Bianca Brenda Wambui & another v Paul John Kimani

or interference with their peaceful occupation of the property NAIROBI UMOJA BLOCK/83/14/438, by Respondent and his agents. pending the hearing and determination of this suit. iii. That this Honourable Court directs the area OCS or officer of similar rank to ensure compliance. iv. That this Honourable Court be pleased to issue any orders it deems fit. 2. The Motion is supported by the affidavit of Bianca Brenda Wambui, the 1st Plaintiff/Applicant sworn on an even date. She stated that she and her family are the proprietors of the suit property known as Nairobi Umoja Block 83/14/438, which was purchased for value by their late father and has since served as their family home. 3. According to the Applicants, their mother suffered a stroke in 2024, following which their uncle assumed responsibility for the family until his death in 2025, leaving them to care for themselves. She averred that on 4th May 2026, the Respondent arrived at the suit property accompanied by armed persons and demanded that the family and their tenants vacate the premises within seven days. 4. As a consequence, she urged, she seeks the court’s protection, contending that the threatened eviction and destruction of their home has no lawful basis and that the ELC LC NO. E 185 OF 2026 RULING 2

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persons involved had failed to disclose the authority under which they were acting. The Respondent opposed the motion through a replying affidavit sworn on 26 th May 2026. He deponed that the application is an abuse of the court process and is barred by the doctrine of res judicata, the dispute concerning the same property having been determined in MCCC No. 9266 of 2001 and, on appeal, in ELCA No. 089 of 2021, determined on 7th March 2024. 5. He contended that the Applicants had merely substituted the names of the previous litigants, Joseph Mwangi Wanjohi and Nancy Nyambura Mwangi, with those of Bianca and Muthoni, while retaining the same cause of action and suit property. 6. The Respondent deliberately further omitted the averred that history of the the Applicants dispute and commenced their account in 2024, when the appeal was dismissed. According to him, their predecessors had fraudulently obtained documents relating to his land and erected an unauthorized structure thereon. He maintained that the Applicants’ reliance on their family circumstances and bereavements are irrelevant to the legal issues and cannot justify the reopening of a dispute that has already been conclusively determined. 7. He stated that the present Motion was the fifth one filed in an attempt to delay their eviction. The first, dated 16 th October 2001, allegedly sought to restrain the then City ELC LC NO. E 185 OF 2026 RULING 3

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Council of Nairobi from demolishing an un-authorized building erected on the suit property. 8. The second, dated 12th November 2021, sought leave to appeal out of time and a stay of execution following the judgment of the subordinate court and that although leave to appeal out of time was granted on 5th May 2022, the court declined to stay execution. It was deposed that the third application, dated 21st July 2022, sought to restrain the intended eviction and resulted in an order requiring the Applicants to deposit Kshs. 500,000 as security for costs. The fourth, dated 26th October 2023, sought to avoid compliance with that condition. 9. Regarding the present Motion, the Respondent asserted that it raises no new issue and concerns the same property, Nairobi Umoja Block 83/14/438, whose certificate of lease was ordered to be cancelled in ELCA No. 089 of 2021 for having been fraudulently obtained. 10. He maintained that the repeated applications had occasioned him continuing loss and urged the court to discharge the interim injunction and award him costs. In the alternative, he prayed that, should the injunction remain in force beyond 28th May 2026, the Applicants be ordered to compensate him at the rate of Kshs. 20,000 for each day that it subsists. Submissions ELC LC NO. E 185 OF 2026 RULING 4

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11. The Plaintiff/Applicant did not file submissions as at 20 th August, 2026. [Granted 10 days after 29 th July, 2026]. The Respondent filed written submissions dated 17th August 2026. He submitted that, despite the directions issued on 29th July 2026, the Applicants had neither filed nor served their submissions within the prescribed period. 12. He maintained that the present proceedings are barred by the doctrine of res judicata, the dispute over the suit property having previously been determined in MCCC No. 9266 of 2001 and, on appeal, in ELCA No. 089 of 2021. He argued that counsel’s reference to negotiations for the sale of the property amounted to an acknowledgment that the Applicants did not own it, since they could not negotiate to purchase property that was already theirs. Analysis and determination 13. Having considered the pleadings and submissions, the issues that arises for determination are: i. Whether the present suit and motion are barred by the doctrine of res judicata? And if not? ii. Whether the Applicants have met the threshold for the injunctive orders sought? 14. The substantive law on res judicata is found in Section 7 of the Civil Procedure Act, which provides that: ELC LC NO. E 185 OF 2026 RULING 5

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“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”. 15. The doctrine of res judicata prohibits a court from relitigating matters that have been conclusively determined between the same parties, or those claiming under them, over the same issues, by a court of competent jurisdiction. 16. In the case of John Florence Maritime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), the Supreme Court delved into an in-depth discussion of the concept thus: “...The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows: …where a given matter becomes the subject of litigation in, and adjudication by, a court of competent ELC LC NO. E 185 OF 2026 RULING 6

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jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and exercising reasonable diligence, brought forward at which the time” the parties, might have [emphasis supplied].” 17. Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question and ascertain whether the parties are the same, or are litigating under the same title; whether the issues are the same and whether the previous case was fully determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa vs James Nderitu Githae & 2 others, (2010) eKLR, under five distinct heads: ELC LC NO. E 185 OF 2026 RULING 7

