Kigoro & another v Cue & 2 others

therefore urge the Court to nd that the present suit is frivolous, vexatious, scandalous, duplicitous, res judicata and an abuse of the court process. 3. The Plaintis oppose both the application and the preliminary objection. They maintain that the present proceedings are materially dierent from the previous litigation. Their position is that they now litigate on behalf of a dierent house within the larger Kathi Clan, namely the Njue House, whose proprietary interests have allegedly never been adjudicated upon. They further contend that the previous proceedings either involved dierent parties or dierent causes of action, and that Constitutional Petition No. 1 of 2020 concerns constitutional violations rather than determination of proprietary rights over the suit property. They also argue that the application has been brought prematurely before close of pleadings and before compliance with the pre-trial procedures prescribed under the Civil Procedure Rules. 4. Having directed that both the Preliminary Objection and the Notice of Motion be disposed of together through adavit evidence and written submissions, and having considered the pleadings, adavits, annexures and submissions on record, the Court is of the respectful view that the following issues arise for determination: a. Whether the Preliminary Objection raises pure points of law capable of determination without recourse to contested evidence. b. Whether the Notice of Motion seeking to strike out the suit is properly before the Court. c. Whether the present suit is barred by the doctrine of res judicata. d. Whether the suit constitutes an abuse of the court process through multiplicity of proceedings. e. Whether the Plaintis possess the requisite capacity to institute the present proceedings on behalf of the alleged Kathi Clan. f. What orders ought to issue. 5. Before considering the substantive doctrines of res judicata and abuse of process, it is appropriate to rst determine the procedural objections raised by the parties because they dene the evidentiary framework within which the Court may properly examine the matter. 6. The Interested Parties' Preliminary Objection invokes the doctrine rst articulated in the celebrated decision of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, where the former Court of Appeal for East Africa explained that a preliminary objection consists of a pure point of law argued on the assumption that all facts pleaded by the opposite party are correct, and which, if successful, disposes of the suit without requiring investigation of disputed facts. That principle has remained the cornerstone of Kenyan procedural jurisprudence and has consistently been rearmed by the superior courts. 7. Subsequent decisions have further rened the doctrine. In Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR, the Supreme Court observed that a true preliminary objection must not invite the court to resolve contested factual issues or to exercise judicial discretion. Similarly, the Court of Appeal has repeatedly emphasized that where determination of an objection depends upon evaluation of evidence, examination of documents or resolution of factual controversies, the matter ceases to be a true preliminary objection and should instead proceed through the normal evidentiary process. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5766/eng@2026-09-24 2

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8. In the present matter, several grounds advanced in the Notice of Preliminary Objection are plainly incapable of determination without reference to evidence outside the pleadings. Whether the Plaintis possess authority from members of the alleged Kathi Clan, whether they were parties to earlier proceedings in the same capacity, whether they participated in Constitutional Petition No. 1 of 2020 with or without their consent, whether the claims advanced arise from identical causes of action, and whether previous proceedings conclusively determined the proprietary interests presently asserted are all matters that inevitably require examination of adavits, pleadings, judgments, proceedings and other documentary evidence. Such issues extend well beyond the limited scope of a pure preliminary objection contemplated in Mukisa Biscuit. 9. Indeed, the Interested Parties themselves relied upon numerous annexures and factual assertions in support of their objection. Once a court is invited to interrogate previous proceedings, compare pleadings, ascertain representative capacities, evaluate documentary exhibits and determine whether dierent litigants represent identical legal interests, the objection necessarily assumes an evidentiary character inconsistent with the strict procedural connes of a preliminary objection. 10. This is not to say that questions of res judicata or abuse of process can never be raised through a preliminary objection. They often can. However, they qualify as pure points of law only where the previous proceedings, parties, subject matter and nal determination are either admitted or otherwise incapable of factual controversy. Where, as here, the Plaintis expressly dispute the identity of parties, the representative capacity, the causes of action, the legal interests asserted and even their participation in one of the previous proceedings, those matters cannot properly be resolved merely through a preliminary objection in the abstract. 11. Accordingly, while the Preliminary Objection raises important legal doctrines, the Court nds that, in the circumstances of this case, it does not qualify as a pure preliminary objection in its entirety within the meaning of Mukisa Biscuit. That conclusion, however, does not dispose of the substantive questions because the Defendants have simultaneously placed before the Court a substantive application supported by adavit evidence seeking substantially identical reliefs. It is therefore through that application, and upon consideration of the evidentiary material properly placed before the Court, that the doctrines of res judicata, abuse of process and representative capacity properly fall for determination. 12. The Plaintis have argued that the application is premature because pleadings have not closed and because they intend to amend their pleadings. With respect, the Court is unable to agree that the mere possibility of future amendment deprives the Court of jurisdiction to consider whether proceedings presently before it are legally sustainable. A litigant cannot defeat a properly raised objection simply by indicating that pleadings may later be amended. The Court must determine the application on the basis of the pleadings as they presently stand. 13. Equally, although striking out remains one of the most drastic powers available to a civil court, it is a jurisdiction expressly preserved under Order 2 Rule 15 of the Civil Procedure Rules and one that must be exercised whenever continuation of proceedings would plainly amount to an abuse of the judicial process. At the same time, courts have consistently cautioned that this jurisdiction should be exercised sparingly because striking out summarily terminates litigation without a full hearing. 14. The classic statement remains that of DT Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1, where Madan JA observed that a court ought to sustain rather than terminate proceedings whenever a suit discloses even a semblance of a cause of action capable of being cured through amendment. That decision has become a guiding principle in Kenyan civil procedure and reects the constitutional preference for determination of disputes on their merits. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5766/eng@2026-09-24 3

