Kithanze v King’oku & 2 others

(f) Costs of this suit. 2. Subsequent to the filing of the suit, the 1 st Defendant filed a statement of defence dated 2nd February, 2026 concurrently with a preliminary objection. The following grounds were made in support of the preliminary objection: 1) THAT the Plaintiff’s suit is incompetent, misconceived and an abuse of the court process as the matters in issue herein were directly and substantially in issue in MAKUENI ELC CASE NO. E013 OF 2021 between the same parties, litigating over the same parcels of land namely OKIA/NZUUNI/18 and OKIA/NZUUNI/2205 (formerly OKIA/NZUUNI/11). 2) THAT the said issues were conclusively determined through a final judgment delivered on 29th September, 2023 by a court of competent jurisdiction and the Plaintiff is therefore barred from relitigating the same issues through a fresh suit. 3) THAT although the present suit was filed in 2025, the Plaintiff has since lodged ELC Appeal No. E001 of 2026 challenging the judgment delivered on 29th September, 2023 and cannot, while the said appeal subsists, maintain a parallel fresh suit founded on the same subject matter, which conduct amounts to an abuse of court process. 4) THAT the suit is a bad-faith attempt to circumvent the effect of a valid and subsisting judgment and decree issued against the Plaintiff on 29 th September, 2023 which remains in force. 5) THAT the institution of this suit is res judicata and it clearly offends the provisions of Section 7 of the Civil Procedure Act. ELC E039 OF 2025 2|Page

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6) THAT by reason of the foregoing, this Honourable Court lacks jurisdiction to entertain the suit which is incompetent, vexatious and an abuse of the court process. 7) THAT the 1st Defendant therefore prays that the Plaint dated 20th November, 2025 be struck out in limine with costs. 3. Directions were issued on 26th February, 2026 for disposal of the preliminary objection by way of written submissions. 4. At the time of writing this ruling only the 1 st Defendant’s had filed his submissions dated 9th March, 2026. 5. Counsel for the 1st Defendant contended that the ownership of land parcel No. OKIA/NZUUNI/18 was directly and substantially in issue between the Plaintiff and the 1st Defendant in Makueni MC ELC No. Eo31 of 2021. It was further contended that after a full hearing of the case on the merits, a judgment was delivered on 29th September, 2023 in favour of the 1 st Defendant. That the Plaintiff has since lodged ELC Appeal No. E001 of 2026 while simultaneously filing the present suit seeking substantially identical reliefs. 6. Citing the provisions of Section 7 of the Civil Procedure Act, Counsel submitted that the present suit is barred by the doctrine of res judicata and that this court must down its tools. Reliance was placed on the decision of the Supreme Court in Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another [2016] eKLR to buttress the submission and also urging the court to strike out the suit in limine with costs to the 1st Defendant. 7. The sole issue for determination is whether the 1st Defendant has demonstrated whether this court’s jurisdiction to entertain the present suit is barred by the doctrine of res judicata. 8. Res judicata, is embodied in Section 7 of the Civil Procedure Act which outlines as follows: ELC E039 OF 2025 3|Page

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‘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. Explanation — (1) The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it. Explanation — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court. Explanation — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. Explanation — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.” ELC E039 OF 2025 4|Page

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9. In the Black’s Law Dictionary, 9th Edition at page 1425, the doctrine of res judicata has been defined as follows: "a thing adjudicated" 1. An issue that has been definitively settled by judicial decision. 2. An affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been but was not raised in the first suit.” 10.In the case of Independent Electoral & Boundaries Commission v Maina Kiai & 5 others [2017] eKLR, the Court of Appeal aptly held as follows: “Res judicata is a matter properly to be addressed in limine as it does possess jurisdictional consequence because it constitutes a statutory peremptory preclusion of a certain category of suits. That much is clear from Section 7 of the Civil Procedure Act, 2010; “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 the 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.” Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms.” 11.Similarly, the Court of Appeal expressed the elements which must be demonstrated when the doctrine of res judicata has been invoked in Uhuru Highway Development Ltd v Central Bank of Kenya [1999] eKLR as follows: ELC E039 OF 2025 5|Page

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a. the former judgment or order must be final; b. the judgment or order must be on merits; c. it must have been 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. 12.Again, in the case of Henderson v Henderson (1843) 67 ER 313, Wigram, VC expounded on the doctrine of res judicata as follows: “Where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” 13.With those principles in mind, the subject matter of these proceedings as already noted in the prayers in the Plaint is in respect of land Parcel No. OKIA/NZUUNI/18. The Plaintiff wishes to challenge the validity of the 1 st Defendant’s ownership and subsequent registration on grounds of fraud. The suit property was the subject of proceedings before the lower court in MAKEUNI MCELC NO. E013 OF 2021. It is noted under paragraphs 11 and ELC E039 OF 2025 6|Page

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13 of the lower court’s judgment delivered on 29 th September 2023 that the Plaintiff herein had sought the cancellation of the 1st Defendant’s title over the suit property on grounds of fraud. 14.In making its findings, the lower court observed under paragraphs 23 and 25 that the Plaintiff herein had failed to prove the allegations of fraud to the required standard of proof. An award was ultimately issued for a permanent injunction against the Plaintiff herein from further trespassing into the suit property and disturbing the 1st Defendant’s quiet possession. 15.Of foremost importance is that the Plaintiff and the 1 st Defendant in this suit are the same litigants in MAKEUNI MCELC NO. E013 OF 2021. Again, the subject matter of the present suit and the previous suit is the same being land Parcel No. OKIA/NZUUNI/18. Questions surrounding the validity of the 1 st Defendant’s title over the suit property on the basis of fraud were adjudicated before a competent court and judgment thereafter delivered. 16.Thus, it is indisputable that the present suit is an abuse of court process and is caught by the doctrine of res judicata as espoused under Section 7 of the Civil Procedure Act. 17.In the end, the 1st Defendant’s preliminary objection is merited. The suit herein is hereby struck out in limine with costs to the 1st Defendant. ………………………………… HON. E. O. OBAGA, FCIArb JUDGE RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 17TH DAY OF SEPTEMBER, 2026. IN THE PRESENCE OF: Mr. Kilonzi for Mr. Nzei for Plaintiff ELC E039 OF 2025 7|Page

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Ms. Kyalo for 1st Defendant Court assistants – Kilonzo and Musyoki ELC E039 OF 2025 8|Page

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