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MagistrateDismissedMakindu CMCC (suit number not stated); Application dated 27/6/2025· [2026] KEMC 12 (KLR)

Mwanthi (Suing as the legal representative of the Estate of Annah Wathua Mwanthi - Deceased) v Muoki & 2 others (Environment and Land Case E007 of 2024) [2026] KEMC 12 (KLR)

Magistrates' Court (Senior Principal Magistrate)
5 February 2026
1,813 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Makindu court refused to strike out a land suit, ruling that a case dismissed for lack of jurisdiction doesn't bar a fresh one.

What this practically means

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Executive summary

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The defendants applied by notice of motion dated 27/6/2025, principally under Order 2 rule 15 of the Civil Procedure Rules, to strike out the plaintiff's suit on grounds of res judicata or res sub judice, vexatiousness and abuse of process. They relied on prior litigation over the same suit property - Machakos HCC No. 54 of 2005, in which a third-party purchaser sued the 1st defendant and family members and which was dismissed on 24/2/2006, with an appeal lodged in the Court of Appeal (Civil Appeal No. 68 of 2006). They also contended the plaintiff had no locus standi, the suit property not forming part of the estate of the late Annah Wanthua Mwanthi. The plaintiff filed no response, and no submissions were made. The magistrate framed three issues: res judicata/sub judice, striking out, and costs. Reviewing Order 2 rule 15 and the striking-out jurisprudence (DT Dobie, Ramji Megji Gudka, Blue Sky EPZ) and the res judicata elements in Section 6 and 7 of the Civil Procedure Act and John Florence Maritime Services, the court held the threshold was not met: only the 1st defendant had been a party to the Machakos suit; that suit was struck out for want of jurisdiction and so was not finally determined by a competent court; and the appeal outcome was unknown. Locus standi, the court held, is a matter for evidence at trial and cannot be resolved in limine. The application dated 27/6/2025 was dismissed with no orders as to costs, the plaintiff having filed no response.

Key legal issues

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01

Whether the suit is res judicata or res sub judice given the prior Machakos HCC 54 of 2005 litigation

Holding

Res judicata not established: the prior suit was not finally determined (struck out for want of jurisdiction), only the 1st defendant was a party there, and the appeal outcome is unknown.

Reasoning

The court set out the elements of res judicata, including a final determination by a competent court and identical parties litigating under the same title. The Machakos High Court matter was struck out for want of jurisdiction, so it was neither heard nor finally decided by a competent court. Only the 1st defendant was party there, and the pending appeal's result was unknown, so res judicata and sub judice both failed.

p. 4
02

Whether the suit should be struck out as vexatious or an abuse of process

Holding

No; the locus standi question requires evidence and cannot be decided in limine on a striking-out application.

Reasoning

Applying DT Dobie and the other authorities, striking out is draconian and reserved for clear cases. The defendants' real complaint was the plaintiff's locus standi and interest in the land, which is a triable issue requiring evidence, not a matter of pure law. The application was also unopposed but unsupported by submissions; the court found it devoid of merit.

p. 5

Legal principles established

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  • Power to strike out pleadings must be exercised sparingly, only in the clearest of cases
  • Locus standi cannot be resolved as a point of law on a striking-out application where it requires evidence

Court orders

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  1. 1.The application dated 27/6/2025 is hereby dismissed
  2. 2.Since the plaintiff did not file a response, there shall be no orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 15(1) and (2)
  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7

Cases cited (6)

  • DT Dobie & Company (Kenya) Limited v Muchina
    [1982] KLR 1
  • Ramji Megji Gudka Limited v Alfred Morfat Omundi Michira & 2 Others
    [2005] eKLR
  • Blue Sky EPZ Limited v Natalia Polyakora & Another
    [2007] eKLR
  • Anglo Italian Bank v Wells
    38 L.T. 201
  • Carl-Zeiss-stiffung v Rayner
    [1969] 2 ALL ER 897
  • John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others
    [2021] KESC 39 (KLR)
Jurisdiction invoked
Original civil jurisdiction; application under Order 2 rule 15 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mwanthi (Suing as the legal representative of the Estate of Annah Wathua Mwanthi - Deceased) v Muoki & 2 others (Environment and Land Case E007 of 2024) [2026] KEMC 12 (KLR)", Case Analysis (2026). Makindu CMCC (suit number not stated); Application dated 27/6/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/12/eng@2026-02-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.