Borop Multipurpose Co-operative Society Limited v Doune Farm Limited & 6 others

in full, and on 29th December 1999, the suit property was transferred in its favour free from any encumbrances. 3. It contended that the 1st respondent, Doune Farm Limited, thereafter obtained title to part of the suit land through a series of fraudulent, irregular and unauthorized dealings involving some of the appellant’s former ocials. It maintained that the said transactions were carried out without the knowledge, approval or consent of its members and in contravention of the applicable law, including the Land Control Act. The appellant’s claim before the trial court was principally premised on allegations of fraud, illegality and breach of the society’s by-laws in relation to the acquisition and subsequent dealings with the suit property. The appellant prayed for, inter alia, a declaration that the title held by the 1st respondent was invalid and had been unlawfully acquired, an order for cancellation of the said title, and a permanent injunction restraining the 1st respondent and its agents from dealing with, transferring, charging, disposing of or otherwise interfering with the suit property. 4. In response to the suit, the 1st to 5th respondents led an application dated 8th December 2020 seeking to have the suit struck out on grounds that the issues raised in the suit were: (a) sub judice, (b) res judicata and, (c) statute-barred. 5. As to whether the suit was sub judice, the respondents argued that the subject matter and issues raised by the appellant were substantially similar to those pending determination in Nakuru ELC No. 142 of 2019, formerly Nakuru HCCC No. 86 of 2002. The said proceedings involved Doune Farm Limited and Richard Soi & 4 Others. The appellant participated in the said suit as an interested party. 6. The respondent maintained that the suit was res judicata, citing Nairobi HCCC No. 1561 of 2002, which had earlier been instituted by the appellant against substantially the same parties and in respect of essentially the same subject matter. The suit was subsequently dismissed for want of prosecution. It was the respondents’ position that the dismissal constituted a nal determination of the earlier proceedings and consequently precluded the appellant from commencing fresh proceedings over the same dispute. 7. Regarding the question whether the suit was statute barred, the respondents maintained that the cause of action arose in or about 2001 when the 1st respondent allegedly acquired title to the suit property. Therefore, they contended that the suit led in November 2020 was instituted outside the period prescribed under Section 7 of the Limitation of Actions Act. 8. Upon considering the application, the learned Judge found merit in all the three objections raised by the respondents and consequently struck out the appellant’s suit. Dissatised with the said determination, the appellant led the present appeal, raising twelve grounds of appeal, although in its submissions it condensed and argued grounds 1, 2, 3, 4, 6, 7, 9 and 10. 9. We heard this appeal virtually on 26th May 2026. Learned counsel Mr. Arusei appeared for the appellant, while learned counsel Mr. Ogolla appeared for the 1st to 5th respondents. There was no appearance on behalf of the 6th and 7th respondents, nor did they le submissions. The appellant’s counsel had led submissions dated 7th May 2026 and a case digest dated 11th May 2026 while the respondents’ counsel had led submissions, list of authorities and case digest all dated 10th May 2026. Both counsel orally highlighted their respective written submissions. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2082/eng@2026-10-02 2

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10. The crux of Mr. Arusei’s submissions was that the learned Judge erred by bringing the suit to an abrupt end at a preliminary stage, without aording the appellant a fair and reasonable opportunity to tender evidence in support of the allegations of fraud and illegality expressly pleaded in its pleadings. He submitted that striking out a suit is a draconian and exceptional remedy which ought to be exercised sparingly and only in the clearest of cases. He contended that where a pleading discloses a reasonable cause of action or raises issues requiring determination upon the consideration of evidence, the Court ought to allow the matter to proceed to trial rather than summarily terminate it. To fortify his submissions, he relied on D.T. Dobie & Company (Kenya) Limited vs. Muchina [1982] KLR 1, where the Court cautioned against striking out a suit unless it was so plainly and incurably hopeless that it could not be salvaged by amendment or determined at a full hearing. 11. Regarding the nding that the suit was sub judice, Mr. Arusei submitted that the learned Judge misdirected herself in nding that the parties in the two proceedings were substantially the same. He drew the Court’s attention to the fact that in Nakuru ELC No. 142 of 2019, the appellant was merely joined as an interested party and it did not institute the proceedings or participate in them as a substantive plainti or defendant. 