Ogutu & 59 others v Teresia Wairimu Kirima & Anne Wangari Kirima (As the Administrators of the Estate of the Late Gerishon Kirima) & another (Enviromental and Land Originating Summons 4 of 2023) [2024] KEELC 3385 (KLR)

The Applicants did not annex a certified extract of title as required by Order 37 Rule 7(2). However, the court held that Order 37 Rule 19 allows an originating summons to be converted into a plaint, so striking out purely on this ground would be to penalize form over substance. Moreover, the main prayer sought an injunction, not registration as an adverse possessor under Section 38 of the Limitation of Actions Act, so a plaint would have sufficed from the outset.

The prior consolidated judgment declared that plaintiffs claiming 80 acres of LR 6825/2 had no claim and ordered their eviction. Granting the relief sought here would in effect vary that judgment, which a court of concurrent jurisdiction cannot do. Permitting fresh claims by successive occupants would amount to an abuse of process. The Applicants' delay in coming forward after a decade of litigation reinforced the conclusion that the claim is res judicata and indolent.

The court noted that establishing sub judice would require combing through pleadings in the Court of Appeal matters, which falls outside what a preliminary objection permits, and no such evidence was proffered. The objection therefore succeeded only on the jurisdiction/res judicata grounds.

The court observed that the main pleading sought only an injunction, and questioned what it would be pending, since the Originating Summons made no prayer for a declaration of ownership. An injunction cannot issue in a vacuum and the suit would in any event fail even without the preliminary objection.