Musyoki v Muchemi & 4 others (Environment and Land Case E023 of 2025) [2026] KEELC 2842 (KLR)

Thereafter, the mutation was prepared and registered on May 27, 2020, for Ruguru/Karuthi/2231 as the rear portion and Ruguru/Karuthi/2232 facing the front. 3. Contrary to the agreed terms, the title deed she was issued was for Land Parcel Ruguru/Karuthi/2231, which faces the rear instead of 2232, which faces the front. 4. Unknown to her, the 1st Defendant entered into another agreement with the 2nd Defendant and sold him the remaining portion. The 2nd Defendant later transferred it to the 3rd Defendant, who is the spouse of the Principal Partner at the 4th Defendant law firm that prepared the 2nd Agreement. 5. The Applicant added that she has been in occupation of the front parcel Ruguru/Karuthi/2232 since 2020 and has developed a permanent residential house thereon, which she and her family occupy. 6. The Applicant highlighted that the 3rd Defendant filed a suit in Karatina Magistrate’s Court seeking her eviction. The Applicant lost and then appealed, and the appeal was allowed, and judgment was entered in the 3rd Defendant’s favor. She stated that she does not wish to appeal the said decision, but she is instead seeking to enforce her contractual rights and occupation by way of rectification of the register. 7. The Applicant contends that the continued registration of Parcel Ruguru/Karuthi/2232 in the name of the 3rd Defendant is contrary to the express agreement with the 1st Defendant and will cause her serious injustice, including the loss of her home and investment, as she risks being evicted. The 3rd Respondent’s Response 8. The 3rd Respondent filed Grounds of opposition dated 22nd of July 2025, opposing the instant application on the ground that on 11th July 2023, (Mugo J) issued a stay of execution against the judgment in Nyeri ELCA 33 of 2022, which efiectively halts the eviction of the applicant from Ruguru/Karuthi/2232 while preserving the conditional consent status quo. The applicant is accused of attempting to circumvent the conditional orders of stay. 9. Further, it is res judicata Karatina PMELC 3 of 2022 and Nyeri ELCA 33 of 2022, which have already been determined. 10. Further to this, the 3rd Respondent filed a Notice of Preliminary Objection dated January 26, 2026, opposing the application and suit on the following grounds: a. That this suit is res judicata in light of the following cases: Karatina MCELC No. 3 of 2022: Lucy Muthoni Maina v. Janefer Mumbua Musyoka, and Nyeri ELCA No. E033 of 2022: Lucy Muthoni Maina v. Janefier Mumbua Musyoka. b. Therefore, the suit does not state any cause of action against the 3rd defendant. c. That this suit is misconceived, incompetent, and an abuse of the court process. 11. The 3rd Respondent also swore a replying afidavit on January 26, 2026, and deposed that in 2022, when the Plaintifi commenced construction on her parcel of land, LR Ruguru/Karuthi/2232, she filed Karatina MC ELC 3 of 2022. That suit was dismissed, but she appealed in Nyeri ELCA E033 of 2022, and that appeal was allowed. 12. The Applicant informed her that she would appeal to the Court of Appeal and even sought a stay of execution of the ELC Court’s judgment pending the appeal. The stay of execution was granted on the condition that the Applicant pay Ksh. 100,000/= as part of the decretal amount and Kshs. 50,000/= to the Respondents’ advocate as latter costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2842/eng@2026-04-30 2

