BONNIE L. CHUNG AND ZEKE CHEBORIN KISSA AND 1 Others VS ROSEMARY MUTHEU NGUTA

2.    Counsel for the  Defendant filed submissions dated  28th January 2026 and  listed three issues for determination as follows:

3.     On the first issue as to whether the   preliminary objection is proper before the court, counsel relied on the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696,  and submitted that  res judicata and the doctrine of exhaustion  are remedies which go to the jurisdiction of the court, thus pure points of law.

4.    On the second issue as to whether prayer (a) is res judicata, counsel relied on Section 7 of the Civil Procedure Rules, and submitted that from the pleadings, the defendant was removed as a trustee of Lamb Keepers Ministries and replaced with the 2nd Plaintiff in 2022. The defendant filed Nakuru High Court Constitutional Petition No. E022 of 2022 challenging her removal, where the  Defendant was a Petitioner while the Plaintiffs  were interested parties, and  the issue for determination was whether her removal as a trustee & official of the society was lawfully done, and Justice Nyaga on 1st November,2023, dismissed her Petition with costs. That decision upheld her removal as a trustee of that Society, and since she is no longer a trustee, she has no power/capacity to sign any document.

5.    Counsel stated that the Plaintiffs availed the Judgment in Nakuru H.C Constitutional  Petition E022 of 2022 in their list of documents and relied on the case of  Tengele v Kamau & 4 others [2021] KEELC 6740 (KLR), where the court held that  although  res judicata can sometimes be raised through a preliminary objection, it is best handled by way of a Notice of Motion where, the judgments or rulings can be attached to verify the facts and the Respondent given an opportunity to respond to the facts.

6.     Mr. Chaungo submitted that  if indeed the High Court dismissed the defendant's challenge on her removal as a trustee, why would the Plaintiffs invite the ELC to determine whether she is still a trustee or not? For this court to determine prayer (a), it will have to re-open those issues, take evidence, and analyse the process of her removal, which was already heard and determined by the High Court.

7.    Counsel further submitted that this suit may be fashioned as a land dispute but the fact remains that prayer (a) cannot be entertained  taking into consideration that it may cause  embarrassment if the court were to render a conflicting decision from the High Court decision and cited the case of  Diocese of Eldoret Trustees (Registered) v Attorney General (on behalf of the PS Treasury) & Another [2020] eKLR.

8.    On the third issue as to whether prayers b. c & d are prematurely brought before exhaustion of the remedies provided for under Section 79 of the Land Registration Act, counsel relied on Section 29 of the Societies Act, which   allows Societies to change trustees every single year.

9.    Counsel further submitted that from the pleadings, it is clear that the 1st plaintiff’s    and defendant's names were reflected in the register as trustees of Lambkeepers Ministries, and  they  neither owned the properties jointly nor in common, as the parcels were the property of Lambkeepers Ministries.  Further, that changing a trustee does not affect the proprietorship/ownership rights of Lambkeepers Ministries.

10.    It was Mr. Chaungo’s submission that Section 79 (1)  of the Land Registration Act  gives the  Land Registrar powers to rectify the register as long as the proprietorship of such society remains unaffected. Otherwise, the new trustees would be filing a case every single year to have their names in the register, and the Plaintiffs should have  applied to the Land Registrar to rectify the register on the grounds that the Society had changed its trustees, by providing the  minutes appointing new trustees or any other requisite document and the names of the new trustees to be inserted in the register in place of the defendant.

11.      It was counsel’s submission that if the Registrar declines for whatever reason, then they can invoke this Court's supervisory Jurisdiction through a judicial review writ of mandamus compelling the Registrar to make the changes.

12.    According to counsel,  the plaintiff has no  allegations of fraud, mistake, or omission against the defendant.  Further, there is no  prayer seeking to restrain or compel the defendant  from doing anything. Counsel relied on the case of  Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others (2015) eKLR,  where  the Court of Appeal stated that it is imperative that where a dispute resolution mechanism exists outside courts, the same should be  exhausted before the jurisdiction of the courts is invoked.

13.    Counsel urged the court to  allow the preliminary objection and strike out the suit with costs.

14.     Counsel filed submissions dated 23rd February 2026, and identified the issue for determination as to whether the preliminary objection has merit.

15.    Counsel relied on  the cases of Mukisa (supra), Samuel Kipkoros Cheruipot and Philip Singei and 1 Others Vs Angata Bargoi Farmers and The Land Registrar Transmara And 1 Others  and Omondi vs National Bank of Kenya Limited and 2 others,' as quoted in the decision of J N & 5 others v Board of Management, St. G School Nairobi & another [2017] eKLR,  and submitted that the preliminary objection lacks merit and should be dismissed with costs.

16.    On the issue of res judicata, counsel relied on the cases of John Florence Maritime Services Limited & another —v- Cabinet Secretary Transport & Infrastructure & 3 Others (2015) Njue Ngai v Ephantus Niiru Ngai & another [20161 eKLR,  and submitted that  the parties, subject matter and the cause of action in Nakuru HC Constitutional Petition E22/22 and the present case are not identical.

