Shah alias Sudha Amrital Shah (Suing in her Capacity as the Executor of the Estate of Amrital Rupshi Shah (Deceased)) & another v Chief Lands Registrar & 4 others

registration of the 5th Defendant, constitute matters which are directly material to the adjudication of the present dispute. 3. It is further contended that this Court, in its ruling delivered on 20th January 2026, recognised the existence of two conicting Gazette Notices issued by the National Land Commission concerning the suit property and directed that the matter proceed to a full hearing on the merits. The Applicant maintains that, being a former registered proprietor and a person holding documents material to the history and acquisition of the property, its presence is necessary to enable the Court to completely and eectually determine the controversy and to ensure that the eventual orders bind all persons materially interested in the property. 4. The Applicant also acknowledges that it had previously instituted Malindi ELC No. E020 of 2021 against, among others, the 5th Defendant in relation to the same property. It is, however, its case that those proceedings were struck out on a procedural footing and that the Court did not determine on the merits the question of proprietorship of the suit property. On that basis, the Applicant contends that the earlier proceedings do not constitute a bar to its participation in the present suit. 5. The application is opposed by the Plaintis, the 2nd and 3rd Defendants, the 4th Defendant and the 5th Defendant. The opposition, though articulated with varying emphasis, converges substantially upon the proposition that the Applicant has already litigated its claim to the suit property in Malindi ELC No. 20 of 2021, that the said proceedings culminated in a ruling and order dated 30th June 2022, that the ruling remains extant, and that the present application amounts to an attempt to circumvent that determination by clothing the same proprietary claim in the language of joinder. 6. The 2nd and 3rd Defendants, through their Grounds of Opposition, contend that the Court lacks jurisdiction to entertain the application by dint of Section 7 of the Civil Procedure Act; that the matters raised by the Applicant were canvassed in ELC No. 20 of 2021; that allowing the application would occasion conicting orders in respect of a matter already concluded; that it would reopen settled questions and undermine judicial eciency; and that the application constitutes an abuse of the process of Court. 7. The 5th Defendant similarly contends that the Applicant has not demonstrated that its presence is necessary for the determination of the controversy between the Plaintis and the existing Defendants. Its position is that the Applicant's previous proceedings concerned the same property and substantially the same proprietary complaint and that joinder is now being deployed as a means of reviving a claim which the Applicant did not successfully prosecute in the earlier proceedings. 8. The 2nd and 3rd Defendants and the 5th Defendant further contend that the ruling delivered on 30th June 2022 has neither been reviewed nor set aside on appeal and remains binding. The substance of their objection is that the Court cannot, through an application for joinder, indirectly undo or reverse a subsisting judicial determination. In their submission, to grant the orders sought would amount to permitting the Applicant to secure, through a procedural avenue, a reconsideration of matters it ought to have pursued by way of review or appeal. 9. The Applicant, on the other hand, places reliance upon Order 1 Rule 10(2) of the Civil Procedure Rules. Its submission is that the provision is to be interpreted liberally and that a party ought to be joined where its legal rights may be aected by the outcome or where its presence is necessary for a complete and eectual adjudication of the matters in controversy. Reliance is placed upon JMK v MWM & another [2015] KECA 524 (KLR), Central Kenya Limited v Trust Bank Limited & 4 Others, Pravin Bowry v John Ward & another [2015] KECA 215 (KLR), Departed Asians Property Custodian https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6172/eng@2026-10-05 2

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Board v Jaer Brothers Ltd [1999] 1 EA 55 and Kenya Railways Corporation & another v Kenya Finance Investment Company Ltd & 3 others [2024] KEELC 3845 (KLR). 10. The Applicant's contention, in substance, is that it has a direct and subsisting proprietary interest in the suit property; that it held a title to the property before its cancellation in 2015; that its title was cancelled without notice or hearing; that the present proceedings concern competing chains of title and conicting National Land Commission Gazette Notices; and that any determination made in the suit would necessarily aect its asserted proprietary interest. It therefore urges the Court to nd that its presence is indispensable to the nal and complete resolution of the dispute. 11. Before addressing the substantive question whether the Applicant satises the threshold for joinder, however, there is a more anterior issue which, in my view, is dispositive of the application. That issue is whether the claim which the Applicant seeks to advance by its proposed joinder is barred by the doctrine of res judicata by reason of the ruling delivered in Malindi ELC No. 20 of 2021 on 30th June 2022. 12. The parties are in agreement that Malindi ELC No. 20 of 2021 concerned Title No. Chembe/ Kibabamshe/366 and that the Applicant was the Plainti therein. The record before this Court further demonstrates that the Applicant's claim in those proceedings was anchored upon an assertion of proprietorship over the same parcel and a challenge to the title subsequently held by Dawagi Investments Limited. The present application is likewise founded upon the Applicant's asserted ownership of the same property and seeks, upon joinder, to place before this Court a Defence and Counterclaim founded upon that alleged proprietary interest. 13. The order ultimately issued in ELC No. 20 of 2021 on 30th June 2022 was unequivocal. The Court ordered, inter alia, that: “ THAT the suit as led oends the provisions of Article 67(2) of the Constitution as read with Rule 30 of the National Land Commission (Review of Grants and Disposition of Public Land) Regulations, 2017.” 14. It further ordered that both the suit and the Motion be struck out with costs to the 1st Defendant. 15. It is material that the said order has not been displaced. There is no material before this Court demonstrating that the order dated 30th June 2022 has been reviewed, varied or set aside. Neither is there evidence of a successful appeal against it. It remains, therefore, a valid and subsisting judicial pronouncement concerning the Applicant's earlier attempt to litigate its claim over the suit property. 16. Section 7 of the Civil Procedure Act provides: “ 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.” 17. The philosophy underlying the res judicata doctrine is neither obscure nor merely technical. In Koross (Legal personal representative of Elijah CA Koross) v Komen & 4 others [2015] KECA 906 (KLR), the Court of Appeal at Eldoret underscored that litigation must, at some point, come to an end and that a litigant who has exhausted the available judicial process cannot be permitted to continue agitating the same controversy through successive proceedings. Finality is an indispensable incident of the administration of justice. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6172/eng@2026-10-05 3

