Ngumbua (Suing as the Representative of the Estate of Tabitha Watiri) v Muoge & 5 others (Civil Suit E56 of 2024) [2025] KEELC 6356 (KLR)

2. c. That this Honourable Court do issue an order of temporary injunction to restrain the Respondents or their agents or servants or whatsoever claims on their behalf from threatening, evicting, trespassing interfering with quiet possession or entering and occupying or developing or dealing in any manner whatsoever with Title No. Dagoretti/Mutuini/914 until the determination of this suit. d. The Court be pleased to issue a conservation order in form of an inhibition pending hearing and determination on this suit. e. The cost of this application be awarded. The Plaintifi contends that the late Paul Mukora Mbugua who was his father had three wives namely Serah Njeri Mbugua, Tabitha Watiri (the Plaintifis mother) and Rachel Wairimu Mbugua. That before his death, he instructed Rachel Wairimu Mbugua to sub divide the land equally amongst the three wives. Before the sub division could be completed Rachel Wairimu died. As she did not have children, her brother David Muoge Gathaiya petitioned for grant and had the land sub divided as follows; i. Now Dagoretti/Mutuini/913 – Young Timber Mart Limited ii. Now Dagoretti/Mutuini/914 – Tabitha Watiri Mbugua iii. Now Dagoretti/Mutuini/915 – Racheal Wairimu Mbugua iv. Now Dagoretti/Mutuini/916 – to be shared by all the widows v. Now Dagoretti/Mutuini/917 – Serah Jeri Mbugua 3. The Plaintifi avers that David Muoge Gathaiya sold Dagoretti/ Mutuini/914 and 916 to the 6th Defendant who is now threatening to evict him from the suit properties. He pleaded with the court to issue an order protecting him from eviction. 4. The 6th Defendant filed a Replying Afidavit on his behalf and on behalf of the other Defendants. He told the court that the issues raised by the Plaintifi had been litigated upon and hence were res judicata. The 6th Defendant raised a preliminary objection for the court to strike out the suit on grounds that it is res judicata the following cases; i. Nairobi ELC NO 648 OF 2009 ii. Nairobi EA CIVIL APPEAL NO 141 OF 2006 iii. Nairobi HCC N0 2141 OF 1998 iv. Nairobi ELC E046 OF 2024 5. Counsels filed submissions which the court has had occasion to consider. 6. The Plaintifi has brought this suit on the grounds that there was a customary trust over the property which initially belonged to Paul Mbugua Mukora who when he passed on left it to Rachel Wairimu Mbugua to sub divide. Upon her death her brother David Muoge Gathaiya who is survived by the 1st to 5th Defendant petitioned for letters of administration. 7. The Plaintifi does not produce the certificate of confirmation of grant, but states in paragraph 10 that sub divisions were carried out as follows; a. Dagoretti/ Mutuini /913 – Young Timber Mart https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6356/eng@2025-01-23 2

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8. b. Dagoretti/ Mutuini/ 914- Tabitha Wairimu Mbugua c. Dagoretti/ Mutuini/ 915- Rachel Wairimu Mbugua d. Dagoretti/ Mutuini/ 916 -to be shared by all the widows e. Dagoretti/ Mutuini/ 917- Serah Njeri Mbugua At this stage the only issue the court has to determine is whether the suit is res judicata the earlier suits. 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 the 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” Black’s law Dictionary 10th Edition defines res judicata as follows; “An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…” 9. It is evident that the disputants in this case are the beneficiaries of the estate of Paul Mukora and his wives against purchasers of portions of the suit property. It is safe to say that even though the actual names change, they are parties who are related and pursuing the same course so to speak. It is also not disputed that there are previous cases which have been determined by the Court of Appeal and the High Court on the issues. 10. The only issue the court has to consider is whether the issues are substantially the same. The plaintifi’s case is brought on the basis of the ground that there is a customary trust over the suit property (paragraph 13 of his afidavit) I had occasion to analyze the various cited cases in the decision I made in ELC E046 of 2024. My findings which I reiterate were… “In the cited cases claimants who alleged to have a stake on the estate of Rachel Wairimu Mbugua had sought to revoke the letters of administration issued to the kin of the defendants on the grounds that there was a customary trust in their favour in respect of the suit property. This argument was dismissed by the High Court and afirmed in the Court of Appeal” 11. I reiterate that the High Court having considered and dismissed this argument this court cannot consider afresh the issue of the customary trust. I therefore find that as asserted by the 6th Defendant, the issue has already been determined by the High Court and cannot be reopened for litigation before this court. In the circumstances, I uphold the Preliminary Objection and strike out the application and the suit with costs. It is so ordered. RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS 23RD DAY OF JANUARY 2025 JUDY OMANGE JUDGE In the presence of: Ms Njoroge for Plaintifi Mr. Okwaro for Defendant Court Assistant Meryline https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6356/eng@2025-01-23 3

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