Mercy Wairimu Jethro & 8 Others v Joseph Gatheca Gichohi & another

JOSEPH GATHECA GICHOHI………….………..1ST RESPONDENT JECINTA WAITHERA………………………..…….2ND RESPONDENT RULING 1. This ruling relates to the Notice of Preliminary Objection dated 12.5.2026 brought forth by the 1 st respondent raising the following grounds; “ 1. THAT the suit is res judicata under Section 7 of the Civil Procedure Act, the issues concerning ownership, occupation possession of parcel land and number Laikipia/Daiga/Ethi Block 2/150 having been directly and substantially in issue in. a. Nanyuki ELC Case No 141 of 2018( Formerly Nyeri ELC Case No. 261 of 2016); and ELCLOS NO. E004 OF 2025 RULING Page 2 of 12

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b. Nanyuki ELC Appeal No. 3 of 2023 (Formerly Nyeri ELC Appeal No. E003 of 2020), which matters were conclusively determined by courts of competent jurisdiction. 2. THAT the present applicants are claiming under the 4th applicant, Bernard Musembi Muli, against injunction eviction orders and were permanent issued and subsequently upheld on appeal.” 2. On 19.5.2026 the court gave directions for the Preliminary Objection to be canvassed by way of written submissions. The submissions of the 1 st respondent are dated 2.6.2026. It is argued that the dispute concerns parcel number Laikipia/Daiga/Ethi Block 2/150 (the suit property) of which the ownership and occupation of the said land was litigated upon and conclusively determined by courts of competent jurisdiction. It is argued that the 1st respondent who is the registered owner of the suit property instituted the case Nyeri ELC No. 261/2016 against the 4th applicant together with his relatives, ELCLOS NO. E004 OF 2025 RULING Page 3 of 12

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agents, servants and all persons claiming through him, seeking eviction and a permanent injunction in respect of the suit property. This suit was transferred to Nanyuki ELC where it was registered as No. 141 of 2018 whereby the 4th applicant had filed a defence and a counterclaim asserting rights over the suit property, of which the said claim of the 4th applicant was dismissed while the claim of the 1st respondent was allowed. 3. That the 4th applicant lodged an appeal in Nyeri ELC Appeal No. E003 of 2023 but the same was dismissed. The 1st respondent argues that the dispute in both suits concern the same parcel of land of which the 4 th applicant participated in the previous proceedings. In support of his argument the 1st respondent relies on the case of Henderson V Henderson (1983) 67 ER 313, where the court held that parties must bring forward their whole case and will not subsequently be permitted to reopen litigation in respect of matters which could and ought to have been raised in earlier proceedings. He also relies on the case of Independent Electoral and Boundaries Commission V Maina Kiai & 5 Others (2017) eKLR as ELCLOS NO. E004 OF 2025 RULING Page 4 of 12

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well as the provisions of Section 7 of the Civil Procedure Act. 4. The submissions of the applicants are dated 8.6.2026. They contend that in the Nanyuki case ELC 141 of 2018, judgment was delivered in favour of the 1 st respondent as against the 4th applicant herein on the issue of ownership. However, the issues raised by the plaintiffs concerning ownership by way of prescriptive rights was not heard and determined on merits and even the said judgment was delivered in absence of the plaintiffs. They therefore claim that the issue of adverse possession was neither directly nor substantively an issue in the previous proceedings. They deny that the case at hand is res judicata or an abuse of the court processes. 5. In support of their claims the plaintiffs rely on the cases of John Florence Maritime Services Ltd & Another V Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2025) (2021) KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), and Sugarawa V Kiruti (sued in her capacity as the Administratrix of the Estate ELCLOS NO. E004 OF 2025 of Mutarakwa RULING Kiruti Lepaso alias Page 5 of 12

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Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Lepaso and in her own capacity) & 3 Others (Civil Appeal E141 of 2022) (2024) KECA 1417 (KLR). 6. I have considered the rival arguments. It is not in dispute that litigation over the suit property proceeded in the case Nanyuki ELC 141 OF 2018 in which the claim of the 1st respondent as against the 4 th applicant was allowed, of which an appeal lodged by the latter was dismissed in Nanyuki ELC Appeal no.3 of 2023 ( formerly Nyeri ELC Appeal no.E003 OF 2020). The issue falling for determination is whether this suit is res-judicata to the previous cases. 7. The provisions of Section 7 of the Civil Procedure Act stipulate that; “ 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 ELCLOS NO. E004 OF 2025 RULING Page 6 of 12

