1.I am called upon to determine a motion on notice dated 07.04.2022 and filed on 09.05.2022. The motion has been brought by the 43rd (A) and 43rd (B) defendants in the counter claim – Peter Mburu Kimani & Lucy Waitherero Mwangi (herein referred to as the applicants) as against the 1st, 2nd, & 3rd Plaintiffs in the counterclaim – Josphat Njiru Muturi, Harrison Nyaga Muturi & Lazaro Mbogo respectively (herein referred to as the respondents) . It is expressed to be brought under section 4(1) and 7 of the Limitations Act (Cap) 22, Section 1A, 1B & 3A of the Civil Procedure Act 2010 and Rule 51(1) of the Civil Procedure Rules. The application is seeking the following orders;a.This Honourable Court be pleased to strike out with costs the counterclaim herein as against the 43rd A & B Defendants/Applicants herein for being statute barred.b.Without prejudice to prayer (a) above this Honourable Court be pleased to dismiss with costs the suit herein as contained in the counterclaim as against the 43rd A & B defendants/applicants for being an abuse of the court process.c.This Honourable Court be pleased to order that the restriction registered against land parcel Mbeti/Gachoka/473 be removed and/or withdrawn forthwith.d.The costs of this application be provided for.
2.The application came with a supporting affidavit sworn on 07.04.2022 and the grounds for bringing it are mainly that the Respondent’s case in the counterclaim is statute barred as the same was brought after 12 years of Registration and issuance of the Certificate of title of a portion of the suit land being Mbeti/Gachoka/473 of which the two Defendants are beneficiaries. That the same parcel of land was not among the parcels of land that were the subject of objection proceedings No. 20 of 1973 that is being relied upon by the plaintiff’s in the counterclaim.
3.The Application was responded to by the parties in their respective Replying Affidavits and it was agreed that the application be disposed of by way of written submissions.
4.The 43rd Defendants (A) & (B) filed their submissions on 16.01.2023. They mainly reiterated the content of their Supporting Affidavit and the grounds set out above. The same position was reinforced by their counterparts in the Counterclaim being the 3rd, 4th, 5th, 6th,7th, 12th, 19th, 20th, 21st, 26th, 27th, 28th, 29,30th,31st,32nd, 34th, 37th, 38th, 39th, 40th, 42nd, 46th, 47th, 49th, 57th, 61st, 62nd, 63rd,68th, 70th and the 74th Defendants who filed their submissions on 13.03.2022.
5.The Respondents in their submissions filed on 07.03.2023 took the position that the court had already made a determination on the reliefs sought by the Applicant’s in their application herein through a court ruling that was delivered on 22.11.2018. The said ruling was in respect of a Preliminary Objection that had been brought by the Plaintiff in the main suit – Doris Njuthe Munyi - where she was seeking similar orders as the ones being sought by the Applicants herein. Therefore the Notice of Motion is said to be Res Judicata.
6.I have considered the application, the responses made to it, and the rival submissions. Without belabouring too much on the issues herein, there was a Preliminary Objection that had been raised by the Plaintiff in the main suit – Doris Njuthe Munyi - which was filed on 16.02.2018 for reasons that the Respondent’s Counterclaim is statute barred and offends the provisions of Sections 4(1) and 7 of the Limitations of Actions Act. That the said Counterclaim is also Res - Judicata and offends the provisions of Section 7 of the Civil Procedure Act. The court heard the parties on the objection and in its ruling delivered on 22.11.2018 found no merit in the Preliminary Objection and consequently dismissed it.
7.It is clear that the Applicants in the instant application are seeking the same orders under the same provisions of law but what they’ve done is that they are now trying to separate themselves from the case herein by claiming that their portion of land being Mbeti/Gachoka/473 is not part and parcel of the suit land. This cannot be true because from the Counterclaim, the Respondent’s case is that they are laying claim to the whole land parcel originally referred to as Block 1209 Gachoka Adjudication Section. This is the land which they say was illegally subdivided and registered in other parties names, who were not the lawful beneficiaries. Mbeti/Gachoka/473 was part of that larger parcel. The Respondent’s can therefore not separate themselves from the suit herein nor the Ruling issued by the court regarding the orders being sought. To this end, I must associate myself with the court’s determination on the issue of limitation. To deliberate on it again would amount to re-opening and deliberating on issues that a court of competent jurisdiction has already pronounced itself on. I lack the jurisdiction to do so.
