Godwin Wachira Gichuhi (Suing as the legal Representative of the Estate of Gichuhi Kimira (deceased)) v Chief Land Registrar & 6 others

The joint administrators of the Estate of Simon Mugweru Waithirwa (deceased)………..……………..6th DEFENDANT ESTATE OF SAMUEL NGUNU KIMOTHO………………….7TH DEFENDANT ESTATE OF FRANCIS WAMBUGU..…..1ST INTERESTED PARTY/APPLICANT ESTATE OF JOSEPH NGÁNGÁ NJUGUNA……………………………2ND INTERESTED PARTY/APPLICANT RULING 1. This ruling relates to a preliminary objection dated 26 th November 2025 and an application dated 2 nd February 2026. 2. The 5th Defendant filed a Notice of Preliminary Objection dated 26th November 2025, arguing that the suit is barred under Section 4(4) of the Limitation of Actions Act. The Respondent contends that the Plaintiff seeks to enforce or challenge the decree issued on 6th October 1989 in NAIROBI HCCC No. 880 of 1997, which was upheld by the Court of Appeal in NAIROBI COACAA 186 of 1995 in its judgment delivered on 24th April 1998. It was further contended that more than 12 years had lapsed, rendering the suit statute-barred. 3. It was further contended that the suit contravenes Section 7 of the Civil Procedure Act on the basis that it concerns ELC CASE NO. E422 OF 2005 2

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the same subject matter as Milimani ELC PET No. E041 of 2022 (consolidated with E042 of 2022), in which judgment was entered in favour of the 5th Defendant on 28th September 2023. The 5th Defendant asserts that the Plaintiff appealed that judgment in Appeal No. E023 of 2024, which is pending hearing and determination. Accordingly, the 5th and 6th Defendants urged the Court to dismiss the suit in limine with costs. 4. The Applicant filed a Notice of Motion dated 2 nd February 2026, seeking the following orders: i. THAT the Interested Parties, the Estate of Francis Wambugu Miano and Joseph Ng’ang’a Njuguna, be joined as Interested Parties. ii. THAT the costs of this application be provided for. 5. The application is based on the grounds appearing on its face together with the supporting affidavit of Stephen Njuguna Ngángá, sworn on even date. THE APPLICANTS CASE 6. The deponent averred that he is the administrator of the Estate of Joseph Ngángá Njuguna. He further averred that the late Joseph Ngángá Njuguna and the late Francis Wambugu Miano, the Applicants, are bona fide purchasers of L.R. No. 13041/1, having purchased the property on 16 th ELC CASE NO. E422 OF 2005 3

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June 2004 from the late Samuel Ngunu Kimotho, and that they are in possession thereof. 7. He further averred that the Applicants have no claim against the Plaintiff in respect of any title predating their purchase of the property. He asserted that they are necessary parties to the proceedings, as the orders sought by the Plaintiff may affect their interest in the suit property. In conclusion, he urged the Court to allow the application as prayed. THE PLAINTIFF/RESPONDENT’S CASE 8. The Plaintiff filed a replying affidavit dated 4th February 2026 in opposition to the application. He disputed the averments that the intended Interested Parties are the legal representatives of the respective estates, contending that they lack capacity to represent those estates in these proceedings. 9. He further asserted that the estate of Gichuhi Kimira was not privy to the sale agreement for land title No. L.R. No. 13041/1, which is registered in the name of the 7 th Defendant, and remains undeveloped and vacant. 10. He also argued that the purchase of land is a matter of contract between the parties to the agreement, and that the Applicants cannot enforce the agreement in this case. He therefore contended that the purported purchaser’s ELC CASE NO. E422 OF 2005 4