12. Counsel argued that an interested party occupies a distinct procedural position from the principal parties to litigation. According to counsel, an interested party does not ordinarily frame the pleadings, determine the cause of action, or control the reliefs sought by the primary litigants. He contended that the mere presence of the appellant as an interested party in the earlier proceedings could not, without more, be treated as establishing the requisite identity or substantial sameness of parties for purposes of the doctrine of sub judice. In support of his submissions, he relied on the Supreme Court decision in Francis Karioko Muruatetu & Another vs. Republic & 5 Others [2016] eKLR, which discusses the nature, role and participation of an interested party in judicial proceedings. 13. On the question of res judicata, Mr. Arusei submitted that the learned Judge similarly erred in treating the previous proceedings in Nairobi HCCC No. 1561 of 2002 as having conclusively determined the dispute. He pointed out that the said suit was dismissed for want of prosecution and that there had been no determination of the substantive issues between the parties on their merits. Counsel emphasized that the wording of Section 7 of the Civil Procedure Act requires the former suit or issue to have been “heard and nally decided” before the doctrine of res judicata can properly be invoked. 14. Mr. Arusei further submitted that a dismissal founded solely on a procedural default, without the court examining and determining the substantive rights and obligations of the parties, should not ordinarily be equated with a nal adjudication on the merits for purposes of res judicata. He relied on Tee Gee Electrics and Plastics Company Ltd vs. Kenya Industrial Estates Ltd [2005] KLR 97 and the decision of the Supreme Court of India in State of Maharashtra & Another vs. National Construction Company, Bombay (Civil Appeal No. 1497 of 1996) in support of the proposition that a procedural dismissal, particularly one arising from want of prosecution, does not necessarily constitute a nal determination of the substantive controversy so as to bar subsequent proceedings. Counsel also relied on Ngurumani Limited vs. Shompole Group Ranch & 01 Kiramatian Group Ranch [2014] eKLR in support of his contention that the requirements for the application of the doctrine of res judicata must be strictly satised before a subsequent suit can be barred. 15. Addressing the question whether the suit was statute barred, Mr. Arusei submitted that the learned Judge ought to have considered the specic nature of the appellant’s claim, which was substantially founded upon allegations of fraud and illegality. He argued that such a claim attracts the statutory exception under Section 26 of the Limitation of Actions Act, under which time begins to run from the date the alleged fraud is discovered, or from the date when it could, with reasonable diligence, have https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2082/eng@2026-10-02 3

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been discovered. Counsel therefore maintained that the question of when the alleged fraud came to the appellant’s knowledge, and whether it could reasonably have been discovered earlier, constituted matters requiring proper consideration and, where necessary, evidence at trial. Counsel relied on Justus Tureti Ohara vs. Peter Koipeitai Nengisoi [2014] eKLR and George Nvakundi Ombaba vs. Tutusira Osiemo & 2 Others [2020] eKLR in support of this submission. 16. Mr. Arusei maintained that the appellant discovered the material information relating to the alleged fraud on 28th October 2020, when the Registrar of Titles certied a complete copy of the title. According to counsel, the document disclosed entry No. 7 showing that the property had been discharged and released to the appellant on 29th December 1999. Counsel therefore maintained that the suit instituted in November 2020 was not time-barred. 17. Counsel nally submitted that the learned Judge placed undue emphasis on preliminary and technical objections instead of allowing the substantive dispute to be determined through a full hearing. He contended that the competing claims to title, allegations of fraud, illegality and the validity of the underlying transactions raised substantial questions of fact and law that could only properly be resolved through viva voce evidence. 18. In opposing the appeal, Mr. Ogolla, submitted that the trial court’s decision was sound and that the appeal lacked merit. He urged the Court to uphold the ruling and dismiss the appeal with costs. 19. As to whether the suit was sub judice, counsel cited Section 6 of the Civil Procedure Act and submitted that its purpose is to prevent the simultaneous prosecution of suits concerning the same matter and thereby avoid multiplicity of proceedings and the possibility of conicting decisions. Counsel maintained that the parties and subject matter in the two proceedings were substantially the same. He argued that the appellant could not avoid the operation of the doctrine merely by describing itself as an interested party in the earlier proceedings while commencing another suit based on substantially the same facts and subject matter. 20. Mr. Ogolla relied on the Supreme Court decision in Kenya National Commission on Human Rights vs. Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] KESC 54 (KLR), which emphasized that the doctrine of sub judice serves to prevent parallel proceedings and inconsistent determinations by courts. He relied on Republic vs. Kariuki & 3 Others; Law Society of Kenya (ex parte Applicant) [2020] KEHC 10142 (KLR) in support of his contention on the proper application and purpose of the doctrine of sub judice. 21. In addition, counsel relied on Republic vs. National Land Commission ex parte Applicant Samuel Kimondo Theuri; County Government of Kajiado, Freecam Investment Limited & Milka Waithera Mwangi, Anne Nyambura Mwangi, Joseph Wainaina Thuo & Ester Gachigi Thuo (being Administrators of the Estate of Francis Mwangi Thuo (Deceased) (Interested Parties) [2021] KEELC 1439 (KLR), where the Court, relying on Thiba Min. Hydro Co. Ltd vs. Josphat Karu Ndwiga [2013] eKLR, reiterated that the test for the applicability of the doctrine of sub judice is whether, upon a nal decision being reached in the previous suit, that decision would operate as res judicata in the subsequent suit. 22. Submitting on the question whether the suit was res judicata, counsel submitted that the learned Judge correctly found that the previous suit constituted a bar to the present proceedings. In support of this assertion, counsel relied on Uhuru Highway Development Limited vs. Central Bank of Kenya & 2 Others [1995] eKLR, where the Court of Appeal emphasized that there must be nality to litigation and that the principles of res judicata apply not only to suits but also to interlocutory applications, so as to prevent parties from repeatedly presenting applications of a similar nature after an earlier application has been determined. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2082/eng@2026-10-02 4

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23. Mr. Ogola further relied on Pop-In (Kenya) Ltd & 3 Others vs. Habib Bank AG Zurich [1990] eKLR, in which the Court of Appeal armed that the plea of res judicata extends beyond matters upon which the court was expressly called upon to determine and pronounce judgment. It also encompasses every matter which properly formed part of the subject of litigation and which the parties, exercising reasonable diligence, could and ought to have raised in the earlier proceedings. Counsel submitted that the principle is intended to ensure nality in litigation and to prevent parties from reopening matters. Counsel submitted that dismissal for want of prosecution constitutes a nal judgment unless the dismissed proceedings are subsequently reinstated. 24. Counsel contended that the appellant had previously instituted proceedings over the same dispute, failed to prosecute them and could not properly revive the same controversy by giving the claim a dierent formulation in a subsequent suit. 25. Regarding the question whether the suit was statute barred, Mr. Ogolla submitted that the appellant had actual knowledge of the alleged fraudulent transactions well before 2020. He pointed to the amended plaint led in Nairobi HCCC No. 1561 of 2002, in which the appellant had already set out detailed allegations of fraud against the respondents. Therefore, the alleged discovery in 2020 was an attempt to repackage an otherwise time-barred claim. He relied on Gathoni vs. Kenya Co-operative Creameries Ltd [1982] KECA 10 (KLR) for the principle that limitation statutes serve to protect defendants from stale claims and unreasonable delay in instituting proceedings. 26. Mr. Ogola also cited Mehta vs. 321 cited by the High Court in Republic vs. Principal Magistrate P. Ngare Gesora Principal Magistrates Court; Ex parte Nation Media Group Ltd & 2 others [2013] KEHC 71 (KLR), where the court explained that the purpose of limitation legislation is, on the one hand, to prevent a plainti from pursuing stale claims and on the other, to protect a defendant who, with the passage of time, may have lost or become unable to procure evidence necessary for his defence from being subjected to litigation after an inordinate lapse of time. Counsel submitted that, viewed against these principles, the appellant’s attempt to rely on an alleged discovery in 2020 could not properly circumvent the applicable statutory limitation period and that the claim was consequently time- barred. 27. Citing Mbogo vs. Shah [1968] EA 93, Mr. Ogolla maintained that the appellant failed to demonstrate any basis upon which this Court could interfere with the trial Judge’s exercise of discretion. He relied on Mbogo vs. Shah [1968] EA 93. 28. Finally, counsel relied on the Supreme Court decision in John Florence Maritime Services Ltd & Another vs. Cabinet Secretary, Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR), where the Court underscored that the doctrine of res judicata is not a mere technical procedural rule capable of being circumvented by reliance on Article 159 of the Constitution. The Supreme Court observed that, contrary to the argument that res judicata should not operate as a technicality that limits the attainment of substantial justice, the doctrine is unaected by the constitutional principle against undue regard to procedural technicalities. The Court emphasized that res judicata goes beyond a mere procedural technicality and operates as a substantive legal concept. Counsel therefore urged the Court to uphold the trial court’s nding and dismiss the appeal. 29. We have considered the record of appeal, the rival submissions of counsel and the authorities cited before us. Three issues distill themselves for determination in this appeal. These are: (a) whether the appellant’s suit was sub judice, (b) whether the suit was res judicata; and, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2082/eng@2026-10-02 5