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“(i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.” 18. The Respondent contends that the present suit is barred by the doctrine of res judicata by virtue of the judgment delivered on 7th March 2024 in Wanjohi & another vs City Council of Nairobi & another (Environment and Land Appeal E089 of 2021) [2024] KEELC 1311 (KLR). 19. That appeal arose from the judgment delivered in Milimani CMCC No. 9266 of 2001 on 30th July 2021 and concerned the ownership of the property formerly known as Plot No. A105, Umoja Innercore, and now registered as Nairobi/Umoja Block 83/14/438. 20. In Milimani CMCC No. 9266 of 2001, the Magistrates’ Court dismissed the claim by Joseph Mwangi Wanjohi and Nancy Nyambura Mwangi and partially allowed the Respondent’s counterclaim. The court found that the suit property had not been lawfully repossessed from the Respondent and that its subsequent allocation to Rosemary Njambi, from whom Joseph and Nancy purportedly acquired their interest, was unlawful. ELC LC NO. E 185 OF 2026 RULING 8

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21. On appeal, this court (Omange J) reconsidered the evidence and upheld the finding that the property had not been lawfully repossessed from the Respondent. It further found that Rosemary Njambi could neither acquire nor transfer a valid interest in the property and that the documents upon which Joseph and Nancy’s title was founded were fraudulent. 22. The court consequently dismissed their appeal and partially allowed the Respondent’s appeal by ordering the cancellation of the certificate of lease for Nairobi/Umoja Block 83/14/438 issued in the names of Joseph Mwangi Wanjohi and Nancy Nyambura Mwangi. 23. In the present suit, the Applicants claim that the same property was purchased for value by their late father and has since remained their family home. On that basis, they seek orders restraining the Respondent and his agents from harassing, intimidating or evicting them and their tenants from the property. 24. The Respondent has, on oath, asserted that the Plaintiffs are the children of Joseph Mwangi Wanjohi and Nancy Nyambura Mwangi, who were the Plaintiffs in the former proceedings, and that the present Applicants/ Plaintiffs have merely substituted their names for those of their parents. 25. This factual assertion has not been controverted by the Applicants either through a further affidavit or otherwise. In Attorney General vs W.O.1 Samuel Chege Gitau & 283 ELC LC NO. E 185 OF 2026 RULING 9

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others [2023] KECA 1386 (KLR), the Court of Appeal, adopting its earlier pronouncement in Mutai & 9 others vs Attorney General (Civil Appeal 95 of 2016) [2019] KECA 125 (KLR)(28 November 2019)(Judgment) stated that an affidavit constitutes sworn evidence and occupies a higher pedestal than grounds of opposition. Where factual averments made on oath are neither controverted by a replying affidavit nor tested through crossexamination, they are presumed to have been admitted, although the court must still assess whether they possess sufficient probative value to establish the claim in question. 26. In the present case, the Respondent’s assertion that the Applicants are the children of the former litigants was not controverted and is consistent with the Applicants’ pleadings and supporting affidavit. The Applicants describe the suit property as their family home and trace their interest in it to its alleged purchase by their late father. Further, the eulogy produced by the Applicants identifies Nancy Nyambura, one of the former litigants, as a sister of Richard Wambaki, whom they describe as their uncle. 27. The court is therefore satisfied that, although the present proceedings have been instituted in different names, the Applicants derive their asserted interest from the same title previously held by Joseph Mwangi Wanjohi and Nancy Nyambura Mwangi. They are consequently persons claiming ELC LC NO. E 185 OF 2026 RULING 10

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under the former Plaintiffs and are litigating under the same title for purposes of Section 7 of the Civil Procedure Act. 28. The subject matter and the substantive issues arising in both proceedings are equally identical. At the heart of the former suit and the resultant appeal was the ownership of Nairobi/Umoja Block 83/14/438 and the parties’ respective rights to its possession and occupation. Those are the same questions underlying the present claim for protection against eviction. Indeed, granting the injunction sought would effectively restrain the Respondent from enforcing rights flowing from a judgment that conclusively determined ownership of the property in his favour. 29. The former dispute was heard and finally determined by courts of competent jurisdiction. The fact that the Respondent may have lodged a further appeal concerning the reliefs sought in his counterclaim does not deprive the judgment delivered on 7th March 2024 of its finality. Unless and until that judgment is set aside or varied on appeal, it remains valid and binding upon the parties and all persons claiming under them. 30. From the foregoing, the court is satisfied that the present and former proceedings concern the same property and raise substantially the same questions regarding its ownership, possession and occupation. All the elements of res judicata ELC LC NO. E 185 OF 2026 RULING 11

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under Section 7 of the Civil Procedure Act have therefore been established. 31. It therefore follows that the present suit is barred by the doctrine of res judicata and constitutes an impermissible attempt to reopen a dispute that has already been conclusively determined. The suit is consequently dismissed with costs to the Respondent. 32. The Notice of Motion dated 4th May 2026, being founded upon an incompetent suit, is similarly dismissed with costs, and the interim orders previously granted are hereby discharged. Dated, signed and delivered virtually in Nairobi this 1 st day of October, 2026. O. A. Angote Judge In the presence of; Mr. Paul Kimani Respondent in person Mr. Muma for Applicants Court Assistant: Tracy ELC LC NO. E 185 OF 2026 RULING 12

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