Faith Mwari M'Murithania v Alice Nyokabi Kibicha & another

seeks the dismissal of the suit on the same ground, and is supported by the affidavit of David Njehia Ngugi sworn on 18th September 2024. 2. The Plaintiff opposes all three through Grounds of Opposition dated 11th October 2024 and written submissions dated 13 th April 2026. The 1st Defendant filed submissions supporting both objections and the Motion. The 2nd Defendant filed submissions dated 5th February 2026. Because the objections and the Motion raise overlapping questions, I will determine them together. 3. By a plaint dated 25th April 2024, the Plaintiff pleads that on 16th July 2011 the 1st Defendant sold to her the parcel known as Thika Municipality Block 20/335/19, then registered in the name of the 2nd Defendant, for Kshs. 900,000, which she paid in full. She says that the 1st Defendant then took her to the 2 nd Defendant, to whom she paid survey, transfer and title fees and from whom she received an allotment letter dated 1st August 2011. 4. She pleads that the transfer was never effected, that in September 2017 she was informed by the National Land Commission that the parcel was public land and she pleads particulars of fraud against both Defendants. 5. She further pleads that the Defendants were tried in Thika Criminal Case No. 1822 of 2018 for obtaining money by false THIKA ELCLC E061 OF 2024 (RULING) Page 2

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pretences and acquitted on 19th September 2023. At paragraphs 13 and 15 she pleads that she filed Thika CMELC No. 98 of 2020 against the 1st Defendant, which she says was "dismissed on technicalities" on 15th December 2022. 6. She prays for: (a) a declaration that the sale of Thika Municipality Block 20/335/19 by the 1st Defendant to her was illegal, wrongful, unlawful and fraudulent; (b) an order directing the 1 st Defendant to sign a transfer in her favour of Thika Municipality Block 20/2883; (c) in the alternative, that the Deputy Registrar sign that transfer; (d) general damages; and (e) costs and interest. 7. I considered the generality of the Suit herein as the preliminary objections herein touches on the substance of the Suit. As such, I considered that the 1st Defendant filed a Statement of Defence dated 24th July 2024. At paragraph 5, she pleads that the suit is res judicata, because Thika CMELC No. 98 of 2020 "dealt with the same subject matter and was dismissed due to limitation of time". She has filed certified copies of the proceedings and rulings in that case. 8. The 2nd Defendant has not filed a defence. In the affidavit of David Njehia Ngugi in support of the Motion, it contends that the suit property falls within Thika Municipality Block 20, which was the subject of this Court's judgment of 15 th April 2021 in Petition No. 8 THIKA ELCLC E061 OF 2024 (RULING) Page 3

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of 2019, and that the suit is therefore res judicata and the Court functus officio. The judgment is annexed as "DNN9". The Parties' Submissions The 2nd Defendant 9. The 2nd Defendant submits that the suit is res judicata in two respects. First, CMELC No. 98 of 2020 concerned the same parcel and the same failed sale, and was finally determined when it was dismissed as time-barred; the Plaintiff neither appealed nor sought leave to extend time. Relying on John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), Omondi v National Bank of Kenya Ltd [2001] EA 177 and Njangu v Wambugu (Nairobi HCCC No. 2340 of 1991), it says a party cannot evade res judicata by adding parties or re-casting prayers. 10. Second, by pleading that the suit property is public land (paragraph 10(e) of the plaint), the Plaintiff invites the Court to revisit a question finally decided in Petition No. 8 of 2019. While conceding that the Plaintiff was not a party to the Petition, the 2nd Defendant argues that the judgment was one in rem under Section 44 of the Evidence Act, binding on the whole world, and that the Court is functus officio. It asks that the suit be struck out under Order 2 Rule 15 as an abuse of process, with costs. THIKA ELCLC E061 OF 2024 (RULING) Page 4

