Mucheru v Mucheru & another

whatsoever the property known as L.R. No. Ruiru Township/596 pending the hearing and determination of this Application. 5. That this Honourable Court be pleased to issue an order of status quo restraining the Defendants/Respondents herein jointly and/ or severally whether by themselves or through their employees, servants, agents and/or any other persons acting under their instructions from advertising for sale, selling, transferring, donating, bequeathing, alienating, charging, leasing, licensing or in any other way disposing o, dealing and/or interfering with any manner whatsoever the property known as L.R. No. Ruiru Township/596 pending the hearing and determination of this suit. 6. That this Honourable Court be pleased to issue an order directing the Regional Police/ Commander Thika, Kiambu, to supervise the enforcement of the orders sought in prayers 3 and 4 above pending the hearing and determination of this application and the main suit. 7. That this Honourable Court be pleased to appoint and/or direct the joint appointment by the Advocates herein of an agent to manage the property described as L.R. No. Ruiru Township/596 for the purposed of collecting the monthly rent and income generated from the property L.R. No. Ruiru Township/596. 8. That this Honourable Court be pleased to order that the rent/income so collected by the agent appointed as hereinabove for property L.R. No. Ruiru Township/596 be deposited into court together with a true statement of account. 9. That this Honourable Court be pleased to make and/or issue such other orders as it may deem t to grant. 10. That the cost of this application be provided for and borne by the Respondents. 2. The application is premised on the grounds on the face of it and the supporting adavit of Hellen Wanjiru Mucheru sworn on even date. 3. The Applicant's case is that the 1st Defendant has since died and that the intended 3rd Defendant, who is the deceased's son, has embarked upon the construction of permanent structures on the suit property on the footing that the property belonged to his late mother. The Applicant contends that the intended 3rd Defendant is thereby asserting dominion over, and interfering with, the property known as L.R. No. Ruiru Township/596 (hereinafter ‘the suit property’), whose ownership is the subject of these proceedings, yet he is neither a party to the suit, an administrator of the estate of Stephen Waweru Mucheru (Deceased), nor the owner of the suit property. The Applicant apprehends that unless the orders sought are granted, the continuing development will occasion irreparable loss, particularly as the Applicant claims ownership of the suit property. The Court is consequently urged to intervene in the interests of justice. 4. The application is opposed by the 2nd Defendant through a Preliminary Objection dated 8th December 2025 which constitutes the second matter for determination. 5. The preliminary objection is twofold. First, it is contended that the orders sought are res judicata and that the Court is thereby precluded from reopening a matter already determined. Second, it is contended that the proposed joinder is legally untenable in the absence of letters of administration having been taken out following the death of the 1st Defendant. The 2nd Defendant consequently contends that the application, having been brought in contravention of section 7 of the Civil Procedure Act, is incompetent and that the Court lacks jurisdiction to entertain it. The application is further characterised as bad in law, vexatious and an abuse of the process of the Court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5843/eng@2026-09-23 2

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6. Pursuant to the directions of the Court, the application and the Preliminary Objection were canvassed contemporaneously by way of written submissions. Issues for Determination 7. Having examined, the application, the notice of preliminary objection in opposition, the rival submissions and the relevant authorities, the following issues emerge for determination: i. Whether the Preliminary Objection is merited. ii. Whether the Applicant is entitled to the relief sought Analysis and Determination 8. The law does not permit every objection to acquire the dignity of a Preliminary Objection merely by being so christened. 9. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law JA described a preliminary objection as a point of law which, if argued as a preliminary point, may dispose of the suit. Sir Charles Newbold, P. added the necessary qualication that it must be a pure point of law, argued on the assumption that the facts pleaded by the opposing party are correct, and cannot properly be raised where facts remain to be ascertained or the Court is invited to exercise a judicial discretion. 10. The objection before me invokes res judicata and the absence of letters of administration following the death of the 1st Defendant. The former, if properly established from the record, is plainly capable of disposing of the application. The latter, however, cannot be sustained by assertion alone if its determination requires the Court to inquire into matters beyond the undisputed record. A Preliminary Objection is not a convenient vehicle for converting contested factual questions into conclusions of law. 11. The rst question is whether the present application is barred by res judicata. 12. Section 7 of the Civil Procedure Act embodies the doctrine of res judicata as follows: “ 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 nally decided by such court.” 13. This section is eectively the statutory command of nality. Litigation has an end, and the law does not permit a concluded controversy to be resurrected merely by changing the procedural clothing in which it is presented. But nality is not presumed. The statutory conditions must be satised and includes: identity of the matter directly and substantially in issue, identity of parties or those claiming under them, competence of the former court, and a hearing followed by nal determination. 14. The task before this Court is to test the present application against those statutory safeguards and ascertain whether what is now sought has already received its judicial answer. 15. I have already set out the orders sought in the instant application. Repetition would serve little purpose. What matters, for present purposes, is to place them alongside the reliefs sought in the earlier application dated 26th October 2020 upon which the plea of res judicata is founded. The record reveals that latter sought the following orders: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5843/eng@2026-09-23 3

