REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC NO. 91 OF 2017
JUDITH MUTHEU MAITHA.......................................................PLAINTIFF
-VERSUS-
MUTUA NDIKU....................................................................1ST DEFENDANT
JOSEPH MUTUKU MUTUNGA........................................ 2ND DEFENDANT
MANG’OKA MUTUNGA................................................... 3RD DEFENDANT
JUDGMENT
Introduction
1. By an amended plaint dated 12th June, 2018, the Plaintiff sought the following reliefs:
1) An order of eviction of the Defendants, their servants and or agents from plot No. 501 Kiboko “B” Settlement Scheme.
2) Costs of this suit.
3) Any other relief that the honourable court deems fit and just to grant.
2. The 2nd and 3rd Defendants raised a counterclaim on 12th March, 2018 in which they sought the following reliefs:
i. That registration of plot No. 501 Kiboko “B” Settlement Scheme in the name of Judith Mutheu Maitha (Plaintiff herein) be cancelled.
ii. That plot No. 501 Kiboko “B” Settlement scheme be registered in favour of the 2nd and 3rd Defendants.
iii. That the Plaintiff do bear the costs of the suit and counterclaim.
iv. Any other or further relief this honourable court deems fit to grant.
Background
3. The suit herein was originally filed against Dorcas Mbeni Mutunga (deceased) who is mother to the 2nd and 3rd Defendants. The deceased passed away on 12th August, 2014 and limited letters of administration of her estate were given to the 2nd Defendant on 15th September, 2019.
4. Prior to the Plaintiff filing this suit, the Plaintiff had filed Makindu PMCC No. 216 of 2016 against the deceased. A judgement was delivered in favour of the Plaintiff on 16th May, 2007 in which the deceased was restrained from interfering with parcel No. 501 at Kiboko “B” settlement scheme. The deceased appealed against the decision through Machakos HC Civil Appeal No. 108 of 2007 but the appeal was dismissed for want of prosecution on 25th July, 2014.
5. On 11th September, 2020, the Plaintiff filed a notice of withdrawal of the suit against the Defendants. The Plaintiff was on 10th December, 2020 allowed to withdraw the suit with costs to the 1st Defendant. The costs for the 2nd and 3rd Defendants were to await outcome of the counterclaim.
Defendants’ case (Plaintiff in counterclaim)
6. The Defendant testified that the deceased was one of the squatters at Mikululo who were allotted plots at Kiboko “B” Settlement Scheme. He testified that the deceased was allotted pot 501 through letter of allotment dated 30th June, 1999. The deceased accepted the offer through letter dated 31st May, 2000. The allotment letter came out in the name of Dorcas Namasiyo. On 22nd October, 2003, the deceased swore an affidavit in which she stated that the name of Dorcas Namasiyo was as a result of confusion and that the correct name should be Dorcas Mbeni Mutunga.
7. The second Defendant testified that he and his brother the 3rd Defendant were not parties to Makindu PMCC No. 176 of 2006 and that the deceased did not produce original documents as her documents were snatched while on her way to court. The deceased preferred an appeal against the judgment but the appeal was dismissed for want of prosecution.
8. A complaint was later lodged with the National Land Commission which made a determination that the suit property belonged to the deceased. The 2nd Defendant stated that the Plaintiff made forged documents which she used to evict the deceased’s family. He stated that before the deceased died, she had sold 2 acres to the 1st Defendant who is still in occupation of the suit property.
Plaintiff’s case (Defendant in the counterclaim)
9. The Plaintiff testified that parcel 501 had been allotted to Dorcas Nyamasyo on 30th June, 1999. Dorcas Nyamasyo was also allotted parcel 599. When it was discovered that Dorcas Nyamasyo had been allotted two plots, she was asked to surrender documents in respect of one. Dorcas Nyamasyo surrendered documents for parcel 501 and retained those of parcel 599.
10. The Plaintiff then applied for allocation of a plot and was allotted plot 501 through letter of allotment dated 26th April, 2001. She accepted the offer letter through letter dated 26th July, 2002. She fully paid the required amount and was given a certificate of outright purchase.
