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ELCDismissedLand Case E033 of 2024· [2025] KEELC 3734 (KLR)

Kiage & another v Riano & 5 others (Land Case E033 of 2024) [2025] KEELC 3734 (KLR)

Environment and Land Court
5 May 2025
1,459 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a land suit as res judicata, holding that buyers who purchased property during ongoing litigation are bound by the outcome.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (L. Komingoi, J) determines a Notice of Motion dated 4th April 2024 in which the Plaintiffs, led by Ezekiel Ondabu Kiage, sought temporary injunctions restraining the 1st, 3rd and 4th Defendants from further subdividing, transferring, charging or disposing of parcel KJD/Kaputiei/North/22233 and its subdivisions, together with orders for the arrest of the 1st Defendant and attachment of her property for alleged disobedience of court orders, and orders compelling the Land Registrar to produce records relating to the parcel. The 1st Defendant, Agnes Nasianoi Riano, opposed the Motion through a Preliminary Objection dated 3rd July 2024, contending that the suit is res judicata by reason of the judgment in Kajiado ELC 674 of 2017 (Pherus Arori Monda and Agnes Nasianoi Riano v Kishil Ole Nkare Saire & others), in which Ochieng', J cancelled all subdivisions of parcel 22233, having found that Kishil Ole Nkare Saire had obtained the title unprocedurally and had no clean title to pass to third-party purchasers. The court agreed with the 1st Defendant: the Plaintiffs claim under Kishil Ole Nkare Saire, having purchased during the pendency of the earlier suit, and were therefore bound by the judgment and the doctrine of lis pendens. The Court applied Section 7 of the Civil Procedure Act and upheld the Preliminary Objection, dismissing the entire suit as res judicata with costs to the 1st Defendant, and declined to consider the merits of the interlocutory Motion.

Key legal issues

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01

Whether the suit is res judicata by virtue of Kajiado ELC 674 of 2017

Holding

Yes - the plaintiffs derive title from Kishil Ole Nkare Saire, whose title to parcel 22233 was the subject of and was cancelled in ELC 674 of 2017; the doctrine of res judicata applies and the Preliminary Objection is upheld

Reasoning

Section 7 of the Civil Procedure Act bars a suit where the matter directly and substantially in issue was heard and finally decided in a former suit. Although the plaintiffs were not formal parties to ELC 674 of 2017, they claim under Kishil Ole Nkare Saire, the 1st Defendant in that suit, whose title was found to have been obtained unprocedurally and who therefore had no clean title to pass. They purchased during the pendency of that suit and are bound by lis pendens and its judgment and decree.

p. 3
02

Whether the plaintiffs' claim falls within the res judicata bar given they were not parties to the earlier suit

Holding

The plaintiffs litigate under the same title as the 1st Defendant in the earlier suit, satisfying the requirements for res judicata

Reasoning

The plaintiffs acquired their interest from Kishil Ole Nkare Saire pendente lite. The Court of Appeal in Stephen Wang'ang'a Njoroge v Stanley Ngugi Njoroge, quoting Uhuru Highway Development Ltd v Central Bank, requires the parties to be the same or litigating under the same title. Persons deriving title through a defendant during pendency are equally bound by lis pendens, per Naftali Ruthi Kinyua v Patrick Thuita Gachure. Having upheld the objection, the court did not consider the interlocutory application.

p. 3

Legal principles established

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  • A person claiming under a party to a previous suit, whose title was adjudicated upon, is bound by the doctrine of res judicata even though not formally a party to the earlier suit
  • Alienation of suit property during the pendency of litigation (lis pendens) does not confer a better title on the transferee and must have consequences

Court orders

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  1. 1.The Preliminary Objection dated 3rd July 2024 is upheld on the ground that the suit is res judicata
  2. 2.The suit is dismissed with costs to the 1st Defendant
  3. 3.The Notice of Motion dated 4th April 2024 was not considered on the merits, having upheld the Preliminary Objection

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 63
  • Civil Procedure Rules (CAP 21)Order 39 rule 1(iii); Order 40 Rules 1, 2, 3 and 4
  • Land Court Act 2012Section 13
  • Registered Land Act (repealed)Not specified

Cases cited (8)

  • Mukisa Biscuit case (Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd)
  • Baber A. Mawji v United States International University & Another
    [1976] eKLR
  • Naftali Ruthi Kinyua v Patrick Thuita Gachure & Another
    [2015] eKLR
  • Carol Silcock v Kassim Shamji Mohamed
    [2013] eKLR
  • Pherus Arori Monda and Agnes Nasianoi Riano v Kishil Ole Nkare Saire & others (Kajiado ELC 674 of 2017)
  • Stephen Wang'ang'a Njoroge v Stanley Ngugi Njoroge & another
    [2017] eKLR
  • Uhuru Highway Development Ltd v Central Bank & others
    CA No. 36 of 1996
  • Bellamy v Sabince
    IDeG & J 566
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act; Order 39(1)(iii), 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules; Section 13 of the Land Court Act 2012

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, "Kiage & another v Riano & 5 others (Land Case E033 of 2024) [2025] KEELC 3734 (KLR)", Case Analysis (2025). Land Case E033 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3734/eng@2025-05-05

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