keelc-2025-06346

continuous occupation and have constructed a house in which they live. That the Defendants have deposited construction materials in the suit property which they are attempting to take up. 3. After service of the Originating Summons, the Defendants filed an application seeking to strike out the summons. The application was brought upon the grounds that Samson Kamau Gicheru and Zipporah Njeri Mburu are absolute and indefeasible owners of the suit property. That the Plaintifis were evicted from the suit property on 9th March 2024 pursuant to a court order issued 25th February 2024. It is the case of the Defendants that they purchased the suit property from Samuel Kibui Mbiriwa. That there have been several court cases relating to the suit property namely Principal Magistrates Case no 19 of 2008, Provincial Land Appeal Tribunal Claim no Kiambu West 7 of 2008; ELC Case no 971 of 2014 and MCCC MISC E033 of 2022. 4. The Defendants contend that they became registered owners in 2011 and filed an eviction case which was allowed and executed before the 12 years for adverse possession had lapsed. 5. In a detailed afidavit in support of the application the two Defendants depose that Samwel Kibui Mbiriwa who sold them the suit property was sued by the 3rd Plaintifi who is the mother of the 1st Plaintifi and the mother in law of the 2nd Plaintifi. That after several court cases a decision was given in favour of Samwel Kibui Mbiriwa. It is further the contention of the Defendants that 12 years have not lapsed since issuance of the title and in any event the Plaintifis cannot claim adverse possession when the Defendants were all along trying to evict them such as was the case in the present case. 6. The application is opposed by Christine Kithinji who in a Replying Afidavit dated 14th May, 2024 deposed that she and the first Plaintifi were not party to MCCC MISC E053 of 2022 and as such the suit is not res judicata. She states that she was not served with the pleadings in the stated suit hence did not get a chance to be heard. She further states that the procedure for eviction was not followed. 7. The applicant filed its submissions dated 20th September 2024 while the respondent filed submissions dated 27th November 2024. Having considered the issues raised and the submissions filed herein the only issue for determination is whether the application for striking out is merited. 8. The Defendants seek that the Originating Summons be struck out for being Res Judicata. 9. Section 6 of the Civil Procedure Act provides “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court” 10. As such in determining the issue of Res Judicata the court is called upon to determine the following issues; a. Whether the issue was directly and substantially in issue in the former suit b. Whether suit was between the same parties or parties claiming under them. c. The parties were litigating under the same title. d. The issues were heard and finally determined in the former suit. e. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue was raised. 1. The court will consider the Defendants application in light of the foregoing principles which are well settled in our jurisprudence. The first question the court asks itself is https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6346/eng@2025-04-10 2

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whether the issue that is being raised has previously been dealt with. The Provincial Land Appeal Tribunal on the 29th April, 2009 made an award as follows; “ Having listened to both parties and having perused all the documents available and the parties having agreed these (sic) panel goes with the Kiambu Panel Ruling that Dagoretti/ Thogoto/ 76 be divided into;” a. Salome Wanjiku Mbirwa- 1.29 acres b. Grace Wanjiku Mwangi and Kamunyu Johnson Ichungwa -0.54 acres c. Grace Muthoni -0.27 acres Dagoretti/Thogot T.315 remain registered in the names of Samuel Mbirwa 12. This award was adopted as an award of the court on 23rd April 2010. The Plaintifi herein appealed against this decision in the Environment and Land Court in an appeal by Grace Muthoni Gichungwa, Salome Wanjiku Mbirwa versus Samwel Kibui Mbirwa, ELC Case no 971 of 2014. This appeal was dismissed on the 13th March 2016. It is clear from the award and the Judgement that the issue of ownership was heard ad determined by the Tribunal and the court. 13. The Misc Application was an eviction application to bring into efiect the earlier decisions. It was canvassed and an order for eviction issued in the presence of the counsel for the appellant and respondent. 14. The second issue is whether the parties were the same parties or litigating under the same title. The parties herein were the same parties in the earlier proceedings save the 1st and 2nd Plaintifi who state they were not involved in the earlier proceedings. However, it is the uncontested averment of the Defendants that the two are related to the 3rd Plaintifi who is their mother and mother in law respectively. She therefore adequately represented their interest in the earlier proceedings. 15. In the end I find that the originating summons is an attempt to litigate issues which have already been determined. As such the application is allowed and the originating summons is struck out with costs. RULING SIGNED DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 10TH DAY OF APRIL 2025 JUDY OMANGE JUDGE In the presence of Court Assistant Vanilla Mr. Kabaila for 3rd Plaintifi Ms Wainaina for Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6346/eng@2025-04-10 3

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