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The 1st Defendant 11. The 1st Defendant supports both objections and the Motion. She relies on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, Section 7 of the Civil Procedure Act, Siri Ram Kaura v M.J.E. Morgan (1961) EA 462 and Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR. She points out that the Plaintiff's Grounds of Opposition do not deny the existence of CMELC No. 98 of 2020, and she seeks dismissal of the suit with costs. The Plaintiff 12. The Plaintiff submits that neither objection is a true preliminary objection within Mukisa Biscuit, because each requires facts to be ascertained, including the pleadings and outcome of the earlier cases. She says the 2nd Defendant's objection was not pleaded, since it has filed no defence. She cites IEBC v Jane Cheperenger & 2 others [2015] eKLR, that a preliminary objection must not be used as a sword, and Articles 50 and 159(2)(d) of the Constitution. 13. On CMELC No. 98 of 2020, she says the suit was struck out by a ruling and was never heard and finally decided on the merits; that the 2nd Defendant was not a party to it; and that its pleadings have not been produced. On Petition No. 8 of 2019, she says she THIKA ELCLC E061 OF 2024 (RULING) Page 5

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was not a party; that its subject matter was Block 20 as a whole, not Block 20/335/19; and that it concerned the quashing of a gazette notice, whereas this suit concerns the transfer of title to her. She asks that both objections and the Motion be dismissed with costs. 14. Having considered the pleadings, the Motion and its affidavit, the Grounds of Opposition, the record filed and the submissions, I find that the following issues arise: (i) Whether the objections were properly taken, and whether res judicata can be determined at this stage; (ii) Whether the suit is res judicata by reason of Thika CMELC No. 98 of 2020; (iii) Whether the suit is res judicata, or the Court functus officio, by reason of Thika ELC Petition No. 8 of 2019 (iv) Whether the suit can be sustained against the 2nd Defendant alone, and what orders, including on costs, should issue. Analysis and Determination (i) Whether the objections were properly taken 15. The classic statement of what a preliminary objection is remains Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. It is a point of law which has been pleaded, or which arises by clear implication out of the pleadings, THIKA ELCLC E061 OF 2024 (RULING) Page 6

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and which, if argued as a preliminary point, may dispose of the suit. It is argued on the assumption that the facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. 16. Res judicata is a statutory bar to the Court's jurisdiction to try a suit or issue. As the Court of Appeal observed in Independent Electoral & Boundaries Commission v Maina Kiai & 5 others [2017] eKLR, it is properly raised and determined in limine. A plea of res judicata necessarily requires the Court to look at the earlier proceedings and decision. That alone does not convert it into a contested question of fact. What matters is whether the existence, parties, subject matter and outcome of the earlier proceedings are in dispute. 17. They are not in dispute here. The Plaintiff herself pleads Thika CMELC No. 98 of 2020 at paragraphs 13 and 15 of her plaint. Certified copies of its proceedings and rulings are on record, and the Plaintiff relies on them in her own submissions. The judgment in Petition No. 8 of 2019 is annexed to the affidavit in support of the Motion; the Plaintiff does not dispute it, and also relies on it. The Court can therefore determine the plea on the record as it stands. THIKA ELCLC E061 OF 2024 (RULING) Page 7

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18. I am not persuaded that the 2 nd Defendant's objection fails because it has not filed a defence. A defendant may challenge the Court's jurisdiction before pleading to the merits, and the objection arises by clear implication from the plaint itself. In any event, the 2nd Defendant also moved the Court by a formal Notice of Motion supported by an affidavit, which is the proper vehicle where material beyond the pleadings is relied on. 19. Article 159(2)(d) of the Constitution does not assist the Plaintiff on this question. Res judicata is a substantive statutory bar, not a procedural technicality. As the Supreme Court cautioned in Raila Odinga & 5 others v Independent Electoral & Boundaries Commission & 3 others [2013] eKLR, Article 159(2)(d) is not a panacea for all shortfalls. If the plea is made out, the Court has no jurisdiction to try the matter, whatever the merits of the claim. 20. I therefore find that both objections, and the Motion, are properly before the Court and can be determined at this stage. (ii) Whether the suit is res judicata by reason of Thika CMELC No. 98 of 2020 21. Section 7 of the Civil Procedure Act on res judicata reads as follows: "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in THIKA ELCLC E061 OF 2024 (RULING) Page 8

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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." 22. Further, Black's Law Dictionary, 10th Edition, defines "res judicata" as: "An issue that has been definitely settled by judicial decision… the three essentials are: (1) an earlier decision on the issue; (2) a final judgment on the merits; and (3) the involvement of same parties, or parties in privity with the original parties…" 23. The statutory test in Section 7 is the one this Court applies; the dictionary definition is a useful summary of it in IEBC v Maina Kiai (supra) stands as a seminal exposition of the doctrine in our jurisprudence. There the Court of Appeal distilled its constituent elements 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… 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; (a) The suit or issue was directly and THIKA ELCLC E061 OF 2024 (RULING) Page 9

