Ngotho v Njau

3. Briey, the Plainti/Respondent instituted the suit vide an Originating Summons dated 29/06/2020 where she avowed that the suit land was registered in the name of Henry Ngotho Njau (Henry) in 1958 who died on 7/5/1997. That the Plainti had two other siblings and their father one Gerald Ngotho Njau (Gerald) died when their mother was expectant with Henry their only brother. 4. That upon demarcation and consolidation of the lands in the area their father’s land was registered in the names of her brother to hold in trust of her sister Kabura and the Plainti. According to the Plainti, the registration carried an underlying notion of customary trust and not an absolute title to Henry. 5. She avers that when her marriage brought down, she returned to her home in 1963 and her brother out of his generosity showed her a portion of the suit land to construct a house on the suit land where she lives to date. That when her brother died the Defendant applied for Letters of Administration where she was declared the owner of the whole land. 6. The matter was heard and the Court found that the Plainti’s suit was devoid of merit and dismissed it with costs to the Defendant. 7. At the same time, the Plainti/Respondent led a Preliminary Objection dated 24/06/2025 where she stated as follows:- 8. i. That the application is bad in law, abuse of the Court process as led as per the mandatory orders sought in the application. ii. That the suit having been dismissed the orders sought in the application is unmaintainable as there is no substantive suit and/or counterclaim. iii. That the matter and/or application is res judicata. iv. For the foregoing reasons we shall be seeking that the present application be dismissed with costs. On 1/07/2025 when the parties appeared in Court the Counsel for the Defendant/Respondent to the Preliminary Objection Mr King’ang’i stated that the Defendant/Respondent would not oppose the Preliminary Objection. The Court issued directions on the ling of submissions by the parties to both the Notice of Motion Application and Preliminary Objection. The Defendant/Applicant led undated submissions and the Plainti/Respondent led submissions dated 17/07/2025. I have considered both in writing of my Ruling. Analysis and Determination 9. 10. I have considered the application, Notice of Preliminary Objection led, the responses led as well as the submissions made. There are only three issues for determination: 1. Whether the rm of Chuma Mburu & Co. Advocates should be granted leave to act for the Applicant in place of the rm of D.K Githinji & Co. Advocates. 2. Whether the Preliminary Objection is merited and, 3. Whether the Court should grant eviction orders as sought for in the application following the Judgment delivered by this Honorable Court. The rm of Chuma Mburu & Co. Advocates have sought for leave to come on record for the Plainti in place of the rm of D.K Githinji & Co. Advocates who previously represented the Plainti by ling a consent dated 25/04/2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18671/eng@2025-07-29 2

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11. It is not in dispute that the said Advocates came on record after the delivery of Judgment and need to seek leave of Court as per the provisions of Order 9 Rule 9 of the Civil Procedure Rules which provides that:“ 9. 12. When there is a change of Advocate, or when a party decides to act in person having previously engaged an Advocate, after Judgment has been passed, such change or intention to act in person shall not be eected without an order of the Court:a. Upon an application with notice to all the parties, or b. Upon a consent led between the outgoing Advocate and the proposed incoming Advocate or party intending to act in person as the case may be.” Order 9 Rule 10 provides that:“ An application under Rule 9 may be combined with other prayers, provided that the question of change of Advocate or party intending to act in person shall be determined rst.” 13. The provisions of Order 9 Rule 9 allow the Court to grant leave upon an application with notice to all the parties or upon a consent led between the outgoing Advocate and the proposed incoming Advocate or party intending to act in person. Rule 10 allows the said prayer seeking leave to be brought together with other prayers. 14. In the circumstances the Plainti’s Counsel having led a consent entered into between the two Counsels in compliance with Order 9 Rule 9 I the said law rm is thus allowed to come on record and this prayer is granted. 15. On the second issue, the case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA 696 is notorious on the issue of what constitutes a Preliminary Objection. The Court observed thus:“ (i) 16. .. A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.” Sir Charles Newbold P. stated:“ (i) 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 has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of Preliminary Objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18671/eng@2025-07-29 3

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17. Similarly the Supreme Court in the case of Hassan Ali Joho & Another v Suleiman Said Shabal & 2 Others SCK Petition No 10 of 2013 [2014] eKLR held that:“ (i) 18. A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.” Further in the case of Hassan Nyanje Charo v Khatib Mwashetani & 3 Others, [2014] eKLR the Court held that:“ (i) Thus a Preliminary Objection may only be raised on a ‘pure question of law.’ To discern such a point of law, the Court has to be satised that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.” 19. Evidently, a Preliminary Objection must be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with the point of law. 20. In the instant application the Plainti/Respondent has raised a Preliminary Objection against the eviction stating that the Applicant/Defendant has sought mandatory orders and the orders are unmaintainable. That infact the application is Res Judicata. 21. Now having clearly laid out what the Superior Courts consider a Preliminary Objection to be, it follows that a party seeking mandatory orders and arguing they are unmaintainable does not, in itself, automatically constitute a valid point of law for a Preliminary Objection. The seeking of mandatory orders does not necessarily mean a point of law is at issue. The Objector has not made eort to point out the point of law that is the subject of the Preliminary Objection in the mandatory orders being sought by the Applicant. I do not nd the issue of mandatory orders sought being a pure point of law since I will need to examine the said orders. 22. The Objector has also raised the concern that the application is Res Judicata. The doctrine of Res Judicata is premised on Section 7 of the Civil Procedure Act. It prevents the Court from re-determining a matter/issue that has been nally determined by a competent Court. It is not in doubt that this issue goes to the jurisdiction of the Court and is capable of preliminarily disposing o the suit. 23. However, the question as to whether the issue of res judicata can be argued by way of Preliminary Objection has been the subject of debate. In the case of Henry Wanyama Khaemba vs Standard Chartered Bank Ltd & Another [2014] eKLR, the Court held as follows: “ (i) That re-statement of the limited scope of a Preliminary Objection brings me to the point where I hold that the Preliminary Objection by the 1st Defendant is not a true Preliminary Objection in the sense of the law. The issues of res judicata, duplicity of suits and suit having been spent will require probing of evidence as it is already evident from the submissions by the 1st Defendant. They are incapable of being handled as Preliminary Objections because of the limited scope of the jurisdiction on Preliminary Objection. Court of laws have always had a well-founded quarrel with parties who resort to raising Preliminary Objections in improperly.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18671/eng@2025-07-29 4