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15. Nevertheless, DT Dobie was never intended to insulate proceedings that are plainly barred by statute or by well-established doctrines such as res judicata or abuse of process. A court cannot, in the name of substantive justice, permit litigation that the law itself prohibits. Articles 48, 50 and 159 of the Constitution promote access to justice and determination on the merits, but they do not abolish procedural doctrines whose purpose is to protect the integrity of the judicial process and uphold the nality of litigation. 16. It therefore becomes necessary to determine whether the materials placed before the Court establish that the present proceedings are legally barred either by the doctrine of res judicata, by abuse of process, or by some other principle of law. 17. The doctrine of res judicata is codied under Section 7 of the Civil Procedure Act, which provides that: “ 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." 18. The doctrine embodies one of the oldest principles of civil justice—that litigation must, at some point, attain nality. It serves not merely the interests of successful litigants but also the wider public interest in certainty of judicial decisions, ecient use of judicial resources and public condence in the administration of justice. Courts exist to determine disputes, not to provide litigants with repeated opportunities to reopen controversies that have already been conclusively settled. 19. The Supreme Court authoritatively restated the modern scope of the doctrine inJohn Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] KESC 39 (KLR). The Court observed that the doctrine is founded upon public policy and is intended to protect the judicial process from repetitive litigation while safeguarding parties from the expense and oppression of defending multiple suits over the same dispute. The Court further emphasized that the doctrine should not be approached mechanically but should instead be applied after careful examination of the substance of the previous proceedings and not merely their form. 20. Similarly, the Court of Appeal inIndependent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR distilled the elements which must coexist before the doctrine may be invoked, namely: i. the matter in issue must be directly and substantially the same; ii. the former suit must have been between the same parties or parties claiming under them; iii. those parties must have litigated under the same title; iv. the issue must have been heard and nally determined; and v. the previous court must have possessed competent jurisdiction. 21. These ingredients are conjunctive rather than alternative. Failure to establish any one of them is ordinarily fatal to a plea of res judicata. 22. The Court has therefore carefully examined the material placed before it against each of those statutory requirements. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5766/eng@2026-09-24 4

