Peter Githiiyi Wanjiru,John Kinyanjui Kinuthia,Joseph Karara Kinuthia & Nene Benson Githiiyi v Kioi Githiiyi & George Githiiyi Kioi [2017] KEELC 2623 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC NO. 575 OF 2008

PETER GITHIIYI WANJIRU…..….….…. 1STPLAINTIFF

JOHN KINYANJUI KINUTHIA……........2ND PLAINTIFF

JOSEPH KARARA KINUTHIA…..…….3RD PLAINTIFF

NENE BENSON GITHIIYI……………….4TH PLAINTIFF

VERSUS

KIOI GITHIIYI………………………......1ST DEFENDANT

GEORGE GITHIIYI KIOI……………….2ND DEFENDANT

RULING

What is before me is an application brought by way of Notice of Motion dated 30th March 2016 in which the Defendants have sought vacant possession and eviction of the Plaintiffs from L.R No. Githunguri/Githiga/T.326 (“the suit property”).  The application has been brought on the grounds that the Plaintiffs suit is res judicata and that the Plaintiffs are trespassers on the suit property.

I have considered the Defendants’ application together with the affidavit filed in support thereof. I have also considered the replying affidavit sworn by the 1stDefendant and the submissions which were made before me by the Defendants’ advocate. I am of the view that the Defendants’ application has no merit and must fail.  I am not persuaded that this suit is res judicata.  Kiambu Civil Suit No. 505 of 1993 was brought by the 1st Plaintiff in his personal capacity and he sought an order for the transfer of the suit property to his name. That suit was not heard on merit. The same was struck out on a preliminary objection. The present suit has been brought by four Plaintiffs three of whom were not parties to Kiambu Civil Suit No. 505 of 1993.  The Plaintiffs have brought the present suit in their capacity as the administrators and beneficiaries of the estate of one, Mary WanjiruGithiiyi (deceased). I am not persuaded that the issues raised in this suit were directly and substantially in issue in the Kiambu Civil Suit No. 505 of 1993 or that the parties in this suit are the same as those who were in Kiambu Civil Suit No. 505 of 1993. For the foregoing reasons, I am of the opinion that the conditions for a plea of res judicata have not been met by the Defendants.

The upshot of the foregoing is that the Defendants’ Notice of Motion application dated 30th March 2016 fails wholly and is dismissed with costs to the Plaintiffs.

Delivered and Dated at Nairobi this 27th day of June, 2017

S. OKONG’O

JUDGE

In the presence of

N/A  for the 1st Plaintiff

N/A   for the 2nd Plaintiff

N/A  for the 3rd Plaintiff

N/A   for the 4th Plaintiff

N/A  for the 1st Defendant

Mr. Omolo   for the 2nd Defendant

Kajuju     Court Assistant