https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4331

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC CASE NO. E190 OF 2024** **PAULINE NJOKI KANG’ETHE…………………………….………….PLAINTIFF** **VERSUS** **SUSAN NJOKI WARUINGI……………………….……………1ST DEFENDANT** **NICHOLAS KANG’ETHE WARUINGI** **(Sued jointly as Administrators of the** **Estate of Francis Waruingi Kang’ethe)………….……………2ND DEFENDANT** **CHIEF LAND REGISTRAR, KIAMBU COUNTY……….…….3RD DEFENDANT** **RULING** 1. This Ruling is in respect of the Preliminary Objection filed by the 1st Defendant brought under Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya. The 1st Defendant raises the following issues in relation to the suit in the objection: 2. THAT this suit is incompetent, incurably defective as the suit herein is res judicata and subjudice. 3. THAT there is a previously instituted and determined suit by a Court of competent jurisdiction in **Succession Cause No. 130 of 2017** between the Plaintiffs and the 1st and 2nd Defendants herein over the same subject matter. 4. THAT there is a pending appeal before the Court of Appeal in **Civil Appeal Number COACA E059 of 2021** between the Plaintiffs and the 1st and 2nd Defendants herein over the same subject matter which has never been withdrawn or determined thus rendering this suit sub judice. 5. THAT the suit is bad in law, res judicata, sub judice and misconceived thus rendering it incurably defective as it contravenes Section 6 and 7 of the Civil Procedure Act. 6. THAT the suit is fatally defective, bad in law and an abuse of the Court process and should be struck out with costs to the Defendants. 7. In response the Plaintiff filed written submissions dated 4/12/2025 opposing the 1st Defendant's Preliminary Objection, arguing that the challenge is legally baseless and procedurally flawed. The central argument is that the objection fails to meet the strict **Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696** threshold required for a preliminary point of law. Because the Defendant's claims of *res judicata* and *sub judice* rely on specific details of previous succession cases such as the identity of the parties and the nature of the issues the Court would be forced to examine evidence and contested facts. Under established law, a true Preliminary Objection must be a pure point of law that does not require the Court to dig into the evidence, which is not the case here. 8. Furthermore, the Plaintiff contends that the doctrine of *res judicata* cannot apply because of the distinct legal nature of the proceedings. According to the Plaintiff, the current suit centers on ownership, title, and the legality of land acquisition, which fall exclusively under the jurisdiction of the Environment and Land Court. In contrast, the previous matters were Probate and succession proceedings, which are limited to identifying heirs and distributing an estate. The Plaintiff points out that a Probate Court has no authority to determine the validity of land titles or allegations of fraud. Since the prior Court lacked the jurisdiction to decide the issues currently at hand, its findings cannot block this Court from hearing the matter. She cites the Supreme Court case of **Samuel Kamau Macharia vs KCB [2012]eKLR** where the Court affirmed that jurisdiction flows from the Constitution and cannot be implied. 9. Similarly, the Plaintiff argues that the doctrine of *sub judice* is irrelevant. For this rule to apply, the pending case must involve the same parties and the same substantial issues, and the first Court must be capable of granting the relief sought. The Plaintiff emphasizes that since a succession Court cannot grant remedies related to land ownership or title disputes, there is no risk of conflicting decisions on the same legal question. Ultimately, the Plaintiff asks the Court to dismiss the objection with costs, maintaining that the Defendant is attempting to use the law to bypass a necessary inquiry into the merits of the case. 10. The 2nd Defendant filed his written submissions dated 4/12/2025 in support of the Plaintiff’s position, urging the Court to dismiss the 1st Defendant’s Preliminary Objection. The 2nd Defendant argues that the objection, which claims the suit is barred by the doctrines of *res judicata* and *sub judice*, is fundamentally flawed because it fails the legal threshold established in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (supra)**. This landmark case dictates that a Preliminary Objection must consist of a pure point of law and cannot be raised if the Court is required to ascertain facts or exercise judicial discretion. The 2nd Defendant contends that since the Court would need to investigate the records of previous succession proceedings and the pending appeal to determine if the issues are truly identical, the objection is procedurally incompetent as it relies on contested factual evidence. 