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23. There is no serious dispute that Embu PMCC No. 128 of 1990 existed and culminated in a judgment delivered in 1997. Equally undisputed is the existence of ELC No. 170 of 2014, itself originating from earlier proceedings led as HCCC No. 3 of 2012 before subsequent transfer and renumbering. The parties equally do not dispute that the latter suit was eventually withdrawn by the Plainti after reinstatement. 24. What is vigorously disputed is whether those proceedings involved the same parties litigating under the same title and whether they nally determined the very questions now presented before this Court. 25. The Applicants maintain that the present Plaintis were themselves participants in PMCC No. 128 of 1990 and that the second Plainti personally instituted ELC No. 170 of 2014. They further contend that all those proceedings sought declarations that the suit property constituted clan land belonging to members of Kathi Clan and that the present suit merely repackages the same claim under dierent pleadings. 26. The Plaintis, on the other hand, contend that PMCC No. 128 of 1990 was prosecuted by members of Muracha House whereas they belong to Njue House, whose proprietary interests have allegedly never been adjudicated. They further maintain that Constitutional Petition No. 1 of 2020 was instituted without their authority and that the present suit advances a distinct claim concerning proprietary rights rather than constitutional violations. 27. The Court has considered these rival positions with considerable care. 28. The doctrine of res judicata does not require absolute identity of names appearing on the pleadings. Section 7 itself expressly extends its reach to "parties under whom they or any of them claim, litigating under the same title." Consequently, courts have consistently declined invitations to circumvent the doctrine merely by substituting dierent individuals where the substantive interest represented remains identical. 29. That principle is neither novel nor peculiar to Kenyan jurisprudence. In the well-known English decision ofHenderson v Henderson (1843) 67 ER 313, Sir James Wigram V-C observed that parties are required to bring forward their whole case once and for all and are precluded from reopening matters that properly belonged to previous litigation. The principle has since evolved into a broader doctrine against abuse of process and has repeatedly informed Commonwealth jurisprudence, including that of Kenyan superior courts. 30. Likewise, inJohnson v Gore Wood & Co. [2002] 2 AC 1, the House of Lords explained that the court must look beyond technical identity of parties and instead examine whether subsequent litigation improperly seeks to relitigate matters that ought fairly to have been resolved in earlier proceedings. Kenyan courts have increasingly adopted this purposive approach when considering repetitive litigation. 31. Applying those principles, the Court cannot accept the Plaintis' argument that merely describing themselves as members of Njue House automatically creates an entirely new legal personality distinct from the wider Kathi Clan on whose behalf they admittedly purport to litigate. 32. Throughout the present pleadings, the Plaintis consistently describe the suit property as belonging to Kathi Clan and seek reliefs on behalf of that larger community. The cause of action is therefore not pleaded as a dispute conned to Njue House inter se but as one asserting communal proprietary rights against the Defendants. If indeed previous proceedings similarly advanced claims on behalf of Kathi Clan concerning ownership of the same parcel, the Court must carefully examine whether the present proceedings amount to relitigation under a dierent representative arrangement. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5766/eng@2026-09-24 5

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33. However, that inquiry cannot end there. 34. The Applicants bear the burden of demonstrating not merely similarity of subject matter but that the previous proceedings nally determined the precise proprietary interests now asserted. While copies of the previous judgment and proceedings have been exhibited, the Court must remain astute not to extend the doctrine beyond its statutory limits. 35. Res judicata is a doctrine of justice rather than technicality. It bars only matters that were actually determined or which properly belonged to the earlier litigation. It should not become an instrument for shutting out genuinely distinct causes of action merely because they arise from the same parcel of land. 36. The Court has therefore examined whether the Applicants have demonstrated that the proprietary interests presently asserted by the Plaintis were directly and substantially determined in PMCC No. 128 of 1990. 37. From the material before the Court, it is evident that PMCC No. 128 of 1990 concerned the same parcel of land and involved persons asserting claims on behalf of Kathi Clan. It is equally evident that the proceedings culminated in a judgment dismissing the claim. However, the Court has not been furnished with sucient material to conclude, at this interlocutory stage, that every proprietary interest now pleaded by the present Plaintis was necessarily adjudicated upon. The Plaintis expressly contend that the earlier proceedings concerned dierent family houses and dierent representative interests. Whether that contention ultimately succeeds is a matter requiring closer examination of the evidence at trial. 38. The same observation applies to ELC No. 170 of 2014. 39. The Applicants place considerable reliance upon the fact that the second Plainti withdrew that suit after reinstatement. Respectfully, withdrawal of a suit does not ordinarily amount to a nal adjudication on the merits for purposes of Section 7 of the Civil Procedure Act. A withdrawn suit generally leaves the substantive controversy undecided unless the order of withdrawal expressly provides otherwise or statutory provisions dictate a contrary consequence. 40. Indeed, the Court of Appeal has consistently distinguished dismissal after full hearing from withdrawal before determination. Whereas the former ordinarily attracts res judicata, the latter does not necessarily extinguish the underlying cause of action, though it may have other procedural consequences, including exposure to costs or the operation of the law relating to abuse of process in appropriate circumstances. 41. Accordingly, the withdrawal of ELC No. 170 of 2014, standing alone, cannot constitute a previous nal determination capable of founding a plea of res judicata. 42. The Applicants have also referred to Constitutional Petition No. 1 of 2020. 43. Again, the Court is unable, on the material presently before it, to conclude that the petition constitutes a previous nal determination of the proprietary questions now before this Court. Firstly, no evidence has been placed before the Court demonstrating that the petition has itself been nally determined. Secondly, constitutional litigation and ordinary civil proceedings, although they may arise from common facts, frequently involve dierent causes of action, dierent legal standards and dierent remedies. Thirdly, the Plaintis expressly dispute having authorised their inclusion as petitioners, an issue incapable of summary determination on adavit evidence alone. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5766/eng@2026-09-24 6

