MERCY G. WANJIRU VS State Law Office AND GEORGE MURIMI NGUCHU AND 2 Others

1.    This suit was commenced by the plaint dated 4th August 2014. The Plaintiff claims a beneficial interest in Land Parcel No. Magutu/Gatei/457 measuring 4 acres in the respective estates of her father, Nguchu Murimi (Deceased) and mother, Grace Wanjiku Nguchu (Deceased). The Plaintiff pleaded that her father was the registered owner of L.R. No. Magutu/Gatei/457 out of which he held one acre in trust for her mother. In breach of the said trust, her father, Nguchu Murimi (Deceased), purported to subdivide the land into two parcels, namely, LR No. Magutu/Gatei/1120 in the names of the 1st and 2nd Defendants and 1121 in his name.
2.    The Plaintiff prayed for orders of a permanent injunction restraining the defendants from dealing with the land parcel LR No. Magutu/Gatei/1120 and a declaration that the subdivision of LR No. Magutu/Gatei/457 into LR No. Magutu/Gatai/1120 and 1121 were in breach of the Mathira Land Dispute Tribunal award, as well as the cancellation of the resultant title deeds.
3.    The Plaintiff at the same time filed the Notice of Motion Application dated 17th January 2025, seeking the following orders:
1)    Spent.
2)    Spent.
3)    An order of interlocutory injunction do issue to restrain the defendants themselves, their agents and/or servants and/or employees from entering, remaining upon, encroaching, trespassing, charging, selling, alienating, dealing, transferring or in any other way whatsoever from transacting LR No. Magutu/Gatei/1120 until the hearing and final determination of this suit.
4)    The Officer Commanding Station, Karatina Police Station do oversee compliance and enforcement of these orders.
5)    The costs of this application be provided for.
4.    In support of the application, the Applicant claims to have possession of the suit land and that the 1st and 2nd Defendants commenced activities intended to evict her as soon as they were served with the Court process herein, namely, the construction of houses, the erection of a perimeter fence, and the installation of an iron sheet gate.

The 1st and 2nd Defendants/Respondents’ Notice of Preliminary Objection
5.    The 1st and 2nd Defendants/Respondents filed the Notice of Preliminary Objection dated 10th February 2025, on the ground that this suit is res judicata, an abuse of the process of the Court and the same should be struck off with costs.
6.    The Court directed that the Preliminary objection be heard before the hearing of the application and the suit.

The 1st and 2nd Defendants/Respondents’ Replying Affidavit
7.    The 1st and 2nd Defendants/Respondents filed a replying affidavit sworn by the 2nd Respondent on the 18th February 2025. They denied that the applicant is in actual possession of LR No. Magutu/Gatai/1120 and deposed that the Applicant, her brothers and family members are actually in occupation of LR No. Magutu/Gatai/1121, which borders the suit land.
8.    They averred that the suit land is registered in their joint names and the 2nd Respondent resides on the land. They therefore have the right to occupy, cultivate, develop and use the land. The Respondents claim that they are the ones suffering damage, due to the Applicant's brother’s trespass on their land by grazing their cows and cutting down trees.
9.    The Respondents claim that the Applicant’s deceased mother, Grace Wanjiku Nguchu and her brother, Stevenson Murimi Nguchu, have each filed cases and applications in different courts seeking the very same orders in the present suit, which cases have been dismissed.
10.    The 2nd Respondent termed the instant application as vexatious, an abuse of the process of this court and should be dismissed with costs.