11. Later the 1st Defendant and the deceased trespassed on the suit property. She was forced to file Makindu PMCC No. 176 of 2006 which was determined in her favour on 16th May, 2007. She stated that Dorcas Nyamasyo is a different person from Dorcas Mbeni Mutunga. The deceased filed an appeal at Machakos HC being HCCA No. 108 of 2007. This appeal was dismissed on 25th July, 2014 for want of prosecution. She stated that she filed this suit as the Makindu case had no prayer for eviction.
12. The Plaintiff called DW3 Dorcas Waveti Nyamasyo who testified that she was a squatter at Mikululo. She was allotted plot Nos. 501 and 599 and Wilson Nduulu was allocated plot 431. Wilson sent his son Peter Nduulu who went and paid for the three plots. Later the chief of Kiboko came and asked her to surrender one plot. She surrendered documents for plot 501. She was asked to go for a refund at the lands office but she did not go for it. She retained parcel 599 where she resides todate.
13. The Plaintiff also called DW2 Peter Nthuli Nduulu who stated on how his father asked him to go to Wote and pay for three plots that is 431, 501 and 599. He went and paid for the three plots. Later, the chief of Kiboko Mr. Nyamai came and asked Dorcas Nyamasyo to surrender one parcel as she had been given two plots. Dorcas Nyamasyo surrendered documents for parcel 501.
Parties submissions
14. The parties were directed to file written submissions. The Defendants filed their submissions dated 26th September, 2025. The Plaintiff filed her submissions dated 2nd October, 2025.
Analysis and Determination
15. I have carefully gone through the evidence adduced by the Defendants and that of the Plaintiff. I have also considered the submissions by the parties. The issues which emerge for determination are firstly, whether Dorcas Namisiyo is one and the same person with Dorcas Mbeni Mutunga. Secondly, who was allotted plot No. 501. Thirdly, was the allotment to the Plaintiff fraudulent. Fourthly was the issue of ownership of the suit property determined by a competent court. Fifthly, was the National Land Commission right to make a determination on a matter which had been decided by court. Sixthly, are the Defendants entitled to their claims. Lastly, which order should be made on costs.
16. On the first issue, it is clear that Dorcas Namisiyo is not one and the same person as Dorcas Mbeni Mutunga. The Defendants tried to rely on the letter of 15th June, 2022 which purports to confirm that Dorcas Namaisiyo and Dorcas Mbeni Mutunga refer to one person. This is not true as the affidavit of the deceased which was sworn on 22nd October, 2003 categorically states that her name is Dorcas Mbeni Mutunga and not Dorcas Namasiyio. She goes on to state that the name Dorcas Namasiyio was just confusion. Nowhere did she state that she was also known as Dorcas Namasiyio.
17. The National Land Commission also seems to have fallen into this misguided notion that Dorcas Namasiyio was the same as Dorcas Mbeni Mutunga. This was in their verdict dated 28th June, 2017. They refer to the affidavit of 2003 which as I have said hereinabove did not state that Dorcas Namasiyio was also known as Dorcas Mbeni Mutunga.
18. The original allottee Dorcas Wevete Namasyo was called as DW3 by the Plaintiff. She testified that she had been allotted plot No. 501 and 599 but one was taken away by the chief of Kiboko. The parcel which was surrendered was parcel 501 which was subsequently allotted to the Plaintiff, a fact admitted in the determination of 28th June, 2017. I therefore find that Dorcas Namasiyio is not the same person as Dorcas Mbeni Mutunga.
19. On the second issue, it is clear from the evidence which was adduced that the allotment was made to Dorcas Namasiyio who is actually Dorcas Nyamasyo who testified as DW3. This Dorcas Namasiyio was in the list of those squatters of Mikululo who had been allotted plot 501. She surrendered this plot and remained with parcel 599 where she stays todate. This is the plot which was allotted to the Plaintiff who went ahead to make the required payments. The issue of allotment and ownership was determined in Makindu PMCC No. 178 of 2006.