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24. The Court in Moses Mbatia vs Joseph Wamburu Kihara [2021] eKLR, also considered whether the question of res judicata was a proper Preliminary Objection as follows: “ (i) It is my view that all the relevant facts as summarized above are not in dispute and the matter did not call for the exercise of the trial Court’s discretion. Resultantly therefore the objection is a pure point of law.” 25. The Plainti/Respondent despite claiming that the application herein is res judicata, did not go to any lengths to explain to the Court how this was so. The suit upon which the application is premised was decided in favour of the Defendant/Applicant since the Plainti/Respondent’s suit was dismissed. 26. In order for a bar of res judicata for the Plainti/Respondent must meet the criteria set out in Section 7 of the Civil Procedure Act read together with numerous decisions that have been rendered by the Kenyan Courts on this matter. 27. The rst criterion is that matters directly and substantially in issue in the former suit must be directly and substantially in issue in the present suit. 28. The Plainti/Respondent has not referred the Court to any other suit where the matter of eviction was raised and canvassed and concluded on merit. 29. I rely on the case of Michael Bett Siror v Jackson Koech (2019)eKLR, where the Court went further to state that; “ (31) Thus, we reject the appellant’s contention and nd that the application of the doctrine of res judicata was very contentious and required full investigation at the trial, more so in a longstanding land dispute involving a big parcel of land and several other people.” 30. I recognize the desire of the Defendant/Respondent to bring litigation to an end but the end cannot be achieved in the manner envisaged under the doctrine of res-judicata as the threshold has not been met. 31. Now on the last issue on eviction orders, the Land Act 2012, provides for the procedure to be adhered to for the eviction of persons from private land. The process can take any of the following processes:- 32. 1. By the land owner issuing a notice to the person in occupation of his land without consent to vacate within 3 months. Such notice is issued under Section 152 E of the Land Act. The person served with such a notice has a recourse under Section 152 F to apply to the Court for relief. The Court may conrm the notice and order the person to vacate or it may vary, alter, suspend or make additions to the notice as it deems equitable and just. 2. By the land owner ling a suit for the eviction of a person who is occupying his land without consent. The Court, after hearing both the land owner and the occupier of the land may issue an order for eviction of the person who is unlawfully occupying the land. That is the route that the Defendant herein took by his Counter – Claim. Section 152 A of the Land Act provides that no person shall unlawfully occupy private, community or public land. Meaning that whichever route the owner of the land takes in evicting persons who are unlawfully occupying their land, there are mandatory procedures provided under Section 152 E of the Land Act which must be adhered to during the eviction process. They include proper identication of those carrying out the eviction, presentation of the eviction order, respect of the dignity, right to life and security of those aected, presence of government ocials etc. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18671/eng@2025-07-29 5

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33. From the Defendant/Applicant’s application she brought the Application under Sections 152A, 152B, 152 E and 152 F which address the critical important steps to undertake for an eviction of someone occupying private land. Given the circumstances of the case, it is expected that the Plainti/ Respondent may need time to settle her family out of the suit property. 34. Having considered the application I am of the view that the Plainti’s suit having been found to be devoid of merit, it is given that the Defendant/Applicant’s ownership of the suit property is unchallenged. Therefore, I make the following orders: 1. The Notice of Preliminary Objection is unmerited and is therefore dismissed. 2. The Defendant/Applicant to issue eviction notice as is required under Section 152 E of the Land Act 2012. 3. The Plainti is allowed six (6) months from the date of this Ruling to relocate her family from the land parcel Number Kabete/Nyathuna/313. 4. In default of (3) above, an Order of eviction to issue against the Plainti/Respondent, their servants, employees, agents, or any other person acting under their instructions or interest from all that land parcel known as Plot Number Kabete/Nyathuna/313 ("the suit property") and for vacant possession of the property to be delivered to the Defendant/Applicant within six (6) months from the date hereof and in any case not later than 31st January 2026. 5. The Ocer in Charge of Station (OCS) Kibiko Police Station to provide security during the implementation of Prayer (4) at the expiry of the six (6) months upon being notied by the Defendant/Applicant. 6. The Defendant/Applicant to bear the cost of the eviction towards the Police. 7. Costs of this application be in the cause. 8. Each party to bear their own costs of this application. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 29TH DAY OF JULY 2025. ........................... MOGENI J JUDGE In the presence of:Mr. Thairu for the Plainti/Respondent Mr. King’ang’i for the Defendant/Applicant Melita – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18671/eng@2025-07-29 6

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