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16. 17. 1. That this Application be heard ex parte in the rst instance on account of its urgency. 2. That Pending the hearing and determination of this application herein, an injunction be issued to restrain the defendant whether by herself, her agents, employees, assigns, advocates, servants, or otherwise howsoever and any persons whatsoever be restrained from selling, disposing of, charging, sub-dividing, leasing dealing interfering with and/or intermeddling in any manner whatsoever with property Land registration number Ruiru Township/596 (suit property) 3. That Pending the hearing and determination of the suit herein, an order be issued directing that any and all money from the rental income of the suit property be deposited in an escrow account in the names of the applicant’s Advocates and the respondent’s Advocates. 4. That the costs of this application be provided for Those prayers were subsequently compromised by a Consent Order dated 10th December 2020 (hereinafter ‘the consent order’), in the following terms: 1. That Status Quo be and is hereby maintained as per the Court Order of 12th March 2012. 2. That this Court will only deal with Ownership dispute and the implementation of the said, the same to be eected by probate Court. 3. That the Defendant has 14 days from the date hereof to le the Defence 4. That the Plainti will have 7 days to respond to the Defence. 5. That thereafter the Parties have 30 days to comply with Order 11. 6. That Pre-trial Conference on 11th March, 2020 before the Deputy Registrar. The Consent Order did not determine the interlocutory relief sought in the 2020 application. It maintained the existing status quo of the Orders issued by the High Court and gave directions for the suit to proceed. The question, therefore, is whether the relief now sought by the Applicant was heard and nally determined. It was not. 18. The injunctive and rental-income relief sought in the 2020 application was neither granted nor refused, and cannot, in the circumstances, be said to have been nally determined within the meaning of section 7 of the Civil Procedure Act. 19. In Uhuru Highway Development Ltd v Central Bank of Kenya & 2 others [1996] eKLR, the Court of Appeal armed that res judicata extends to interlocutory applications, but the doctrine presupposes a matter that has already been determined. That threshold has not been met here. The objection on res judicata therefore fails. 20. The second limb of the objection is that John Kinungi Mucheru cannot be joined as a defendant in view of the fact that no letters of administration have been taken out following the death of the 1st Defendant. I cannot accept that as a Preliminary Objection. Whether he may be joined depends upon the capacity in which he is sought to be joined and the circumstances of the case. Those are not matters which can be decided as a pure question of law. 21. The Preliminary Objection therefore fails in its entirety and is accordingly dismissed. 22. I now turn to the substantive application and the consequential reliefs sought. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5843/eng@2026-09-23 4

