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ELCStruck OutNot stated in the judgment· [2025] KEELC 2950 (KLR)

Murang’a Road Motor Mart Limited v King’ori & 5 others (Environment & Land Case E038 of 2022) [2025] KEELC 2950 (KLR)

Environment and Land Court
26 March 2025
3,328 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Environment and Land Court at Nairobi (Christine Ochieng, J) determined the 5th Defendant's (Nairobi County Government) Notice of Motion and Notice of Preliminary Objection dated 27 February 2024, contending that the suit was res judicata Nairobi ELC No. 1382 of 2016 (consolidated with ELC 174 of 2017 and ELC 2067 of 2011) and sub judice the plaintiff's pending appeal in Court of Appeal Civil Application No. E360 of 2023. The plaintiff opposed, arguing the parties, properties and prayers differed and that a stay of execution had been granted. Framing two issues - res judicata and sub judice - the court applied Section 7 of the Civil Procedure Act and the five-element test from John Florence Maritime Services (Supreme Court), and Section 6 with the Kenya National Commission on Human Rights formulation of sub judice. It found the fulcrum of the dispute, ownership of Nairobi/Block 107/1133, had been heard and finally determined in the consolidated suit, where Justice Oguttu Mboya confirmed the land was LR No. 107/1133, vested it in the KIRDI staff retirement scheme, and ordered cancellation of the plaintiff's Certificate of Lease; the pending appeal and stay did not invalidate that judgment. Introducing new parties claiming resultant subdivisions could not salvage the suit, as those issues ought to have been raised in the former suit. The court allowed the application and preliminary objection and struck out the suit with costs.

Key legal issues

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01

Whether the suit is res judicata the consolidated suit (Nairobi ELC 1382 of 2016 with ELC 174 of 2017 and ELC 2067 of 2011)

Holding

Yes; the fulcrum of the dispute (ownership of Nairobi/Block 107/1133) was heard and finally determined between the same parties, and the plaintiff cannot re-litigate its cancelled title by introducing new parties

Reasoning

The plaintiff was the plaintiff in the consolidated suit where Justice Oguttu Mboya determined ownership of LR 107/1133, confirmed it was not LR 107/1/1133, vested it in the KIRDI staff retirement scheme and ordered cancellation of the plaintiff's Certificate of Lease. The pending appeal and stay of execution do not invalidate that judgment. Introducing new parties claiming resultant subdivisions cannot escape res judicata since those issues ought to have been raised in the former suit.

p. 6
02

Whether the suit is sub judice the pending Court of Appeal appeal (Civil Application No. E360 of 2023)

Holding

Yes; the pending appeal concerns the same subject matter, so the later suit offends Section 6 of the Civil Procedure Act

Reasoning

Section 6 bars trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted proceeding between the same parties. The plaintiff did not deny a pending appeal whose fulcrum is ownership of the same suit property; the later matter must therefore await the earlier determination.

p. 7

Legal principles established

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  • A litigant who was party to a prior suit in which its title was determined cannot re-litigate that title in a fresh suit by introducing new parties, and a stay of execution does not invalidate the judgment under appeal
  • Elements of res judicata per the Supreme Court in John Florence Maritime Services

Court orders

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  1. 1.The 5th Defendant's Notice of Motion application and Notice of Preliminary Objection dated 27th February 2024 are allowed
  2. 2.The suit is struck out with costs

Authorities

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Legislation

  • Civil Procedure ActSection 7 and Explanations 1-6
  • Civil Procedure ActSection 6
  • Civil Procedure ActSections 6, 7 & 8

Cases cited (12)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Khalif v Principal Secretary Ministry of Lands & Physical Planning & 4 Others; National Land Commission & Another (Interested Parties)
    [2018] eKLR
  • Kenya Bankers Association v Credit Society Limited v Kinatwa Prestige Ltd
    [2021] eKLR
  • David Ndii & other v Attorney General & Others
    [2021] eKLR
  • Ndii & Others v Attorney General & Others (Petition E282, 397, E400, E401, E416 & E426 OF 2020 & 2 OF 2021 (Consolidated)
    [2021] KEHC 9746 (KLR)
  • Daniel Kipkemoi Bett v Joseph Rono
    [2022] eKLR
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR
  • Stephen Wanganga Njoroge Vs Stanley Ngugi Njoroge & Another
    (2017) eKLR
  • Uhuru Highway Development Ltd V Central Bank & Others
    CA No. 36 of 1996
  • John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015)
    [2021] KESC 39 (KLR)
  • Bernard Mugo Ndegwa v James Nderitu Githae & 2 Others
    (2010) eKLR
  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties)
    [2020] eKLR
Jurisdiction invoked
Sections 6, 7 & 8 of the Civil Procedure Act (res judicata and sub judice); jurisdiction challenged via preliminary objection

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Murang’a Road Motor Mart Limited v King’ori & 5 others (Environment & Land Case E038 of 2022) [2025] KEELC 2950 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2950/eng@2025-03-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.