 of 2018. The issues related to transfer and registration of land parcel No. KAGAARI/KANJA/3508 to the 2nd defendant. It is the 1st defendant who endorsed the transfer before he later changed his mind and tried to reverse it. 9. The 2nd defendant cited Section 7 of the Civil Procedure Act (Cap 21), which is the provision which addresses the concept of *res judicata*. The section provides thus: ***“No court shall try any suit or issue in which the matter directly and substantially is issue has been directly or 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.”*** 1. It was then submitted that based on the above provision the court should try to find out whether the matter directly and substantially in issue in a subsequent suit is the same matter that was directly and substantially in issue in the former suit. Further, 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 and the court that decided the former suit must have been competent to decide it. Finally, the former suit must have been heard and finally determined. 2. Noting and appreciating that some parties might try to circumvent the concept of res judicata through ingenuity and/or use of legal craft, the 2nd defendant cited the case of **Nancy Mwangi T/A Worthlin Marketers –vs- Airtel Networks (K) Limited (formerly Celtel Kenya Ltd) & 2 others [2014] eKLR**, which quoted the case of **E. T. –vs- Attorney General & Another [2012] eKLR** as follows: ***“The courts must always be vigilant to guard against 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 a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi –vs – National Bank of Kenya Limited & others [2001] EA 177 the court held that “parties cannot evade the doctrine of res judicata by merely adding other parties in a subsequent suit.” in that case the court quoted kuloba, j in the case of Njango – vs- Wambugu & Another: Nairobi HCCC No. 2340 of 1991 (unreported) where he stated, “If parties were allowed to go on litigation forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…”*** 1. Guided by this, the 2nd defendant submitted that plaintiff’s claim in the current suit related to parcel No. KAGAARI/KANJA/3508 which they claim that the 1st defendant, as the registered owner, held in trust for them. They averred that the said 1st defendant unlawfully and fraudulently transferred it to 2nd defendant. The plaintiff’s desire that the 2nd defendants’ title to the land should be cancelled. According to the 2nd defendant, the plaintiffs are children and wife to 1st defendant and the said 1st defendant had filed civil suit No. 82 of 2015 at Runyenjes seeking the same remedies against the defendants in this suit. He lost and filed an appeal, Embu ELCA No. 18 of 2018; which he again lost. 2. It is the 2nd defendant’s position that it is the same subject matter and the same issues being litigated upon in this suit with the only change or variation being addition of parties and a reversal of the 1st defendant from being a plaintiff in the case at Runyenjes or an appellant in the appeal filed here to 1st defendant in the current suit. The change or variations does not allegedly change the fact that it is the same subject matter and/or the same issues that are raised in this suit. The 2nd defendant asked the court to strike out the plaintiff’s suit with costs to her. 3. The plaintiffs’ submissions are dated 25/10/2024. According to the plaintiffs the court should consider whether it has jurisdiction and whether the matter is also res judicata. It was also urged that the court should consider whether this is a suitable matter in which the court should exercise its inherent jurisdiction to allow it to proceed. The importance of jurisdiction was then emphasized and it was ultimately stated that the court has jurisdiction to hear the matter. 4. On whether the matter is res judicata, reference was made first to the definition of the concept under Black’s Law Dictionary, 10th Edition, second its essence and parameters as spelt out at Section 7 of the Civil Procedure Act (Cap 21) and third its highlight, interpretation and application in case law including in **Independent Electoral & Boundaries Commission -vs- Maina Kiai & 5 others [2017] eKLR and Suleiman Said Shabhal -vs- Independent Electoral & Boundaries Commission & 3 others [2014] eKLR.** 5. The respondent pointed out that the requisite threshold to demonstrate res judicata is met when the following is shown: 6. *The suit or issue was directly and substantially in issue in the former suit.* 7. *That the former suit was between the same parties or parties under whom they or any of them claim.* 8. *Those parties were litigating under the same title.* 9. *The issue was heard and finally determined in the former suit.