Green Africa International Limited v Rwengo & 6 others (Environment and Land Case E038 of 2025) [2026] KEELC 2761 (KLR)

3. The acreage sold was later agreed to increase from 100 acres to 276 acres, and the purchase price to increase to Kshs.110,400,000/=. 4. The Plaintifi averred that he took possession of the suit lands and began farming thereon. However, the Defendants herein caused other agreements for sale to be entered into with respect to the suit properties and are in the process of causing the suit properties to be registered in their names to the exclusion of the Plaintifi. 5. They prayed for an order of permanent injunction against the Defendants from selling or interfering with the suit lands, an order of specific performance, or, in the alternative, special damages of Ksh. 40 million, compensation at the market value of Ksh. 400 million, and general damages for breach of contract. 6. What is coming up for determination herein is the Notice of Preliminary Objection (PO) dated January 13, 2020, filed by the 2nd-5th Defendants/Respondents in the suit on the following grounds: 1. That the application and the suit are legally defective, frivolous, and an abuse of the court process. 2. That the suit is res judicata pursuant to the judgment of the Honorable Court in Nyeri High Succession Cause No. 1057 of 2009, Chris Githinji vs. Speranza Njoki Githini & 4 others and Green Africa International Limited. 3. THAT this Honorable Court is functus oficio. The 2nd-6th Defendants’ written submissions 7. Counsel for the 2nd, 3rd, 4th, 5th, and 6th Defendants filed written submissions in support of their preliminary objection, asserting that the Plaintifi was a caveator in Nyeri High Court Succession Cause 1057 of 2009, claiming to have purchased the suit lands herein from the beneficiaries of the deceased's Estate. The Court ruled that the purported sale agreements between the Plaintifi and the deceased's children are void because none of the purported vendors had any proprietary interest capable of transfer, citing Sections 45 and 55 of the Law of Succession Act. 8. It is their submission that the Plaintifi cannot now rely on the same agreement that was voided as the basis for this suit. Counsel cited and relied on the following authorities: Joackim Mwandale Okessa v Judith Guserwa [2002] KECA 230 (KLR) and In re Estate of the Late John Rennie Carrie Gordon (Deceased) (2019) eKLR. The Plaintifi‘s written submissions. 9. Plaintifi, in submissions, stated that in High Court Succession Cause No. 1057 of 2009: Chris Githinji vs Sperenza Njoki Githinji & 4 Others, and Green Africa International Limited, the Court in the former suit did not address the issue of the refund and rightly held that it had no jurisdiction to do so; hence, res judicata does not apply in that regard, and Section 7 of the Civil Procedure Act is not applicable Analysis and determination 10. Arising from the foregoing, the issues I frame for the determination of this Court are whether the PO is sustainable, whether the doctrine of res judicata applies in this matter, and who bears the costs of the current PO. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2761/eng@2026-04-29 2

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11. The 2nd-6th Defendants contend that the suit is res judicata because the issues were addressed in Nyeri High Court Succession Cause 1057 of 2009, where the Plaintifi was a caveator and claimed that he purchased the suit from the Defendants. The Court in that suit held that the agreement, to the extent it was entered into by the beneficiaries, was void for all purposes and went against the Law of Succession. Hence, the PO is sustainable. 12. According to Black’s Law Dictionary, a PO is defined as: “ In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….” 13. The famous case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. [1969] E.A. 696 further clarifies the nature of a PO as follows: “ The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary objection. 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 in the exercise of judicial discretion. The improper raising of points by way of Preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. This improper practice should stop” 14. Section 7 of the Civil Procedure Act establishes the Kenyan statutory basis for the doctrine of res judicata and provides as follows: “ 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.” 15. This doctrine was discussed by the Supreme Court in the case of Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), where it was evaluated as follows: In John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment) we stated as follows: “ We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated: a. There is a former judgment or order which was final; b. The judgment or order was on merit; c. The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and d. There must be between the first and the second action identical parties, subject matter and cause of action.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2761/eng@2026-04-29 3

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69. 16. The elements set out above are to be conjunctive rather than disjunctive before a suit or an issue is to be deemed res judicata on account of a former suit. It must be demonstrated that there was a former judgment which was final, it was on merit and by a court having jurisdiction and have identical parties, subject and cause of action. Whether the issue of res judicata falls within the purview of a point of law that would deny the Court jurisdiction. As held in the Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, on what constitutes a PO, the Court determined that: “ I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis. for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 17. In the former suit, reported as In re Estate of the Late John Rennie Carrie Gordon (Deceased) [2019] KEHC 4399 (KLR), the High Court (Ngaah J.) held as follows regarding the agreement between the Caveator and some of the beneficiaries: “ Finally, the purported sale agreements executed between Green Africa International Limited and the deceased’s children are void for the reason that none of the purported vendors had any proprietary interest or any interest capable of transfer in any of the parcels of land they purported to sell. As at the time of the agreements, and even to date, those parcels of land have not been transferred to their names, a fact that has been conceded by the caveator himself; they were efiectively purporting to sell and the caveator, on the other hand, was purportedly buying what the ‘vendors’ did not have. In any case section 55 of the Law of Succession Act forbids distribution of the estate before a grant of representation has been confirmed in accordance with section 71 of the same Act; section 55 states: 55. (1) No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net estate, or to make any division of property, unless and until the grant has been confirmed as provided under section 71. And section 45. (1) of the Act is also clear that ‘except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased.’ According to subsection (2) of this section any person who contravenes subsection (1) is guilty of a criminal ofience besides being answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2761/eng@2026-04-29 4

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The proviso to section 82 of the Act is also clear that as much as the personal representatives of the deceased may sell any assets of the estate, ‘no immovable property shall be sold before confirmation of the grant.’ So, until such time that the grant is confirmed and the deceased’s estate distributed his children cannot have assumed ownership of any part of the estate to such extent that they could purport to dispose of it. If they ever sold it as alleged by the caveator, they contravened the provisions of the law that I have set forth and to that extent, their purported contract with the caveator would be illegal. It follows that if the caveator was to be recognised as a rightful beneficiary of the deceased’s estate by virtue of its contract with the deceased’s children, this court would efiectively be perpetuating an illegality. This court cannot enforce the purported agreement and even if it was a valid agreement, I doubt a court of probate and administration is the proper forum to seek its enforcement.” 18. From the foregoing, the Probate Court, correctly so, decreed by operation of law that the agreement between the Plaintifi (Caveator) and some of the beneficiaries was null and void and of no consequence, as it amounted to intermeddling with the estate—that is a settled matter. 19. The good judge, however, did not consider the refund issue related to the alleged sale agreement and properly determined that it should be settled in a difierent forum. 20. Within this forum, the Plaintifi seeks a refund as one of the reliefs sought in the Plaint. Consequently, res judicata shall not apply in this matter, as the issue of a refund has not been adjudicated by any other competent court; this Court is therefore mandated to address that issue (see Shafique Alibhai v Karim Jamal [2018] KECA 823 (KLR)). 21. Consequently, the PO dated January 13, 2020, is dismissed with costs in the cause. DATED, SIGNED, AND ELECTRONICALLY DELIVERED IN NYERI ON THIS 29TH DAY OF APRIL, 2026. E. K. MAKORI JUDGE In the presence of: Mr. Buluma for the Plaintifi Mr. Nderi for the 1st Defendant Ms. Maina for the 2nd to 6th Defendants Kendi: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2761/eng@2026-04-29 5

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