MARY NJERI GICHEHA VS State Law Office AND THE LAND REGISTRAR, NYERI

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1. The Ex parte applicant filed Chamber Summons dated 7th October 2024 seeking the following orders:
1. Spent.

2. THAT leave be granted to the Applicant to apply for an Order of Certiorari to issue, to remove to the Honourable Court the decision of the Land Registrar to reject the application for registration of a Caution over LR NO. NYERI/WARAZA/1362.

3. THAT leave be granted to the Applicant to apply for an Order of Prohibition to prohibit the Land Registrar from rejecting the application for registration of a Caution over LR NO. NYERI/WARAZA/1362.

4. THAT leave be granted to the Applicant to apply for an Order of Mandamus to order the Land Registrar from rejecting the application for registration of a Caution over LR NO. NYERI/WARAZA/1362.

5. THAT the leave so granted operates as a stay of proceedings in question, that is, the rejection of the application for registration of a caution over LR NO. NYERI/WARAZA/1362.
2. The Application was supported by the Applicant''s verifying affidavit and statutory statement. She deposes that on 4th May 2024, she filed an application for registration of a caution over LR Nyeri/Waraza/1362 (herein referred to as the suit land), which the Land Registrar, Nyeri, rejected, the 1st Respondent herein.
3. The Ex parte Applicant states that vide letter dated 1/8/2024, she wrote to the 1st Respondent asking to be furnished with reasons for the rejection of the application for the registration of the caution over the suit land.
4. The Ex parte Applicant contends that the Land Registrar has acted arbitrarily, unreasonably and has contravened principles of natural justice by rejecting his application.

The 1st Respondent’s Grounds of Opposition.
1) The 1st Respondent filed Grounds of opposition dated 14th January 2025, opposing the instant application because the Applicant does not fit the criteria under Section 71 of the Land Registration Act, 2012, since she claims a beneficiary interest, and it is devoid of merit.

The 2nd-4th Respondents'' Notice of Preliminary Objection
5. The 2nd-4th Respondents filed a Notice of Preliminary Objection dated 20th December 2024, seeking to have the judicial review struck out on the following grounds:-
1) The application is res judicata on account of:-
i. SRMCC NO.237 OF 1972 Gicheha Mwangi Mwaniki-Vs-George Gichuhi Mwaniki that determined the issue of ownership of the suit property against the Plaintiff, thereon, the ex parte Applicant''s deceased husband, under whom she claims ownership of the suit land.
ii. NYERI ELC NO.3 of 2014(O.S) consolidated with Nyeri HCC No.240 of 2013 Mary Njeri Gicheha-Vs Benedict Obonyo Omollo & 2 others, where judgment was entered on 28th February 2018 for the 2nd to 4th respondents as the suit was res judicata in the said Magistrate case.

2) The application is res sub judice on account of the ex parte application for review of the judgment of the Court of Appeal in NYERI CIVIL APPEAL NO. 167 OF 2018 MARY NJERI GICHEHA vs BENEDICT OBONYO OMOLLO & 2 OTHERS, where judgment was entered on 1st December 2023 dismissing the Appeal against the decision of this court.

