https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4006

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA** **ELCLC NO. E010 OF 2024** **PETERSON KARIUKI KARANJA ………………………………… PLAINTIFF** **VERSUS** **MAGANJO JOSHUA KAGO .......................................... 1ST DEFENDANT** **LUCY WAKARIRU NDERITU .................... ................. 2ND DEFENDANT** **RULING** ***[Notices of Preliminary Objection dated 5th August 2025 & 10th January 2025]*** 1. The 2nd defendant filed the Notice of Preliminary Objection dated 5th August 2024, raising the following grounds: 1. *That the suit offends the provisions of* ***Sections 7 and 8 of the Civil Procedure Act, Cap 21 Laws of Kenya.*** 2. *That the suit is res judicata, a similar suit having been heard and determined in* ***Wan’guru CMCC No. 144 of 2015 and Wan’guru PMCC No. 21B of 2017.*** 3. *That the suit offends the provisions of* ***Order 25 Rule 4 of the Civil Procedure Rules.*** In her statement of defence dated the 5th August 2024, the 2nd defendant at paragraph 9 pleaded that she shall raise a preliminary objection on point of law at the hearing with a view to have the suit struck out for being *res judicata.* 1. In his statement of defence dated 10th January 2025, the 1st defendant at paragraph 9 averred inter alia that he shall before the hearing of this matter raise under notice of preliminary objection that this matter be struck out as it is *res judicata* to ***Sections 7 and 8* of the Civil Procedure Act** as it is similar to ***Wang’uru CMCC 144 of 2015 and Wang’uru 21B of 2017*** which were heard and determined by a competent court. 2. The court on 15th October 2024 and 24th February 2025 gave directions on filing and exchanging submissions on the preliminary objection. The learned counsel for the 2nd and 1st respondents filed their submissions dated the 8th May 2025 and 10th January 2025 respectively, which are largely aligned. They both relied on the doctrine of *res judicata* and the settled principles governing preliminary objections. They invoked the *locus classicus* case of ***Mukisa Biscuit Manufacturing Co. Ltd versus West End Distributors Ltd* (1969) EA 696** for the proposition that a preliminary objection must raise a pure point of law capable of disposing of the suit without recourse to evidence. 3. On the substance of res judicata, counsel for the 1st Defendant submitted that the present suit is res judicata under ***Section 7* of the Civil Procedure Act**, as the issues herein were directly and substantially in issue in ***Wang’uru CMCC No. 144 of 2015 and Wang’uru PMCC No. 21B of 2017***. Reliance was placed on the case of ***Independent Electoral and Boundaries Commission versus Maina Kiai & 5 Others* (2017) eKLR.** Counsel submitted that all the elements were satisfied, specifically that: * 1. *The parties are the same or litigating under the same title;* 2. *The subject matter,* ***L.R. Ngariama/Lower Ngariama/892****, is identical;* 3. *The Magistrates’ Court was competent;* 4. *The matter was heard and finally determined in a judgment delivered on 28th February 2023.* Counsel further argued that the Plaintiff is merely attempting to evade *res judicata* by reframing his claim. The counsel relied on the case of ***E.T versus Attorney General & Another* (2012) eKLR, as cited in *Pangaea Holdings LLC & Another versus Hacienda Development Ltd & 2 Others* [2020] eKLR,** where the Court stated that: ***“The courts must be vigilant to guard against litigants evading the doctrine of res judicata by introducing new causes of action…”*** The counsel for the 1st Defendant urged the Court to strike out the suit with costs. 1. The 2nd Defendant’s counsel gave a detailed factual background, emphasizing that the Plaintiff seeks cancellation of title to **Ngariama/Lower Ngariama/892** on grounds of fraud allegedly committed by the 1st Defendant. The 2nd Defendant denied the claim and maintained that the issues raised had already been determined in ***Wan’guru CMCC No. 144 of 2015 and Wan’guru PMCC No. 21B of 2017.*** On *res judicata*, counsel similarly relied on the case of ***Independent Electoral and Boundaries Commission versus Maina Kiai & 5 Others* (2017) eKLR**, and submitted that: * 1. *The parties are substantially the same;* 2. *The subject matter is identical;* 3. *The issue of ownership and alleged fraudulent transfer was directly in issue;* 4. *The matter was heard and determined after full trial.* Counsel further submitted, that in its judgment in **CMCC No. 144 of 2015***,* the Court expressly found no fraud in the transfer of the suit land. With respect to **Wan’guru PMCC No. 21B of 2017,** counsel submitted that the court therein affirmed the 2nd Defendant as the lawful owner and granted injunctive relief. On jurisdiction, reliance was placed on **Section 9(a) of the Magistrates’ Courts Act, 2015** and **Section 26 of the Environment and Land Court Act.** 1. Counsel also invoked the decision in the case of ***Nicholas Njeru versus Attorney General & 8 Others [2013] eKLR***, where the Court of Appeal stated that: ***“The doctrine of res judicata is founded on public policy… there must be finality to litigation, and that the individual should not be harassed twice with the same account of litigation.”*** On ***Order 25 Rule 4* of the Civil Procedure Rules**, counsel submitted that costs awarded in ***CMCC No. 144 of 2015*** remain unpaid, and therefore, the present suit is improperly before the Court. The 2nd Defendant urged that the Preliminary Objection be upheld and the suit dismissed with costs. 