Mugoh v Gitonga; Nderi (Interested Party) (Environment and Land Appeal E007 of 2022) [2025] KEELC 8526 (KLR)

4. Several reliefs are sought sought in the memorandum of appeal, including the setting aside of the ruling and decree of Hon H. Nyakweba, SPM in Embu CMCC ELC 70 of 2019 dated 19/10/2021 on the basis that it violated the Appellant’s constitutional right to a fair hearing enshrined in Article 50 of the Constitution. An order is sought that this court lacks jurisdiction to entertain the suit by the Respondents dated 11/9/2019 for being res judicata against the Appellant and the Jacob Njeru Nderi. 5. Further, that the court cannot entertain the Respondent’s suit dated 11/9/2019 for being barred under Section 4 of the limitation of actions Act. The other basis on lack of jurisdiction is that the Respondent lacks the locus standi for want of proprietary interest in the suit land. The other prayer is that the agreement was not registered or stamped as required by the Land Registration Act and the Stamp Duty Act. 6. The Respondent filed a document entitled “Respondents Replying Afidavit” to the amended memorandum of appeal dated 23/11/2022. He also filed a document called “Respondent’s Defence” to the memorandum of appeal. 7. The court notes that although Jacob Njeru Nderi appears on the title of this case as an interested party, the court notes that in the ruling delivered by the Hon Mr Justice Kaniaru dated 24/9/2024, the Judge declined to allow the Appellant to join Jacob Ndaru Nderi as an interested party to this appeal. 8. From the myriad applications and afidavit filed in this appeal, it is apparent that the parties who are acting in person did not confine themselves to the rules governing appeals under the Civil Procedure Act and the Rules. 9. What the court can discern is that the appeal challenges the ruling of Hon Nyakweba delivered 19/10/2021 vide which the court found that Embu CMCC ELC 70 of 2019 was res judicata because it was between the same parties in ELC Civil case No 284 of 2014, which was heard and determined by a competent court whereby the suit was dismissed in the judgment delivered on 15/5/2018. 10. The appeal was canvassed through written submissions. The court has considered the submissions filed by the parties. The Appellant submitted that the Learned Magistrate only made a ruling on limitation and res judicata as against the Interested Party in the suit but not the Appellant. The Appellant submitted that the trial court failed to give a ruling on the Appellant’s preliminary objection on locus standi, res judicata and limitation and that that was contrary to Order 21 Rule 49 of the Civil Procedure Rules. He urged that the preliminary objection should have dismissed the whole suit and not part of the claim. 11. The Appellant emphasised that the trial court should have found that Embu CMCC ELC 70 of 2019 was res judicata because of ELC Civil case No 284 of 2014 which was decided by a court of competent jurisdiction in favour of Jacob Njeru Nderi. 12. The Respondent submitted that the Appellant and Jacob Njeru Nderi colluded and that they were parties in CM ELC Case No. 70 of 2019, which he filed. Jacob Njeru Nderi was removed from CM ELC Case No. 70 of 2019 based on the fact that that issue was already determined in CM ELC Case No. 284 of 2014. 13. The Respondent submitted that he bought Gaturi/Githimu/1775 from the Appellant and that Jacob Njeru Nderi lodged a caution against the land because the Appellant owed him money. The Respondent filed CM ELC Case No. 70 of 2019, from which Jacob Njeru Nderi was removed by Honourable H. Nyakeba, SPM on 19/10/2021. 14. The Respondent submitted that the matter was already finalised. That the court dismissed the claim in CMCC Case No. 284 of 2014 where the Respondent had sued the Jacob Njeru Nderi for removal https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8526/eng@2025-11-25 2

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of a caution on the basis that it was the Appellant who should have initiated the proceedings because he was the registered proprietor. 15. The Learned Magistrate found that CM ELC Case No. 70 of 2019 was res judicata as against the Jacob Njeru Nderi. The trial court could not find that the matter was res judicata as against the Appellant because the Appellant was not a party to CMCC Case No. 284 of 2014. 16. The appeal fails. The Respondent is awarded the costs of the appeal. DELIVERED VIRTUALLY AT EMBU THIS 25TH DAY OF NOVEMBER 2025. K. BOR JUDGE In the presence of: Mr. Tisiano Cosmas Mugo Diana Kemboi-Court Assistant No appearance for the Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8526/eng@2025-11-25 3

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