9.In the cases of E.T vs Attorney General & Another (2012) eKLR the court held that:
10.Again in the case of Omondi Vs National Bank of Kenya Limited and Others (2001) EA 177 as quoted in the above case the court held that;
11.On whether the court should dismiss or strike out the suit herein as contained in the counterclaim against the Applicants for being an abuse of the court process, the Applicant’s in their submissions submitted that the Respondent’s are basing their claim solely on the award in Objection Cause 20/73 of which land parcel No. Mbeti/Gachoka/473 was not a subject matter and that the said parcel of land only came to be a subject in Appeal No. 77/75 which appeal was dismissed. They claim that if this court were to entertain the suit herein, it would wrongly be purporting to exercise appellate jurisdiction against the award in 77/75. They therefore submit that the suit as contained in the counterclaim amounts to an abuse of the court process. I am of the humble view that whether land parcel No. Mbeti/Gachoka/473 was part of the of the award in Objection Cause 20/73 or whether the same only became a subject in Appeal 77/75 is a matter that I am not able to competently make a determination on at this stage of the proceedings. This can only be determined during trial. Since the Respondent’s are laying claim to the said land parcel, the onus will be on them to prove that it was part and parcel of the suit land herein originally referred to as Block 1209 Gachoka Adjudication Section and whether the same was subject of Objection Case No. 20/73. The court would be short circuiting justice if it does not give the respondents an opportunity to do that.
12.Again, the court of Appeal pronounced itself on the issue of abuse of court process in the case of Muchanga Investments Limited vs Safaris Unlimited (Africa) Ltd & 2 others Civil Appeal No. 25 of 2002 (2009) eKLR 229 as follows;-I am not persuaded by the Applicant’s that the Respondent’s Counterclaim has any of the above elements which would amount to abuse of the court process. I am therefore not inclined to dismiss the said Counterclaim.
13.It is also necessary to appreciate the jurisprudence available on striking out a matter or dismissing it without first hearing it. It is not an option that the court resorts to readily. In the Co-operative Merchant Bank Ltd vs George Fredrick Wekesa, the Court of Appeal stated thus:To me, the case before me is not plain. More specifically, what the applicants are alleging is not obvious.
14.Further, in Yaya Towers Limited vs Trade Bank Limited (in liquidation): Civil Appeal No. 35 of 2000, the court expressed itself as follows:
15.May be it is additionally useful to go far back in time to glean what past judicial luminaries said on the issue of striking out a suit. In D.T. Dobie & Company Kenya Limited vs Joseph Mbaria Muchina & Another:  eKLR, Madan J.A. (as he then was) stated as follows:
16.Finally, on this issue, I am guided by the wisdom of the Court of Appeal in Peter Ngugi Kabiri vs Esther Wangari Githinji & Another  eKLR And Kutima Investments Limited vs Muthoni Kihara & Another  eKLR where it was clearly emphasized that it is a fundamental right for the parties to be heard on merits.
17.On the last issue whether the restriction registered against land parcel Mbeti/Gachoka/473 should be removed and/or withdrawn, the provisions of law with regard to restrictions are to be found in the Land Registration Act, specifically Section 76, 77 and 78 which provides;
18.From the above provisions of law, it is clear that the Land Registrar is the person who registers a Restriction. It is also evident that restrictions are not supposed to endure indefinitely on a title and that the Registrar of their own volition or on application by an interested party, or the court on notice to the Registrar may order a restriction to be removed. In this case the Restriction is said to have been registered on 27.04.2021 and the same indicates that “no dealings until Embu ELC Case No. 83 of 2016 pending in court is heard and determined.” Has Embu ELC Case No. 83 OF 2016 been heard and determined? The answer is obviously no. Have the applicants demonstrated why the court should order removal of the said Restriction prematurely? Again the answer is no. In fact, in their written submissions, none of the parties addressed the issue of removing the said Restriction. It was the Applicant’s duty to demonstrate why the Restriction ought to be removed as they are parties seeking for the said orders but they failed to do so. I must therefore reject their claim.
19.The upshot of the foregoing is that I dismiss the Applicant’s Notice of Motion dated 07.04.2022 in its entirety with costs to the Respondents.