Case Metadata |
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Case Number: | Environment and Land Case 75 of 2016 |
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Parties: | Monica Wambui Muchira, Jeremiah Mugo Muchira, Jamleck Kinyua Muchira & Cyrus Njuki Muchira v Stella Gichugu Muchira, Patrick Mwendia Muchira & Justin Nyamu Muchira |
Date Delivered: | 20 Jul 2018 |
Case Class: | Civil |
Court: | Environment and Land Court at Kerugoya |
Case Action: | Ruling |
Judge(s): | Samwel Ndungu Mukunya |
Citation: | Monica Wambui Muchira & 3 others v Stella Gichugu Muchira & 2 others [2018] eKLR |
Advocates: | Ms Njoka for Maina Kagio for the Defendants Mr. Igati Mwai for the Plaintiffs |
Court Division: | Land and Environment |
County: | Kirinyaga |
Advocates: | Ms Njoka for Maina Kagio for the Defendants Mr. Igati Mwai for the Plaintiffs |
History Advocates: | Both Parties Represented |
Case Outcome: | Preliminary Objection allowed |
Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KERUGOYA
ELC CASE NO. 75 OF 2016
MONICA WAMBUI MUCHIRA................................1ST PLAINTIFF
JEREMIAH MUGO MUCHIRA................................2ND PLAINTIFF
JAMLECK KINYUA MUCHIRA...............................3RD PLAINTIFF
CYRUS NJUKI MUCHIRA.........................................4TH PLAINTIFF
VERSUS
STELLA GICHUGU MUCHIRA..............................1ST DEFENDANT
PATRICK MWENDIA MUCHIRA..........................2ND DEFENDANT
JUSTIN NYAMU MUCHIRA...................................3RD DEFENDANT
RULING
[1] The parties in this case are wives and daughter of the late Muchira Kagema. The plaintiffs in this case prays for cancellation of Title number KABARE/MUTIGE/765, 766, and 767 and that the sub-division herein be declared null and void and the same do revert to the original parcel KABARE/MUTIGE/17 and be sub-divided into 9 equal portions and costs of the suit.
[2] The defendants who are a widow of the late Muchira Kagema and her two sons denied the claim. He states that the first plaintiff filed Kerugoya S.P.M.C.C No. 414 of 2009 seeking the determination of the trust and sub-division of KABARE/MUTIGE/17 into 9 equal portions. This suit was dismissed and the Court held that the said Muchira Kagema was at liberty to do with his land what he wished. There was no appeal preferred. The land was then sub-divided into KABARE/MUTIGE/765, 766 and 767 settling his three houses.
The defendant further aver that sometime after sub-division and the registration of parcel number KABARE/MUTIGE/766 in the names of the 2nd and 3rd defendants, the 3rd plaintiff started interfering with parcel 766 forcing the 2nd and 3rd defendants to file Kerugoyg C.M.C.C 19 of 2016 for declaration that the 2nd and 3rd defendants are the owners of KABARE/MUTIGE/766. The Court declared them as the lawful owners. There was no appeal preferred by anyone.
The defendants in their defence paragraph 11 state that the issues raised regarding the subject matter in this suit have previously been litigated in Kerugoya S.P.M.C.C. No. 414 of 2009 and Kerugoya C.M.C.C No. 19 of 2016 and that therefore this matter is res-judicata and that they would raise a Preliminary Objection in that respect.
[3] A Preliminary Objection was raised in that respect and it was supposed to be canvassed by written submissions. It was only the defendants who filed their submissions. The plaintiffs did not file any.
In the Preliminary Objection, the Court was referred to Section 7 of the Civil Procedure Act on resjudicata. The two suits were referred to and orders given therein that are filed in Court were referred to. I was also referred to the case of Giella Vs Cassman Brown on orders of injunction. I was requested to dismiss the Notice of Motion filed in the suit as being vague and incapable of being granted.
I am wholly convinced by the documents filed herein that this case is res-judicata. The Preliminary Objection is merited. I strike out the plaint filed herein together with the Notice filed herein on 21st September 2016 with costs to the defendants.
S.N. MUKUNYA
JUDGE
20TH JULY, 2018
20/7/2018
Before
S.N. Mukunya – Judge
Okatch – C/A
Plaintiffs
Defendants
Ms Njoka for Maina Kagio for the Defendants
Mr. Igati Mwai for the Plaintiffs absent but plaintiffs present
Ruling read in open Court in the presence of the parties.
S.N. MUKUNYA
JUDGE
20TH JULY, 2018