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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) Those 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 or the suit in which the issue is raised." 24. It follows that the plea of res judicata can only succeed where all these elements are present and satisfied conjunctively. The Supreme Court took the same approach in John Florence Maritime Services Ltd (supra). 25. The Court in IEBC v Maina Kiai (supra) further explained the purpose of the doctrine: "The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a THIKA ELCLC E061 OF 2024 (RULING) Page 10

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noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice." 26. Kenyan jurisprudence has consistently reinforced the principle. In Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another [2016] eKLR, cited by the 2 nd Defendant, the Supreme Court held: "The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to Court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively." 27. Explanation 4 to Section 7 adds that any matter which might and ought to have been made a ground of defence or attack in the former suit is deemed to have been directly and substantially in issue in it. 28. The record of CMELC No. 98 of 2020 shows the following. The Plaintiff sued the 1st Defendant in November 2020. By her defence THIKA ELCLC E061 OF 2024 (RULING) Page 11

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dated 15th February 2021 the 1st Defendant pleaded that the claim was statute-barred. On 13th January 2022 the trial court directed that the objection be heard first. After written submissions, the court (Hon. M. W. Wanjala, SRM) delivered a ruling on 21 st April 2022. It found that the claim was founded on the sale agreement of 6th July 2011; that the breach occurred at the latest in early 2012; that the suit was filed outside the six-year period under Section 4(1) of the Limitation of Actions Act; and that no leave to file out of time had been sought. It upheld the objection and struck out the suit with costs. 29. The Plaintiff then applied, by a Motion dated 17 th June 2022, to review that ruling on the ground of new evidence. The application was dismissed on 15th December 2022. No appeal was filed against either ruling. The later ruling of 8th January 2025 concerned only costs and a change of advocates. 30. Same parties and title. The Plaintiff and the 1st Defendant were the parties in CMELC No. 98 of 2020, and they litigate here in the same capacities: purchaser and vendor under the 2011 transaction. The joinder of the 2nd Defendant in this suit does not change the position as between the Plaintiff and the 1 st Defendant. Parties cannot evade res judicata by adding other parties or causes of action in a subsequent suit: Omondi v National Bank of Kenya Ltd [2001] EA 177. THIKA ELCLC E061 OF 2024 (RULING) Page 12

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31. Competent court. The trial court was a magistrate's court exercising environment and land jurisdiction. The claim of Kshs. 900,000 was within its pecuniary limits, and the Plaintiff does not contend that it lacked jurisdiction. It was competent to try the present claim against the 1st Defendant. 32. Same matter in issue. Both suits arise from the same transaction: the sale of Thika Municipality Block 20/335/19 by the 1st Defendant to the Plaintiff in July 2011 and the failure to complete it. The ruling of 21st April 2022 records that the earlier plaint set out the terms of the sale agreement and sought relief for its breach; the Plaintiff's own submissions describe it as a claim for a refund of the purchase price. In this suit she seeks a declaration that the same sale was fraudulent, a transfer, and damages. These are different remedies for the same grievance. 33. Every fact on which the present claim against the 1 st Defendant rests was known to the Plaintiff before she filed CMELC No. 98 of 2020. On her own pleading, she learnt in September 2017 that the land was said to be public land; she relied on letters and notices from 2017; and she reported the matter to the police in December 2018. The allegations of fraud, and the prayer for a transfer, might and ought to have been raised in the earlier suit. By Explanation 4 they are deemed to have been in issue there. The reference in prayers (b) and (c) to Block 20/2883 does not alter this. On the Plaintiff's own plaint (paragraph 12), that parcel THIKA ELCLC E061 OF 2024 (RULING) Page 13