20. On the third issue, there is no evidence to show that the allotment to the Plaintiff was fraudulent. The allotment to Dorcas Nyamasyo had been surrendered. The plot was therefore available for allocation. The relationship between Peter Nthuli Nduulu and the Plaintiff is not a secret. The Plaintiff was married to Peter Nthuli Nduulu after parcel No. 501 had already been allotted to her. Equally, the relationship between Dorcas Nyamasyo and Peter Nthuli Nduulu is no secret. Dorcas Nyamaso was his aunt. There is nothing to show that there was collusion in the manner parcel 501 was allotted to the Plaintiff.
21. On the fourth issue, there is no doubt that the Plaintiff filed a suit against the deceased in Makindu PMCC No. 176 of 2006. This suit was determined in favour of the Plaintiff. The Makindu court was competent to determine the suit. The Defendants cannot again bring a counterclaim seeking to litigate over the same issue.
22. Section 7 of the Civil Procedure Act provides 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.
23. The Defendants claim that they were not parties to Makindu PMCC No. 176 of 2006. This cannot help them to escape the doctrine of res judicata. The Defendants are sons of the deceased. They are therefore caught up the doctrine of res judicata.
24. In the case of Mairani & 2 Others –vs- Director of Land Adjudication & Settlement & 3 others (2025) KECA 400 (KLR) it was stated as follows:
“The doctrine of res judicata is founded on public policy and is aimed at achieving two objectives namely, that there must be finality to litigation and that an individual should not be harassed twice with the same account of litigation. The factors that the court takes into consideration in deciding if a matter is res judicata were laid out by the Supreme Court of Kenya in the case of Kenya Commercial Bank Limited vs Muiri Coffee Estate Limited & Another (2016) eKLR in the following terms:
“Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Benard Mugo Ndegwa vs James Nderitu Githae & 2 others, (2010) eKLR, under five distinct heads:
i. The matter in issue is identical in both suits;
ii. The parties in the suit are the same;
iii. Sameness of the title/claim;
iv. Concurrence of jurisdiction; and
v. Finality of the previous decision.”
The court continued:
Expounding further on the essence of the doctrine of res judicata this court in John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 others (2015) EKLR stated as follows:
“The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res-judicata ensures the economic use of court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger or unravelling uncontrollably.
25. The Defendants submitted that the Makindu case did not determine ownership. This is a misapprehension of the law. The Plaintiff had sought to injunct the Deceased from interfering with her land. This was based on the documents which she had. The court found that she was entitled to an injunction. One cannot be granted an injunction if there is no proof that one has interest in the land. The deceased never produced anything to show on what basis she was claiming the land. The Defendants’ claim is that her documents were snatched on her way to court. There was no prove of that. I therefore find that the Defendants’ case is res judicata.
26. On the fifth issue, the National Land Commission was made aware that a judgment had been delivered on the issue of ownership. Despite being aware about this, they went on to make a determination that the land should be recorded for the estate of the deceased. I have already stated hereinabove that the National Land Commission proceeded on the erroneous assumption that Dorcas Namasiyio was the same as Dorcas Mbeni Mutunga. There was no basis for holding so. The National Land Commission also doubted the existence of Dorcas Namasiyio. It turned out that Dorcas Nyamasyo existed and was alive and that she is the one who surrendered allotment for parcel 501 which was finally allotted to the Plaintiff. When the National Land Commission official testified, a question was put to him about the existence of Dorcas Nyamasyo to which he stated that it was wrong for National Land Commission to assume that Dorcas Nyamasyo was the same as Dorcas Mbeni Mutunga.
27. The issue of the suit property having been determined by a competent court, National Land Commission had no jurisdiction to overturn it as if it was an appellate court. The only proper way of overturning the decision of Makindu PMCC in No. 176 of 2006 was through appeal process which was not the case. I therefore find that the verdict of National Land Commission which was in any case not based on sound reasoning, could not confer any ownership on the Defendants.
Disposition
28. It is clear that the Defendants’ counterclaim is not only res judicata but the Defendants have totally failed to prove their claim. I proceed to dismiss the counterclaim with costs to the Plaintiff who is the Defendant in that counterclaim.
.......................................................
HON. E. O. OBAGA
JUDGE
JUDGMENT DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 22ND DAY OF JANUARY, 2026.
IN THE PRESENCE OF:
Mrs. Isika for Plaintiff.
Mr. Babu for Defendants.
Court assistant – Steve Musyoki
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