The Applicant’s replying affidavit to the Respondents’ preliminary objection
11.    The Applicant filed an affidavit in reply to the Respondents’ preliminary objection. She deposed that the legal doctrine of res judicata does not apply in this case. She stated that there were only two suits previously litigated in relation to the suit property, that is, Mathira Land Dispute Tribunal Case No.6 of 2005, Grace Wanjiku Guchu vs Nguchu Murimi and Karatina Magistrates Court Civil Case No.118 of 2020, Dr George Murimi Guchu Vs Stephen Murimi Guchu.
12.    In the Tribunal case, the complainant was declared the legal/bona fide and lawful owner of one acre out of LR No. Magutu/Gatei/457, while the decision in case No. 118 of 2020 was made against the decision of the Land Disputes Tribunal.  The Land Disputes Tribunal decision was adopted in the Karatina Magistrates Court case No. 3 of 2003, and orders of enforcement of the decision were issued authorising the signing of land transfer forms in respect to her beneficial interest in her late mother's one acre awarded to her, but the order was never executed.
13.    The Plaintiff further claimed that Karatina Succession Cause No. 34 of 2012 in the estate of Grace Wanjiku Guchu, recognised the decision in the Land Disputes Tribunal.
14.    She avers that she filed the present suit to enforce recovery of this beneficial interest and stated that she has never been a party to the previous proceedings relating to the suit property. She annexed a copy of the Confirmation of Grant issued in Karatina CM Succession cause 34 of 2012 and stated that the doctrine of res judicata is not applicable.

    The 1st and 2nd Respondents’ Written Submissions
15.    Counsel for the 1st and 2nd    Respondents filed written submissions on the preliminary objection, citing the authority of Mukisa Biscuit Manufacturing Co. Ltd -VS- West End Distributors Ltd (1969) EA 696. Counsel submitted that the issues raised by the Applicant on whether the subdivision of L.R MAGUTU/GATEI/457 into L.R MAGUTU/GATEI/1120 and 1121 was unlawful for breaching Karatina Magistrate's Court decree in Land Case No. 2003 and whether the two resultant title deed should be cancelled and revert to the original parcel for fresh subdivision were directly and substantially in issue in Karatina Principal Magistrate's ELC Case No. 13 of 2019 and in ELC Case No. 6 of 2003. Counsel stated that there was a Ruling dated 12.5.2024, which sought to enforce the same decree but was dismissed, annexed as item 4 of the 1st and 2nd Defendants' list of documents.
16.     It is further submitted that in their list of documents dated 10.2.2025, the 1st and 2nd Defendants exhibited the Plaint in Karatina Principal Magistrate ELC No. 13 of 2019 dated 12.6.2019, showing that the prayers in Karatina Case and in the present suit are the same. Judgment dismissing that case was delivered on 15.7.2021. That case decided the issue of illegal subdivision and cancellation of the titles that the plaintiff is currently complaining of. The same happened in the Ruling of 12.5.2024. No appeal was preferred against either decision. The judgments and rulings in those cases still stand.
17.     In response to the Applicant’s contention that she was not party to the previous suits litigating on the title, Counsel submitted that she is litigating on behalf of the Estate of her deceased mother, Grace Wanjiku Murimi, as pleaded in paragraphs 8, 9 and 11 of the Plaint. In the Karatina cases, Stevenson Murimi Nguchu described himself as the administrator of the Estate of the same Grace Wanjiku Nguchu, and he was thus litigating on behalf of his mother, Grace Wanjiku. That both the plaintiff in the present case and the plaintiff in Karatina PM's Case fall under section 7 of the Civil Procedure Act as parties under whom they or any of them can claim. In addition, the 1st and 2nd Defendants in this suit were the same as those in Karatina ELC No. 6 of 2003.
18.    It is further submitted that this suit is also an abuse of the process of this court as Nguchu Murimi, the Plaintiff's father, subdivided the suit land in accordance with a court order in Nyeri S.R.M. Misc Civil App No. 39 of 2003, which court order was never appealed against, set aside or reviewed.
19.     The 1st and 2nd Respondents’ submission is that this suit is res judicata and an abuse of the process of this Court, and entertaining it will amount to opening an already decided issue by the same parties or persons litigating under them. For those reasons, they submit that their Preliminary objection be upheld and the suit be struck off with costs to them.