11. Regarding the plea of *res judicata* under Section 7 of the Civil Procedure Act, the 2nd Defendant cites case of **IEBC v Maina Kiai & 5 Others [2017]eKLR** to emphasize that for this doctrine to apply, the matter must have been decided by a Court of competent jurisdiction. The submissions point out that the previous matter, **Succession Cause No. 130 of 2017**, was handled by a Probate Court which, as held in **Uhuru Highway Development Ltd v Central Bank of Kenya [1996]eKLR**, must have proper jurisdiction over the subject matter. 12. Drawing from the rulings in **Re Estate of the late Kiplangat Keter [2001]eKLR** and **Re Estate of Stone Kathuli Muinde [2016]eKLR**, the 2nd Defendant argues that a Probate Court’s primary function is the distribution of an estate, not the determination of land ownership, title validity, or allegations of fraud. Therefore, the issues of title legality currently before the Environment and Land Court could not have been conclusively determined in a succession cause. 13. The 2nd Defendant further argues that the doctrine of *sub judice* under Section 6 of the Civil Procedure Act is equally inapplicable. Referencing **Nguruman Limited v Jan Bonde Nielsen & Another [2017]eKLR**, the submissions assert that this doctrine only applies when the subject matter and the sought reliefs are identical in both suits. The 2nd Defendant contends that while there is a pending appeal in **Civil Appeal No. E059 of 2021**, that matter concerns the administration of the estate and the application of Section 42 of the Law of Succession Act. In contrast, the present suit seeks the cancellation of title and a determination on the legality of registration. Because the Probate Court and the Court of Appeal in a succession context cannot grant the specific land-related remedies sought here, the 2nd Defendant concludes that the objection should be dismissed with costs to allow the case to be heard on its merits. 14. The 1st Defendant in response also filed written submissions dated 20/08/2025 and argues that the current suit is incurably defective and should be struck out with costs. The primary contention is that the suit violates the established legal doctrines of *res judicata* and *sub judice*, as provided under Sections 6 and 7 of the Civil Procedure Act. 15. The 1st Defendant asserts that the core issues concerning the ownership and distribution of the suit properties specifically Kiambu Municipality Block 11/119 and Kiambaa/Kanunga/2165 were already directly and substantially determined in **Succession Cause No. 130 of 2017**. In those previous proceedings, the Court rejected the Plaintiff's claim that the properties were matrimonial assets in which she had acquired an interest. 16. That By filing this fresh suit, the 1st Defendant argues the Plaintiff is attempting to relitigate settled matters, which offends the principle that there must be an end to litigation. To support this, the 1st Defendant relies on the Supreme Court’s decision in **Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR**, which outlines the mandatory conditions for *res judicata*, and **Karia and Another v The Attorney General and Others [2005] 1 EA 83**, regarding litigation under the same title. 17. Additionally, the 1st Defendant submits that the suit is *sub judice* due to the pendency of **Civil Appeal No. COACA E059 of 2021**. This appeal, which remains active and undetermined, arose from the Plaintiff’s dissatisfaction with the decision in the original succession cause. The 1st Defendant points out that the Memorandum of Appeal raises the exact same issues regarding the Plaintiff’s contribution to and interest in the suit properties. Citing the Supreme Court’s advisory opinion in **Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 Others (2020) eKLR**, the 1st Defendant explains that the *sub judice* rule is intended to prevent a multiplicity of suits and the risk of conflicting decisions from Courts of competent jurisdiction. By pursuing parallel proceedings, the Plaintiff is accused of abusing the Court process. 18. The 1st Defendant concludes her submissions by stating that the suit is a frivolous and vexatious attempt to frustrate the Defendants and waste judicial time. Referencing the Court of Appeal’s decision in **Muchanga Investments versus Safaris Unlimited (Africa) Ltd & 2 Others, Civil Appeal No. 25 of 2002 [2009] eKLR**, the submissions define an abuse of Court process as any proceeding that lacks bona fides and is used to irritate an opponent. 19. Consequently, the 1st Defendant asks the Court to strike out the suit in its entirety. On the matter of costs, the 1st Defendant relies on **Owiti & another v Keith Interiors Limited [2024] KEHC 17077 (KLR)** and the Supreme Court’s guiding principles in **Jasbir Singh Rai & Others v Tarlochan Singh Rai & 4 Others, SC Petition No. 4 of 2012**, arguing that costs should follow the event and be awarded to the successful party. **Analysis and Determination** 1. The legal battle currently before the Court centers on a Preliminary Objection that seeks to terminate the suit at its threshold, pitting the principle of finality in litigation against the right to have a day in Court for distinct legal claims. 