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the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”. 8. In the case of Nancy Mwangi T/A Worthlin Marketers v Airtel Networks (K) Ltd (Formerly Celtel Kenya Ltd) & 2 others [2014] eKLR, the court had this to say on the issue of res-judicata; “ The subject of res judicata is not any novel at all; much judicial ink has been spilt on, and the subject is now sufficiently decided upon by courts of law. The doctrine of res judicata is important in adjudication of case and serves two important purposes; 1) it prevents multiplicity of suits which would ordinarily clog the courts, and heave unnecessary costs on the parties to litigate and defend two suits which ought to have been determined in a single suit; and 2) it ensures litigation comes to an end; disappointed parties are barred from camouflaging already decided cases in new garment in the art of pleadings”. ELCLOS NO. E004 OF 2025 RULING Page 7 of 12

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9. In their pleading, the Originating summons dated 19.5.2025, all the 8 applicants including the 4 th one are jointly claiming the suit land by way of adverse possession. The judgment in Nanyuki ELC 141 of 2018 delivered on 20.8.2019 stated as follows; “ The decision of this court is as follows; a. The defendant, servants under or his relatives, agents, anybody claiming interest him be evicted from L.R. Laikipia/Daiga/Ethi block 2/150. b. A permanent injunction do issue against the defendant, servants under or him his relatives, agents, claiming interest anybody to restrain them from re- entering or occupying the suit land. c. Costs of the suit are awarded to the plaintiff. d. It is so ordered.” 10. In the supporting affidavit to the Originating Summons, the 1st applicant gives an account of their claim as follows; ELCLOS NO. E004 OF 2025 RULING Page 8 of 12

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“ 1. THAT the 4th applicant herein purchased the parcel of land Laikipia/Daiga/Ethi Block 2/150 in 1988 from the 2nd respondent herein for price of kes 30,000 and the applicants have been residing on the suit property from 1988 to date (Annexed hereto and marked MWJ -1 a & b are copies of the sale agreement and ballot card) 2. THAT it was a term of agreement between the 4th applicant and the 2nd respondent that the applicants take possession of the land Laikipia/Daiga/Ethi Block 2/150 upon full payment of the purchase price and that the 2nd respondent would effect transfer of the title to the 4 th applicant upon issuance of title by the then commissioner for land. ELCLOS NO. E004 OF 2025 RULING Page 9 of 12

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3. THAT the transfer of title to 4 th applicant was not affected and the 4th applicant only learnt to his shock that the 1 st respondent was the registered proprietor of the land Laikipia/Daiga/Ethi Block 2/150(Annexed hereto and marked MWJ – 2 is a copy of the title). 4. THAT the applicants herein have been living on and have developed the land Laikipia/Daiga/Ethi Block 2/150 extensively for a period of 30 years from the date of possession in January of 1988 to date. 5. THAT the applicants have fenced and built permanent house on the suit property Laikipia/Daiga/Ethi Block 2/150 from the date of purchase of the land from the 2 nd respondent. 6. THAT the applicants have been living on the parcel of land Laikipia/Daiga/Ethi Block 2/150 from January of 1988 to date contrary to the registration of the 1st ELCLOS NO. E004 OF 2025 RULING Page 10 of 12

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respondent as the registered owner of Laikipia/Daiga/Ethi Block 2/150.” 11. It is clear beyond peradventure that the 1 st – 3rd applicants and 5th -8th applicants are in essence claiming an interest in the suit land through the 4 th applicant, a claim which has been determined and dismissed by courts of competent jurisdiction. It also happens to be an issue that this court captured up at paragraph 5 in its ruling of 18.3.2026. The applicants are in essence camouflaging already decided cases in their new garments. The fact that the applicants save the 4 th applicant were not parties in the previous cases is not a ground for them to institute these proceedings; See Daniel Mesiri Kasoo & 7 others v Fredrick Nkonge Mutwiri & another [2020] eKLR. 12. The upshot of the analysis herein is that the Preliminary Objection dated 12.5.2026 is found to be merited, thus this suit is hereby struck out with costs to the 1 st respondent. ELCLOS NO. E004 OF 2025 RULING Page 11 of 12

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DATED, SIGNED AND DELIVERED AT NANYUKI THIS 17th DAY OF SEPTEMBER 2026 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of: Yaru/Consolata – C/A Omwenga h/b Gathua for applicant Mrs Maina for 1st respondent Mzame for 2nd respondent ELCLOS NO. E004 OF 2025 RULING Page 12 of 12

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