3) The ex parte Applicant is guilty of non-disclosure and/or suppression of material facts relating to the above suits and is undeserving of the grant of the orders sought.
The 4th Respondent’s replying affidavit
6. The 4th Respondent herein filed two replying affidavits, sworn on 4th February 2025 and 10th June 2025 on his own behalf and on behalf of the 2nd and 3rd Respondents.  The three are the registered trustees of Kids Alive, who hold the title to the suit land. They opposed the application and deposed that the Applicant is guilty of material non-disclosure of pertinent facts. The deponent stated that he was aware that the Applicant’s late husband, Gicheha Mwangi Mwaniki, was sued over the suit land in SRMCC No.237 of 1972, which suit was determined against him on 26th February 1981. The Applicant''s husband unsuccessfully appealed this decision vide Nyeri HCCA No.6 of 1983.
7. The Applicant filed another suit against the predecessor of Kids Alive, in Nyeri CMCC NO.59 of 2007, which was dismissed with costs on 18th April 2008. The Applicant filed 2 other suits against the 2nd and 3rd respondents vide Nyeri HCC No.240 of 2013 and Nyeri ELC No. 3 of 2014(OS), which were consolidated and sought similar reliefs as the earlier case, Nyeri CMCC NO.59 of 2007. The suits were dismissed and struck out respectively on 28th February 2018. Her subsequent appeal, Nyeri COA Civil Appeal No. 167 of 2018, was equally dismissed with costs, and there is a pending application for review of the Judgment in the said appeal.
8. The 4th Respondent deposed that the application herein is tantamount to forum shopping and is a gross abuse of the court process. He termed the instant application a non-starter and fatally defective.

The Applicant’s further affidavit.
9. The Applicant filed a further affidavit in response to the Respondents'' Replying Affidavit and deposed that the 1st Respondent failed to observe section 20(2) of the Land Control Act, which is an offence. She had moved the Central Land Control Board, and a determination was made under section 13 (2) of the Land Control Act Cap 302, which decision was final, but the Respondent ignored it contrary to section 22 of the Land Control Act.
10. The Applicant lodged the caution, and the registrar rejected it and recommended that she take him to court. She requested him to explain his actions under the Fair Administrative Actions, which was ignored.
11. She deposed that the actions by the Respondents are in contravention of Section 22 of the Land Control Act and therefore criminal. This court must stop the Respondents from furthering voided transactions, making false documents and uttering them in court.
12. In view of this, the Applicant deposed that it is only fair, just and expedient that the Respondent''s preliminary Objection dated 20th December 2024 be dismissed and she be allowed to proceed with her Application dated 7th October 2024.
The Applicant’s written submissions
13. Counsel for the Applicant submitted that the Applicant herein is a beneficiary of the suit land, as the widow of Gicheha Mwangi Mwaniki (Deceased), who had a legal claim over the aforementioned parcel of land. Vide the decision of the Central Provincial Land Control Appeals Board, Land Parcel No. Nyeri/Waraza/409 was subdivided into Nyeri/Waraza/633, 634, 635, and 636, which were later combined to form the current Land Parcel No.Nyeri/Waraza/1362 (Suit Land).  Despite consent to subdivide having been cancelled, the registration was still effected, contrary to the decision of the Central Land Control Appeal Board dated 16th April 1993 and Section 13(2) of the Land Control Act Cap 302.
14. On 4th May 2024, the Exparte applicant filed an application for registration of a Caution over the suit land, which application was rejected by the Land Registrar on the grounds that the interest claimed is not provided in the Act. The Applicant claims that the subject property was in danger of being sold by the 2nd to 4th Respondents herein.
15. Counsel submitted that the ex parte applicant is entitled to the orders sought, as the Land Registrar acted arbitrarily, unreasonably, and in contravention of principles of natural justice by rejecting the application for registration of the caution. The Applicant herein is entitled to a fair administrative action guaranteed under Article 47 of the Constitution.
16. Regarding the 1st Respondent’s grounds of opposition and the 2nd -4th Respondents'' preliminary objection, Counsel submitted that a Preliminary Objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by the rules of evidence.  He relied on the holding in Mukisa Biscuit Manufacturing Co. Ltd...Vs...West End Distributors Ltd (1969) EA 696. Counsel submitted that the Preliminary Objection on Res Judicata will require probing of evidence. The ownership of the suit property herein is in dispute, and the same will require evidence to determine the rightful owner. That the actions of the 1st Respondent are criminal and the ex parte applicant''s application be allowed to proceed and be heard.
17. On costs, the ex parte applicant''s counsel quoted section 27 of the Civil Procedure Act and the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, Sup Ct Pention No 4 of 2012, [2014| eKLR, where the court stated that costs follow the event.
The 2nd-4th Respondents’ submissions
18. Counsel for the 2nd -4th Respondents submitted that this Court has no jurisdiction to hear and determine this matter, based on section 7 of the Civil Procedure Act on res judicata. They relied on the authority of Njue Ngai v. Ephantus Njiru Ngai & another (2016 )KECA 805(KLR).
19. Counsel also submitted that the matter is res sub judice due to the pending review application before the Court of Appeal in Nyeri Civil Appeal no.167 of 2018 on the Court’s judgment dismissing the Applicant’s case.
20. Counsel accused the Applicant of coming to court with unclean hands due to material non-disclosure of prior suits. They submit that the Applicant owes this Honourable Court a duty to conduct the application with utmost good faith by making full and frank disclosure of all material facts, as was held in the authority of Republic vs County Council of Kwale & another ex parte Kondo & 57 others(1998)IKLR(E&L)
21. It was further submitted that the Court cannot stay a negative order, such as the Land Registrar rejecting the Applicant’s registration of caution. On this point, Counsel cited the case of Kaushik Panchamata & 3 others vs Prime Bank Limited & another (2020) eKLR, submitting that the order is incapable of being stayed. The 2nd -4th Respondents submit that the Applicant has not met the threshold for the grant of leave to apply for the judicial review orders sought.