17.    Mr. Mbiyu  submitted that the cause of action and subject matter in the constitutional petition was the alleged unlawful removal of the Petitioner as treasurer and secretary of Lambkeeper Ministries, where she sought orders of  declaration, certiorari, mandamus, and injunction, and in the current case, the  cause of action  is the rectification of registers of the various parcels of land.

18.     Counsel further submitted that the judgment did not deal with the  rectification of the register as the High Court does not have jurisdiction over the issue. At Paragraphs 90 and 91 of the judgment in the constitutional petition, the High Court held that if the Petitioners were dissatisfied with their removal as treasurer and secretary of Lambkeepers Ministries,  then they should first have raised the issue with the Registrar of Societies, who effected such changes.

19.    It was Mr. Mbiyu’s submission that  this Court derives its jurisdiction from Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act 2011 to hear and determine disputes relating to environment and land, and Section 79, of the Land Registration Act only empowers the Land Registrar to rectify the register in limited circumstances, such as where there are errors, omissions or formal defects or changes in the name of a proprietor.

20.    Counsel relied on the case of Kiro v Chief Land Registrar; Gakuo & another (Interested Parties) (Environment and Land Judicial Review Case E018 of 2025) [2025] KEELC 7705 (KLR),   and submitted that  for   the Land Registrar to exercise this power, the consent of the affected proprietors is required, and in this case,  following the lawful replacement of the Defendant as a trustee of Lambkeepers Ministries, it became necessary to rectify the land registers to remove her name and replace it with that of the 2nd Plaintiff, but the Defendant has refused to sign the necessary documents to facilitate this rectification.

21.    According to counsel, the Plaintiffs' claim  goes beyond the limited administrative mandate of the Land Registrar and  raises substantive questions concerning trusteeship and proprietary rights, which fall squarely within the jurisdiction of this Honourable Court. Further, to invoke Section 79 of the Land Registration Act  at this stage would  require the  Court to probe into the nature of the alleged error on the register, the identity of the proprietors, and the reliefs sought by the Plaintiffs, which are not pure points of law but of fact.

22.     Counsel urged the court to dismiss the preliminary objection with costs.

23.     The issues for determination are whether the preliminary objection on the ground that the suit is res judicata, and whether the Plaintiffs have exhausted the remedies provided for under section 79 of the Land Registration Act, 2012.

24.    The  nature and scope of a “preliminary issue” is  defined in the e case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696 at 700 as follows

25.     Similarly, in the Supreme Court  case of Hassan Ali Joho & another -Vs- Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013 [2014] eKLR,  the court  held thus:

26.     The Defendant has raised two issues, namely: that this suit is res judicata as  there was  a similar suit in the Nakuru High Court Constitutional Petition No. E22 of 2022, where the Defendant was challenging her removal as a Trustee, which was dismissed on 1st November 2023, the second issue is that the Plaintiff has not exhausted the remedies under Section 79 of the Land Registration Act, 2012.

27.    It is not in dispute that  the Defendant was removed as a  Trustee of  LambKeepers Ministries and that the Defendant filed a Petition to challenge her removal, which was dismissed by the High Court on 1st November 2023.  The Petition was purely on the issue of her removal and not the rectification of the titles to remove her name and be replaced by one  Zeke Cheborin Kissa who took over as a Trustee in her place.

28.    The  Plaintiffs sought the following orders  in the Plaint:

29.     The above prayers in the Plaint cannot be deemed   as having been heard and determined by a competent court involving the same parties, the same subject matter in Petition No. E022 of 2022.  It follows that this matter is not res judicata as submitted in the Defendant’s preliminary objection.

30.    Furthermore,  in the case of Suleiman Said Shabhal vs Independent Electoral & Boundaries Commission & 3 Others [2014] eKLR ,  the court, in  addressing what amounts to res judicata, held as follows: -

31.     On the second issue, whether the Plaintiff has exhausted the remedies provided for under Section 79 of the Land Registration Act, it should be noted that  there are two processes, in this case, one at the Registrar of Societies where the name change is effected ,   and at the Land Registry where the title is rectified. The  rectification which is envisaged affects the rights of a registered owner and cannot be treated as either a   minor or a typographical  error, which can be cured by Section 79 of the Land Registration Act  which empowers the Land Registrar to act upon.

32.    Section 79(1) of the Land Registration Act provides as follows:

33.     Therefore, Section 79 of the Land Registration Act 2012, which allows the  Land Registrar to rectify errors, does not apply when the rectification involves complex legal disputes, substantive ownership rights, or allegations of fraud that require a hearing and determination of the ownership dispute.  The rectification is restricted to clerical, administrative, or undisputed errors, and not the cancellation of validly registered titles.

34.    Section 80 of the Land Registration Act empowers the court to order the Land Registrar to cancel a title or rectify an entry in the register, upon satisfaction that the same was entered vide misrepresentation, fraudulently, or by error.

35.    I have considered the preliminary objection, the submissions by counsel together with the relevant authorities, and find that the same lacks merit, and is therefore dismissed with costs to the Plaintiff.