Faith Mwari M'Murithania v Alice Nyokabi Kibicha & another
The bottom line
#Kenya's Environment and Land Court struck out a land dispute because the same claim had already been decided, confirming you only get one chance to sue.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the objections were properly taken, and whether res judicata can be determined at this stage
- 2.Whether the suit is res judicata by reason of Thika CMELC No. 98 of 2020
- 3.Whether the suit is res judicata, or the Court functus officio, by reason of Thika ELC Petition No. 8 of 2019
- 4.Whether the suit can be sustained against the 2nd Defendant alone, and what orders, including on costs, should issue
Key legal issues
#Whether res judicata can be determined on a preliminary objection
Yes; the plea is jurisdictional and can be determined in limine where the existence, parties, subject matter and outcome of the earlier proceedings are not in dispute
Res judicata necessarily requires examination of the earlier proceedings, but that does not make it a contested question of fact. Here the Plaintiff herself pleaded the earlier suit and relied on its record, so the plea could be resolved on the documents. The 2nd Defendant's failure to file a defence did not bar the objection, which arises by implication from the plaint and was also moved by formal Notice of Motion.
Whether the suit is res judicata by reason of Thika CMELC No. 98 of 2020
Yes, as against the 1st Defendant; all conjunctive elements of Section 7 were satisfied
Same parties litigating in the same capacities over the same 2011 sale; the magistrate's court was competent; the claim was heard and struck out as time-barred, review refused, no appeal filed. Fraud allegations and the transfer prayer ought to have been raised there and are deemed in issue by Explanation 4. The acquittal in the criminal case created no new cause of action.
Whether the suit is res judicata or the Court functus officio by reason of Petition No. 8 of 2019
No; the Plaintiff was not a party, the Petition's judgment was not in rem, and the issues differ
Section 44(1) of the Evidence Act confines judgments in rem to probate, matrimonial, admiralty or insolvency jurisdictions; a constitutional petition for declarations, injunction and certiorari against public bodies is none of these. The Petition concerned the quashing of a gazette notice, not the Plaintiff's rights under the 2011 transaction, and functus officio does not extend to a different dispute between different parties.
Whether the suit can be sustained against the 2nd Defendant alone
No; no relief is sought against the 2nd Defendant in its own right and the remaining reliefs turn on the barred claim against the 1st Defendant
Parties are bound by their pleadings; no prayer seeks any order against the 2nd Defendant, which on the pleaded facts no longer holds the land. Trying the fraud issue against the 2nd Defendant would let the Plaintiff evade Section 7 by retaining an added party, and continuation would be an abuse of process under Order 2 Rule 15(1)(d).
Legal principles established
#- Res judicata is a statutory bar to jurisdiction, properly raised and determined in limine, and requires all Section 7 elements satisfied conjunctively
- A suit need not be decided on the merits after full trial for Section 7 to bite; a suit struck out after both parties were heard on a threshold point, with review refused and no appeal, is finally decided
- A litigant cannot evade res judicata by adding parties or re-casting prayers in a subsequent suit
- A judgment in a constitutional petition against public bodies is not a judgment in rem under Section 44(1) of the Evidence Act
Court orders
#- 1.The 1st Defendant's preliminary objection at paragraph 5 of her Statement of Defence dated 24th July 2024 is upheld
- 2.The 2nd Defendant's Notice of Preliminary Objection dated 17th September 2024 and its Notice of Motion dated 23rd September 2024 are dismissed in so far as they rest on Thika ELC Petition No. 8 of 2019
- 3.The Plaintiff's suit is struck out in its entirety
- 4.The Plaintiff shall pay the 1st Defendant's costs of the suit and of the preliminary objection
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; objections under Section 7 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules
Relief refused
#All prayers in the plaint (declaration of fraud, transfer of Block 20/2883, general damages, costs and interest)
Suit against the 1st Defendant is res judicata by reason of CMELC No. 98 of 2020; no relief is sought against the 2nd Defendant in its own right
2nd Defendant's plea of res judicata/functus officio based on Petition No. 8 of 2019
Plaintiff was not a party to the Petition; the judgment was not in rem and the issues differ
Costs
Plaintiff to pay the 1st Defendant's costs of the suit and of the preliminary objection; Plaintiff and 2nd Defendant to bear their own costs as between themselves
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
a. The 1st Defendant's preliminary objection at paragraph 5 of her Statement of Defence dated 24th July 2024 is upheld;
c. The Plaintiff's suit is struck out in its entirety; and
d. The Plaintiff shall pay the 1st Defendant's costs of the suit and of the preliminary objection.
Res judicata is a statutory bar to the Court's jurisdiction to try a suit or issue.
Section 7 requires that the matter be heard and finally decided; it does not require a full trial on evidence.
A preliminary objection is argued on the assumption that the facts pleaded by the other side are correct
In those circumstances the fair order is that the Plaintiff and the 2nd Defendant bear their own costs.
Issues in the judgment
#Paragraph numbered 53 appears twice - once on costs, once introducing final orders
Judgment dated 7th October 2026 but submissions dated 13th April 2026 and 5th February 2026, and a ruling of 8th January 2025 cited
Thika ELC ruling delivered virtually at Malindi, unexplained
Appearance list refers to 'the 11th -511th Defendants' though only two defendants are on record
Costs paragraph states Plaintiff and 2nd Defendant bear own costs, but final order (d) does not mention the 2nd Defendant's costs
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Faith Mwari M'Murithania v Alice Nyokabi Kibicha & another", Case Analysis (2026). ELCLC No. E061 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6268/eng@2026-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.