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(c) whether the suit statute barred. The ultimate issue is whether the appeal will succeed or fail. 30. Regarding the rst issue, Section 5 of the Civil Procedure Act provides that any court shall, subject to the provisions in the Act, have jurisdiction to try all suits of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred. The phrase “expressly or impliedly barred” in the context of the issue at hand mind brings into sharp focus the provisions of Section 6 of the Civil Procedure Act which provides that no court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed. 31. The underlying object of Section 6 is to prevent the courts from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, the same subject matter and the same relief. The aim is to pin down the parties to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to prevent multiplicity of proceedings. Therefore, Section 6 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject- matter in both the proceedings is identical. 32. Therefore, for the doctrine of sub judice to apply, the following principles ought to be present:(a) There must exist two or more suits led consecutively; (b) The matter in issue in the suits or proceedings must be directly and substantially the same, the parties in the suits or proceedings must be the same or must be parties under whom they or any of them claim and they must be litigating under the same title, the suits must be pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed. It is not the form in which the suit is framed that determines whether it is sub judice, rather it is the substance of the suit, and, there can be no justication in having the two cases being heard parallel to each other. 33. In the impugned ruling, the learned judge stated: “ 13. 34. It is not in dispute that there is pending in court another matter which is Nakuru ELC 142 of 2019 (formerly Nakuru HCC 86 of 2002) between Doune Farms Limited (the 1st defendant herein) versus Richard Soi & 4 others who are described in the plaint as the shareholders of Borop Multipurpose Co-operative Society Limited. The plainti herein is an interested party in that matter. The subject matter of the suit is land parcel No. LR No. 9045/9 comprising of 173.6 acres. The prayers sought in the suit are…” The learned judge after satisfying himself that the parties and the subject matter in the two suits are substantially the same proceeded to state as follows: “ 17. The parties in the present matter and in Nakuru ELC 142 of 2019 (formerly Nakuru HCC 86 of 2002) are the same and the orders sought are substantially the same as they touch and relate to the same parcel of land reference No. 9045/9 (original number 9045/7/2) and registered as IR No. 86377. The determination of the issues in Nakuru ELC No.142 of 2019 would of necessity dispose of the issues in the instant suit. The institution of the present suit https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2082/eng@2026-10-02 6

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by the plainti quite evidently was in contravention of Section 6 of the Civil Procedure Act and so in my view, the present suit is sub judice.” 35. The appellant’s counsel as we understand him does not dispute the existence of the two suits. His argument is that the appellant was an interested party in Nakuru ELC No. 142 of 2019, therefore, since he was not a principal party, his suit was properly before the Court. To our mind, an interested party or an intended interested party in a pending civil suit cannot le a separate, parallel suit covering the same subject matter. Doing so is viewed as an abuse of court process and is expressly barred by the doctrine of sub-judice under Section 6 of the Civil Procedure Act. The Environment and Land Court in Muruthii vs. District Land Adjudication & Settlement Ocer & others [2026] KEELC 918 rmly held that if a party has an interest in a property or subject matter under active litigation, that party is strictly enjoined to le consequential applications in the existing suit and not otherwise. The judge explicitly ruled that "such a party cannot le and or commence a separate suit" parallel to the one in progress. The courts heavily discourage a party from ling a fresh, separate substantive suit if their claim can be completely and eectively adjudicated within an ongoing, existing suit. In this case, the interested party’s claim in the suit land could have been determined in the existing suit. If a third party’s rights or properties are directly aected by the outcome of a pending suit, the correct procedural approach is to apply for joinder as an interested party or necessary party under Order 1 Rule 10 (2) of the Civil Procedure Rules rather than starting a completely new case from scratch. By joining the existing suit, the Court can fully, nally and completely adjudicate upon