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was disclosed during the criminal trial in relation to the same sale; it is a re-description of the same subject matter, not a new transaction. As stated in Siri Ram Kaura v M.J.E. Morgan (1961) EA 462, fresh evidence on matters already open to controversy is no answer to res judicata. 34. Heard and finally decided. The Plaintiff's main argument is that the earlier suit was struck out by a ruling and was never decided on the merits. I do not accept it. Section 7 requires that the matter be heard and finally decided; it does not require a full trial on evidence. A suit struck out for a curable defect of form may be filed afresh, because nothing about the claim itself has been decided. That is not this case. The question decided was whether the Plaintiff's claim against the 1st Defendant arising from the 2011 sale could be maintained at all, and the answer, after both parties were heard, was that it was barred by limitation. A review was sought and refused. No appeal was filed. 35. That decision is final between these parties. A fresh suit on the same transaction, filed later still, cannot cure the bar; allowing it would let the Plaintiff sidestep the rulings of 21 st April 2022 and 15th December 2022 without appealing them. Any argument that time was postponed by fraud under Section 26 of the Limitation of Actions Act was available to her in that suit, and ought to have been made there. The 1st Defendant's acquittal in the criminal case gives rise to no new civil cause of action. I note that the THIKA ELCLC E061 OF 2024 (RULING) Page 14

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ruling of 8th January 2025 described the matter as not concluded on its merits, but that was said in deciding whether Order 9 Rule 9 applied to a change of advocates after judgment; it was not a finding on res judicata. 36. I also reject the complaint that the pleadings in the earlier suit were not produced. The certified proceedings and both rulings show the nature of the claim, the issue decided and the outcome; and the Plaintiff's own plaint and submissions confirm them. 37. I find, therefore, that the Plaintiff's suit against the 1 st Defendant is res judicata. The 1st Defendant's preliminary objection succeeds. 38. The 2nd Defendant was not a party to CMELC No. 98 of 2020. Whether the suit can nonetheless proceed against it alone is considered under issue (iv) below. (iii) Whether the suit is res judicata, or the Court functus officio, by reason of Petition No. 8 of 2019. 39. Parties. The parties to Petition No. 8 of 2019 were the 2 nd Defendant, as petitioner, and the National Land Commission, the Chief Land Registrar and the Attorney General. The 2 nd Defendant concedes that the Plaintiff was not a party. She does not claim under any of the respondents, and she does not litigate under the same title. THIKA ELCLC E061 OF 2024 (RULING) Page 15

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40. Judgment in rem. The 2nd Defendant's answer is that the judgment was one in rem. Section 44(1) of the Evidence Act describes such judgments as final judgments of a competent court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction which confer or take away a legal character, or declare a person entitled to a specific thing, absolutely. 41. Petition No. 8 of 2019 was a constitutional petition for declarations, an injunction and orders of certiorari against public bodies. It was not decided in any of those jurisdictions. Its orders bind the respondents. To the extent that it quashed Gazette Notice No. 1995 of 1st March 2019, no one may treat that notice as subsisting. But that is a very different thing from deciding the Plaintiff's rights against the 2nd Defendant under the 2011 transaction, which the Petition did not touch. 42. Matter in issue. The issues in the Petition were whether the National Land Commission had jurisdiction, whether the gazette notice could be quashed, and whether the 2 nd Defendant was heard before its titles were affected. The issues in this suit are whether the Defendants misrepresented the land to the Plaintiff, whether they received her money, and whether she is entitled to a transfer or damages. The status of the land appears in the plaint only as part of the particulars of fraud, as a fact relied on, not as a THIKA ELCLC E061 OF 2024 (RULING) Page 16

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relief sought. It was not directly and substantially in issue between these parties in the Petition. 43. Contested facts. The objection also depends on facts not established on this record, including whether the suit property derives from Block 20/335 and whether the revocation the Plaintiff pleads is the one the Petition dealt with. Such questions cannot be resolved on a preliminary objection. 44. Functus officio. The doctrine prevents a court from re- opening a matter it has finally decided in the same proceedings: Telkom Kenya Ltd v John Ochanda & 996 others [2014] eKLR, which the 2nd Defendant cites. This Court is not asked to review, vary or set aside the judgment in Petition No. 8 of 2019. It is asked to determine a different dispute between different parties. The doctrine does not apply. 45. Abuse of process. For the same reasons, the suit is not an abuse of process under Order 2 Rule 15 of the Civil Procedure Rules by reason of Petition No. 8 of 2019. 46. The 2nd Defendant's preliminary objection and its Motion, in so far as they rest on Petition No. 8 of 2019, therefore fail. That does not, however, end the matter as regards the 2 nd Defendant, to which I now turn. [ THIKA ELCLC E061 OF 2024 (RULING) Page 17

