Mbithi Kitavi & Nzyoka Kitavi (suing as the legal representatives of the estate of Kitavi Kioko (deceased) and as the holders of a grant of letters of administration ad litem) v New Rise House Development Limited, Syokimau Farm Limited & Chief Land Registrar

a. Spent. b. Spent. c. Spent. d. Pending the hearing and determination of this suit, a temporary injunction do issue restraining the 1st defendant, its agents, servants, assigns, employees, purchasers or any third parties from entering upon, remaining on, constructing on, developing, selling, advertising for sale, disposing of, charging, alienating, subdividing and/or in any manner interfering with the suit property being LR No. 12715/539, or its derivatives LR No. 12715/16201 and Mavoko Municipality Block 46/175. e. Pending the hearing and determination of this suit, an inhibition be and is hereby issued against the property known as LR No. 12715/539 or its derivatives, LR No. 12715/16201 and Mavoko Municipality Block 46/175, restraining the registration leases, of surrenders, any transfers, partitions, charges, subdivisions, amalgamations or other dealings whatsoever. f. This honourable court be pleased to issue an order compelling the 3rd defendant to produce before the court all documents, instruments, applications, consents, correspondence, survey LC E145 OF 2025 RULING 2

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or registry records, mutation forms, maps or approvals relied upon to effect: i. The subdivision of LR No. 12715/539 into LR Nos. 12715/14037-14041; ii. The amalgamation 12715/14037-14041 of LR Nos. into LR No. 12715/16200; iii. The change of user and renumbering of LR No. 12715/16200 into LR No. 12715/16201; and iv. The subsequent conversion of LR No. 12715/16201 into Mavoko Municipality Block 46/175. g. This honourable court be pleased to issue an order preserving the suit property in its current condition pending hearing and determination of this suit. h. The officer commanding station (OCS) Syokimau police station does supervise compliance with orders of this honourable court and ensure maintenance of peace on the suit property. i. Costs for this application be provided for. j. This honourable court does issue such other or further orders as it may deem fit and just in the circumstances of this case. LC E145 OF 2025 RULING 3

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2. The motion is supported by the grounds set out in the body thereof and the supporting affidavit of even date, sworn by Mbithi Kitavi, one of the deceased plaintiff’s legal administrators. Concisely, the court is informed that the deceased plaintiff owned LR No. 12715/539 (suit property), which he acquired as a shareholder of the 2nd defendant and which is now unlawfully occupied and developed by the 1st defendant after the deceased plaintiff's death. It is stated that the 1st defendant carried out illegal subdivisions, obtained a fraudulent title, and began selling apartments on the property to third parties. Despite the deceased plaintiff’s efforts, including complaints to the authorities, the 1st defendant's actions continue to pose an imminent risk to the deceased plaintiff’s estate's rights unless the court intervenes. 3. The law firm of Ms. Musinga Advocates LLP, for the 2nd defendant, presented a replying affidavit sworn by David Muthama Malonza on 12 March 2026; nonetheless, despite the court's invoices, neither did the law firm pay the requisite fees for this affidavit nor for the defence. In the circumstances, this unpaid affidavit is hereby expunged from the record. 4. The 1st defendant challenged the motion by filing a reply affidavit from Reuben Mulwa Kioko, deposed on an undisclosed date. He succinctly informs the court that he is the son of the 1st allottee of the suit property, who was a member and shareholder of the 2nd defendant, the deceased Josephat LC E145 OF 2025 RULING 4

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Kitavi Kioko, and also a director of the 1st defendant. He describes the application as frivolous, vexatious, and an abuse of court process, warranting dismissal with costs for several reasons: (i) The application violates the doctrine of res judicata and should be struck out with costs; (ii) The application does not meet the conditions for granting an injunction, as no prima facie case has been established; (iii) No sufficient cause has been shown to justify the grant of an injunction. 5. He avers that a previous suit, Nairobi High Court Civil Case No. 2722 of 1992 (previous case), determined the dispute over the suit property, and the resulting judgment delivered on 28th April 2006 was never set aside, varied, or overturned. He asserts that the 2nd defendant was wound up as per Kenya Gazette Notice No. 11485 dated 26 July 2013, published on 8th August 2013. 6. He maintains the suit property was transferred to him on 9 June 2014, after which he took exclusive and peaceful possession, fenced it, and has maintained possession to date. After payment of rent and rates, clearance certificates and approvals were obtained, and the property was subdivided into five portions (L.R Nos. 12715/14037-14041), which were later amalgamated into L.R No. 12715/16200. A physical planner was engaged, applications and approvals for change of user were obtained, and the title was renumbered as L.R No. 16201, later converted to Mavoko Municipality Block 46/175. He states LC E145 OF 2025 RULING 5