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44. The Court therefore nds that, on the material presently before it, the strict statutory ingredients of res judicata under Section 7 of the Civil Procedure Act have not been demonstrated with the degree of certainty necessary to summarily terminate the suit at this stage. 45. That nding, however, does not conclude the matter. 46. The doctrine ofabuse of the court process possesses a considerably wider ambit than res judicata. Proceedings may escape the technical connes of Section 7 and yet still constitute an abuse of judicial process. It is therefore necessary to examine whether the history of repeated litigation concerning this property nevertheless justies striking out the present proceedings on that broader ground. 47. The doctrine ofabuse of the court process is conceptually distinct from, and wider than, the doctrine of res judicata. Whereas res judicata is anchored in Section 7 of the Civil Procedure Act and is dependent upon the existence of a previous nal determination satisfying the statutory ingredients, abuse of process derives from the Court's inherent jurisdiction to prevent its procedures from being employed oppressively, vexatiously or for purposes inconsistent with the administration of justice. 48. In Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, the Court of Appeal observed that abuse of process is an imprecise but indispensable concept, the categories of which cannot be exhaustively dened. It encompasses proceedings that are frivolous, oppressive or manifestly unfair to the opposing party or that otherwise bring the administration of justice into disrepute. The Court emphasized that the jurisdiction exists to preserve the integrity of the judicial process itself. 50. Likewise, inUhuru Highway Development Ltd v Central Bank of Kenya & Others, the Court of Appeal cautioned against repeated litigation through dierent procedural devices where the substance of the dispute remains unchanged. The Court stressed that judicial process should never be converted into a mechanism through which litigants endlessly test alternative avenues in the hope of eventually obtaining a favourable outcome. 51. The comparative common law has adopted a similar approach. InJohnson v Gore Wood & Co. [2002] 2 AC 1, Lord Bingham observed that abuse of process extends beyond technical res judicata and requires the court to ask whether, in all the circumstances, the subsequent proceedings would be manifestly unfair or would otherwise bring the administration of justice into disrepute. The inquiry is therefore one of substance rather than form. 52. Applying those principles to the present dispute, this Court cannot ignore the considerable history of litigation surrounding Land Parcel No.Mbeti/Gachuriri/170. The material placed before the Court demonstrates that disputes concerning ownership of the property have persisted over several decades and have generated multiple proceedings before courts of competent jurisdiction. That history undoubtedly calls for judicial vigilance against repetitive litigation. 53. Nevertheless, judicial vigilance must not be confused with premature foreclosure of claims. Courts must carefully distinguish between repetitive litigation that merely recycles previously determined disputes and proceedings that raise genuinely distinct legal controversies requiring adjudication. The constitutional guarantee of access to justice under Article 48 and the right to a fair hearing under Article 50 oblige the Court to exercise the jurisdiction to strike out proceedings with great restraint. 54. The Applicants have argued that the present Plaintis are simply attempting to resurrect earlier litigation by changing the individuals appearing on the pleadings while maintaining substantially the same claim. There is considerable force in that submission. The Court also notes that the Plaintis have not candidly addressed the full history of previous litigation concerning the suit property. Full https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5766/eng@2026-09-24 7