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(v) Whether the suit can be sustained against the 2 nd Defendant alone 47. The 2nd Defendant was not a party to CMELC No. 98 of 2020, and its own objection on Petition No. 8 of 2019 has failed. The question remains whether, with the claim against the 1 st Defendant barred, the suit can proceed against the 2nd Defendant alone. The 2nd Defendant has asked that the suit be struck out in its entirety, and the Court must in any event satisfy itself that what remains before it is capable of adjudication. 48. Parties are bound by their pleadings and the Court cannot grant a relief that has not been sought: Independent Electoral & Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR. The answer therefore lies in the prayers in the plaint. 49. Prayer (a) seeks a declaration that the sale of Block 20/335/19 by the 1st Defendant to the Plaintiff was illegal, wrongful, unlawful and fraudulent. Prayers (b) and (c) seek an order that the 1st Defendant, or in the alternative the Deputy Registrar, sign a transfer of Block 20/2883 in the Plaintiff's favour. Prayers (d) and (e) seek general damages, costs and interest. No prayer seeks any order against the 2nd Defendant in its own right. There is no prayer for a refund of the fees paid to it, and no prayer that it transfer any land to the Plaintiff. THIKA ELCLC E061 OF 2024 (RULING) Page 18

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50. Nor, on the Plaintiff's own pleading, does the 2 nd Defendant hold the land she seeks. At paragraph 12 of the plaint she pleads that the 1st Defendant produced a search showing her as the registered owner of Block 20/2883, and prayers (b) and (c) seek a transfer of that parcel from the 1 st Defendant. A preliminary objection is argued on the assumption that the facts pleaded by the other side are correct: Mukisa Biscuit (supra). On that footing, whatever interest the 2nd Defendant once held has passed to the 1st Defendant, and there is nothing the Court could order the 2 nd Defendant to transfer. 51. Every relief that remains therefore turns on the sale between the Plaintiff and the 1st Defendant. Prayer (a) cannot be granted without trying whether that sale was fraudulent, and prayers (d) and (e) are consequential upon it. That is the very matter this Court has found to be res judicata. The Court cannot try against the 2nd Defendant an issue it is barred from trying against the 1 st Defendant; to do so would let the Plaintiff evade Section 7 merely by retaining an added party, which Omondi (supra) forbids. A suit with no relief capable of being granted against the only remaining defendant would serve no purpose, and its continuation would be an abuse of the process of the Court within Order 2 Rule 15(1)(d) of the Civil Procedure Rules. THIKA ELCLC E061 OF 2024 (RULING) Page 19

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52. I therefore find that the suit cannot be sustained against the 2nd Defendant alone and that it must be struck out in its entirety. 53. Costs follow the event under Section 27 of the Civil Procedure Act. The 1st Defendant has succeeded in full and is entitled to her costs. The 2nd Defendant has failed on the ground it raised, but the suit has nonetheless been struck out as against it. In those circumstances the fair order is that the Plaintiff and the 2nd Defendant bear their own costs. 53. Accordingly, I make the following orders: a. The 1st Defendant's preliminary objection at paragraph 5 of her Statement of Defence dated 24th July 2024 is upheld; b. The 2nd Defendant's Notice of Preliminary Objection dated 17th September 2024 and its Notice of Motion dated 23 rd September 2024 are dismissed in so far as they rest on Thika ELC Petition No. 8 of 2019; c. The Plaintiff's suit is struck out in its entirety; and d. The Plaintiff shall pay the 1st Defendant's costs of the suit and of the preliminary objection. Dated, signed and delivered, virtually at Malindi this 7 th day of October 2026 …………….………….. THIKA ELCLC E061 OF 2024 (RULING) Page 20

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J. M. ONYANGO JUDGE In the presence of: 1. Mr. Mwenda for the 1st Defendant 2. Ms Kiiru for the 11th -511th Defendants 3. No appearance for the Plaintiff Court Assistant: Happy THIKA ELCLC E061 OF 2024 (RULING) Page 21

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