Miano & another v Musei (Environment and Land Case E128 of 2024) [2026] KEELC 915 (KLR)

5. The applications is supported by the afidavit of Jane Nyagitha Miano, the 1st Plaintifi/Applicant herein, sworn on the 18th November 2025. 6. The application is opposed. Thee is a replying afidavit sworn by John Kisiset Musei, the Defendant/ Respondent herein, on the 29th August 2025. 7. The Defendant/Respondent also filed a Preliminary Objection dated 7th February 2025. The grounds are: - 8. 1. That the Application ofiends the mandatory provision of Section 7 of the Civil Procedure Act on res judicata. 2. That the present application is a classic example of forum shopping owing to the fact that the Plaintifi/Applicant fully took part in a similar matter in which the Defendant/Respondent won against then and no appeal has been preferred to date in Nairobi ELC Case Number 1918 of 2007- John Kisisiet Musei -vrs- Jane Nyagitha Miano and 4 others. 3. That this Honorable Court has no jurisdiction to entertain the present Application as it has become functus oficio having fully discharged its duty in the matter. 4. That the Application dated 18th November 2024 is hopelessly incompetent, fatally defective and inadmissible and the same ought to be dismissed forthwith ever suo moto. 5. The entire Application is brought in bad faith is frivolous, vexatious and an abuse of the court process hence a good candidate for striking out with costs. 6. That the Plaintifis/Applicants are guilty of misrepresentation and non-disclosure of material facts for want of disclosure of the proceedings at the Environment and Land Court and are therefore underserving of this Honorable Court’s intervention. On the 3rd April 2025, the court with the consent of the parties directed that the Notice of Motion and the Preliminary Objection be heard together. The court also directed that the parties do file and exchange written submissions. The Plaintifis/Applicants Submissions 9. They are dated 18th November 2025. They raise three issues for determination: a. Do the Respondent’s objections meet the standard of a preliminary objection. b. Without prejudice, is the Respondent’s preliminary objection merited; and c. Have the Applicants met the threshold of grant of an interlocutory injunction. 10. Counsel submitted that the Defendants/Respondent’s Preliminary Objection does not meet the standard espoused by the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd amplified in Oraro v Mbaja (2005) KEHC 3182 (KLR). 11. It is also submitted that the plea of res judicata cannot be decided without a factual examination. He has put forward the cases of Henry Wanyama Khaemba v Standard Chartered Bank Ltd & Another (2014) eKLR; George Kamau Kimani & 4 Others v County Government of Trans Nzoia & Another (2014) eKLR; Kariobangi North Light Industries Jua Kali Association v Nairobi City County Government & 2 others (2025) KEELC.3573 (KLR). https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/915/eng@2026-02-19 2

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12. It is also submitted that the Defendant/Respondent has not adduced by way of afidavit evidence any averments to enable the court to probe into the conditions that must be satisfied to find the application res judicata. 13. Counsel also submitted that objections raised against the application cannot be argued or sustained through a Preliminary Objection because they contain factual aspects that require proof. 14. Counsel also submitted that the application is competent and properly before court for determination hence there is no misrepresentation or non- disclosure of material facts. 15. It is submitted that the present claim is a consequence of the judgment of the court in the former suit come the findings made therein, particularly that the Defendant/Respondent intended to sell 100 acres of the suit property, that it amounts to unjust enrichment for him to continue holding 100 acres at the expense of the 1st plaintifi/Applicant. Further that the present claim is for beneficial and equitable interest for 100 acres of the suit property, trust and breach of trust, which issues were neither argued nor determined in the former suit. 16. It is also submitted that the plaintifis herein were the defendants in the former suit but some parties in the former suit are not parties herein. The plaintifis herein cannot be said to be litigating under the same title. Reliance is placed on the case of Telcom Kenya Limited vJohn Ochanda (Suing on his own behalf and on behalf of 996 Former Employees of Telkom Kenya Limited (2014) KECA 600 (KLR). 17. It is also submitted that this court is not called upon to retry, upset or reverse the conclusive findings in Nairobi ELC No.1918 of 2007; John Kisiset Musei v Jane Nyagitha Miano & 4 others in the fraudulent transfer of the suit property in the name of the 1st plaintifi. That the present claim relates to the 1st plaintifi’s interest to receive 100 acres. 18. Counsel further submitted that the pleadings before this court reveal that the plaintifis have disclosed the proceedings in the former suit and referred to the findings therein as a basis of the trust in respect of 100 acres of the suit property 19. It is submitted that the matters pleaded in the instant suit are a typical infringement of a right which requires the respondent’s rebuttal as espoused by the Mrao case. The plaintifi’s pleadings and presented material establish a prima facie case against the Respondent. 20. It is also submitted that the Respondent is likely to dispose of the suit property hence the plaintifis will sufier irreparable damage if the orders are not granted. 21. It is further submitted that the balance of convenience tilts in favour of granting the orders as the orders will serve to protect the subject matter of the suit pending the determination of the suit. They pray that the application be allowed. The Defendant/Respondent’s Submissions 22. They are dated 29th August 2025. Counsel submitted that the Notice of Motion lacks merit is legally and factually defective and does not meet the legal threshold for the grant of an interlocutory injunction as laid down in Giella v Cassman Brown & Co Ltd.(1973) EA 358. 23. It is submitted that the Defendant/Respondent holds a valid tittle deed duly registered under the Land Registration Act which entitles him full enjoyment of the rights provided under section 24 and 25 of the Act. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/915/eng@2026-02-19 3