1. Though the record confirms that the Plaintiff was present in court on 15th October 2024 and 24th February 2025 when directions on filing of submissions on the preliminary objection were issued, he did not file any submissions. The record further shows that on 19th May 2025 and 14th July 2025 the plaintiff was present and on the last day was given *“last opportunity to file his submissions within the next 30 days”*. On the 17th February 2026 one Mr. Chege Advocate was present when the preliminary objection was fixed for ruling and he indicated to the court that he would be coming on record for the plaintiff. The court directed inter alia that *“the plaintiff to file and serve submissions in seven days”.* I have perused both the physical record and CTS and noted the plaintiff has not filed any submission. 1. The issues for the court’s determinations in the preliminary objections are as follows: 1. *Whether the Preliminary Objection dated 5th August 2024 is merited.* 2. *Who pays the costs?* 2. The court has carefully considered the grounds on the notice of preliminary objection dated 5th August 2024 and statement of defence dated 10th January 2025, the submissions filed by the learned counsel for the defendants, superior court decisions cited thereon and come to the following findings: 1. The record confirms that plaintiff instituted this suit vide a plaint dated 21st March 2024 seeking for inter alia cancellation of the title to **Land Parcel Ngariama/Lower Ngariama/892** currently registered in the name of the 2nd Defendant, and for the same to revert to him. His claim is anchored on allegations that the 1st Defendant fraudulently transferred the suit land to himself and subsequently to the 2nd Defendant without his knowledge or consent. Particulars of fraud are pleaded in the plaint. The Defendants opposed claim and contending inter alia that the dispute over the suit property has previously been litigated and conclusively determined before the Magistrates’ Court at Wang’uru. * 1. In the case of ***Mukisa Biscuit Manufacturing Co. Ltd versus West End Distributors Ltd (1969) EA 696***, the Court stated that: ***“A Preliminary Objection consists of a point of law… which if argued as a preliminary point may dispose of the suit.”*** Similarly, in the case of ***Hassan Ali Joho & Another versus Suleiman Said Shabal & 2 Others* [2014] eKLR**, the Supreme Court affirmed that: ***“(i) 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.”*** Further, in the case of ***Hassan Nyanje Charo versus Khatib Mwashetani & 3 Others* [2014] eKLR,** the Court emphasized that: ***“(i) 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****.”* The present preliminary objection is anchored on the doctrine of res judicata, which is a pure point of law, ascertainable from the pleadings and the record of previous proceedings. It does not require the taking of evidence. Accordingly, I find that the Preliminary Objection is properly taken. * 1. The doctrine of res judicata is codified under ***Section 7* of the Civil Procedure Act, Chapter 21 Laws of Kenya,** 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.*** ***Explanation. (1)- The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.*** ***Explanation.(2)- For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.*** ***Explanation. (3)- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.*** ***Explanation.(4)- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.*** ***Explanation. (5)- Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.*** ***Explanation. (6)- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.”*** The Supreme Court in the case of ***Kenya Commercial Bank Limited versus Muiri Coffee Estate Limited & Another* [2016] eKLR** emphasized that a court must examine the entire record of the previous proceedings to determine whether the issues, parties, and subject matter coincede. Similarly, in the case of ***Independent Electoral and Boundaries Commission versus Maina Kiai & 5 Others* (2017) eKLR**, the Court of Appeal set out the five elements of *res judicata*, which must be satisfied conjunctively. * 1. There is no dispute that ***Wan’guru CMCC No. 144 of 2015*** concerned the same parcel of land, **Ngariama/Lower Ngariama/892.** The record shows that the Plaintiff herein was a party to that suit, and that the issues before the Court included whether the 1st Defendant lawfully acquired title to the suit property, and whether subsequent transfers were valid. In a judgment delivered on 28th February 2023, the Court determined that the 1st Defendant had acquired a good title. In the present suit, the Plaintiff alleges that the 1st Defendant fraudulently transferred the suit land to himself and thereafter to the 2nd Defendant, and seeks cancellation of the 2nd Defendant’s title. In substance therefore, the Plaintiff is once again inviting this Court to interrogate the validity of the 1st Defendant’s title and the subsequent transfer, which issue was directly and substantially in issue, and conclusively determined in the former suit. The Plaintiff has now particularised fraud. However, even assuming that the specific particulars of fraud were not fully ventilated in the earlier proceedings, they are matters which ought to have been raised in that previous suit. * 1. In the case of ***John Florence Maritime Services Limited & another versus Cabinet Secretary Transport & Infrastructure & 3 Others* (Petition 17 of 2015) (2021) KESC 39 (KLR) (CIV),** the Supreme Court delved into an in-depth discussion of the concept of *res judicata*, thus;- ***“…The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows:… where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, 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 res 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 Judgment, 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” [emphasis supplied]. 