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interest of the intended interested parties would not be affected by the decision in this suit. 11. He asserted that any interest the Applicants may have as purchasers is adequately represented by the Estate of Samuel Ngunu Kimotho, as their claim is directly under the Estate of the 7th Defendant and cannot in law acquire a better title than the vendor held. Accordingly, he argued that the Applicants are not necessary parties to this suit and that joinder would broaden the dispute, multiply issues, and unnecessarily complicate the proceedings. 1. Both the application and the preliminary objection were disposed of by way of written submissions. THE APPLICANTS' SUBMISSIONS ON THE MOTION DATED 2ND FEBRUARY 2026 2. The Applicants filed their submissions dated 18 th February 2026. 3. On behalf of the Applicants, Counsel outlined the following issues for the Court’s determination: a) Whether the Applicants have demonstrated a recognizable and proximate interest in the suit property; b) Whether the Applicants are necessary parties for the effectual and complete determination of the suit; and c) Whether any prejudice will be occasioned to the existing parties by the joinder. ELC CASE NO. E422 OF 2005 5

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4. Regarding the first issue, Counsel submitted that the Applicants have demonstrated a direct, proprietary and legally recognisable interest in the suit property. Counsel further submitted that it was not in dispute that the Applicants purchased L.R No. 13041/1 in 2004, took possession, and have remained in possession for over two decades. Counsel contended that since the Plaint challenges the validity of titles and transactions relating to L.R No. 1304, any orders issued in the proceedings may directly affect the Applicants' interest. To support this argument, Counsel relied on Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others (2014) Eklr and Kenya Medical Laboratories Technicians and Technologists Board & 6 others v Attorney General & 4 others (2022) KECA 458 (KLR). 5. Regarding the second issue, Counsel submitted that any determination of ownership of the suit property, made without the Applicants' participation, would contravene the audi alteram partem rule. 6. Regarding the third issue, Counsel submitted that neither the Plaintiffs nor the Defendants would be prejudiced if the application were allowed. Conversely, Counsel submitted that the Applicants would be prejudiced if they are not joined, as they would be condemned unheard. To support this point, Counsel relied on JMK v MWM & another (2015) eKLR, Central Kenya Ltd v Trust Bank & 4 ELC CASE NO. E422 OF 2005 6

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others CA No 222 of 1988, and Civicon Limited v Kivuwatt Limited & 2 others (2015) eKLR. 7. In conclusion, Counsel urged the Court to allow the application as prayed. THE 5TH DEFENDANT SUBMISSIONS 8. The 5th Defendant filed her submissions dated 26th February 2026. 9. On behalf of the 5th Defendant, Counsel submitted that the sole issue for determination is whether this Court has jurisdiction to hear and determine this suit. Counsel reiterated the grounds in the preliminary objection to submit that the suit offends Section 4(4) of the Limitation of Actions Act and that consequently, this Court lacks jurisdiction to hear and determine this suit. 10.Counsel further submitted that the suit is res judicata by virtue of NAIROBI HCCC No. 880 of 1997, NAIROBI Civil Appeal No. 186 of 1995, and Milimani ELCPET No. E041 of 2022 (consolidated with ELCPET E042 of 2022), as the matter involves the same subject matter and has been heard and determined. Counsel further submitted that Appeal No. E023 of 2023 concerning the same subject matter is pending hearing and determination. 11.In light of the foregoing, Counsel submitted that the present suit is vexatious and an abuse of the court process, and urged the Court to dismiss it with costs. THE 6TH DEFENDANT’S SUBMISSIONS ELC CASE NO. E422 OF 2005 7

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12.The 6th Defendant filed her submissions dated 10 th March 2026. 13.On behalf of the 6th Defendant, Counsel outlined the following issues for the Court’s determination: a) Whether the preliminary objection is merited; b) Whether the suit is statute-barred; c) Whether the suit is res judicata; d) Whether the suit is sub judice; e) Whether the suit is an abuse of the court process; f) Costs and interest. 14.Regarding the first issue, Counsel relied on the principles established in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 to submit on the requirements of a preliminary objection. 15.Regarding the second issue, Counsel submitted that the suit is statute-barred as it seeks to enforce or challenge the decree dated 24th April 1998, 27 years after its delivery. To support this argument, Counsel relied on Section 4(4) of the Limitation of Actions Act and the decisions in Willis Onditi Odhiambo v Gateway Insurance Co Ltd (2014) KECA 186 (KLR) and Gathoni v Keny Co-operative Creameries Ltd (1982) KECA 10 (KLR). 16.Regarding the third issue, Counsel submitted that the present suit is res judicata, as the ownership of L.R. No. 13041 was conclusively determined in NAIROBI HCCC NO 880 of 1977(consolidated with NRB HCCC No. 908 of 1977) ELC CASE NO. E422 OF 2005 8

