Kimatu & 10 others v Joseph & 20 others (Enviromental and Land Originating Summons E002 of 2026) [2026] KEELC 4813 (KLR)

The Preliminary Objection is founded on the grounds that the suit is barred by the doctrine of res judicata and constructive res judicata; that the original parcel MBETI/GACHURIRI/250 ceased to exist upon subdivision; that the suit is fatally defective for failure to join the registered proprietors of the resultant subdivisions; and that the claim for adverse possession is premature since time could not run during the pendency of previous litigation concerning the suit property. The principles governing a preliminary objection are now settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the former East African Court of Appeal held that a preliminary objection consists of a pure point of law which, if argued successfully, disposes of the suit. Such an objection proceeds on the assumption that the facts pleaded by the opposing party are correct and should not require the Court to ascertain contested facts. The Court of Appeal reaffirmed this principle in Oraro v Mbaja [2005] eKLR, emphasizing that where a point of law is capable of disposing of a suit without recourse to evidence, it should be determined at the earliest opportunity. Having carefully examined the pleadings, affidavits, annexures and submissions of the parties, I am satisfied that the principal issue raised by the Defendants, namely whether the suit is barred by the doctrine of res judicata, is ascertainable from the pleadings 2

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and judgments produced by the parties and therefore properly falls within the scope of a preliminary objection. Section 7 of the Civil Procedure Act bars any Court from trying a 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 parties claiming under them, litigating under the same title, in a Court of competent jurisdiction, where the matter has been heard and finally determined. The rationale of the doctrine is to bring litigation to an end and prevent parties from being vexed twice over the same dispute. The Supreme Court in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR reaffirmed that res judicata is founded on public policy, the need for finality in litigation and the preservation of the authority of judicial decisions. Likewise, the Court of Appeal in Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR restated the ingredients of the doctrine as requiring identity of the subject matter, identity of parties or those litigating under them, competence of the former Court and a final determination on the merits. The material before this Court demonstrates that ownership of the suit property has been the subject of extensive litigation commencing with Embu HCCC No. 97 of 2005 and culminating in 3

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Nyeri Civil Appeal No. 11 of 2014. The decisions of those Courts conclusively determined the competing claims over the land between the Mbadi and Muruga clans. The Court of Appeal expressly found that the dispute was one between the two clans and that individual members could not assert proprietary rights independent of the determination made in favour of their respective clans. Those findings remain valid and binding. The Plaintiffs acknowledge that they derive their claim through the late Kimatu Kimolo and other members of the Muruga Clan who were directly involved in the previous litigation. They cannot therefore escape the consequences of those judgments by merely presenting themselves as different litigants. In law, they are privies to the parties in the earlier proceedings. As was stated in Lal Chand v Radha Kishan AIR 1977 SC 789, a party claiming through persons bound by an earlier judgment is equally bound by that judgment. The doctrine equally extends to successors, representatives and privies. The Plaintiffs have attempted to distinguish the present proceedings by framing their claim as one founded on adverse possession. That distinction is, however, more apparent than real. The doctrine of constructive res judicata, embodied in Explanation 4 to Section 7 of the Civil Procedure Act and long recognized in Henderson v Henderson (1843) 3 Hare 100, bars not only matters actually litigated but also matters which properly belonged to the 4

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subject of previous litigation and which, with reasonable diligence, ought to have been raised therein. The Supreme Court in John Florence Maritime Services Limited (supra) observed that litigants are not permitted to evade the doctrine of res judicata by merely introducing a different cause of action founded upon the same factual matrix. The foundation of the Plaintiffs' claim remains their alleged occupation of portions of the same parcel of land over several decades. If indeed such occupation had matured into adverse possession before or during the previous litigation, nothing prevented the Plaintiffs or those through whom they claim from raising that issue in the earlier proceedings. Having failed to do so, they cannot now reopen a dispute that has already been conclusively determined by competent Courts. To permit such a course would offend the very purpose of Section 7 of the Civil Procedure Act and undermine the principle that litigation must come to an end. I further agree with the Defendants that the claim founded on adverse possession has not been shown to have crystallized in law. The previous litigation concerning ownership of the suit land remained active for a considerable period, extending from the institution of Embu HCCC No. 97 of 2005 until the conclusion of the appellate process. During that period, ownership of the land remained the subject of active judicial contestation. A claim for adverse possession presupposes uninterrupted possession that is 5

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adverse to the registered proprietor for the statutory period contemplated under Sections 7, 13, 17 and 38 of the Limitation of Actions Act. As stated in Wambugu v Njuguna [1983] KLR 172 and reaffirmed in Mtana Lewa v Kahindi Ngala Mwagandi [2015] eKLR, the burden rests upon the claimant to demonstrate peaceful, continuous and uninterrupted possession for the statutory period. In the circumstances of this case, the statutory period could not be said to have matured while ownership of the land remained the subject of continuous litigation between the competing interests through whom the Plaintiffs claim. Consequently, the present cause of action is, in any event, premature. The Defendants have MBETI/GACHURIRI/250 also ceased argued to that exist the original following title subdivision undertaken in 2013. Although this ground alone may have required evidential interrogation, the Plaintiffs have not demonstrated that the original register remains subsisting. The prayers before the Court are directed against a title alleged to have been closed upon subdivision. Equally significant is the fact that the resultant registered proprietors have not been joined to these proceedings notwithstanding that the orders sought would directly affect their proprietary interests. Such orders cannot properly issue in their absence without offending the rules of natural justice and Article 50 of the Constitution. 6

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Having found that the suit is barred by both res judicata and constructive res judicata, it follows that this Court lacks jurisdiction to reopen matters already conclusively determined by Courts of competent jurisdiction. As was observed by the Court of Appeal in Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others (supra), once the ingredients of res judicata are established, the Court has no discretion but to decline jurisdiction. Jurisdiction is everything, and where it is absent, a Court must immediately down its tools. The consequence of upholding the Preliminary Objection is that there remains no competent suit upon which the interlocutory application dated 12th January 2026 can be anchored. The application therefore collapses together with the suit. In any event, a party whose suit is barred by statute cannot establish a prima facie case capable of attracting the equitable relief of injunction as envisaged in Giella v Cassman Brown & Co. Ltd [1973] EA 358 and Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR. Accordingly, I make the following orders— 1. The Notice of Preliminary Objection dated 4th March 2026 is hereby upheld. 2. The Originating Summons together with the Notice of Motion dated 12th January 2026 are hereby struck out. 3. The Plaintiffs shall bear the costs of the Preliminary Objection, the Notice of Motion and the suit. Orders accordingly. 7

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Right of appeal explained. DATED, SIGNED AND DELIVERED AT EMBU THIS 27TH DAY OF JULY, 2026. ................................................. HON. JUSTICE E. CHERONO JUDGE ENVIRONMENT AND LAND COURT AT EMBU In the presence of; 1. R. Kirwa for the 1st-6th and 9th -21st for Kiautha Arithi for the Defendants/Respondents 2. M/S Kerubo H/B Plaintiffs/Applicants 3. Ruth C/A 8

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