Nahashon Tharuiya M'raibuta v Respondents
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the petition and application are barred by res judicata
The petition is barred by res judicata; the dispute over ownership and acquisition of the suit property had been heard and determined by four competent courts, and the adjudication-record error complaint ought to have been raised in the previous suits.
The dispute was litigated in Maua SRM CC 85 of 1997, Meru HCCA 104 of 1999, Nyeri Civil Appeal 221 of 2010 and Meru ELC Petition 7 of 2022, all upholding Severina Nchulubi's title. Under section 7, explanation 4, of the Civil Procedure Act, matters which properly belonged to the subject of litigation and could with reasonable diligence have been raised are barred. The petitioner cannot disguise the same dispute as a constitutional petition.
Whether the petition constitutes abuse of the due process of the court
The petition is a classic abuse of the due process of the court; the petitioner is gambling with the court process by filing a multiplicity of suits hoping for a favourable outcome.
The petitioner was party to previous proceedings and raised the same issues. Reverting to court to circumvent decisions that found the property is not his amounts to playing lottery with the court process, conduct fitting the description of abuse of court process as set out in the authorities cited.
Whether the orders sought would affect third parties not joined
The registered owner, Severina Nchulubi, was not impleaded despite the injunctions seeking to suspend lawful orders in her favour, which would condemn her unheard contrary to Articles 25(c) and 50 of the Constitution.
The petitioner disingenuously omitted the registered owner in whose favour previous decrees and warrants of eviction were issued, hoping for a walk-over. The right to be heard is non-derogable, and injunctions were wrongly sought against the respondents rather than the person executing the eviction orders.
Whether the applicant established a prima facie case for temporary injunction
The applicant failed to prove a prima facie case with a probability of success; absent that, the court need not consider irreparable loss.
The petitioner sought to use a constitutional petition to challenge execution proceedings contrary to section 34 of the Civil Procedure Act, and the prior judgments were decisions in rem valid against the whole world under section 44 of the Evidence Act. No genuine and arguable case was demonstrated.
Legal principles established
#- A party cannot recast a previously determined dispute as a constitutional petition to evade res judicata; issues that ought to have been raised in prior suits are barred
- Filing a multiplicity of suits across various courts in the hope of a favourable outcome constitutes abuse of court process
- Judgments in rem on land ownership bind the whole world
- A registered owner in whose favour orders exist is entitled to notice and hearing before injunctions affecting their rights are granted
Court orders
#- 1.The Application dated 28th May 2025 be and is hereby struck out.
- 2.The Petition dated 30th December 2024 be and is hereby struck out.
- 3.Costs of the Petition and the Application be and are hereby awarded to the Respondents.
- 4.The Costs in terms of clause (iii) shall be agreed upon and in default, shall be taxed by the Deputy Registrar of the court.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over a petition concerning ownership of land (LR No. 1186 Kiguchwa Adjudication Section), transferred from the High Court at Meru
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nahashon Tharuiya M'raibuta v Respondents", Case Analysis (2025). ELC Petition E006 of 2025 (formerly High Court Petition dated 30th December 2024, Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5182/eng@2025-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.