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and upheld in Civil Appeal No. 186 of 1995. To support this point, Counsel relied on Section 7 of the Civil Procedure Act and the Supreme Court decisions in John Florence Maritime Services Ltd & another v Cabinet Secretary Transport and Infrastructure & 3 others (2021) KESC 39 (KLR) and Kenya Commercial Bank Limited & another v Muri Coffee Estate Limited & 3 others (2016) KESC 6 (KLR). Further reliance was placed on Greenfield Investment Ltd v Manji (200) KECA 387 (KLR) and Henderson v Henderson (1843) 67 ER 313. 17.Regarding the fourth issue, Counsel submitted that the issues concerning the acquisition and subdivision of L.R. No. 13041 were determined in ELC Petition No. E041 of 2022, consolidated with Milimani in ELC Petition No. ELC E042 of 2022. Counsel further submitted that the Plaintiff has appealed the decision in Civil Appeal No. E023 of 2024, and that the pendency of that appeal rendered the present suit sub judice. To support this argument, Counsel relied on Section 6 of the Civil Procedure Act and the Supreme Court Case of Kenya National Commission on Human Rights v Attorney General IECC & 16 others (Interested Parties) (2020) eKLR and In the Matter of the Interim Independent Electoral Commission. 18.Regarding the fifth issue, Counsel contended that filing multiple applications on the same subject matter against the same ELC CASE NO. E422 OF 2005 opponent and concerning the same issue 9

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constitutes an abuse of the Court process. To support this argument, reliance was placed on Kenya Section of the International Commission of Jurists v Attorney General & 5 others KESC 4 (KLR), Nishith Yogendra Patel v Pascal Mireille Bakash & another (2009) KECA 241 (KLR), J.M Mwakio v Kenya Commercial Bank Ltd (1997) KECA 129 (KLR) and the case of Republic v Kariuki & 3 others; Law Society (Ex Parte Applicant) Judicial Review E045 of 2020(2020) KEHC 10142 (KLR) 19.Finally, Counsel urged the Court to uphold the preliminary objection with costs. THE PLAINTIFF’S SUBMISSIONS TO THE NOTICE OF MOTION DATED 2ND FEBRUARY 2026 20.The Plaintiff filed his submissions dated 28th April 2026. 21.On behalf of the Plaintiff, Counsel reiterated the contents of the replying affidavit and submitted that joinder of the intended Interested Parties would prejudice the Plaintiff’s case. Counsel submitted that the Applicants would not suffer any prejudice if the application were disallowed, as the dispute is between the Plaintiff and the 7 th Defendant and others regarding the fraudulent subdivision and the validity of L.R. No. 13041/1. Counsel argued that any decree that may issue from these proceedings would not require the Applicants' participation for enforcement. ELC CASE NO. E422 OF 2005 10

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22.Counsel further submitted that no new issues have been raised to justify joinder of the Applicants. It was submitted that the Plaintiff has neither sued the Applicants nor sought any relief against them. Counsel argued that the Applicants are strangers to the cause of action and cannot be joined in this suit merely because they allegedly purchased land from the 7th Defendant. Counsel further submitted that the Applicants would not assist the Court in determining the dispute as they have never been in possession of the original title. 23.In conclusion, Counsel submitted that the application had been brought in bad faith and urged the Court to dismiss it with costs. ANALYSIS AND DETERMINATION 24.Having considered the application, the preliminary objection, the responses and the submissions on record, the following issues arise for determination: a) Whether the preliminary objection is merited; and b) Whether the Applicant is entitled to the orders sought. 25.Regarding the first issue, the law on Preliminary Objections is well settled. A Preliminary Objection must be based on a pure point of law. 26.In Mukisa Biscuits Manufacturing Company Ltd v West End Distributors Ltd [1969] EA 696, Law JA stated; ELC CASE NO. E422 OF 2005 11