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18. The Applicant places particular reliance upon authorities such as John Florence Maritime Services Ltd & another v Cabinet Secretary for Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) and Michael Bett Siror v Jackson Koech [2019] KECA 941 (KLR) for the proposition that a purely procedural disposal cannot, in every circumstance, sustain a plea of res judicata where the substantive issues were never adjudicated upon on evidence. It is on that foundation that the Applicant submits that the dismissal of ELC No. 20 of 2021 did not determine proprietorship and consequently cannot bar its participation in the present proceedings. 19. I have carefully considered that argument. It is, however, necessary to distinguish between the proposition that an order striking out a suit does not necessarily determine the substantive truth of the underlying claim and the quite dierent proposition that the issues expressly determined by such an order may thereafter be disregarded by the same or another court of concurrent jurisdiction. 20. The ruling of 30th June 2022 was not an order made in vacuo. The Court considered the statutory framework under which the Applicant had brought its proceedings and reached a determination that the suit, as instituted, oended Article 67(2) of the Constitution as read with Rule 30 of the National Land Commission (Review of Grants and Disposition of Public Land) Regulations, 2017. The consequence was that the Applicant's chosen mode of challenging the impugned title and the National Land Commission process was found legally unavailable in those proceedings. The Applicant did not appeal that determination or procure its review. 21. The Court is therefore not presently being invited to determine in the rst instance whether the Applicant held a good title in 1999, whether its title was unlawfully cancelled in 2015 or whether Dawagi Investments Limited subsequently acquired a valid title. Those are questions which the Applicant sought to place before the Court in its own earlier proceedings, but which it was not permitted to pursue in the manner adopted. What confronts this Court is the juridical consequence of the subsisting ruling by which that attempted litigation was brought to an end. 22. A litigant cannot evade a subsisting judicial order by changing the procedural vehicle through which the same claim is advanced. The doctrine of res judicata is concerned not merely with the nomenclature of proceedings but with the substance of the controversy sought to be revived. As was recognised in E.T. v Attorney General & another [2012] KEHC 5506 (KLR), the Court must remain vigilant where a party seeks to bring before it, in a dierent form and under the guise of a new cause, a matter which has already been dealt with by a court of competent jurisdiction. The same principle underlies the caution expressed in George W M Omondi & another v National Bank of Kenya Ltd & 2 others [2001] KEHC 841 (KLR) against giving previously litigated matters a cosmetic alteration and thereby rendering the doctrine nugatory. The court observed that; “ I wholly agree with the opinion of Kuloba J in Mwangi Njangu v Meshack Mbogo Wambugu (supra) where he said: “If a litigant were allowed to go on forever re-litigating the same issue with the same opponent before Courts of competent jurisdiction, merely because he gives his case some cosmetic face-lift on every occasion he comes to a Court, then I do not see what use the doctrine of res judicata plays.” 23. The present application does precisely that. Although formally styled as an application for joinder, the substantive relief sought after joinder is leave to le a Defence and Counterclaim. The proposed Counterclaim would necessarily place before this Court the Applicant's alleged proprietary claim over the suit property. In eect, therefore, the Court is being asked to reopen and adjudicate a claim which the Applicant previously sought to advance against the 5th Defendant in ELC No. 20 of 2021. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6172/eng@2026-10-05 4