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 versus 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.”*** The Plaintiff cannot therefore evade the doctrine of *res judicata* by reintroducing the dispute under the guise of fraud. To allow such a course would undermine the principle of finality in litigation. * 1. The parties in **Wan’guru PMCC No. 21B of 2017** were Lucy Wakariru Ndiritu and Edith Wathitha Ndege as plaintiff and defendant respectively. That suit and the instant one involves the same parcel of land, but the Plaintiff herein was not a party in that previous suit, and the issues determined therein related to injunctive relief based on occupation and registered ownership. In the judgement delivered on 27th February 2024, the court inter alia rendered itself as follows: *“The question for my determination is whether the plaintiff is the registered owner of the suit land if so can the orders sought issue?* *I have keenly perused the finding of the court in* ***Wang’uru Civil Case No. 144 of 2015*** *where the trial court then delivered a reasoned judgment and extensively interrogated the issue as to whether a good title was passed to the plaintiff herein. From the said proceedings, I note that the issue of fraud was addressed in the criminal trial where the court found that one Peterson had agreed and considered forfeiture of his land (the suit land herein) in default of payment of a loan that was given to him by Joshua. The court held that Joshua indeed acquired a good title which he passed to Charles who in turn passed the title to Lucy the plaintiff in the instant suit. Peterson did not file any appeal against the finding of the court back then and none has been filed to date. The plaintiff having acquired a good title I would find that she has proved on a balance of convenience[sic] that she was the registered owner of the suit land as such judgement is entered in her favoured [sic] as prayed in the plaint.* *The plaintiff shall also have cost of suit with interest thereon.”* The plaintiff herein was not a party in that suit and the court may not know whether he was related to any of the parties therein, without evidence to that effect being tendered. The decision in **Wan’guru PMCC No. 21B of 2017,** on its own, does not sustain a plea of *res judicat*a against the Plaintiff on the issue of the root of title. * 1. In the **Wang’uru CMCC No. 144 of 2015** the parties were Charles Waweru Kiura as plaintiff, Peterson Karoki Karanja as defendant, Maganjo Joshua Kago and Lucy Wakariru Nderitu as third parties. The defendant and third parties in that suit are now the plaintiff and defendants respectively in this instant suit. The suit property in that suit and this instant one is the same. In its judgement delivered on 28th February 2023 the trial court issued the *following final orders:* *A declaration be and is hereby issued restraining the defendant Peterson Karoki Karanja, by himself, his agents, servants of {sic} anyone claiming under him or through him from entering, cultivating, or in any other way interfering with* ***Land Parcel L.R No. Ngariama/Lower/Ngariama/892*** *presently registered in the name of Lucy Wakariru Nderitu.* *The defendant will also pay costs of this suit to the plaintiff and 1st and 2nd third parties.”* There is no indication or suggestion that any appeal was preferred against the orders in the said judgement, which clearly pronounced itself on the dispute over ownership and validity of title to **Land Parcel Ngariama/Lower Ngariama/892**. * 1. Though the plaintiff herein was the defendant in that suit, he did not disclose its existence when filing this suit vide the plaint dated 21st March 2024. The present suit is evidently an attempt to reopen the determination in otherwise than through a review or an appeal, which are the legal avenues known in law for such an enterprise. The doctrine of *res judicata* bars such re-litigation, like the plaintiff herein has embarked on, and the preliminary objection raised by the defendants herein is merited, and therefore upheld. 2. Under **Section 27 of Civil Procedure Act chapter 21 of Laws of Kenya,** costs follow the events unless where ordered differently by the court on good grounds. In this instance, I find no reasonable cause to order otherwise and the plaintiff, being the loser will bear the defendants costs, as they have emerged victorious in their preliminary objection. 1. Flowing from the foregoing conclusions on the defendants preliminary objection to the plaintiff’s suit on the ground of being *res judicata*, the court finds and orders as follows: 1. **That the defendants’ preliminary objections has merit and is upheld.** 2. **That the plaintiff’s suit against defendants is struck out for being res judicata in view of the decision in Wang’uru CMCC No. 144 of 2015.** 3. **The plaintiff will pay the defendants’ costs in the suit.** It is so ordered. **DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 1ST DAY OF JULY 2026.** **S. M. Kibunja** **ELC JUDGE** **In the presence of:** Plaintiff – Present in Person Defendants – Mr. Ombachi for 2nd Defendant Kinyua/Charles - Court Assistant **S. M. Kibunja** **ELC JUDGE**