1.That the defendant raised a Preliminary Objection dated May 13, 2022 under section 7 of the Civil Procedure Act cap 2 Laws of Kenya and section 28 of the Environment & Land Court Act the effect that this suit is res-Judicata. That the matters raised were fully litigated between the same parties and or parties litigating under the same title, touching on the same land in Civil Case No 29 of 2018 Nelson Mwanzia Kivulani v Safari Karisa Jefwa and Abrary Mohammed Omar.
2.The plaintiff submitted that the parties in Civil Case No 29 of 2018 are Nelson Mwanzia Kivulani v Safari Karisa Jefwa and Abrary Mohammed Omar and are different in the present suit. That the suit land had not been registered at the material time and was unregistered plot No 197 at Kalima Upepo Shanzu.
3.This court has considered the application and submissions therein. The doctrine of res judicata is set out in the Civil Procedure Act at section 7 as follows:
4.The Civil Procedure Act also provides explanations with respect to the application of the res judicata rule. Explanations 1-3 are in the following terms:
5.Therefore, for a matter to be res judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same having been determined on merits by a Court of competent jurisdiction. In the case of Henderson vs Henderson(1843-60) All E.R.378, the court held that;
6.It follows then that a court will apply the doctrine in instances where a party raises issues in a subsequent suit, wherein he/she ought to have raised the issues in the previous suit as between the same parties.
8.I have perused the pleadings in Civil Case No 29 of 2018 Nelson Mwanzia Kivulani vs Safari Karisa Jefwa and Abrary Mohammed Omar. The 2nd defendant appeared in court and stated that this Plaintiff in the instant suit was his mother and was sickly. The subject matter was plot No 197 at Kalima Upepo Shanzu which is the same in the instant case. 1st defendant was the alleged seller in that case and is the same one in the plaintiff’s pleadings. Indeed, I find that the subject matter is the same and the parties are similar. In applying the stated law to the facts before me, it is clear that the plaintiffs seek to open issues that were raised in the earlier proceedings on ownership and the sale agreements. The plaintiff now appears after she was well aware of the previous suit and hence cannot evade the doctrine of res judicata. In my view, by filing this suit, the plaintiff is trying to litigate a concluded matter. Nothing stopped her from joining the previous suit and producing the requisite documentary evidence and or appealing the said decision.
10.I find that this suit is res judicata and an abuse of the court process. The application has merit and hence upheld. I therefore strike out the Plaintiff’s case with costs.It is so ordered.