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24. I am not persuaded that Order 1 Rule 10(2) can be deployed for that purpose. The rule is a procedural mechanism designed to ensure that persons whose presence is necessary for eectual and complete adjudication are before the Court. It is not an appellate jurisdiction, nor is it a statutory device for reviving proceedings which have already been conclusively terminated by an extant order. 25. There is also considerable force in the objection that what the Applicant seeks is, in substance, a second opportunity to prosecute a claim aected by an adverse decision that it elected not to challenge by way of appeal or review. The law cannot countenance such a course. An order remains binding unless and until it is set aside through an appropriate judicial process. A party aggrieved by it cannot simply ignore its eect and seek to obtain a materially similar result by entering another proceeding as a party. 26. I have not overlooked the jurisprudence relied upon by the Applicant concerning joinder under Order 1 Rule 10(2). The authorities cited establish, correctly, that the Court possesses a wide discretion to join a person whose presence is necessary for complete and eectual adjudication. They also make clear that a party may, in an appropriate case, be joined even in the absence of a direct cause of action against it where its presence is necessary to settle all questions in controversy. 27. Nevertheless, that discretion is judicial and not unbounded. It must be exercised within the existing legal architecture of the case and cannot be invoked to defeat the principle of nality or to circumvent a binding judicial determination. Order 1 Rule 10(2) cannot be interpreted in isolation from Section 7 of the Civil Procedure Act and the broader obligation of the Court to prevent abuse of its process. 28. The question before me, however, is not whether the Applicant's historical interest is capable of being characterized as relevant. It is whether that relevance can lawfully be converted into a fresh right to litigate a claim which the Applicant had previously brought before this Court and which resulted in a subsisting order of 30th June 2022. Can this court ignore such an order rendered by the said court of similar jurisdiction and status? 29. In my view, it cannot. 30. This conclusion is fortied by the very reliefs sought in the present application. The Applicant does not merely seek to be heard on some ancillary or incidental question. It seeks joinder as a Defendant and thereafter fourteen days to le a Defence and Counterclaim. The obvious consequence would be the introduction into the present proceedings of a substantive claim to ownership of the suit property. Such a claim would substantially overlap with the claim advanced in ELC No. 20 of 2021. To permit that course would materially enlarge the controversy by introducing a litigant whose own claim had already been the subject of previous proceedings and a subsisting judicial order. The Court would thereby be permitting the very mischief which the doctrine of res judicata is designed to prevent, namely, repeated litigation, uncertainty and the erosion of nality. There is also an additional consideration that the present Plaintis and the 5th Defendant are already before the Court. Their competing positions concerning the suit property will be determined in these proceedings. To introduce the Applicant's previously litigated proprietary claim as a Counterclaim would create the risk that the Court becomes, in eect, an appellate forum over the ruling of 30th June 2022. That cannot be countenanced. 31. I therefore nd that, in so far as the Applicant seeks to enter these proceedings for the purpose of advancing its proprietary claim and ling a Counterclaim founded upon the same alleged title and the same historical transactions previously placed before the Court in ELC No. 20 of 2021, the application is barred by the doctrine of res judicata and constitutes an impermissible attempt to reopen concluded litigation. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6172/eng@2026-10-05 5

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32. Having arrived at that conclusion, the second issue concerning whether the Applicant has independently satised the threshold under Order 1 Rule 10(2) becomes largely academic. The jurisdiction to order joinder is discretionary, but discretion must be exercised within the connes of the law. A person who is otherwise potentially relevant to the subject matter cannot invoke joinder as a means of circumventing a subsisting judicial determination. 33. In any event, I do not consider that the proper administration of justice would be served by allowing the Applicant to come into these proceedings for purposes of asserting a substantive proprietary Counterclaim which is the subject of a previous and unchallenged judicial order. The fact that the Applicant may possess documents touching upon the chain of title does not, in the circumstances of this case, confer an entitlement to reopen its own concluded claim. 34. In the premises, and having considered the Chamber Summons dated 24th February 2026, the supporting adavit, the replying adavit of the Plaintis, the Grounds of Opposition by the 2nd and 3rd Defendants, the response by the 4th Defendant, the response and submissions of the 5th Defendant, the written submissions on behalf of the Proposed 6th Defendant, the authorities cited by all parties and the applicable provisions of the law, I nd that the application is barred by the doctrine of res judicata. 35. This Court shall not, through the present proceedings, assume an appellate jurisdiction or review over that ruling or issue orders which would have the eect of setting it aside by implication- a counterclaim founded on grounds raised in the dismissed suit. The Chamber Summons dated 24th February 2026 is consequently dismissed. 36. The costs of the application are awarded to the Plaintis, the 2nd, 3rd, 4th and 5th Defendants and shall be borne by the Applicant/Intended 6th Defendant. DATED, SIGNED, AND DELIVERED AT MALINDI ON THIS 5TH DAY OF OCTOBER 2026. HON. JUSTICE MWANGI NJOROGE JUDGE ENVIRONMENT AND LAND COURT, MALINDI In the presence of: No appearance for Anjarwalla & Khanna LLP Advocates for the Applicantth defendant. Mr Shujaa and Mr Mwadilo instructed by JK Mwarandu & Company Advocates, for the 5 No appearance for Mbura & Co Advocates, the plaintis, No appearance for the 1st -4th defendants MLDELCLCE052/25/RLG/DF-24.02.26/FH-25.05.26/LH-25.05.26/DR-05.10.26 Page 3 of 3 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6172/eng@2026-10-05 6

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