all the questions involved in the dispute in one single forum. An interested party is joined because they have a "proximate stake" or will suer prejudice if left out. If the interested party's claim requires the Court to grant them separate, standalone reliefs against the original plainti or defendant, (reliefs that do not arise naturally from the existing pleadings) the Court will direct them to le a separate substantive suit. In this case, there is nothing to show that the appellant’s claim could not have been addressed and a relief granted within the existing suit, more so, considering that the subject matter of the suit is the same land. 36. A reading of Section 6 of the Civil Procedure Act leaves no doubt that it prevents concurrent courts from simultaneously trying parallel litigations where a decision in the rst suit operates as res judicata. Allowing a party to duplicate litigation over the same subject matter constitutes a prima facie abuse of the Court process. It threatens legal certainty, risks contradictory judgments, and unnecessarily congests court rolls. (See Peter Kilonzo Kioko vs. Monarch Insurance Co. Ltd & Another; Kisakwa Ndolo King’oku (Interested Party) [2021] eKLR). We nd no reason to fault the learned Judge for holding that the appellant’s suit was sub judice. 37. The next question is whether the suit was res judicata. It is common ground that Nairobi HCCC No. 1561 of 2002 previously instituted by the appellant against the 1st respondent and other parties concerned substantially the same subject matter. The earlier suit was dismissed for want of prosecution. An application seeking to reinstate it was dismissed. The critical question is whether a dismissal for want of prosecution constitutes a nal determination of the substantive dispute within the meaning and contemplation of Section 7 of the Civil Procedure Act. 38. It is trite law that if any judicial tribunal in the exercise of its jurisdiction delivers a judgment or a ruling which is in its nature nal and conclusive, the judgment or ruling is res judicata. If in any subsequent proceedings (unless they be of an appellate nature) in the same or any other judicial tribunal, any fact or right which was determined by the earlier judgment is called in question, the defence of res judicata can be raised. This means in eect that the judgment can be pleaded by way of estoppel in the subsequent case. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2082/eng@2026-10-02 7

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39. Res Judicata is one of the factors limiting the jurisdiction of a court. This doctrine requires that there should be an end to litigation or conclusiveness of judgment where a court has decided and issued judgment then parties should not be allowed to litigate over the same issues again. This doctrine requires that one suit one decision is enough and there should not be many decisions in regard of the same suit. It is based on the need to give nality to judicial decisions. Res Judicata can apply in both a question of fact and a question of law. Where the court has decided based on facts it is nal and should not be opened by same parties in subsequent litigation. 40. The doctrine of res judicata is provided for in Section 7 of the Civil Procedure Act and its object is to bar multiplicity of suits and guarantee nality to litigation. It makes conclusive a nal judgement between the same parties or their privies on the same issue by a court of competent jurisdiction in the subject matter of the suit. The scheme of Section 7 therefore contemplates ve conditions which, when coexistent, will bar a subsequent suit. The conditions are:(i) the matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit; (ii) the former suit must have been between the same parties or privies claiming under them; (iii) the parties must have litigated under the same title in the former suit; (iv) the court which decided the former suit must have been competent to try the subsequent suit; and (v) the matter in issue must have been heard and nally decided in the former suit. (See Lotta vs. Tanaki [2003] 2 EA 556). 41. Under Section 7 of the Civil Procedure Act, the doctrine of res judicata strictly requires that the previous matter was "heard and nally determined" on its merits. Because a dismissal for want of prosecution is considered a "technical knockout" rather than a decision on the merits, courts draw a sharp line between trying to le a fresh suit versus trying to le continuous applications within the same suit. Because the rst suit was dismissed on a technicality (want of prosecution) and never went to a full trial, the substantive disputes were never "heard and nally determined" on the merits. 42. The Supreme Court of India in Sharada Sanghi & Ors. vs. Asha Agarwal & Ors. [2026 INSC 292] claried that dismissal of a suit for default cannot, by itself, operate as res judicata because it lacks an adjudication on the merits. However, while strict res judicata does not apply, the court warned that a litigant who repeatedly and deliberately allows their proceedings to lapse after presenting a case can still be denied relief based on equitable grounds and the rule against abuse of the process of the court. In this case, the appellant had the option of ling a fresh suit because the doctrine of res judicata, as the above cited cases suggest, was inapplicable. Instead, he applied to reinstate his suit, but his application was dismissed. His option was to appeal against the ruling declining to reinstate his suit, but he never considered that option. In our view, his subsequent suit was not res judicata as the learned Judge held but an abuse of court process. 