https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3317

Wanjiru & another (Suing as the legal representatives of the Estate of the Late Edward Nyoike Muturi) v Ng’era & 3 others (Land Case E381 of 2025) [2026] KEELC 3317 (KLR) (2 June 2026) (Ruling) Neutral citation: [2026] KEELC 3317 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case E381 of 2025 CA Ochieng, J June 2, 2026 Between Pauline Florence Wanjiru & Gachuhi Erick Nyoike (Suing as the legal representatives of the Estate of the Late Edward Nyoike Muturi) Plaintiff and Sammy Ngugi Ng’Era 1st Defendant Wilfred Ngunjiri Nderitu t/a Nderitu & Partners Advocates 2nd Defendant The Chief Land Registrar 3rd Defendant The Honourable Attorney General 4th Defendant Ruling 1.The Plaintiffs commenced this suit vide a Plaint dated 1st August 2025. Subsequently, two Preliminary Objections were filed for determination by this Court. 2.The first Preliminary Objection is the 1st Defendant’s, dated 8th September 2025. The objection is premised on grounds that the suit is res judicata as the matters in issue were directly and substantially in issue in a previously instituted suit between the Plaintiffs and the Defendants and/or parties under whom they claim, litigating under the same title, namely Nairobi HCCC No. 460 of 2005 – Alice Wangui Nyoike & John Kagwi (suing as the legal representatives of the Estate of Edward Nyoike Muturi) v Sammy Ngugi Ng'era, Wilfred Nderitu t/a Nderitu & Partners Advocates, the Commissioner of Lands and the Chief Land Registrar. 3.The 1st Defendant further contends that insofar as the suit is founded on allegations of fraud against the Defendants, the claim is time barred under Section 4(2) of the Limitation of Actions Act. He also argues that, to the extent that the suit seeks recovery of land and/or an interest therein, it is statute-barred under Section 7 of the Limitation of Actions Act. 4.The 2nd Defendant’s Preliminary Objection is dated 26th August 2025. He also contends that the suit is res judicata, having been heard and finally determined in the following matters:i.Nairobi High Court Succession Cause No. 1797 'A' of 1998 (In the Matter of the Estate of Edward Nyoike Muturi (Deceased);ii.Nairobi High Court Civil Suit No. 1254 of 2001 (O.S.) – Alice Wangui Nyoike and John Kagwi v Sammy Ngugi Ng'era, Wilfred Nderitu t/a Nderitu & Partners Advocates and the Principal Registrar of Titles; andiii.Nairobi High Court Civil Suit No. 460 of 2005. 5.The 2nd Defendant further contends that the suit is time barred under Section 4(2) of the Limitation of Actions Act as it is founded on alleged fraud said to have occurred on or about 1998 and 1999, approximately twenty-six (26) years, before the institution of the present suit. Response 6.The Plaintiffs opposed both Preliminary Objections through their Grounds of Opposition and replying affidavit sworn by Pauline Florence Wanjiru. They contend that the objections are improperly raised as preliminary objections, because they require investigation of contested facts, evaluation of evidence and the exercise of judicial discretion. 7.They further state that they were appointed legal representatives of the Estate of Edward Nyoike Muturi on 19th May 2025, and that it is upon such appointment that they became aware of the matters giving rise to the present suit, thus the time for purposes of limitation began to run when the alleged fraud came to their knowledge. 8.They argue that Nairobi HCCC No. 460 of 2005 was never heard and determined on its merits as the suit against the 2nd Defendant was dismissed for want of prosecution on 8th December 2021, while the suit against the 1st Defendant was subsequently dismissed for want of prosecution on 14th April 2023 and that they filed a notice of withdrawal of suit in respect of the other Defendants. To this end, they aver that a withdrawal of suit and a dismissal for want of prosecution does not amount to a final determination on the merits as contemplated under Section 7 of the Civil Procedure Act. 9.In addition, they contend that the parties in Nairobi High Court Civil Suit No. 460 of 2005 and those in the present suit are not identical. They point out that the Plaintiffs herein were not parties to the previous proceedings, and so are the 4th and 5th Defendants. 10.Regarding Nairobi High Court Civil Suit No. 1254 of 2001 (O.S.), they point out that it was struck out on procedural grounds for having been commenced by way of Originating Summons rather than a Plaint, thus the suit was never heard and determined on its merits. 