Peter Kabue Kihara & 10 others v Wanjiku Ndungu & another [2021] KEELC 1804 (KLR)
The bottom line
#A Kenyan court struck out a land suit because the same people had already litigated the same property dispute, and you cannot simply refile the same case in a different form.
What this practically means
#Executive summary
#Key legal issues
#Whether res judicata can be raised by way of preliminary objection
It cannot, because determination of res judicata requires probing of evidence and ascertainment of facts
Applying Mukisa Biscuits, Oraro v Mbaja, Henry Wanyama Khaemba and George Kamau Kimani, the court held that a preliminary objection must raise a pure point of law on undisputed facts; since the res judicata claim was disputed, facts had to be ascertained and the objection was not a proper preliminary objection.
Whether the instant suit is res judicata to Ruiru SPMC ELC No. 89 of 2019
Yes; the same plaintiffs litigated ownership of the same property against parties under whom the defendants claim, and the matter was heard and finally determined
Although the earlier suit was framed around share certificate No. 1381 of Nyakinyua Investment Company, the court found that a share certificate is the precursor to title under a land-buying company, so both suits concerned Ruiru/Ruiru East Block 2/452 and the same possession since 2005. The plaintiffs were seeking to evade res judicata by reformulating the claim.
Whether the plaintiffs' Notice of Motion for interim injunction satisfied the Giella v Cassman Brown principles
Dismissed; once the suit was found res judicata the court had no jurisdiction to grant interim relief
The court held it had to first determine res judicata since jurisdiction goes to the root of its power to grant injunctions. Having found the suit res judicata, the application for interim injunctive reliefs fell with the suit and was dismissed.
Legal principles established
#- A plea of res judicata requires ascertainment of facts and cannot properly be raised by way of preliminary objection
- All elements of Section 7 of the Civil Procedure Act must be satisfied conjunctively for res judicata to be invoked
- Jurisdiction is fundamental; where a suit is res judicata the court must down its tools
Court orders
#- 1.The Notice of Preliminary Objection dated 12th April 2021 is not merited as what was raised does not amount to a Preliminary Objection
- 2.The instant suit is held to be res judicata to Ruiru SPMC 89 of 2019 and the entire suit is struck out entirely for being res judicata
- 3.The Notice of Motion application dated 25th March 2021 is dismissed
- 4.Costs to the Defendants
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court); the judgment does not expressly state the provision
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Talam v Chepngeno & 3 others (Environment and Land Case E001 of 2023) [2026] KEELC 3082 (KLR)[2026] KEELC 3082 (KLR)21 May 2026
Cite this brief
#Cite this brief
Caselaw, "Peter Kabue Kihara & 10 others v Wanjiku Ndungu & another [2021] KEELC 1804 (KLR)", Case Analysis (2021). ELC E011 of 2021 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1804/eng@2021-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.