Analysis and Determination
20.    The Court has considered the Preliminary objection and submissions filed by Counsel for the 1st and 2nd Defendants. The Plaintiff was directed by the court on 6th November 2015 to file and serve written submissions within 7 days, but until the time of writing this ruling, none have been filed, and the ruling herein is made without the benefit of the said submissions.
21.    According to Black's Law Dictionary, a Preliminary Objection is defined thus:
“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”
22.    The above legal preposition was cemented in the now famous case of Mukisa Biscuit Manufacturing Co. Ltd –VS- West End Distributors Ltd. [1969] E.A. 696.  The Court held that: -
    “The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary objection. A preliminary Objection is in the nature of what used to be a demurrer; it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.  It cannot be raised if any fact has to be ascertained or if what is sought is in the exercise of judicial discretion. The improper raising of points by way of Preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. This improper practice should stop"
23.    Section 7 of the Civil Procedure Act establishes the statutory basis for the doctrine of res judicata and provides 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 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.
24.    The Supreme Court of Kenya in the case of Kenya Commercial Bank Limited v. Muiri Coffee Estate Limited & another Motion No. 42 of 2014 [2016] eKLR (Muiri Coffee case) held as follows regarding the doctrine of res judicata:
“[54] 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.”
25.    This doctrine was discussed further by the Supreme Court in the case of John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), thus:
    “For res judicata to be invoked in a civil matter, the following elements must     be demonstrated:
a)    There is a former Judgment or order which was final;
b)    The Judgment or order was on merit;
c)    The Judgment or order was 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
     (See also Uhuru Highway Developers Limited v. Central Bank of Kenya &     Others [1999] eKLR and See the decision of the Court of Appeal in Nicholas     Njeru v. Attorney General & 8 Others (2013) eKLR)
26.    From the foregoing legal provisions and authorities, the matters to be determined before concluding whether or not the doctrine of res judicata applies in the circumstances of this case are;
i)    Whether the matter directly and substantially in issue in the present suit has been directly and substantially in issue in a former suit.
ii)    Whether the suits were between the same parties, or between parties under whom they or any of them claim,
iii)    Whether there is a former Judgment or order which was final, and whether the Judgment or order was on merit;
27.    On whether the matters directly and substantially in issue in the present suit have been directly and substantially in issue in a former suit, the court has considered the documents filed by the parties. The 1st and 2nd Defendants, through the list of documents dated 10th February 2025, listed previous cases as Nyeri C. M. Misc Civil Application No. 39 of 2003 Nguchu Murimi Vs Henry G. Nguchu, Karatina Principal Magistrate’s Court ELC No. 13 of 2019, Stevenson Murimi Nguchu (suing as administrator of the estate of Grace Wanjiku Nguchu) VS George Murimi Nguchu & Another and a ruling dated 12th May 2024 in Karatina P.M ELC No. 6 of 2003.
28.    The Plaintiff also listed and attached the previous suits in her affidavit in reply to the Preliminary Objection: Mathira Land Disputes Tribunal Case No. 6 of 2003- Grace Wanjiku Guchu VS Murimi Guchu and Karatina Civil Case No. 118 of 2020- Dr George Murimi Nguchu VS Stephen Murimi Nguchu. The existence of the cases listed has not been contested.
29.    The Court has considered the pleadings and decisions in the cases listed by the parties and is of the view that the matters directly and substantially in issue in the present suit have been directly and substantially in issue in the former suits. Of particular interest are Mathira Land Disputes Tribunal Case No. 6 of 2003, whose award was adopted as a judgment of the court in Magistrates Court at Karatina in Land Case No. 3 of 2003 and Karatina Principal Magistrate’s Court ELC No. 13 of 2019, Stevenson Murimi Nguchu (suing as administrator of the estate of Grace Wanjiku Nguchu) VS George Murimi Nguchu & Another.
30.    The issues for determination in the above suits that the Court considers as are also in issue in the present suit were:
(A) Whether Guchu Murimi (deceased) held one acre out of Land Reference Magutu/Gatei/457 in trust for his wife and the mother of the Plaintiff herein, Grace Wanjiku Guchu (deceased).