43. The last issue is whether suit was caught up by the Limitation of Actions Act. The record shows that the appellant had, as far back as 2002, instituted Nairobi HCCC No. 1561 of 2002. The subject matter in the said suit is the same as in this appeal. The appellant contends that he has discovered “new” grounds which he refers to as “material information relating to the alleged fraud on 28th October 2020, when the Registrar of Titles certied a complete copy of the title.” According to the appellant’s counsel, the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2082/eng@2026-10-02 8

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document disclosed entry No. 7, showing that the property had been discharged and released to the appellant on 29th December 1999. 44. The above argument is attractive. However, that is how far it goes. In response to this assertion, the respondent’s counsel Mr. Ogolla submitted that the appellant had actual knowledge of the alleged fraudulent transactions well before 2020. He specically referred to the amended plaint led in Nairobi HCCC No. 1561 of 2002, in which the appellant set out detailed allegations of fraud against the respondents. Counsel described the alleged discovery in 2020 as an attempt to repackage an otherwise time-barred claim. To us, this is a clear case of litigation by instalments. 45. In our view, Mr. Ogolla’s assertion eectively extinguishes the appellants claim that it had discovered material information. Clearly, the alleged “material information” was clearly pleaded in the earlier pleadings. And, even if it was not pleaded, it should have been within the appellant’s knowledge. A litigant is required to always put his best foot forward and not to litigate through instalments which is highly abhorred. Judicial warning against "litigation by instalments" is a universal common law principle. It dictates that courts will not allow a party to split a single cause of action into separate, consecutive lawsuits, or to deliberately withhold legal arguments and evidence to launch them in piecemeal fashion later. Courts consistently decry this practice as an abuse of the court process, a waste of judicial resources, and a violation of public policy, which requires nality in litigation. A party must bring his whole case to court. He cannot litigate in instalments. Way back in 1843, the UK foundational decision in Henderson vs. Henderson (1843) 3 Hare 100 established the rule that parties must bring their whole case forward at once. The Supreme Court of India in State of U.P. vs. Nawab Hussain [1977] 2 SCC 806 conrmed that piecemeal litigation is barred under the rule of constructive res judicata. In South Africa, the Court in Custom Credit Corporation vs. Sheckter 1972 (3) SA 469 (A) armed the "once and for all" rule, barring plaintis from slicing up claims. This Court in Independent Electoral and Boundaries Commission vs. Maina Kiai & 5 Others [2017] eKLR robustly condemned the practice of staggered litigation, stating: "The rule is well settled that a party must bring his whole case to court. He cannot litigate in instalments... If a party fails to put his best foot forward, he cannot blame the court or seek a second bite at the cherry. Litigation by instalments is highly discouraged as it is an abuse of the judicial process." 46. The appellant cannot, in our view, be permitted to circumvent the limitation period by asserting that it made a belated discovery of matters which it had or ought to reasonably to have had knowledge much earlier. In any event, as demonstrated above, the alleged fraud was pleaded in the earlier case. Notably, approximately eighteen years have lapsed between the institution of the Nairobi suit in 2002 and the ling of the present suit in 2020. However, while a litigant’s memory may lapse, the earlier pleadings are an enduring reminder that fraud was actually pleaded. In the circumstances, the attempt to rely on an alleged discovery in 2020, in order to revive a claim that had long become stale, cannot hold water. Accordingly, we nd that the trial judge correctly held that the appellant’s claim was statute- barred. 47. Arising from our analysis and determination of the issues addressed herein above, the upshot is that this appeal is devoid of merit. Accordingly, we dismiss it with costs to the 1st to 5th respondents. DATED AND DELIVERED AT NAKURU THIS 2ND DAY OF OCTOBER, 2026. J. MATIVO ................................ JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2082/eng@2026-10-02 9

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MURUNGI B. KAIRARIA ................................ JUDGE OF APPEAL AHMED ISSACK ................................ JUDGE OF APPEAL I certify that this is a true copy of the original. Signed. DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2082/eng@2026-10-02 10

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