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“So far as I’m aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which, if argued as a preliminary point, may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 27.Further on, Sir Charles Newbold JA stated; “The first matter relates to the increasing practice of raising points which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurrer. It raises a point of law which is argued on the assumption that all the facts pleaded by the other side are correct.it cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.” ELC CASE NO. E422 OF 2005 12

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28.In Oraro v Mbaja (2005) eKLR, Ojwang J (as he then was) described it as follows; “I think the principle is abundantly clear. “A Preliminary Objection”, correctly understood, is now well identified as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and, in any event, to be proved through the process of evidence. An assertion which claims to be a Preliminary Objection and yet it hears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed.” 29.The 5th and 6th Defendants contend that the present suit is statute-barred by virtue of section 4(4) of the Limitation of Actions Act, as the Plaintiff seeks to enforce or challenge a decree issued in Nairobi HCCC No. 880 of 1997, which the Court of Appeal upheld in Civil Appeal No. 186 of 1995 on 24th April 1998. They argue that more than 12 years have elapsed and that the suit is therefore statute-barred. Section 4(4) of the Limitation of Actions Act provides that an action may not be brought upon a judgment after twelve years from the date the judgment was delivered. ELC CASE NO. E422 OF 2005 13

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30.However, the assertion that the present suit concerns the same subject matter, parties and issues as the previous proceedings requires the Court to examine and compare the pleadings and determinations in the respective suits. No evidence has been placed before the Court to show that the present suit is an action upon the old decree. Without pleadings showing that the present suit is an action upon the old decree, the objection cannot be sustained on the Defendant’s assertions alone. Accordingly, this Court finds that the limitation objection does not meet the test of a pure point of law capable of determination without resorting to evidence or comparing the relevant records. 31.The Defendants contend that this suit is res judicata as ownership of L.R. No. 1304 was determined in Nairobi HCCC No. 880 of 1997, consolidated with HCCC No. 908 of 1997, and that the decision was upheld in Civil Appeal No. 186 of 1995. 32.The legal framework governing the doctrine of res judicata is outlined in Section 7 of the Civil Procedure Act 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 ELC CASE NO. E422 OF 2005 14

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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.” 33.In John Florence Maritime Services Limited & another vs. Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR, the Supreme Court held that: “We reaffirm our position, as in the Muiri Coffee case, that the doctrine of res judicata is based on the principle of finality, which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.” 34.The Supreme Court further laid down the principles that must be demonstrated to invoke the doctrine in a civil matter as follows: ELC CASE NO. E422 OF 2005 15

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“For res judicata to be invoked in a civil matter, the following elements must be demonstrated: a) There is a former Judgment or order which was final; b) The Judgment or order was on merit; c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and d)There must be between the first and the second action identical parties, subject matter and cause of action. (See Uhuru Highway Developers Limited v Central Bank of Kenya & others [1999] eKLR and see the decision of the Court of Appeal in Nicholas Njeru v Attorney General & 8 others Civil Appeal 110 of 2011 (2013) eKLR). 35.For the Court to establish res judicata, it must be satisfied that the matter directly and substantially in issue in the present suit was directly and substantially in issue in a former suit between the same parties, or between parties litigating under the same title, and that the matter was heard and finally determined. 36.In the absence of pleadings and judgment in the former suit, the Court cannot determine whether the matter directly and substantially in issue is the same. ELC CASE NO. E422 OF 2005 16

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37.The Defendants contend that the present suit is sub judice due to Civil Appeal No. E023 of 2024, which is pending and relates to the same subject matter. The mere existence of a pending appeal does not, without more, establish that the present suit falls within Section 6 of the Civil Procedure Act. The Court must examine the nature of the pending proceedings and determine whether requirements have been met. the statutory Without the pleadings and record of the appeal, the Court cannot determine whether the matter directly and substantially in issue is the same. 38.In the circumstances, I find that the grounds relied upon in the preliminary objection, taken as a whole, do not constitute pure and undisputed points of law that would dispose of the suit at this stage. 39.Regarding the second issue, the law governing joinder of parties is based on Order 1 Rule 10(2) of the Civil Procedure Rules, which provides as follows; “The Court may at any stage of the proceedings, either upon, or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant or whose presence ELC CASE NO. E422 OF 2005 17

