David Gikenge Kimani, Peter Kimani Gikenge, Jane Watiri Gikenge, James Nungari Gikenge, Lucy Mugure Gikenge, Grace Nduta Gikenge, Tabitha Wambui Gikenge, Hannah Magiri Gikenge & Joyce Nyambura Gikenge, Geoffrey Kagona Gikenge, Francis Mwaura Nyambura, Teresia Magiri Nyambura, Mary Watiri Nyambura & Joyce Nyambura Kimani v Kabura Waweru, Stephen Gatumuta Waweru, Patrick Kahoro Waweru, Joseph Wamuturi Kigathi, Esther Gathoni Ngure & John Munyui Gachuma [2019] KEELC 2596 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MILIMANI

ELC SUIT NO.258 OF 2015

DAVID GIKENGE KIMANI...........................................…1ST PLAINTIFF

PETER KIMANI GIKENGE……….……………….....…2ND PLAINTIFF

JANE WATIRI GIKENGE……….….……………...…….3RD PLAINTIFF

JAMES NUNGARI GIKENGE…….……………....…....4TH PLAINTIFF

LUCY MUGURE GIKENGE…….……………..…….....5TH PLAINTIFF

GRACE NDUTA GIKENGE…….…………………...….6TH PLAINTIFF

TABITHA WAMBUI GIKENGE….………………...…..7TH PLAINTIFF

HANNAH MAGIRI GIKENGE………………………...8TH PLAINTIFF

JOYCE NYAMBURA GIKENGE……………………….9TH PLAINTIFF

GEOFFREY KAGONA GIKENGE………..………….10TH PLAINTIFF

FRANCIS MWAURA NYAMBURA…………………..11TH PLAINTIFF

TERESIA MAGIRI NYAMBURA…………………......12TH PLAINTIFF

MARY WATIRI NYAMBURA………..………......…...13TH PLAINTIFF

JOYCE NYAMBURA KIMANI ...............................…14TH PLAINTIFF

VERSUS

KABURA WAWERU…………………………………1ST DEFENDANT

STEPHEN GATUMUTA WAWERU…...……………2ND DEFENDANT

PATRICK KAHORO WAWERU……….……………3RD DEFENDANT

JOSEPH WAMUTURI KIGATHI……...…………….4TH DEFENDANT

ESTHER GATHONI NGURE……….……….………5TH DEFENDANT

JOHN MUNYUI GACHUMA………......…................6TH DEFENDANT

RULING

This suit was commenced by the Plaintiffs through the plaint dated 26/03/2015, seeking a declaration that land reference numbers Kiambaa/Muchatha/T.175 and Kiambaa/Thimbigua/1304 are still subject to a customary trust established in Civil Suit No. 586 of 1976 hence the hiving off new titles being Kiambaa/Muchatha/569 and L.R Kiambaa/Thimbigua/7395, 7396, 7507 to 7519 from the original titles and subsequent sale and transfer to the Defendants was fraudulent, illegal and null. They also seek   cancellation of the titles hived from the said original titles and costs of the suit. The Plaintiffs’ claim was opposed by the Defendants.

The Defendants filed the application dated 02/11/2018 seeking the dismissal of this suit for being res judicata. The application is based on the grounds that the issues in dispute in this case were the issues directly and substantially in issue in Nairobi Civil Suit No. 568 of 1976, which was heard and determined by the court. The application was supported by the affidavit of the 1st Defendant who deponed that on 02/07/1974, Honorable E.O Kubasu then Resident Magistrate, vide Appeal No. 8 of 1974 ruled against the judgement of District Magistrate III at Kiambu in Succession Cause No. 36 of 1972 and ordered that the 1st Defendant herein was solely entitled to inherit her husband’s property, which is the subject matter in this suit. She annexed a copy of the judgement dated 02/07/1974.

Further, she deponed that in 1976, she filed Nairobi Civil Suit No. 568 of 1976 against the 1st Plaintiff and two others who defended that suit and filed a counterclaim. The Defendants in that suit sought declaration that the Plaintiff in that suit who is the 1st Defendant, held the property in trust for the Defendants therein; an order for the Plaintiff to transfer Plot No. Kiambu/Muchatha/T.75 to Kimani Kahora, the 2nd Defendant in that suit; an order for the Plaintiff to transfer half an acre of L.R. No. Kiambaa/Thimbigua/1304 to David Gikenge, the 1st Plaintiff in this suit.

She deponed that her case was dismissed while the Defendants were not granted the prayers they sought in their counterclaim. She annexed copies of the plaint, defence and counterclaim, judgment and the decree arising from Nairobi Civil Suit No. 668 of 1976.

She contended that the Plaintiffs’ prayers in the instant suit are similar to the Defendants’ counterclaim in Nairobi Civil Suit No. 668 of 1976 hence this suit is res judicata, since parties are similar and they litigated on the same issues. She also deponed that the 5th Defendant herein is the owner of L.R. No. Kiambaa/Muchatha/T.570 vide Succession Cause No. 789 of 1998 and decree from Civil Suit No. 213 of 1999 Kiambu, which have never been appealed against or reviewed by the Plaintiffs herein. She annexed copies of the certificate of confirmation of grant, title deed for L.R. No. Kiambaa/Muchatha/T.570 and the decree from Civil Suit No. 213 of 1999 Kiambu.