2. The 1st Defendant, as the Objector, anchors their argument on the strict application of Sections 6 and 7 of the Civil Procedure Act, which govern the doctrines of *sub judice* and *res judicata*. Their position is that the Plaintiff is essentially attempting to relitigate settled matters, a practice the Supreme Court discouraged in **Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [supra].** In that case, the apex Court made it clear that there are conditions to the application of the doctrine of res judicata, primarily that the issue in the first suit must have been decided by a competent Court and that the matter in dispute must be directly or substantially the same. 3. The 1st Defendant insists that because the properties in Kiambu and Kiambaa were already the subject of **Succession Cause No. 130 of 2017**, where the Plaintiff’s claim of matrimonial interest was rejected, the current suit is a frivolous and vexatious attempt to bypass that Judgment. They further argue that the pending appeal in **Civil Appeal No. COACA E059 of 2021** creates a *sub judice* situation, citing the Supreme Court’s advisory in **Kenya National Commission on Human Rights v Attorney General (2020) eKLR** that the rule is intended to stop the filing of a multiplicity of suits and avoid conflicting decisions over the same subject matter. 4. On the other hand, the Plaintiff and the 2nd Defendant present a unified front, arguing that the 1st Defendant has fundamentally misunderstood the nature of the Court’s jurisdiction and the requirements of a valid Preliminary Objection. They lean heavily on the classic **Mukisa Biscuit** test from **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (supra)**, where the Court stated that ***"A Preliminary Objection consists of a pure point of law ... It cannot be raised if any fact has to be ascertained."*** 1. They argue that the Court cannot determine if the parties or issues are identical without digging into the evidence of the previous succession records, which automatically disqualifies the objection from being a pure point of law. This procedural argument is bolstered by the 2nd Defendant’s reference to **Nguruman Limited v Jan Bonde Nielsen & Another [2017] eKLR**, asserting that the subject matter and reliefs in the current ELC suit centering on the legality of title and registration are fundamentally different from the administrative distribution issues handled in the Probate Court. 2. A critical point of divergence is the jurisdictional capacity of a Probate Court versus the Environment and Land Court (ELC). The Plaintiff correctly observes that jurisdiction flows from the Constitution and cannot be implied, a principle affirmed in **Samuel Kamau Macharia v KCB [2012] eKLR**. The Plaintiff further argues that since the Probate Court is limited to the distribution of an estate, it lacks the jurisdictional competence to decide on the validity of titles or allegations of fraud, which are the exclusive preserve of the ELC under **Article 162(2)(b) of the Constitution**. 3. These arguments were further pronounced by the Court in the case of **Re Estate of the late Kiplangat Keter [2001] eKLR** where the High Court at Kericho expressly addressed the principle of jurisdiction. The Court clarified the limits of its authority in a Probate and Administration matter, Ruling that: 4. The primary function of a Probate Court is limited to the distribution of the estate of a deceased person, not determining disputed ownership claims involving third parties. 5. Claims to ownership of alleged estate property between the estate and a third party must be resolved through civil litigation in a Court with proper jurisdiction (such as the Environment and Land Court), rather than in a succession cause. 6. The objector (William Kiprono Too) claimed to be a creditor based on a 40-year land occupation. The Court found that because the protestor did not purchase the land directly from the deceased, the claim was not valid in a succession matter, and he was directed to pursue his claim against the beneficiaries in a civil Court. 7. The Ruling cited precedent, including **In Re Estate of Stone Kathuli Muinde (2016) eKLR,** to establish that ownership disputes must be separated from estate distribution. Justice Musyoka held that ***"Claims to ownership ... should be resolved through the civil process ... at the Environment and Land Court."*** 1. By this logic, because the first Court was not competent to try such subsequent suit as required by **Section 7 of the Civil Procedure Act**, the doctrine of *res judicata* cannot act as a bar. In the landmark case of [**Satyadhyan Ghosal v. Smt. Deorajin Debi**](https://www.google.com/search?q=Satyadhyan+Ghosal+v.+Smt.+Deorajin+Debi&newwindow=1&sca_esv=b2c48e119f077edf&biw=1366&bih=599&sxsrf=ANbL-n7CDcf4rws7RYpaL66L_xIhpb796w%3A1775427814303&ei=5uDSadOaEqqFwbkPwoCHiAg&ved=2ahUKEwigtrqm4deTAxWZmYQIHb-KB6gQgK4QegQIARAB&uact=5&oq=Satyadhyan+Ghosal+v.+Sm.