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before the court may be necessary in order to enable the court to effectually and completely to adjudicate upon or settle all questions involved in the suit, be added.” 40.Black’s Law Dictionary, 9th Edition, defines an interested party as a party who has a recognizable stake in a matter. 41.In Communications Commission of Kenya and 4 Others …Vs… Royal Media Services Limited & 7 Others Petition No. 15 OF [2014] eKLR, the Supreme Court defined an Interested Party as follows: “An interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause. Similarly, in the case of Meme Vs. Republic, [2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that: (i) Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings; ELC CASE NO. E422 OF 2005 18

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(ii) Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law; (iii) Joinder to prevent a likely course of proliferated litigation. We ask ourselves the following questions: a) What is the intended party’s state and relevance in the proceedings, and b) will the intended interested party suffer any prejudice if denied joinder.” 42.In the case of Trusted Society of Human Rights Alliance Vs Mumo Matemo & 5 Others (2015) eKLR, the Court held that; “An interested party is one who has a stake in the proceedings, though he or she was not a party to the cause ab initio. He or she is one who will be affected by the decision of the court when it is made either way. Such a person feels that his interest will not be well articulated unless he himself or she herself appears in the proceedings and champions his or her cause.” 43.In the present matter, the intended Interested Parties claim to have purchased L.R No. 13041/1 from the late Samuel Nguno Kimotho and assert that they have been in possession of the property for over twenty years. The ELC CASE NO. E422 OF 2005 19

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Plaintiff’s case concerns, among other matters, the validity of the title and the transactions relating to L.R No. 13041/1. 44.In my view, the Applicants have demonstrated an identifiable interest in the subject matter. Their interest is neither remote nor academic. If the Court ultimately makes orders affecting the validity or ownership of L.R. No. 13041/, that determination would directly affect the Applicants’ interest. 45.The Plaintiff’s argument that the Applicants derive their interest from the Estate of the 7th Defendant may ultimately be relevant to the merits of their claim. However, at this interlocutory stage, it is not a sufficient reason to deny them an opportunity to participate where their alleged proprietary interest may be affected by the final determination. 46.I am therefore satisfied that their participation will enable the court to determine the questions in controversy effectively and completely, and will afford them an opportunity to be heard before any orders affecting their asserted interest are made. The joinder will also avoid the possibility of subsequent proceedings by persons whose interests could have been addressed in the present suit. 47.The Court notes the Plaintiff’s contention that the Applicants have failed to demonstrate the legal capacity to represent the Estates. The Court cannot recognise an estate as a litigating party except through a person with the requisite legal capacity to represent it. I therefore find that the ELC CASE NO. E422 OF 2005 20

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deponent has not demonstrated the requisite legal capacity to represent the estate in question. Consequently, although the Applicants have demonstrated a sufficient interest to warrant their participation in these proceedings, their joinder must be subject to proof of the requisite legal capacity. 48.In the result, the Court makes the following orders: a) The Notice of Preliminary Objection dated 26th November 2025 is dismissed with costs. b) The application dated 2nd February 2026 is allowed subject to the Applicants filing the necessary documents demonstrating their capacity and amending the pleadings where necessary within 14 days. c) The Plaintiff and the Defendants shall be at liberty to respond to any new pleadings within 14 days of service. RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 25TH DAY OF SEPTEMBER, 2026. .............................. T. MURIGI JUDGE IN THE PRESENCE OF: Mahinda for the Plaintiff/Respondent ELC CASE NO. E422 OF 2005 21

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Nyambura holding brief for Mugi for the Applicant/Interested Party Ms Ngure for the 5th Defendant Vena- Court Assistant ELC CASE NO. E422 OF 2005 22

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