The application was opposed by the 1st Plaintiff’s replying affidavit sworn on 29/10/2018. He deponed that L.R No. Kiambaa/Thimbigua/1304 and Kiambaa /Muchatha /T.175 were family properties registered in the name of their elder brother; the late Kimani Waweru to hold in trust for the entire family. He attached copies of the title. He deponed further that upon his brother’s demise, his wife, who is the 1st Defendant herein filed Succession Cause No. 36 of 1972 in the District Magistrate’s court in which the court ruled that that the Defendants therein were entitled to inherit portions of the properties in dispute as it was family land. However, the 1st Defendant appealed against that decision vide Appeal No. 8 of 1974, where the court overturned the decision of the trial court but failed to deal with the issue of trust and stated that the High court was the only court vested with the jurisdiction to deal with the issue of trust over land.

He further deponed that the 1st Defendant sued them in Civil Suit No. 568 of 1976, seeking to evict them from the suit properties but they filed a defence and counterclaim and raised the issue that the suit property was trust land. The Plaintiffs’ suit was dismissed and the judge found that the suit properties were family properties and the late Kimani Waweru was registered as a trustee for the rest of the members of the family, hence it was misleading for the 1st Defendant to argue that the Defendants’ counterclaim in the former suit was dismissed entirely. He deponed that they later filed an application for subdivision and transfer of the suit properties vide Civil Suit 735 of 2013 but Muchelule J in his decision stated that the Defendants did not pray for half share in the parcels and therefore what they were seeking was a new cause of action for the court to declare what share of the properties each one of them would be entitled to. They withdrew the suit as it was overtaken by events when the 1st Defendant sold the property while the suit was pending. He urged that this suit is not res judicata since the cause of action in this suit is the illegal and fraudulent sale and transfer of the family properties being L.R No.Kiambaa/Muchatha/T. 175 and L.R No. Kiambaa/Thimbigua /1304, which cause of action has never been substantially heard and determined so as to render the suit res judicata. He urged the court to dismiss the application.

The court has considered the application, as well as the submissions of counsel for the parties. The issue for determination is whether this matter is res judicata. For the doctrine of res judicata to apply, the matter must have been directly and substantially in issue in the previous suit and the parties must be the same or parties under whom any of them claim, litigating under the same title. Further, the matter must have been finally decided in the previous suit. The court has looked at the copy of the plaint dated 05/03/1976 and the amended defence and counterclaim dated 06/07/1976 filed in Nairobi Civil Suit No. 568 of 1976. The Plaint was filed by the 1st Defendant herein, Kabura Waweru against David Gikenge, who is the 1st Plaintiff herein, Kimani Kahora and Nyambura Kimani. The Plaintiff sought to evict the Defendants therein from L.R. No. Kiambaa/Thimbigua/1304 and L.R. No. Kiambaa/Muchatha/T.75 which were registered in the Plaintiff’s name pursuant to an order issued in Succession Civil Appeal No. 8 of 1974. The properties were originally held in the Plaintiff’s deceased husband’s name, one Waweru Kimani. The Defendants in that suit filed a counter claim and sought a declaration that the suit properties therein be declared to have been held in trust for the entire family by the Plaintiff. The court dismissed the Plaintiff’s case on 22/09/2005. Regarding the issue of the properties being held in trust by the Plaintiff, the court held that the registration of the Plaintiff’s deceased husband as the proprietor of the two parcels of land as the eldest son of the family envisaged a customary trust and he was so registered as a trustee for the rest of the family members. The court was silent on the prayers for subdivision of the property sought in the Defendant’s counterclaim. It would seem that this suit is pegged on the judgement in Nairobi Civil Suit No. 568 of 1976. At Paragraphs 9 and 10 of the plaint dated 26/03/2015, the Plaintiffs made reference to the judgement of the court issued in Civil Suit No. 568 of 1976and pleaded that the court in that case found that the Plaintiff held the properties in dispute in trust.

The court is persuaded that the issues raised herein ought to have been raised in Civil Suit No. 568 of 1976. It was for the Defendants in that matter to follow up on their prayer for subdivision in that suit through an application for review. The court found that the suit properties were held in trust for the family. It was upon the Defendants in that suit to enforce that judgement. There is no evidence that the decision was ever appealed against. Filing multiple suits was not the proper remedy. A party is required to present his whole case before the court instead of litigating his case piecemeal or in instalments. The properties in suit Nairobi Civil Suit No. 568 of 1976 are directly in issue in this suit and are the same properties although they have since been subdivided and some portions transferred. The parties are also basically the same or claiming under other parties except for the 4th Defendant who is said to have bought L.R. No. Kiambaa/Muchatha/T.570 from the 1st Defendant and vide Succession Cause No.789 of 1998 and decree from Civil Suit No.213 of 1999-Kiambu.

In Henderson Vs. Henderson (1843-60)ALL E.R 378, cited in ANM v PMN [2016) eKLR, the court observed that where a given matter becomes the subject of litigation in and of adjudication by  a 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 a matter which might have been brought forward 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 case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgement, 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.

This court does not think that there are any special circumstances that would warrant it to entertain this suit that has been under litigation for over 40 years. Litigation must come to an end. The court allows the application dated 2/11/2018. This being a family dispute, each party will bear its own costs.

Dated and delivered at Nairobi this 28th day of June 2019

K.BOR

JUDGE

In the presence of:-

Ms. W. Maina for the Plaintiffs

Mr. D.N. Kamau holding brief for Mr. Osoro for the 1st to  6th Defendants

Mr. V. Owuor- Court Assistant

No appearance for the 7th to 14th Defendants