Muthoni v Kiambaa Kawaida Co. Ltd & 3 others (Environment and Land Case E021 of 2023) [2026] KEELC 4543 (KLR)

To conclusively prove this fact, the Respondent relies on Annexure "H-1", which is a copy of the formal Notice of Withdrawal filed in that matter. 4. The Respondent further points out that because the previous suit was aborted early, no issues were ever framed for determination, no evidence was led by any party, and no judgment or final order capable of altering or determining the parties' substantive rights was ever delivered. 5. Invoking established jurisprudence, the Respondent argues that a matter which is withdrawn, struck out, or dismissed for want of prosecution cannot form the basis of a plea of res judicata, as it fails to yield a final judicial decision. Consequently, she maintains that the Applicant's Preliminary Objection is legally untenable, misleads the Court by relying on a non-existent final decision, and constitutes a clear abuse of the Court process. She therefore prays that the Preliminary Objection be dismissed with costs. 6. Despite the parties having agreed to canvass the Application by written submissions only the 4th Defendant had filed their submissions at the time of writing this Ruling. I have considered the submissions which in summary are that that the Plaintifi's suit is incompetent, bad in law, and a clear abuse of the Court process due to the repetitive litigation of a previously settled dispute. 7. The 4th Defendant further submits that the factual background indicates that the Plaintifi initially filed Kiambu CMELC No. 78 of 2019 against substantially the same parties over LR No. Tigoni/ Tigoni Block 1/3934, seeking the cancellation of the 4th Defendant’s title based on identical allegations of fraud. Although the Plaintifi eventually withdrew the 2019 suit by a Notice of Withdrawal dated 27/02/2024, which the Court marked as wholly withdrawn with costs on 13/03/2024, she immediately instituted the present proceedings seeking identical reliefs. 8. Thus the 4th Defendant argues that this conduct violates the doctrine of exhaustion, as the dispute falls well within the pecuniary jurisdiction of the Magistrate’s Court under Section 7 of the Magistrates' Courts Act. To support the stance that prescribed legal procedures must be strictly adhered to rather than treating the higher Court as a first port of call, the submissions cite the decisions in Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) and Geofirey Muthinja & 4 Others v Samuel Muguna Henry & 2 Others [2022] KEHC 2085 (KLR). 9. Furthermore, the 4th Defendant contends that filing fresh proceedings after litigating a matter for six years and subsequently withdrawing it constitutes fiagrant forum shopping and an improper use of the judicial system. Relying on the Court of Appeal decision in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] KECA 453 (KLR), the defense emphasizes that such repetitive litigation is inconsistent with the administration of justice and amounts to an abuse of process. 10. In the submissions, the 4th Defendant invoke the classical principle in Henderson v Henderson, asserting that litigation must have finality and parties are prohibited from raising claims piecemeal when they properly belonged to the initial action. Even though the earlier suit was withdrawn before a final determination on the merits, the 4th Defendant argues that the Court retains the inherent power under Sections 1A, 1B, and 3A of the Civil Procedure Act to examine past records to prevent vexatious and oppressive duplication of suits. Consequently, the Court is urged to uphold the Preliminary Objection, strike out the suit in its entirety, and award costs to the 4th Defendant pursuant to Section 27 of the Civil Procedure Act. 11. The 4th Defendant’s Preliminary Objection raises fundamental questions concerning the finality of litigation, the appropriate use of judicial infrastructure, and the threshold required to sustain a plea of res judicata. The 4th Defendant posits that the present suit is a duplication of Kiambu Chief https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4543/eng@2026-07-14 2