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13. The 3rd Respondent noted that the Applicant has yet to file an appeal and that the Applicant filed the present suit and the present application on the same day that this Court granted her a conditional stay of execution, which condition has yet to be fulfilled. 14. Thus, it is her position that the application does not meet the threshold for the grant of an injunction. The Plaintifi/Applicant’s response 15. The Applicant responded to the 3rd Respondent’s Grounds of Opposition and reiterated that it was a term of her agreement with the 1st Defendant that she was to purchase the front-facing parcel, which preceded her agreement with the 2nd Defendant and the allocation of title to the 3rd Defendant. 16. She denied that the claim is barred by res judicata, arguing that the relief sought in the current application is equitable in nature and difiers in form and in the parties from the earlier suit initiated by the 3rd Defendant. 17. That the current occupation and use of the suit land by the Plaintifi renders it just and necessary that the Court preserve the status quo and grant the orders sought in the instant application. The Applicant’s submissions 18. Counsel for the Applicant submitted that the sale agreement between the Plaintifi/Applicant and the 1st Defendant/Respondent was valid, in writing, and executed, thereby satisfying Section 3(3) of the Law of Contract Act. Counsel further submitted that the Plaintifi immediately took possession and developed the front parcel, thereby acquiring an equitable interest in the land, relying on the case of Willy Kimutai Kitilit v Michael Kibet [2018] eKLR. 19. Their submission is that this was done without the 1st Respondent’s knowledge and constitutes a registrable mistake under Section 80(1) of the Land Registration Act, which authorizes the Court to rectify any error or misrepresentation on the register. 20. Regarding res judicata, the Applicant submitted that the present suit is distinct in its cause of action and relief, and that the earlier proceedings at the Karatina Magistrate's Court and the ELC Appeal concerned possession, not rectification of the land register. 21. Regarding their prayer for injunction, the Applicant submitted that she has established a prima facie case with a probability of success, fulfilling the conditions for injunctive relief under Giella v Cassman Brown [1973] EA 358. 22. The 3rd Respondent’s submissions are neither in the court file nor in the CTS e-filing system. Analysis and determination 23. The Applicant herein seeks an injunction against the 3rd Defendant from dealing with or interfering in Ruguru/Karuthi/2232, which she states she had agreed to purchase from the 1st Respondent. On the other hand, the 3rd Respondent argues that the suit is res judicata because the issues were determined in Karatina MCELC No. 3 of 2022: Lucy Muthoni Maina v Janefier Mumbua Musyoka and Nyeri ELCA No. E033 of 2022: Lucy Muthoni Maina v Mumbua Musyoka. 24. According to Black’s Law Dictionary, a Preliminary Objection is defined as: “ In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2842/eng@2026-04-30 3

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25. The above legal principle has been cemented in the now-famous case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. [1969] E.A. 696. The Court then held that: “ 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.” 26. 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.” 27. This doctrine was discussed by the Supreme Court in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR), cited by the petitioners herein, where it was evaluated as follows: “ There are conditions to the application of the doctrine of res judicata: 28. i. the issue in the first suit must have been decided by a competent Court; ii. the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and iii. 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 titleKaria and Another v. The Attorney General and Others, [2005] 1 EA 83, 89.” The doctrine of res judicata hinges on the court's jurisdiction and can be classified as a point of law. If the court lacks the requisite jurisdiction to continue hearing the suit, it cannot proceed further and may even strike out the suit if the objection succeeds. The often-cited case on jurisdiction is Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, where the Court held 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.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2842/eng@2026-04-30 4

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29. In the lower court in Karatina MCELC Case No. 3 of 2022 and in the ELC court in ELC Appeal No. E033 of 2022, the parties were the Plaintifi and the 3rd Defendant herein. They were litigating over the same titles to the suit property herein, LR Ruguru/Karuthi/2232, with issues of ownership and trespass thereon. 30. It is evident that this suit ofiends the doctrine of res judicata, as the Applicant has raised the same issues of ownership over the suit property, which this Court determined to be owned by the 3rd Respondent. Further, by this Court’s ruling delivered on 11th July 2025, a stay of execution was granted to the Applicant herein, on condition that the Applicant pay the Respondent the sum of Kshs. 100,000/= as part of the Decretal Amount within the next 120 days from the date hereof, and that the Applicant pay Kshs. 50,000/= to the Respondent's Advocate as part of the latter’s costs. The Applicant still has the right to appeal this Court’s judgment to the Court of Appeal, but has failed to do so. 31. The Apex Court, in the case of Dina Management Ltd v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR), noted the importance of the estoppel of res judicata as follows: “ The doctrine of res judicata is founded on public policy and is aimed at achieving two objectives namely, that there must be finality to litigation and that the individual should not be harassed twice with the same account of litigation. (See Mulla, the Code of Civil Procedure, 16th Ed Vol 1 – pg 161). The doctrine of res judicata may be pleaded by way of estoppel so that where a judgment has been delivered, subsequent proceedings are estopped. Where res judicata is pleaded by way of estoppel to an entire cause of action, rather than to a single matter in issue, it amounts to an allegation that all the legal rights and obligations of the parties were concluded by the earlier judgment, which may have involved the determination of questions of law as well as findings of fact, this is a form of action estoppel. (See Halsbury’s Laws of England, paragraph 1174).” 32. For the foregoing reasons, the instant application and the entire suit ofiend the doctrine of res judicata and are struck out with costs. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN NYERI ON THIS 30TH DAY OF APRIL, 2026. E. K. MAKORI JUDGE In the presence of: Mr. Maina Karigithi for the 3rd Defendant Plaintifi in person Kendi: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2842/eng@2026-04-30 5

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