11.They also aver that the issue herein, which is whether the 1st Defendant, in collusion with the 2nd, 3rd and 4th Defendants, fraudulently procured a discharge of charge dated 2nd June 1999, fraudulently caused the subdivision of L.R. No. 12144/4 and fraudulently procured the transfer and registration of L.R. No. 12144/82 after the death of Edward Nyoike Muturi on 17th July 1998, has never been heard and determined by any court of competent jurisdiction thus the doctrine of res judicata is inapplicable. 12.The Preliminary Objections were canvassed by way of written submissions. Submissions 13.The 1st Defendant submits that the Preliminary Objection raises a pure point of law as contemplated in the decision of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. According to him, the objection concerns the jurisdiction of the Court to entertain a claim that is allegedly res judicata and statute-barred. 14.On the issue of res judicata, he submits that the previous suit, namely Nairobi HCCC No. 460 of 2005, was dismissed for want of prosecution and that such dismissal constitutes a final determination unless set aside by the Court. In support of that proposition, he relied on the case of Njue Ngai v Ephantus Njiru Ngai & Another [2016] eKLR, where the Court of Appeal, citing with approval Peter Ngome v Plantex Company Limited [1983] eKLR, held that a dismissal for want of prosecution is as effective as a final judgment unless and until it is set aside by a competent court. 15.Regarding limitation, he submits that the Plaintiffs' claim is founded on allegations that the transfer of the suit property to him in 1999 was fraudulent. He argues that substantially similar allegations were pleaded in Nairobi HCCC No. 460 of 2005 and therefore the Plaintiffs were aware of the alleged fraud at least by the year 2005. 16.To buttress his averments, he relied on the following decisions: Wandaka & 2 Others v Mwangi [2025] KECA 83 (KLR) Chepkwony v National Bank (K) Limited [2025] KEHC 347 (KLR), and Sohanlaldurgadass Rajput & Another v Divisional Integrated Development Programmes Co. Ltd [2021] KEELC 1427 (KLR). 17.On their part, the Plaintiffs relied on the decisions of Jetha v Guaranty Trust Bank (K) Limited (Civil Appeal E574 of 2024) [2026] KECA 109 (KLR) and George Kamau Kimani & 4 Others v County Government of Trans Nzoia & Another [2014] eKLR to argue that where the determination of a preliminary objection requires the ascertainment of disputed facts or the evaluation of evidence, such objection cannot properly be determined as a preliminary objection. 18.They point out that in order to determine whether the present suit is statute-barred, the Court would be required to interrogate the facts surrounding their appointment as legal representatives of the Estate of Edward Nyoike Muturi and to ascertain when they became aware of the alleged fraud giving rise to the suit, adding that such an inquiry necessitates the consideration of evidence and is therefore unsuitable for determination at the preliminary stage. 19.They also submit that there exists no judgment or order of any court that finally determined the dispute concerning ownership of L.R. No. 12144/82 on its merits, reiterating that Nairobi High Court Civil Suit No. 1254 of 2001 (O.S.) was struck out on procedural grounds, while Nairobi HCCC No. 460 of 2005 was dismissed for want of prosecution. According to them, neither determination amounted to a final adjudication of the substantive issues in controversy thus the doctrine of res judicata is inapplicable. 20.On limitation, the Plaintiffs rely on Section 26(a) of the Limitation of Actions Act and submit that where an action is founded on fraud, time begins to run from the date the fraud is discovered or could, with reasonable diligence, have been discovered and by reason of their appointment as administrator on 19th May 2025, that is when time began to run. 21.In support of their averments, the Plaintiffs relied on the following decisions: Wandaka & 2 Others v Mwangi (Civil Appeal No. 36 of 2019) [2025] KECA 83 (KLR), Odero & Another v Ndivo & Another (Civil Case E105 of 2021) [2021] KEHC 289 (KLR), and Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR. Analysis and Determination 22.Upon consideration of the instant Notices of Preliminary