* 10. *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.* 11. Applying the outlined threshold to the matter, the respondent submitted that this matter has *“entirely different parties”* and the issues are also *“entirely different”* from the concluded cases at Runyenjes and Embu courts. Elaborating further on the aspect of issues, the plaintiffs talked of fraudulent acts by 1st defendant in transferring the land to 2nd defendant. The previous suits were said to have focused on contractual issues. This was said to be a proper case in which the court should exercise its discretion and invoke its inherent jurisdiction to allow the matter to proceed. 12. I have considered the objection as raised, rival submissions, and the entire court record in general. I think the overarching consideration is whether the merits of the objection have been demonstrated. It is clear to me that the objection was raised because the 1st defendant – MICHAEL NYAGA NTHIGA – had impleaded more or less the same defendants in the lower court vide suit No. PMCC No. 82 of 2015 over the same parcel of land. He lost, felt aggrieved, and subsequently appealed vide ELC A No. 18 of 2018, which he again lost. 13. In the lower court, the 1st defendant had impleaded the 2nd defendant, 3rd defendant, and 4th defendant herein alleging that the 2nd defendant herein had approached him with a view to exchanging land parcels No’s. KAGAARI/KANJA/3508, which he owned, with land parcel No. KAGAARI/KANJA/8735, which the 2nd defendant owned. The deal went through but the 1st defendant had an apparent change of mind later. The lower court matter essentially sought a reversal of the deal. The 2nd defendant herein opposed the reversal and the lower court agreed with her. In the lower court, the actions of the 2nd defendant herein and those of her mother – JUDITH WAMBOGO NJERU, sued as one of the defendants at the time – were alleged to be criminal and/or fraudulent. 14. The lower court found as a fact that the intentions of the parties was clear, that fraud was not proved, that the obligations of each party in the transaction were clear, and that therefore there was no need to vitiate the arrangement. 15. The 1st defendant felt aggrieved and appealed. The appellate court agreed with the lower court. Crucially, fraud collusion, and/or misrepresentation were alleged both in the lower court and in the appeal. Both courts rejected the allegations. Allegations of the properties being family or ancestral land were made in the appeal. The court did not accept the allegations. 16. I think it is now necessary to say something about the concept of res judicata. The statutory basis for the concept is found at 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 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 issue in which such issue has been subsequently raised and has been heard and finally decided by such court.”*** 1. Due to its statutory underpinning, the concept of res judicata is a pure point of law which is suitable to be raised as a preliminary objection. In **Kenya Commercial Bank Limited –vs- Muiri Coffee Estate Limited & Another: Motion No. 42 of 2014 [2016] eKLR** the court observed thus: ***“Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights.”*** 1. The essence of res judicata was long ago explained by **Wigram V-C in Henderson –vs- Henderson [1843] 67 E.R 313** in the following terms: ***“… where a given matter becomes the subject of litigation in, and adjudication, 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 re 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 judgement but to every point in which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”*** 1. Further, the writers of Mulla, Code of Civil Procedure, 18th Edition, 2012, at page 293, while emphasizing the finality underscored by res judicata and while also making possible exceptions to the application of the concept, observed as follows: “***The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgement becomes conclusive, the matters in issue covered thereby cannot be re-opened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be re-opened and has little to do with merit of the decision.”*** 1. Kuloba Richard in his seminal book: JUDICIAL HINTS ON CIVIL PROCEDURE: Law Africa Publishing (K) Ltd: 2nd Edition, at page 475, stated the test for res judicata as follows: ***“The test whether a suit is barred by res judicata is this: Is the plaintiff in the 2nd suit trying to bring before the court, in another way and in the form of a new cause of action, a transaction which he has already put before a court of competent jurisdiction in earlier proceedings and which had been adjudicated upon? If so, the plea of res judicata applies not only to the points upon which the court was actually required to adjudicate 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. Pointedly, the court observed as follows **in Omondi –vs- National Bank of Kenya Limited & others [2001] EA 177:** ***“Parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.”