REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC NO. E035 OF 2024
GOOD HOPE CHILDREN’S HOME FOUNDATION...............PLAINTIFF
-VERSUS-
JOHN MUISYO MUTUNGI.................................................1ST DEFENDANT
HENRY KOSGEI..................................................................2ND DEFENDANT
EUNICE KALONDU MUTUKU......................................... 3RD DEFENDANT
PETER KYAMA................................................................... 4TH DEFENDANT
MUSEMBI NZIMBA........................................................... 5TH DEFENDANT
DAVID MUTHAMA............................................................ 6TH DEFENDANT
DANIEL MUTUA UVYU.................................................... 7TH DEFENDANT
WAMBUA MTUNGWA...................................................... 8TH DFEENDANT
JOHNSTONE MUNYAO.................................................... 9TH DEFENDANT
MUTINDA NGINA............................................................. 10TH DEFENDANT
RULING
1. This is a ruling in respect of a preliminary objection dated 17th December, 2024 brought by the Defendants on the following grounds:
1. The suit is res judicata since the issue of ownership of plot No. 3762 has been litigated and decided in Makueni ELC Case No. 78 of 2017 and the ruling delivered on 29th January, 2019 by Hon. J. O. Magori in Civil Case ELC No. 20 of 2018.
2. That Henry Muli Munguti, David Nyngu and Mary Joyce Muli, have no locus standi to agitate for and file a suit over ownership, control and management of Good Hope Children’s Home and plot 3762 Mang’elete Settlement Scheme.
3. That the suit is equally sub judice as there exists Civil Case ELC No. E015 of 2200 Makindu which is ripe for dismissal on grounds of want of prosecution.
4. The present suit is frivolous and vexatious and ought to be struck out with costs.
2. The Plaintiff had filed a suit against the Defendants in which the following reliefs were sought:
i. A declaration that land parcel plot No. 3762 Mang’elete Settlement Scheme is the sole property of Good Hope Children’s Home Foundation the Plaintiff herein.
ii. A declaration that the Defendants herein are trespassers on land parcel plot No. 3762 Mang’elete Settlement Scheme.
iii. An eviction order do issue against the Defendants herein from land parcel plot No. 3762 Mang’elete Settlement Scheme to be supervised by the OCS Mtito-Andei police station.
iv. Cost of this suit and interest at court rates.
v. Any other relief that this honourable court deems fit and proper to grant.
3. The parties agreed to dispose of the preliminary objection by way of written submissions dated 8th August, 2025. The Plaintiff filed submissions dated 24th July, 2025.
4. The Defendants submitted that the issues which are being raised in this suit were litigated and determined in Makueni ELC No. 78 of 2017 as well as in Makindu ELC No. 20 of 2018. The Plaintiff appealed against the decision of Makueni ELC 78 of 2017 all the way to the Supreme Court but lost in all the stages.
5. The Defendants submit that the suit property in the present suit was one of the properties in Makueni ELC 78 of 2017.
6. The Defendants also submitted that the Plaintiffs have no locus standi to file this suit. They submit that the present suit was filed by Henry Muli Munguti and 2 others alleging ownership of plot 3762 Mang’elete settlement scheme when the same issue had been determined in Makueni ELC 78 of 2017.
7. The Defendants further submit that after the Plaintiff lost Makindu CMCC No. 20 of 2018, they moved and filed Makindu SPM ELC E015 of 2020 which is still pending. They therefore contend that this suit is sub judice.
8. Finally the Defendants submitted that the Plaintiff is abusing the process of the court by filing suits in different courts over the same subject matter.
9. The Plaintiff submitted that the Defendants have not attached the decisions which are said to have been determined by other courts. The Plaintiff submitted that a clear reading of the judgment in Makueni ELC 78 of 2017 shows that this case is quite different from the present suit. The Plaintiff submits that the subject matter in Makueni ELC 78 of 2017 was plot 3292 and the subject matter of the present suit in 3762.
10. On the issue of locus standi, the Plaintiff submits that the Plaintiff is a limited company limited by guarantee. It has three directors and is capable of suing and being sued. The company has given authority to the directors to proceed on its behalf and therefore they have locus to do so.
11. On the issue of sub judice, the Plaintiff submits that there is no annexture of the alleged suit in Makindu known as SPM ELC E015 of 2020. The Plaintiff submits that in the absence of the existence or otherwise of the said case, this court cannot determine whether it is similar to the present suit.
12. Finally, the Plaintiff submitted that the preliminary objection is not properly grounded as no witness statements and documents have been filed by the Defendants apart from the statement of defence. The Plaintiff therefore submits that the defence consists of denials which means that there are facts to be determined and as such no preliminary objection can be raised in this matter.
13. I have carefully gone through the submissions by the parties. There are four issues to be determined in this matter. The first is whether this suit is res judicata. The second is whether this suit is an abuse of the process of court. The third is whether the Plaintiff has locus standi to bring this suit. The fourth is whether this suit is subjudice.