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Magistrate’s Case No. 78 of 2019, which involved substantially identical parties, the same parcel of land LR No. Tigoni/Tigoni Block 1/3934, and a mirroring cause of action grounded in fraud. However, the undisputed factual position established by the Plaintifi's Replying Afidavit and supported by the formal Notice of Withdrawal marked Annexure "H-1" is that the 2019 suit was voluntarily withdrawn by the Plaintifi on 27/02/2024 and marked as discontinued by the Court on 13/03/2024 before pleadings were closed, issues framed, or any evidence led. 12. Now, the standard for establishing res judicata under Section 11 of the Civil Procedure Act Cap 21 requires a showing that the matter in controversy was directly, substantially, and finally determined on its merits by a Court of competent jurisdiction. By introducing uncontroverted proof of withdrawal, the Plaintifi efiectively neutralizes the primary ground of res judicata. A discontinued suit cannot yield a final judgment or render a Court functus oficio. 13. Nonetheless, the 4th Defendant's alternative argument carries weight, that litigating a matter for six years, withdrawing it, and immediately refiling an identical suit in a difierent forum constitutes a severe abuse of the Court process, subverting the administrative intent of Sections 1A and 1B of the Civil Procedure Act. 14. In coming up with a just determination of this matter I identify these two issues to be those that can assist the Court to arrive at a fair decision: 15. i. Whether the present suit is barred by the doctrine of res judicata or whether the Court is functus oficio following the withdrawal of Kiambu Chief Magistrate’s Case No. 78 of 2019. ii. Whether the Plaintifi’s conduct in withdrawing a long-pending subordinate Court action and immediately filing fresh, parallel proceedings in the Environment and Land Court (ELC) constitutes an abuse of the Court process or improper forum shopping. The Court of Appeal in Independent Electoral and Boundaries Commission (IEBC) & another v Maina Kiai & 5 Others [2017] eKLR meticulously outlined the components of the doctrine of res judicata, emphasizing that a final decision on the merits is non-negotiable. The Court stated: “ The rule of res judicata is a fundamental principle of law that a matter which 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, cannot be re-litigated in a subsequent suit." 16. Because the 2019 suit was terminated via a Notice of Withdrawal, there is no judicial decision capable of creating an estoppel. This distinction is supported by the Supreme Court of Kenya in William Odhiambo Ramogi & 3 Others v Kenya Ports Authority & 4 Others [2022] KESC 38 (KLR), where the apex Court observed that where a matter is withdrawn before a full adjudication of the rights of the parties, the plea of res judicata is inapplicable: “ For the doctrine of res judicata to apply, there must be a prior judicial decision by a competent Court or tribunal that is final and binding, and which resolved the dispute on its merits. A suit that is withdrawn or struck out on a technicality without a determination on the substantive issues cannot bar a litigant from seeking legal redress in a subsequent proper action." https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4543/eng@2026-07-14 3

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17. While the Plaintifi successfully fends ofi res judicata, her procedural maneuver violates the rule against the abuse of judicial processes. The 4th Defendant properly points out that deploying successive suits to keep a Defendant in perpetual litigation constitutes harassment. In African Centre for Rights and Governance (ACRAG) & 3 others v Pioneer Assurance Society Limited [2021] KEHC 231 (KLR), the High Court analyzed instances where repetitive filing after a withdrawal morph into an abuse of process, stating: “ The Court has an inherent power and a duty under Sections 1A and 1B of the Civil Procedure Act to prevent the abuse of its process. While a party is dominus litis and has the right to withdraw a suit, the mechanical re-filing of the exact same claim, targeting the same parties over the same subject matter without an explicit liberty to re-file granted by the previous Court, amounts to an oppressive use of the judicial system and an unwarranted expenditure of scarce judicial resources." 18. Furthermore, regarding the 4th Defendant's contention that the matter ought to have remained within the pecuniary bounds of the Magistrate's Court, the Court of Appeal in Miriitini Kenya Limited v Attorney General & 2 Others [2021] KECA 192 (KLR) drew a clear line against litigants who skip or abandon lower judicial echelons to look for perceived advantages in superior Courts, noting: “ Forum shopping is an insidious practice where a litigant seeks a Court that they perceive will be more favorable to their cause, often bypassing Courts of competent, lower jurisdiction or abandoning ongoing processes. It defeats the principle of predictability and finality in litigation, and Courts must firmly decline to entertain suits that display such tactical maneuvering." 19. In Murathi & 15 Others v County Government of Murang'a [2025] KEHC 2359, the High Court dismissed a petition where a party had failed to prosecute their case over years, holding that: “ Having failed to demonstrate suficient cause for failure to prosecute their petition since it was filed in 2019, the petitioners cannot now turn around and claim to be interested in pursuing the petition after they have been threatened with its dismissal.” 20. Thus, if merely sitting on a claim amount to abuse, strategically withdrawing a six-year-old claim and relaunching it identically before a difierent Court presumably to exploit perceived judicial sympathy or evade unfavourable interlocutory Rulings is a more egregious form of the same mischief. Final Disposal Orders: i. The 4th Defendant’s Preliminary Objection on the grounds of res judicata and functus oficio is hereby dismissed, as Kiambu Chief Magistrate’s Case No. 78 of 2019 was withdrawn before a final determination on the merits. ii. The 4th Defendant’s Preliminary Objection on the ground of abuse of the Court process is hereby upheld. The Plaintifi's action of litigating a matter for six years, withdrawing it, and immediately filing an identical claim before this Court constitutes fiagrant forum shopping and an oppressive abuse of the judicial process. iii. Consequently, the Plaintifi’s suit dated 12/11/2025 is hereby struck out in its entirety. iv. The costs of the Preliminary Objection and of the main suit are awarded to the 4th Defendant, to be borne by the Plaintifi. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4543/eng@2026-07-14 4

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Orders Accordingly. DATED, SIGNED AND DELIVERED AT THIKA VIA MICROSOFT TEAMS ON THIS 14TH DAY OF JULY 2026. …………………… MOGENI J JUDGE In the presence of:Plaintifi – Absent Mr. Gachie for the 1st Defendant 2nd, 3rd and 4th Defendants – Absent Mr. Melita - Court Assistant …………………… MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4543/eng@2026-07-14 5

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