*** 1. A more elaborate stand or position on what the concept of res judicata aims to prevent was stated as follows in the case of **William Korsoss -vs- Hezekiah Kiptoo Komen & 4 others [2015] eKLR:** ***“The philosophy behind the principle of res judicata is that the has to be finality; litigation must come to an end. It is a rule to counter the all too human propensity to keep trying until something gives. It is meant to provide rest and closure, for endless litigation and agitation does little more than vex and add to costs. A successful litigant must reap the fruits of his success and the unsuccessful one must learn to let go.”*** 1. Having outlined the law as I understand it, I now come to the matter on hand. It has been said that the plaintiffs are wife and children of the 1st defendant. In the two cases decided by the courts, the 1st defendant was trying to get back the disputed land from the 2nd defendant. He didn’t succeed. The question I need to ask here is whether he was trying to get the land back for himself alone and/or for his family. I think the reasonable answer is that he was trying to get it back for himself and his family. It is even possible to argue that it was more for his family than himself. That family comprises of the plaintiffs. If the plaintiffs were not related to the 1st defendant, I wouldn’t take this position. I would take the position that they are independent person entitled to urge for their rights. The averment that the plaintiffs are members of the 1st defendant’s family has not been met with a rebuttal or denial. It seems to me clear that the plaintiffs are trying to get from the 2nd defendant what the 1st defendant failed to get from her through the decided cases. To me, this is an attempt to have a second bite at the cherry. It is not allowable in law and it definitely runs afoul of the doctrine of RES JUDICATA. 2. The plaintiffs would have the court view their matter as different. According to them, the matter has *“entirely different parties”* and is also *“entirely different.”* They also talked of the decided suits as being focused on contractual issues while this one is focused on fraud. Not very much so. The decided matters also clearly touched on fraud. The land in dispute is the same. It seems clear that they would like to succeed where the 1st defendant failed. If the 1st defendant had succeeded in the decided suits, I doubt that the plaintiffs would have filed this suit. And I say this for the reason that the 1st defendant would have succeeded not only for himself but for them as well. 3. For the purposes of this case, I feel persuaded that I should not view or treat the plaintiffs independently of the 1st defendant. A look at the 1st defendant’s defence shows that in the 1st defendant’s defence, he is admitting crucial aspects of the plaintiffs’ case which in effect amounts to strengthening or buttressing that same case. In the meantime, I think it needs to be appreciated that the defendants, and particularly the 2nd defendant, were first sued way back in the year 2015. They have been in court upto the year 2022 which is when 1st defendant’s appeal was decided. Shortly after that, this case itself started and is still pending. In all, the defendants have been in court for over ten (10) years. That is not a short period and litigation needs to come to an end. 4. It seems clear to me that this is a proper case where the cases of Omondi (supra) and William Koross (supra) apply. The case appears to me to be one where ingenuity and/or legal craft have been deployed to execute a deceptive stratagem to get for the plaintiffs what the 1st defendant, the head of the family, failed to get for them via the decided cases. The proper thing to do is to expose the stratagem, reject it, and decline the invitation to re-litigate the matter. 5. It is in light of the all foregoing that I uphold the objection herein. The plaintiffs’ suit is therefore struck out with costs to the defendants. **RULING DATED, SIGNED** and **DELIVERED** virtually at **KITUI** this **30TH DAY OF JUNE, 2026** pursuant to notice dated **17/6/2026**. In the presence of; *Court Assistant – Musyoki* *No Party – Present* *M/s Mwinja for 2nd Defendant* *Kiongo (AG’s Office) – Absent for 2nd & 3rd Defendants* *Guantai for the Plaintiff - Absent* **A. KANIARU** **JUDGE- ENVIRONMENT & LAND COURT, KITUI**