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that, due to the nature of the developments on the suit property and its status regarding selling the apartments therein to buyers, the 1st defendant would suffer financial loss and a loss of bargain if the sought orders are granted. 7. We now return to the 1st defendant’s application, by which the 1st defendant seeks the following reliefs: a. Spent. b. THAT an order be issued striking out the present application and the instant suit with costs for being res judicata. c. THAT the costs of this application and the suit be provided for. 8. The motion is supported by the grounds set out in the body thereof and by the supporting affidavit of Reuben Mulwa Kioko, sworn on 20 January 2026, which reiterated his previous averments that the current suit is res judicata. 9. The motion is strenuously opposed by the replying affidavit deposed on 8 April 2026 by Mbithi Kitavi, one of the deceased plaintiff’s legal administrators. He informs the court that the application is incurably defective due to a lack of proper authority to Reuben Mulwa Kioko: (a) No CR12 has been provided to show Reuben Mulwa Kioko is a director of the 1st defendant company; (b) No resolution or authority under LC E145 OF 2025 RULING 6

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Order 4 Rule 1(4) of the Civil Procedure Rules has been presented to authorise the affidavit on behalf of the 1st defendant. In the absence of such authority, he states the application is deemed incompetent and should be struck out at the outset. 10. He further asserts that the present suit concerns a different parcel of land and therefore does not meet the requirements for res judicata. He states that in the previous case, it was established that the plaintiff was an impostor, Josephat George Musembi, and the suit was dismissed. Further, the deceased plaintiff was not a party to that suit and was not known as Josephat Kitavi or Josephat George Musembi. He argues that the present suit is not a relitigation of a previously determined matter, rendering the plea of res judicata legally untenable. 11. In summary of the brief rejoinder by Reuben Mulwa Kioko via his further affidavit sworn on 12 May 2026, he avers that the purpose of the provisions of Order 4 Rule 1 (4) of the Civil Procedure Rules was to safeguard the corporate entity by ensuring that only an authorized officer could institute proceedings on behalf of corporations and the said provision was not intended to be utilized as a procedural technicality to strike out suits. 12. Despite directions from the court, only the 1st defendant filed three sets of submissions by its two law firms on record, LC E145 OF 2025 RULING 7

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Mss. B.M Mung'ata & Co. Advocates and Muttisya & Co. Advocates, respectively, dated 12 and 26 May 2026. They addressed issues of whether the legal threshold for the grant of an interlocutory injunction has been met and whether the current suit is res judicata. Consequently, having thoroughly considered the motions, their grounds, affidavits, annexures, submissions, relevant legal framework and jurisprudence, it is the considered view of this court that the issues for determination are: a) whether the current suit is res judicata, and if not, b) whether the deceased plaintiff is entitled to the reliefs he seeks. 13. However, prior to addressing the substantive issues, it is incumbent upon this court to resolve certain preliminary matters arising from the various depositions. In these depositions, both parties have urged this court to consider the substantive merits of the case. Nonetheless, this court declines to entertain such arguments at this interlocutory stage, since in applications for injunctive relief, a fundamental principle is that the court's inquiry is limited to whether a party has established a prima facie case, without delving into the merits or prematurely determining certain issues before hearing both parties. 14. Furthermore, notwithstanding the reliance placed on Order 4 Rule 1(4) of the Civil Procedure Rules in challenging the capacity of Reuben Mulwa Kioko in making depositions, this LC E145 OF 2025 RULING 8

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court finds that such a matter is a non-issue because the requisite authority, dated 20 January 2026, from the 1st defendant has been duly tendered, and the CR12, presented to the court, adequately demonstrates that he is a director of the 1st defendant. Accordingly, we now proceed to address the substantive issues sequentially. a) Whether the current suit is res judicata 15. Regarding this issue, the relevant legal framework for res judicata is found in our Section 7 of the Civil Procedure Act in the following terms: “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” 16. In illuminating this doctrine, the learned authors of Mulla, Code of Civil Procedure, 18th Ed. 2012, page 293 explained the purpose of the doctrine and its exceptions in the following words: LC E145 OF 2025 RULING 9

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“The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.” 17. The Supreme Court of Kenya in Kenya Commercial Bank Limited v Muiri Cofee Estate Limited & another [2016] eKLR summarised the guiding principles of res judicata thus: “This test Ndegwa v. is summarized James in Bernard Nderitu Githae Mugo & 2 Others, (2010) eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.” 18. Similarly, in John Florence Maritime Services Limited & another LC E145 OF 2025 RULING vs Cabinet Secretary, Transport and 10

