Peninna Ntakira v Mugambi Itu & 2 others [2021] KEELC 2338 (KLR)

Section 7 of the Civil Procedure Act bars suits where the matter directly and substantially in issue was decided in a former suit between the same parties. The court reviewed the substance of CMCC No. 159 of 1984, which dealt with enforcing a sale agreement and excising one acre from Kiirua/Ruiri/1592. The subsequent suit questioned ownership of Kiirua/Ruiri/1915 held by the 3rd Respondent, a party not before the former court. The issues were therefore distinct despite the ELC endorsing the principle in Omondi that adding parties cannot defeat res judicata.

Relying on Central Bank of Kenya v Trust Bank and Christopher Ndaru Kagina v Esther Mbandi Kagina, the court held that fraud must be distinctly alleged and proved to a heightened civil standard. The Appellant tendered no evidence of fraud; the acquisition of the land by the 2nd Respondent was a bona fide transaction made with the deceased Plaintiff's knowledge and consent. On customary trust, the Appellant failed to adduce cogent evidence meeting the five elements laid down in Isack M'inanga Kiebia v Isaaya Theuri M'lintari.

The court noted the 3rd Respondent's title deed issued on 8th December 1993 was undisputed. Citing Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna, title in the hands of an innocent third party can only be impugned where obtained illegally, unprocedurally or through a corrupt scheme. Since no such proof was tendered, there was no basis for piercing the indefeasibility of title, warranting a declaration of lawful ownership.