Objection including the replying affidavit, Grounds of Opposition and rivalling submissions, the following are the issues for determination: Whether the suit is res judicata. Whether the suit is barred under Section 4(2) and Section 7 of the Limitation of Actions Act. 23.The two distinct preliminary objections filed by the 1st and 2nd Defendants raise objections on the basis that the suit is res judicata and that it is statutory time barred by dint of Section 4(2) and 7 of the Limitation of Actions Act. 24.On res judicata, they contend that the issues herein were determined in Nairobi HCCC No. 460 of 2005 and in Nairobi High Court Civil Suit No. 1254 of 2001 (O.S.). On their part, the Plaintiffs argue that the dispute regarding the ownership of L.R. No. 12144/82 has never been heard and conclusively determined by a court of competent jurisdiction, thus the doctrine of res judicata is inapplicable. They point out that Nairobi HCCC No. 460 of 2005 was dismissed for want of prosecution while Nairobi High Court Civil Suit No. 1254 of 2001 (O.S.) was struck out on a technical issue. 25.It is well settled that a Preliminary Objection must be on a pure point of law and cannot be raised if any fact has to be ascertained. This principle was captured in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 as follows:“So far as I am aware, 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. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”. 26.Res judicata is anchored on Section 7 of the Civil Procedure Act, 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.” 27.Further, the Supreme Court of Kenya in the case of John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), held that:“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 v James Nderitu Githae & 2 others, (2010) eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.’ 28.In the case of Cooperative Bank of Kenya Limited v Cosmas Mrombo Moka & Legacy Auctioneering Services (2019) eKLR, the Court of Appeal held that:“As stated hereinbefore, this court has already addressed its mind as to whether a matter dismissed for want of prosecution could be resuscitated through a fresh suit and the categorical answer was that it could not as doing so would offend the doctrine of res judicata. Consequently, this matter being completely on four with the Njue Ngai matter, we find no justifiable reason to allow a party who had litigated on the same issues to re-institute a similar suit. In our considered view, the former suit having been dismissed for want of prosecution, the latter suit was res judicata and cannot stand. The 1st respondent filed a suit which he failed and neglected to prosecute, it cannot be proper for him to wake up again and decide to start the same process again. We agree with the appellant this would be contrary to public policy that litigation must come to an end and the best the 1st respondent could do was to invoke the appellate process and not filling a fresh suit.” Emphasis Mine 29.Based on the facts as presented while relying on the legal provisions cited and associating myself with the decisions quoted, noting that the Plaintiffs have not indicated if they filed an application to set aside the order dismissing Nairobi HCCC No. 460 of 2005 – Alice Wangui Nyoike & John Kagwi (suing as the legal representatives of the Estate of Edward Nyoike Muturi) v Sammy Ngugi Ng'era, Wilfred Nderitu t/a Nderitu & Partners Advocates, the Commissioner of Lands and the Chief Land Registrar for want of prosecution, I find that it was erroneous on their part to file the instant suit. In the foregoing, I find that since the previous suit was dismissed for want of prosecution, noting that a dismissal order is a final order, this suit is hence res judicata and I will proceed to strike it out. Since I have held that this suit is res judicata, I will not proceed to deal with the other issue on whether it is statute barred or not. 30.In the circumstances, I find the Notices of Preliminary Objection dated the 26th August 2025 and 8th September 2025 merited and will proceed to strike out this suit with costs to the 1st and 2nd Defendants. DATED SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF JUNE, 2026CHRISTINE OCHIENGJUDGEIn the presence of:Grace Ndinda for Mbabu for PlaintiffsElias Masika for 1st DefendantKuria holding brief for Nderitu SC for 2nd DefendantMs Mutuku for 3rd, 4th, 5th DefendantsCourt Assistant: Brandy