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23. The Applicant seeks to bring Denis Kinungi Mucheru into the suit. Order 1 Rule 10(2) of the Civil Procedure Rules empowers the Court, at any stage of the proceedings, to add a person whose presence is necessary to enable it eectually and completely to adjudicate upon and settle all questions involved in the suit. 24. The principles governing joinder are well settled. In Joseph Njau Kingori v Robert Maina Chege & 3 others [2002] eKLR, the Court identied the requirements of a necessary and proper party, including that, in the case of a Defendant, relief must ow from that Defendant to the Plainti and that his presence must be necessary for the Court to eectually and completely adjudicate upon and settle all questions in dispute. 25. The Court of Appeal subsequently claried in Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR that a person may be joined not only where a cause of action is disclosed against him, but also where his presence is necessary for the eectual and complete determination of the questions in the suit, including to avoid multiplicity of proceedings. The Court stated: “ From the forgoing the power of the court to add a party to a suit is wide and discretionary, the overriding consideration being whether he has interest in the suit. The question is whether the right of a person may be aected if he is not added as a party. Generally in exercising this jurisdiction the court will consider whether a party ought to have been joined as plainti or defendant, and is not so joined, or without his presence, the question in the suit cannot be completely and eectively decided.” 26. The Court further emphasised that: “ The court has a separate, independent duty from the parties themselves to ensure that all necessary and proper parties, and no others, are before it so that it may eectually and completely determine and adjudicate upon all matters in dispute.” 27. The Applicant herein bears the evidential burden of establishing the basis upon which the discretionary order of joinder is sought. That includes identifying the person whom it seeks to introduce into the proceedings. 28. Here, the Applicant identies the proposed Defendant as Denis Kinungi Mucheru and attributes to him the alleged construction on the suit property and the assertion of an interest arising from an alleged bequest by the deceased 1st Defendant. However, beyond the Applicant naming the intended Defendant as Denis Kinungi Mucheru, the supporting adavit contains no material establishing his identity. No identication document is annexed to the adavit, nor is there any other documentary or evidential material linking the person so named to the individual alleged to be undertaking the construction or asserting an interest in the property. 29. The diculty is further compounded by the Applicant's own submission that notices were issued to the tenants directing payment of the rental income into an account in the name of John Kinungi Mucheru, account number 0870195427772. 30. The Defendants, in their notice of preliminary objection and their submissions, contend that the intended defendant in question is John Kinungi Mucheru. That contention cannot, of itself, resolve the evidential gap. 31. The Court need not enter the thicket of whether Denis Kinungi Mucheru and John Kinungi Mucheru are one and the same person. The narrower question is whether the person whom the Applicant seeks https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5843/eng@2026-09-23 5

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to bring before the Court has been suciently identied to enable the Court to exercise its discretion under Order 1 Rule 10(2). 32. The answer, on the material before the Court, is no. The Applicant has named a person, but has not placed before the Court evidence establishing his identity. That deciency in the evidence cannot be lled by inference or by submissions. 33. The Court has not been given sucient material to establish that the person named in the application is the person whose presence is necessary to determine the dispute. The caution in Civicon (supra) is apposite: “all necessary and proper parties, and no others” must be before the Court. That condition has not been met. 34. The prayer for joinder accordingly fails. 35. The failure of the joinder prayer is not dispositive of the application as a whole. The remaining prayers raise separate questions concerning the conduct of the existing Defendants and the preservation of the suit property. Those questions must be considered on their own merits. 36. By the consent order recorded in this suit, the status quo of the court Order issued in Succession Cause No. 1661 of 2011 Milimani High Court In the Matter of the Estate of Stephen Waweru Mucheru (Deceased) [2012] eKLR on 12th March 2012 was expressly maintained. The status quo was intended, among other things, to preserve the property and its incidents pending the determination of the dispute. 37. The Applicant has placed before the Court a photograph (annexed as ‘HMW 6’) depicting the alleged development on the suit property. That evidence has not been controverted by the Defendants. In the circumstances, and given the existing order maintaining the status quo, I consider it necessary to preserve the subject matter of the suit pending its determination. The status quo maintained by the Consent Order shall accordingly remain in force pending the hearing and determination of the suit. 38. The Applicant has also sought police supervision in the enforcement of the orders. In light of the foregoing, and to give practical eect to the status quo maintained by this Court, I consider such assistance warranted. The Regional Police Commander, Thika, Kiambu, is accordingly directed to supervise enforcement of the order. 39. Accordingly, I make the following Orders: 1. The Notice of Preliminary Objection dated 8th December 2025 is dismissed. 2. The Notice of Motion dated 30th October 2025 is allowed in part in the following terms: 3. a. The status quo maintained by the consent order recorded in this suit shall remain in force pending the hearing and determination of the suit. b. The Regional Police Commander, Thika, Kiambu, is directed to supervise enforcement of the said order. Cost shall be in the cause DATED, SIGNED AND DELIVERED VIRTUALLY, AT MALINDI THIS 23RD DAY OF SEPTEMBER 2026 …………………….. J. M. ONYANGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5843/eng@2026-09-23 6

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In the presence of: Ms Wangui for Mr. Gitonga for the Plainti/Applicant No appearance for the Defendant Court Assistant: Happy https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5843/eng@2026-09-23 7

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