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Infrastructure & 3 others [2021] eKLR, the apex court set out the maxims of the doctrine as follows: “It is primarily founded on the following three maxims: (1) nemo debet bis vexari pro una et eadem causa: no man should be vexed twice for the same cause. (2) interest republicae ut sit finis litium: it is in the interest of the State that there should be an end to a litigation; and (3) res judicata pro veritate occipitur: a judicial decision must be accepted as correct.” 19. It is now settled law that the principles of res judicata are conjunctive, and since the existence of the previous case was undisputed, the previous case and this case will be assessed based on the principles drawn from Section 7 of the Civil Procedure Act and settled jurisprudence; as such, an appraisal will determine the issue at hand. 20. When the doctrine of res judicata arises in a suit, the court is called to scrutinize the decision and pleadings and record of the former case that is claimed to have settled the issues in question, ascertain the issues determined in the former case, and whether these are the same in the subsequent case, establish if the parties are the same, or are litigating under the LC E145 OF 2025 RULING 11

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same title, and whether the former case was determined by a court of competent jurisdiction. 21. Since the competence of this court in this suit and the court in the former suit are unquestioned and it is also undisputed that the previous case was heard on merits, this court is left to assess the other tests which are inter alia: (a)the parties in the suits are the same (b)the matter in issue is identical in both suits and (c) parties are litigating under the same title/claim. 22. As regards test (a), this court has had an opportunity to scrutinise the previous case against the current suit and finds that, although the plaintiff in this previous case was Josephat Kioko and the national identity card he showed the court reflected the name Josephat George Musembi, he informed the trial court that his father was Kitavi Kioko, who paid for the land on his behalf. Nevertheless, it emerges that the plaintiff in the previous case derived his interest from the deceased plaintiff herein. 23. Furthermore, the 2nd defendant is a party to both actions, whereas the 1st defendant herein, through a chain of title transfers, derived title to the suit property from Kitavi Kioko (as per names appearing in the title documents), who the court in the previous case established was the 1st defendant therein who was sued in the name of Josephat Kitavi Kioko. The only party that is a stranger is the 3rd defendant, which is a LC E145 OF 2025 RULING 12

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government entity, and this court finds its introduction as a party is inconsequential since a party cannot conjure new parties to escape the doctrine of res judicata. 24. To this court’s mind, and on the application of Explanation 6 of Section 7 of the Civil Procedure Act, which provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall be deemed to claim under the persons so litigating if they show they had an interest in the suit premises and are deemed to be persons litigating in the former suit. Consequently, guided by the law, this court finds that the deceased plaintiff and the 1st defendant are persons deemed to claim and litigate under the parties in the previous suit. 25. As concerns test (b), this court has no difficulty in finding that the issue in the previous and current cases was the suit property. Imperatively, in the previous case, the plaintiff therein sought, amongst others, an order for the transfer of the suit property to him in lieu of L.R. No. 12715/27, which he had claimed belonged to him. In the previous decision, the court, in dismissing Josephat Kitavi’s case, made the following findings in favour of Josephat Kitavi Kioko; “I have no doubt whatsoever that the 1st Defendant was the proper alotee of both L.R. LC E145 OF 2025 RULING 13

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No. 12715/27 and L.R. No. 12715.539 and that had proper title to the same and that his transfer of L.R. No. 12715/27 to the 3rd Defendant was absolutely lawful.” 26. Accordingly, the deceased plaintiff's argument that the threshold of test (c) has not been met because the claim in the previous case was fraud over L.R. No. 12715/27, whilst this one is a different claim, cannot stand, as Explanation 4 of Section 7 of the Civil Procedure Rules requires parties to bring forth their entire claim, and not by piecemeal. No exceptional circumstances have been advanced to explain why the plea of fraud was not raised in relation to the suit property in the previous case. Guidance on this is drawn from the decision of Henderson -v- Henderson 1843 67 E.R 313, which is cited with approval in Onyango v Ochieno (Environment & Land Case E008 of 2022) [2023] KEELC 18938 (KLR) (18 July 2023) (Ruling), which held thus: “… where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward, LC E145 OF 2025 RULING 14

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as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time…” 27. For the above reasons, this court concludes and finds that the current suit is res judicata. This finding renders a determination of the second issue unnecessary. Ultimately, the notice of motion dated 26 February 2026 is allowed. Since it is trite law that costs follow the event, the 1st and 2nd defendants will be entitled to costs. For reasons, the 3rd defendant did not participate in the proceedings; no costs are awarded to it. In the end, this court hereby issues the following orders: - a) The deceased plaintiff’s suit and the notice of motion dated 27 November 2025 are hereby struck out, with costs of the motion and the suit awarded to the 1st and 2nd defendants. LC E145 OF 2025 RULING 15

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b) The 1st defendant’s costs in relation to the notice of motion dated 26 February 2026 shall be borne by the deceased plaintiff. c) The file is hereby effectively marked as closed. It is so ordered. Delivered and Dated at Machakos this 22nd day of September, 2026. HON. A. Y. KOROSS JUDGE 22.09.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Ms. Kanja Court Assistant. Miss Mutuku for Mr. Mungata for 1st defendant. Mr. Wekesa together with Peter Musinga for 2 nd defendant. Mr. Kamau for plaintiff. LC E145 OF 2025 RULING 16

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