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Reliance placed on the case of Wreck Motors Enterprises v Commissioner of Lands & others where it was held that a registered proprietor has absolute ownership unless proven otherwise. 24. It is submitted that any loss sufiered would be quantifiable and compensable by way of damages. Reliance placed on the case of Nguruman Limited v Jan Bonde Nielsen & 2 others (2014) eKLR. 25. It is also submitted that the balance of convenience tilts in favour of the Defendant/Respondent who is in actual occupation and possession of the suit property, has undertaken developments and improvements and stands to sufier irreparable harm of restrained. He prays that the Notice of motion be dismissed with costs. 26. It appears the Defendants/Respondent did not file any written submissions in respect of the preliminary objection. Analysis and Determination 27. 28. I have considered the grounds of the preliminary objection, the Notice of Motion, the Afidavit in support the response thereto and the written submissions. The issues for determination are: i. Whether the preliminary objection is merited? ii. Does the Notice of Motion meet the threshold to grant temporary injunction? iii. Who should bear costs? The law on Preliminary Objections is settled. A preliminary objection must be on a pure point of law. In the case of Mukisa Biscuit Manufacturing Co. Ltd, v West End Distributors Ltd (1969) EA 696 the Court stated thus as per Sir Charles Newbold P; “ …..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 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 exercised of judicial discretion.” Law JA stated thus; “ ……so far I am aware a Preliminary Objection Consist of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a Preliminary Objection may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. 29. Section 7 of the Civil Procedure Act provides that:“ 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.” 30. For res judicata to apply, there must be a previous suit in which the matter was in issue; the parties in both matters must be the same on litigating under the same title, the previous matter must have been https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/915/eng@2026-02-19 4

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heard and determined by a court of competent jurisdiction and the issues is raised once again in the new suit. 31. The Court of Appeal in John Florence Maritime Services Limited & Another vC.S for Transport and Infrastructure & 3 Others (2015) eKLR stated as follows: “ …..the ingredients of res judicata are firstly, that the issue indispute in the former suit between the parties must be directly or substantially be in dispute between the parties in the suit where the doctrine is pleaded as a bar. Secondly, that the parties in the former suit should be the same parties or parties under whom they or any of them claim, litigating under the same title and lastly, that the Court or tribunal before which the former suit was litigated was competent and determined the suit fully….” 32. There is no dispute that in Nairobi ELC No.1918 of 2007; John Kisiset Musei v Jane Nyagitha Miano & 4 others (hereinafter referred to as “the previous suit”) the parties were the same. The only exception is that the Agricultural Finance Corporation and the Land Registrar Kajiado are not parties to the instant suit. 33. In the previous suit the plaintifi sought the following orders against the defendant:“ (a) Cancellation, Revocation of the transfer and registration of the land known as LR Kajiado/Ntashart/93 to the 1st Defendant and the deletion of the 1st Defendant’s name from the land register at Kajiado Land Registry; (b) Restore the plaintifi’s name to the aforesaid suit land and register forthwith.” 34. The 1st plaintifi in her testimony on the previous suit states that the defendant herein was selling 100 acres in order to ofiset a loan with Agricultural Finance Corporation. It was her testimony that she gave out two cheques of kshs.500,000/= to the 2nd plaintifi herein to take to the firm of M/s Waruhiu & Muite advocates. She further stated that she and the plaintifi later appeared before the Ngong Land Control Board and obtained consent. She later got a title in her name. She denied that she got the title illegally. 35. It should also be noted that though she claimed the have paid for the hundred (100) acres, she did not raise any claim to the same. Nothing prevented the 1st plaintifi (the 1st defendant) in the previous from filing a counter claim. I note that she was represented by a counsel. 36. The 2nd plaintifi (the 2nd defendant in the previous suit) told the court that he acted as an agent of the 1st defendant and was paid his commission. 37. Defence Witness No.4 a land Registrar based at Ngong Land Registry stated the application for registration in favour of the 1st Defendant (in the previous suit) was done by the 2nd plaintifi herein (2nd defendant) in the previous suit. She also admitted that there was no valuation of the suit land for purposes of payment of stamp duty and that there was no receipt to confirm that the stamp duty was ever paid. The plaintifi denied that he transferred the suit land to the 1st defendant. 38. In paragraph 21 of the judgment this Honorable Court observed thus; “ From the foregoing it is clear that the defendant conspired to illegally and fraudulently transfer the suit land to the 1st Defendant and without the plaintifi’s knowledge and/or consent without following due process. The 2nd Defendant masterminded this whole fraud. He denies that he agreed to buy 100 acres from the plaintifi, then claimed he was an agent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/915/eng@2026-02-19 5

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of the 1st Defendant. He admitted that the firm of M/s Waruhiu Muite Advocates, were his advocates and they had acted for him in many transactions. He admitted that he signed the application for registration forms. There was no doubt this was an elaborate scheme to dispossess the plaintifi of his land.” 39. As stated earlier nothing prevented the 1st Plaintifi from filing a counter claim in the previous suit. 40. In the instant suit the plaintifis seek orders that the Defendant be compelled to sub divide and transfer a portion of 100 acres out of Kajiado/Ntashart/93 to the plaintifi. 41. I find that this claim is re judicata. The claim of 100 acres was raised on the previous suit. 42. Having stated that the suit herein is res judicata, I need not go into the merits of the Notice of Motion dated 18th November 2025 and the same is upheld. 43. The upshot of the matter is that I find merit in the preliminary objection dated 7th February 2025 and the same is upheld. 44. Consequently, the Notice of Motion and the entire suit are hereby struck out for being res judicata with costs to the defendant. RULING DATED SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 19TH DAY OF FEBRUARY, 2026. L KOMINGOI JUDGE In the presence of:Mr. Pamba for the plaintifis Mr Musa for Mr Imbugwa for the Defendant Court Assistant: Nelima https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/915/eng@2026-02-19 6

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