Mungai v Njoroge & another (Environment and Land Case 62 of 2023) [2026] KEELC 5197 (KLR)

and an order to set aside the ex-parte judgment in ELC Case No. 114 of 2017 were similarly dismissed by this court. 4. The court is now called upon to determine the Plaintiff’s application dated 8th November 2023 which was filed together with his suit seeking to set aside the judgment in ELC Case No. 114 of 2017. 5. In her application, the Applicant seeks the following orders: a) Spent. b) That pending the hearing and determination of the main suit, a temporary injunction do issue restraining the 1 st Defendant, his servants, agents, employees, officers of the Directorate of Criminal Investigations (DCI) or anybody acting on behalf or for him from dealing with, registering caveats, inhibitions or restrictions, entering and/or interfering with the Applicant’s ownership, physical possession, occupation, user and enjoyment of all that parcel of land known as RUIRU/KIU/BLOCK 4/1785. c) That he costs of this application be provided for. 6. The application is premise on the 20 grounds set out on the face of the Notice of motion and the Applicant’s supporting affidavit sworn on even date. The gist of the Applicant’s affidavit is that she is the owner of the suit property, having purchased it from the 2nd Defendant on 18.8.2009, though the same has never been transferred to her name. She adds that she has been in quiet possession of the suit property ever since. THIKA ELC NO. E062 OF 2023 (RULING) Page 2

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7. It is her further averment that in the month of August 2023, the 1 st Defendant with the assistance of officers from DCI trespassed onto the suit property and started harassing and intimidating her and her husband on claims that she did not own the suit property. She annexed a copy of the sale agreement and letter from the 1 st Defendant indicating that she had purchased the suit property from them. 8. The application was met with strong resistance from the 1 st Defendant through his Replying Affidavit sworn on 11th November 2023 in which he pointed out that the entire application is misconceived, scandalous, vexatious, frivolous, an abuse of the court process, incompetent, fatally defective, dead on arrival a non-starter on the ground that the subject matter is the subject of another case with a valid judgment on record in his favour being ELC Case No. 114 of 2017 and therefore this suit and application is incompetent as it offends the provisions of section 7 of the Civil Procedure Rules , 2010. 9. He further deponed that in her judgment dated 19 th March 2019, Lady Justice Gacheru held inter alia that as at 2007, the 2 nd Defendant (Mboi Kamiti Farmers Company Limited) held title to the suit property herein among others, in trust for the 1st Defendant (John Guchu Njoroge) and therefore it could not sell or transfer the same to the Plaintiff/Applicant herein as one cannot give what they do not have He relied on the principle of Nemo Dat quod non Habet. THIKA ELC NO. E062 OF 2023 (RULING) Page 3

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10. He added that since the 1st Defendant did not have a good title to pass to the Applicant, the sale agreement dated 18 th August, 2009 was void ab initio. 11. He clarified that ELC Case No. 114 of 2017, was the new number given to Nairobi ELC Case No. 503 of 2010 which was transferred to Thika ELC from Nairobi. In the original suit in Nairobi Mboi Kamiti Farmers Company Limited (2nd Defendant was sued and they filed a Defence without mentioning that they had sold the suit property to the Applicant. 12. It is further averred that the plaintiff unsuccessfully tried to join ELC Case No. 114 of 2017 and it is therefore not true that she was not aware of the suit. 13. He contends that by this application, the Applicant seeks to appeal against the court’s decision in ELC 114 of 2017 through the back door. 14. He adds that the application is ploy meant to hoodwink the court and that the application is incompetent, frivolous, vexatious and an abuse of the court process. 15. The 1st Respondent also filed a Notice of Preliminary Objection raising the ground that the instant application offends the provisions of section 7 of the Civil Procedure Rules, 2010 as the suit is res judicata since a similar suit , ELC Case No. 114 of 2017 has already been determine by the Honourable Court. THIKA ELC NO. E062 OF 2023 (RULING) Page 4

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16. The application was canvassed through written submissions which the parties both filed pursuant to the court’s directions. ANALYSIS AND DETERMINATION 17. Having considered the Notice of Motion, supporting and replying affidavit, Notice of Preliminary Objection and the parties’ written submissions, there are two issues for determination: i. Whether the application and suit are res judicata ii. Whether the court should grant an injunction The 1st Respondent raised a Preliminary Objection stating the suit and application herein are res judicata. The doctrine of res judicata is embodied in Section 7 of the Civil Procedure Rules which provides as follows: Section 7. “No suit 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 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.” 18. The Supreme Court in the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others ( 2017) eKLR while considering the provisions of section 7 of the Civil Procedure THIKA ELC NO. E062 OF 2023 (RULING) Page 5

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Act held that all elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked that is: a) The suit or issue was directly and substantially in issue in the former suit. b) That former suit was between the same parties or parties under whom they or any of them claim. c) The parties were litigating under the same title. d) The issue was heard and finally determined in the former suit e) The court that formerly heard and determined the issue was competent to try the subsequent suit. 19. In ELC 114 of 2017 the plaintiffs were different but the 2 nd Defendant was sued as one of the defendants. The subject matter included land parcel no. RUIRU/KIU BLOCK 4/1785. The issue of ownership was determined through a judgment dated 22 nd March 2019 by a court of competent jurisdiction. 20. To the extent that the parties were different, the matter is not res judicata. However, what is clear is that the issue of ownership of the suit property was settled as the court held that as at 2009, Mboi Kamiti Farmers Company Limited ( 2nd Defendant) was holding the suit property in trust for John Guchu Njoroge (1 st Defendant) and they had no capacity to sell it to the Plaintiff. 21. Turning to the issue of the injunction, it trite that in order for one to qualify for a temporary injunction one must meet the three THIKA ELC NO. E062 OF 2023 (RULING) Page 6

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conditions set out in the case of Giella V Cassman Brown & Company Limited (1973) E.A 358. 22. An applicant must establish a prima facie case with a likelihood of success; demonstrate that they would suffer irreparable loss that cannot be compensated by way of damages if the injunction was not granted, and in the event that the court is in doubt, it shall determine the application based on the balance of convenience. 23. I will start by examining whether the Applicant has established that she has a prima facie case with a probability of success. The Applicant claims that she owns the suit property and that she has has been residing thereon since 2010. It is her position that she purchased it from the 2nd Respondent through a sale agreement dated 18.8.2007. She has attached a copy to the said sale agreement and a letter by the 2nd Respondent bespeaking the sale of the suit property to the Applicant. However, given the court’s finding in its judgment in ELC case no. 114 of 2017, the Applicant cannot rely on the said sale agreement to lay claim to the suit property. The Applicant has therefore failed to prove that she has a prima facie case with a probability of success. 24. Having failed to prove that she has a prima facie case, there would be no need to delve into the issue as to whether she has established that she stands to suffer irreparable loss which cannot compensated by way of damages. THIKA ELC NO. E062 OF 2023 (RULING) Page 7 be

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25. Similarly, the court is not in any doubt as to warrant basing its decision on a balance of convenience. 26. The upshot is that the application lacks merit and it is hereby dismissed with costs to the Respondents. Dated, signed and delivered virtually at Malindi this 5 th day of August 2026. .......................... J. M ONYANGO JUDGE THIKA ELC NO. E062 OF 2023 (RULING) Page 8

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