14. A preliminary objection was defined in the case of Mukisa Biscuit Manufacturing Company Limited –vs- West End Distributors Ltd (1969) EA 696 as follows:
“A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit”.
15. The four issues which have been raised in this matter fit the definition of a preliminary objection as any of them may lead to termination of the suit herein.
16. On the 1st issue, the principle of res judicata is predicated on Section 7 of the Civil Procedure Act which states 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 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”.
17. Plot No. 3762 featured in Makueni ELC 78 of 2017. This is one of the properties which was purchased by the 2nd Plaintiff through the 1st Defendant in ELC 78 of 2017. This is the property where the children’s home is constructed and is registered in the name of Good Hope Children’s Home. The ownership of this property was determined in Makueni ELC No. 78 of 2017 more particularly as per prayer (b) which was granted in the decree issued on 12th July, 2018 pursuant to judgment delivered on 20th June, 2018.
18. In the case of John Florence Maritime Services Limited & Another –vs- Cabinet Secretary for Transport and Infrastructure & 3 others the court quoted from Henderson –vs- Henderson where it was stated 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 forwards, 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 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”.
19. The ownership of plot 3762 was conclusively determined in Makueni ELC 78 of 2017. The plot then was registered in the Plaintiff’s name and the declaration given in that judgment settled the issue with finality. If the Plaintiff had any contrary view then it should have been raised in that suit. The decision in ELC 78 of 2017 was fought all the way to the Supreme Court but the battle was lost.
20. In the case of E. T. V–vs- Attorney General & Another (2012) eKLR the court stated as follows:
“The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction”.
21. It is very clear that the ownership of plot 3762 was settled in Makueni ELC 78 of 2017. The Plaintiff is seeking to reopen what was decided upon. As was stated in ET Case (Supra) litigation must come to an end; parties cannot be allowed to reopen matters already settled. I therefore find that this case is res judicata.
22. On the second issue, there is no doubt that the Plaintiff has filed suits in different courts over the same subject matter. There was Makueni ELC 78 of 2017 which was determined. The Plaintiff then filed Makindu SPMCC No. 20 of 2018 which was dismissed for being res judicata. The court had to say the following in dismissing the suit on account of it being res judicata:
“It is not in dispute that Makueni Environment and Land Court heard and determined ELC Case No. 78 of 2017 and judgment was delivered on 20th June, 2018.
The suit was filed on 17th July, 2018 after the delivery of the judgment in Makueni High Court ELC No. 78 of 2017 by Hon. Justice Mbogo.
The land in issue in this case is plot No. 3762 which was one of the plots which formed the subject matter in Makueni ELC No. 78 of 2017 and is captured in the judgment and declaration was issued over the same.
The first Plaintiff in this case is the 11th Defendant in the Makueni High Court ELC Case while the 2nd Plaintiff is the 1st Defendant”.
23. When Makindu SPMCC ELC 20 of 2018 was struck out for being res judicata, the Plaintiff again filed Makindu SPMC ELC No. E015 of 2020 which is still pending. As if this was not enough, the Plaintiff has filed the present suit. The filing of many cases in different courts is an abuse of the process of court.
24. In the case of Muchanga Investments Ltd –vs- Safaris Unlimited (Africa) Ltd & 2 others (2009) eKLR the Court of Appeal stated as follows:
“The concept of abuse of court process is abroad one, in that it covers a wide range of improper use of the judicial process including institution of multiplicity of suits between the same parties in regard to the same subject matter with the intention of harassing, annoying or causing financial drain to the other party”.
25. The Plaintiff is clearly abusing the court process by filing suits in various courts based on the same cause of action and on same subject matter of the suit. I therefore find that this suit is an abuse of the process of court.
26. On the third issue, it is clear that the directors of the Plaintiff have already been found to have been registered so as trustees of the 2nd Plaintiff in Makueni ELC No. 78 of 2017. As trustees of the 2nd Plaintiff, they do not have the right to bring litigation on the basis of what has been settled as regards their legal standing vis –a- vis ownership of the suit property. I therefore find that the directors of the Plaintiff have no locus to urge the issue of ownership which has been settled.
27. On the fourth issue, I notice that the Plaintiff had filed Makindu SPM ELC Case No. E015 of 2020. The subject matter is plot 3762. The Plaintiff has again filed the present suit which is sub judice. I therefore find that this suit is sub judice.
28. From the above analysis, I find that the Defendants’ preliminary objection is well founded. I allow the same and proceed to strike out the Plaintiff’s suit with costs.
It is so ordered.
..................................................
HON. E. O. OBAGA
JUDGE
RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 22ND DAY OF JANUARY, 2026.
IN THE PRESENCE OF:
Ms. Kibii for Defendants
Mr. Muendo for Mr. Muthiani for Plaintiff
Court assistant – Steve Musyoki
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