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disclosure of previous proceedings touching on the same subject matter is an important obligation owed to the Court, particularly where interim orders are sought. Failure to make such disclosure may, in appropriate cases, justify the discharge of interim relief or attract adverse orders as to costs. 55. However, the remedy sought before this Court is not merely the discharge of interlocutory orders but the summary termination of the entire suit. Such relief should only be granted where the Court is satised that continuation of the proceedings would serve no legitimate forensic purpose. 56. Having carefully examined the pleadings and annexures, the Court is unable to reach that conclusion. 57. The Plaintis assert that they litigate on behalf of a section of the alleged clan whose proprietary interests have never been adjudicated upon. Whether that assertion ultimately withstands scrutiny is a question that can only be answered after evidence is led and tested through cross-examination where necessary. Equally, the precise legal relationship between the previous litigants and the present Plaintis, the extent to which they represent identical interests, and whether the previous judgments conclusively determined the present proprietary claims are matters that cannot be conclusively resolved on the basis of the adavit material presently before the Court. 58. That conclusion accords with the caution expressed inDT Dobie & Company (Kenya) Ltd v Muchina, namely that a court should not summarily terminate proceedings where the issues require factual investigation. It equally accords with the Supreme Court's observations inJohn Florence Maritime Services Ltd (supra) that courts should avoid an overly technical application of procedural doctrines where factual distinctions remain genuinely arguable. 59. The Court therefore declines the invitation to strike out the suit at this interlocutory stage on the ground of abuse of process. 60. The Court now turns to the Interested Parties' argument concerning representative capacity and locus standi. 61. The Interested Parties submit that the Plaintis have neither demonstrated that they represent Kathi Clan nor complied with the mandatory requirements governing representative proceedings underOrder 1 Rule 8 of the Civil Procedure Rules. 62. There is considerable merit in the legal proposition advanced by the Interested Parties. Order 1 Rule 8 is not a mere procedural technicality. It exists to ensure that where one or more persons sue or defend on behalf of numerous others sharing the same interest, all aected persons receive notice of the proceedings and are aorded an opportunity either to participate or to opt out. Representative litigation binds absent parties; strict compliance with the Rule therefore serves important constitutional values of procedural fairness. 63. The Court of Appeal has consistently held that the requirements of Order 1 Rule 8 are mandatory where a suit is genuinely instituted in a representative capacity. Failure to comply may, depending on the circumstances, render such proceedings incompetent. 64. However, the present pleadings disclose a measure of ambiguity regarding the precise capacity in which the Plaintis sue. On the one hand, they describe themselves as members of Kathi Clan seeking relief on behalf of the clan. On the other hand, they simultaneously plead proprietary interests attributable to members of Njue House. That ambiguity ought to be claried. 65. The Plaintis themselves indicate in their replying adavit that they intend to amend their pleadings to better articulate the issues in controversy. In the Court's view, the proper course is not to terminate the proceedings but to require the Plaintis to regularise their pleadings and unequivocally state whether they sue in their personal capacity, in a representative capacity under Order 1 Rule 8, or under any https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5766/eng@2026-09-24 8

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other recognised legal capacity. If they elect to proceed representatively, they must strictly comply with the requirements of the Civil Procedure Rules before the matter proceeds further. 66. Such an approach achieves an appropriate balance between two competing constitutional imperatives. On the one hand, it safeguards the Defendants from indenite and unstructured litigation. On the other, it preserves the Plaintis' right to have genuinely arguable claims determined on their merits in accordance with Articles 48, 50 and 159 of the Constitution. 67. The Court also considers it necessary to observe that this ruling should not be construed as expressing any opinion on the substantive ownership of Land Parcel No. Mbeti/Gachuriri/170. The Court has only determined whether the suit should be summarily terminated at this preliminary stage. Questions concerning ownership, customary interests, historical occupation, trusts, limitation, community rights or any other substantive claims remain matters for trial should the suit survive the procedural directions issued herein. 68. Ultimately, while the Applicants have demonstrated an extensive history of litigation relating to the suit property and have properly drawn the Court's attention to previous proceedings, they have not, in the Court's respectful view, discharged the burden necessary to justify the drastic remedy of striking out the suit in limine. The interests of justice are better served by permitting the procedural deciencies to be addressed and thereafter allowing the Court to determine, upon a complete evidentiary record, whether the Plaintis have any legally sustainable claim. 69. Accordingly, and for the foregoing reasons, the Court makes the following orders: 1. The Notice of Preliminary Objection dated 6th December 2024 is declined, the Court nding that the issues raised are not, in the circumstances of this case, capable of determination as pure points of law within the meaning of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696. 2. The Defendants' Notice of Motion dated 6th May 2025 seeking to strike out the suit is dismissed. 3. The Plaintis shall, within thirty (30) days of the date hereof, le and serve an amended Plaint setting out with precision the legal capacity in which they sue and, should they continue to prosecute the suit in a representative capacity, they shall fully comply with the requirements of Order 1 Rule 8 of the Civil Procedure Rules before the matter is certied ready for trial. 4. The Defendants and the Interested Parties shall be at liberty to amend their respective pleadings, raise any appropriate preliminary issues arising from the amended pleadings, and to rely on all previous proceedings, judgments and orders at the trial in support of any plea of res judicata, estoppel, abuse of process or any other defence available in law. 5. The interim orders, if any, shall remain in force only until the next case management conference, at which the Court shall give further directions on compliance with Order 11 of the Civil Procedure Rules and on the future conduct of the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5766/eng@2026-09-24 9

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6. The costs of both the Notice of Preliminary Objection dated 6th December 2024 and the Notice of Motion dated 6th May 2025 shall abide the outcome of the main suit. It is so ordered. DATED, SIGNED AND DELIVERED AT EMBU THIS 24TH DAY OF SEPTEMBER, 2026. HON. E.C CHERONO JUDGE In the presence of; Mr. Kiiru H/B Wandugi for the 1st & 2nd Defendants Mr. Kimanzi for the plaintis https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5766/eng@2026-09-24 10

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