Muriuki v Wanjiru Properties Limited (Environment and Land Case E019 of 2025) [2025] KEELC 7334 (KLR)

Submissions of the Defendant 4. On whether the suit is res judicata, it was submitted that Section 7 of the Civil Procedure Act barred a Court from trying a suit which had already been determined by a Court of competent jurisdiction and with reference to John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR). It was submitted that the Plaintifi was the complainant in Criminal Case Number E800 of 2022 Republic vs David Somoire Shanka whose Judgment was passed on 24th January 2025 and that the documents filed in that case were the same as the documents filed with the Plaint in this suit. The suit was set down for hearing and witnesses testified and the judgement determined who the rightful owner of property Kajiado/Kipeto/176 which was the subject matter in this suit was. 5. This suit was therefore res judicata and the Plaintifi should have filed and appeal or a revision and not an entirely new suit on the same subject. Even if the previous suit was a criminal case, this did not bar application of the doctrine f res judicata. Reference was made to the case of Irungu & another v Attorney General & 2 others; High Court of Kenya & another (Interested Parties) [2022] KEHC 11257 (KLR). Counsel went on to submit that litigation must come to an end and it was unjust for the Plaintifi to drag the defendant in another suit after the criminal case took over five years and a determination rendered in the defendant’s favour. Therefore, the suit should be dismissed with costs to the Defendant. Submissions of the Plaintifi 6. Counsel submitted that the plaintifi was the registered owner of parcel Kajiado/Kipeto/176 which the defendant had fraudulently acquired. That one David Shanka orchestrated a fraudulent transfer to the defendant who invaded and attempted to fence ofi the property. They threatened the Plaintifi with violence which led to filing a report and the filing of Criminal Case No. E008 of 2022. It was submitted that while David Shanka was acquitted in that suit, the State had lodged an Appeal against that decision. It was contested that the preliminary objection raised questions that needed to be ascertained and should therefore not be sustained. Reference was made to Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696. 7. Counsel also argued that questions of proprietary interests could only be addressed by the Environment and Land Court and not the Magistrate’s Court as a criminal case. It was also their submissions that the criminal case addressed forgery under the Penal Code, while the civil suit seeks remedies for fraud, trespass, and title cancellation which the Criminal Court neither addressed or determined. 8. Counsel also argued that a criminal acquittal did not bar civil claims and that the Plaintifi’s suit had evidence that had not been litigated on in the Criminal Case as afirmed by Kibos Sugar and Allied Industries Ltd v. Benson Ambuti Adega [2020] eKLR. 9. As such, the Preliminary Objection was against the threshold set by Mukisa Biscuit and should be dismissed with costs. Analysis and Determination 10. The Defendant has filed a Preliminary Objection to the Plaintifi’s suit on the ground of res judicata, contending that the matter has already been adjudicated in Criminal Case No. E800 of 2022 at Ngong Law Courts. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7334/eng@2025-10-28 2

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11. I have considered the Grounds of Preliminary Objection, the rival submissions and the authorities cited. The issues for determination is whether the Preliminary Objection is merited. 12. The Plaintifi opposes the objection, arguing, inter alia, that the Preliminary Objection cannot be upheld because the Court will be required to delve into the facts of the case and a factual enquiry is inconsistent with the nature and purpose of a preliminary objection. 13. The doctrine of res judicata in Kenya is statutorily embodied in Section 7 of the Civil Procedure Act which 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.” 14. It is trite law that a Preliminary objection should be raised on a pure point of law and not facts. This was held in the case of Mukisa Biscuits Manufacturing Co Ltd v West End Distributors [1969] EA 696 and supported by the Supreme Court in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR): “ A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion…” 15. The question of res judicata in the case at hand will require this Court to go beyond what is prima facie pleaded to determine whether the subject matter herein and the issues are similar to the issues raised in Criminal Case E800 of 2022 in order to come to the conclusion that the issues were dealt with. The moment the Court begins to delve into the arena of perusing evidence to make a determination, the issue moves from being a pure point of law to a factual matter defeating the principles of a preliminary objection. 16. In conclusion, I find no merit in the preliminary objection and the same is dismissed. The costs shall abide the outcome of the main suit. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 28TH DAY OF OCTOBER 2025. L. KOMINGOI JUDGE. In the Presence of: Mr. Okemwa for the Plaintifi. N/A for the Defendant. Court Assistant – Peter. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7334/eng@2025-10-28 3

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