Ngage v Maina (Sued as Legal Representative of Joseph Maina Munyua) & another; Mbugua & another (Interested Parties) (Environment and Land Case E329 of 2024) [2025] KEELC 5546 (KLR)

1st Interested Party had disclosed no interest to be joined in that suit in which the subject matter was the similar land herein, which decision is binding to date. She contends that the suit is therefore res judicata. 3. The Applicant argues that the issue of succession was fully ventilated in NBI HC Succession Cause No. 3065 of 2001 hence this Court is not competent to re- litigate it. She states that this suit relates to the same subject matter that was under consideration in NBI ELC 556 OF 2010, and therefore is unsustainable, the earlier suit having been withdrawn by the plaintifi at the point of defence as an afterthought and upon a declaration that the withdrawing party was exhausted by litigation: this suit is thus brought in bad faith and maliciously so. Plaintifi ’s Replying Afidavit 4. The application is opposed by Mary Wangui Ngage, the Plaintifi herein vide her Replying Afidavit dated 21/05/2025. She avers that she has an interest in the suit land as the suit property belongs to her late father in-law, one Francis Munyua Maina. She states that her cause of action is the fraudulent registration of the suit property in the name of the 1st Defendant after the death of her father in-law. She argues that the said registration in the name of the 1st Defendant was in trust for the children of the late Francis Munyua Maina hence her interest in the suit property. 5. She confirms that in deed they had sought to be joined in Nairobi ELC Case No. 556 of 2010 as interested parties which application was denied. That the said suit was eventually withdrawn by the Plaintifi therein on 24/02/2025. 6. The Plaintifi argues that their application for joinder having not been allowed, they were not parties in Nairobi ELC 556 of 2010. She avers that the suit herein has more parties including the AttorneyGeneral. Further that in the absence of a determination on the 1st Defendant’s fraudulent acquisition of the suit property. The suit herein cannot therefore be said to be res judicata. 7. In reference to the suit in Nairobi HC Succession Cause No. 3065 of 2001 stated that it relates to the Estate of Teresia Wanjiku Maina while the case herein touches on fraudulent registration of the title in the 1st Defendant’s name. She therefore prays that the Court grants her a chance to be heard and that the 1st Defendant’s objection should be raised in the main suit. Court’s Directions 8. The Court directed that the application be canvassed by way of Written Submissions. Both parties complied. The 1st Defendant/Applicant’s submissions are dated 5/07/2025 whereas the Plaintifi’s submissions are dated 21/5/2025. The Court has had the opportunity to read and considered the said submissions. Analysis and Determination 9. Having considered the application and the arguments for and against, the main issue for determination is; whether the application is merited. 10. Order 51 Rule 4 of the Civil Procedure Rules on the contents of the Notice of Motion provides that: “ Every notice of motion shall state in general terms the grounds of the application, and where any motion is grounded on evidence by afidavit, a copy of any afidavit intended to be used shall be served.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5546/eng@2025-07-22 2

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11. An afidavit sworn statement under oath made in accordance with the Oaths and Statutory Declarations Act, Cap. 15 Laws of Kenya. An Afidavit in support of an application serves as the factual basis upon which the orders sought are granted. It contains facts demonstrating why the requested relief should be granted. Afidavits serve as substitutes for oral testimony, allowing Courts to consider written evidence without requiring witnesses to appear in person for every legal matter. 12. Interalia, from my reading of the pleadings of the parties coupled with the arguments advanced by the parties it would appear that there are contentious matters worth inquiry by this Court. 13. Consequently, the 1st Defendant’s Notice of Motion dated 5/05/2025 is hereby struck-out with costs to the Plaintifi. 14. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF JULY, 2025 VIA MICROSOFT TEAMS. J G KEMEI JUDGE Delivered Online in the Presence of; NA for the Plaintifi Mr. Ombwayo for the 1st and 2nd Defendants. NA for the 1st and 2nd Interested Parties. CA – Ms. Yvette Njoroge https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5546/eng@2025-07-22 3

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