(B) Whether the subdivision of Magutu/Gatei/457 into two equal parts, creating  Land Reference Magutu/Gatei/1120 and 1121 and transferring 1120 into the names of the 1st and 2nd Defendants, and 1121 remaining in the name of Guchu Murimi, was illegal and in contravention of the decision of the Land Disputes Tribunal.
(C ) Whether the above subdivisions and subsequent titles ought to be cancelled.
31.    The present suit and Karatina Principal Magistrate's Court ELC No. 13 of 2019 seek similar orders of cancellation of title numbers Magutu/Gatei/1120 and 1121, reverting to L. R Magutu/Gatei/457 and fresh subdivision in accordance with the award in Mathira Land Disputes Tribunal and the decree in Karatina Magistrates Land Case No. 6 of 2003. In the Court's view, the fact that the orders sought are worded differently in the two suits does not change the issues for determination.
32.    The Court is thus persuaded that the matters for determination in all the cases considered are similar.
33.    On whether the suits were between the same parties, or between parties under whom they or any of them claim, the Court has considered that the case of Mathira Land Disputes Tribunal Case No. 6 of 2003 was between Grace Wanjiku Guchu and Guchu Murimi (both deceased), who were the mother and father of the Plaintiff in the present case. The two were the initial disputants and the main protagonists in relation to rights and interests in the initial parcel of land L. R. Magutu/Gatei/457. In Karatina MCL & E No. 13 of 2019, Stevenson Murimi Nguchu sues as Administrator of the estate of Grace Wanjiku Guchu, urging the same rights and interests to the suit land claimed by Grace Wanjiku Guchu.
34.    In the present case, the Plaintiff Mercy G. Wanjiru claims beneficial interests in the land belonging to her parents, Grace Wanjiku Guchu and Guchu Murimi. However, when one looks at the averments made at paragraphs 7, 8, 9, 10 and 11 of the plaint in the present case there is no doubt that the entire claim made by the Plaintiff herein is the same one made by the deceased Grace Wanjiku Guchu before the Land Disputes Tribunal and by the Administrator of her estate in Karatina ELC No. 13 of 2019.
35.    The Court can comfortably conclude that the above suits were between the same parties, or between parties under whom they or any of them claim.
36.    The Court is reminded to be vigilant against cases, such as the present one, where litigants engage in the drafting of pleadings in such a manner as to obviate the res judicata principle. This was judicially remarked in E.T v. Attorney-General & Another, (2012) eKLR, thus:
“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. The test is whether the plaintiff in the second suit is trying to bring before the Court in another way and in the form of a new cause of action, which has been resolved by a Court of competent jurisdiction. In the case of Omondi v. National Bank of Kenya Limited and Others, (2001) EA 177, the Court held that, 'parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the Court quoted Kuloba J., in the case of Njangu v. Wambugu and Another Nairobi HCCC SC PETITION NO. 17 OF 2015 Page 29 of 64 No.2340 of 1991 (unreported) where he stated, ‘If parties were allowed to go on litigating forever over the same issue with the same opponent before Courts of competent jurisdiction merely because he gives his case some cosmetic face-lift on every occasion he comes to Court, then I do not see the use of the doctrine of res judicata…..”
37.    On whether there is a former Judgment or order which was final, and whether the Judgment or order was on merit, the Court finds that the Mathira Land Disputes Tribunal Case was heard on merit, and an award was made on 16th June 2003 and adopted as a judgment of the Court on 21st May 2004 in Karatina Magistrates Court Land case No. 6 of 2003.
38.    In Karatina MCL & E Case No. 13 of 2019, the suit was heard and determined on merit and dismissed through the judgment dated 15th July 202.
39.    On whether the Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties, the Court finds that the Mathira Lands Dispute Tribunal had jurisdiction to hear and determine the issues that were before it and make an award. The said award was not challenged, and the same was adopted as a judgment of the court. The Court also finds that the Karatina Magistrates' Court had jurisdiction to hear and determine Case number 13 of 2019.
40.    From the foregoing, the Court finds that all the elements of Res judicata under Section 7 of the Civil Procedure Act have been satisfied. The Preliminary Objection dated 10th February 2025 is found to have merit, and it is hereby upheld. The application dated 17th January 2025 and the entire suit are found to be res judicata and an abuse of the Court’s process and are hereby struck out with costs to the 1st and 2nd Defendants.
Dated, Signed and Delivered at Nyeri, this 11th day of December 2025

Delivered in the Presence of:-
Ms Kendi -Court Assistant
M/S Irungu holding brief for Ngata Kamau     -    for the Plaintiff
Theuri Mwangi    -    for the Defendant