+Deorajin+Debi&gs_lp=Egxnd3Mtd2l6LXNlcnAiJlNhdHlhZGh5YW4gR2hvc2FsIHYuIFNtLiBEZW9yYWppbiBEZWJpMgUQIRifBTIFECEYnwUyBRAhGJ8FSMkdUABY4hZwAXgAkAEAmAFkoAFkqgEDMC4xuAEDyAEA-AEB-AECmAICoAJ3qAIQwgIHECMYJxjqAsICBxAuGCcY6gLCAhcQABiABBiRAhi0AhjnBhiKBRjqAtgBAZgDCvEF0R_cupseo1C6BgYIARABGAGSBwMxLjGgB9sDsgcDMC4xuAdswgcFMC4xLjHIBwmACAA&sclient=gws-wiz-serp&mstk=AUtExfAzTHJx4Q7hzZww-zziVBlnQ46pR_gp1cjD6AYcXZVphkfUHVk8qrWYbZTAHdycxk7Dhck4mJBfhL8EeXv4lfesmEAEuCY_UybPqGYAOh6LgqUhZXxrb141wcozVqoZZabxHy8QK_cpEnmMRa1iWilwiFYyH-iPB1IueUwXK7ao4K8BJCEH6fkmdS2jb6fTzurWugXvn8h587aIsZqildB3jYr5o7H2UVursFZEAqkww0sm8Hnvz5HLVyDFSneQ8F8DRRq5AC7n6s4A75fISOFp&csui=3)**(AIR 1960 SC 941** the Supreme Court of India case established that *res judicata* applies to different stages of the same litigation, preventing re-opening of issues already decided. It held that interlocutory orders, if not appealed, cannot be challenged later in the final appeal. This decision reinforces the idea that *res judicata* is a rule of convenience and public policy but cannot be used to strip a Court of its constitutional mandate to resolve specific disputes it was created to hear. 2. The case from the Supreme Court of India remains a fundamental precedent for the management of litigation stages and the doctrine of finality 3. Ultimately, while the 1st Defendant decries abuse of process based on **Muchanga Investments Limited v Safaris Unlimited** **(Africa) Limited & 2 Others [2001] KECA 242 (KLR)** the Plaintiff and 2nd Defendant maintain that the 1st Defendant is the one misusing the law to avoid a merit-based inquiry into how they obtained their title. 4. Having carefully considered the rival submissions and the extensive jurisprudence cited by all parties, I find that the Preliminary Objection falls at the first hurdle of the **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696** test. A valid Preliminary Objection must stem from a pure point of law, yet the 1st Defendant’s plea of *res judicata* and *sub judice* invites this Court to conduct a factual inquiry into the pleadings, parties, and specific findings of **Succession Cause No. 130 of 2017** and **Civil Appeal No. E059 of 2021**. 5. As observed in **Oraro v Mbaja [2005] eKLR**, any matter that requires evidence to be established cannot constitute a Preliminary Objection. By its very nature, determining whether the issues in this Environment and Land Court (ELC) suit are directly and substantially the same as those in a Probate Cause requires an evidentiary audit that goes beyond the face of the record. 6. On the merits of the doctrines raised, the 1st Defendant’s reliance on **Section 7 of the Civil Procedure Act** fails because of the critical requirement of jurisdictional competence. As the Supreme Court held in **Samuel Kamau Macharia v KCB [supra]**, jurisdiction is a creature of the Constitution and cannot be assumed. There is a clear legal distinction between a Probate Court’s mandate to distribute an estate and this Court's mandate under Article 162(2)(b) to determine the legality of title. Following the reasoning in **Re Estate of the late Kiplangat Keter [supra]** and the guidance of Justice Musyoka in **Re Estate of Stone Kathuli Muinde [supra]**, a Probate Court lacks the capacity to determine disputes involving third-party ownership or the cancellation of a title based on fraud. Because the Probate Court was not competent to grant the land-related reliefs sought here, the plea of *res judicata* cannot stand as a bar. 7. Regarding the doctrine of *sub judice* under **Section 6 of the Civil Procedure Act**, I am guided by **Nguruman Limited v Jan Bonde Nielsen & Another [2017] eKLR**, which requires that the subject matter and sought reliefs be identical. The pending appeal in the Court of Appeal arises from a succession dispute concerning the administration of the deceased's estate. It does not and legally cannot address the specific prayer for the cancellation of a registered title on the grounds of illegality. There is, therefore, no risk of conflicting decisions since the two Courts are exercising entirely different jurisdictions. To stay these proceedings would be to deny the Plaintiff their constitutional right to a determination on the merits of their title claim. 8. Consequently, I find that the 1st Defendant has not established that this suit is an abuse of the Court process. To the contrary, shutting the doors of justice at this stage would result in a jurisdictional vacuum where the Plaintiff’s claims regarding the legality of the title would never be heard by a Court with the proper mandate to decide them. The Preliminary Objection is, therefore, legally unsustainable and procedurally incompetent. 9. Given the foregoing my final orders relating to this application are as follows: 10. ***The 1st Defendant’s Preliminary Objection dated 21/05/2025 is hereby dismissed in its entirety.*** 11. ***The suit shall proceed to a full hearing on its merits.*** 12. ***The costs of this Preliminary Objection are awarded to the Plaintiff and the 2nd Defendant, to be paid by the 1st Defendant.*** 13. ***Parties are referred to the Deputy Registrar for Pre-trial Conference on 26/05/2026.*** Orders Accordingly. **DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 12TH DAY OF MAY, 2026.** **………………………** **MOGENI J** **JUDGE** **In the presence of:** Mr. Njugi for the Plaintiff Ms. Anne Mbugua for the 1st Defendant Miss Muigai for the 2nd Defendant Mr. Melita - Court Assistant **………………………** **MOGENI J** **JUDGE**