Analysis and Determination
22. The Applicant herein seeks leave to file an application for judicial review orders of certiorari, prohibition and mandamus, against the decision of the 1st Respondent, the Land Registrar, Nyeri, rejecting the application for registration of a caution over Land Registration Number Nyeri/Waraza/1362.
23. The Applicant claims that on 4th May 2024, she filed an application for registration of a Caution and the reason for its rejection by the Land Registrar was that the interest claimed is not provided in the Act.  She stated that the subject property was in danger of being sold by the 2nd to 4th Respondents herein. 
24. The Applicant claimed that the Land Registrar acted arbitrarily, unreasonably and contravened the principles of natural justice by rejecting her application after she provided all the requisite documents. In the declaration supporting registration of the caution and in the affidavits before this court, the applicant claims to be a beneficiary of the suit land LR Nyeri/Waraza/1362, as the widow of Gicheha Mwangi Mwaniki (Deceased), who had a legal claim over the aforementioned parcel of land. She claims that vide the decision of the Central Provincial Land Control Appeals Board, land parcel number Nyeri/Waraza/409 was subdivided into numbers Nyeri/Waraza/633, 634, 635 and 636, which were later combined to form the current Land Parcel No.Nyeri/Waraza/1362. Despite consent to subdivide having been cancelled, the registration was still effected, contrary to the decision of the Central Land Control Appeal Board dated 16th April 1993 and Section 13(2) of the Land Control Act Cap 302.
25. The application is filed under Order 53, Rules 2, 3 and 4 of the Civil Procedure Rules, which provide as follows;
(1) No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.
(2) An application for such leave shall be made ex parte to a judge in chambers, and shall be accompanied by —
(a) a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought; and
(b) affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the applicants named in the application.
(3) The judge may, where leave denotes stay, impose such terms as to costs and as to giving security as he thinks fit, including cash deposit, bank guarantee or insurance bond from a reputable institution.
(4) The grant of leave under this rule to apply for an order of prohibition or an order of certiorari shall, if the judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the judge orders otherwise:
Provided that, where the circumstances so require, the judge may direct that the application be served for hearing inter partes before the grant of leave. Provided further that, where the circumstances so require, the judge may direct that the question of leave and whether the grant of leave shall operate as a stay may be heard and determined separately within seven days.
26. The rationale for filing an application for leave before seeking judicial review orders has been settled by case law, and it is to filter weak claims, conserving judicial resources and ensuring that only cases with a genuine basis are heard in full. Consideration of such an application acts as a preliminary screening process to assess if the applicant has a sufficient interest and has met the initial requirements, such as standing and timing. This two-stage procedure allows courts to dismiss unmeritorious cases at the outset, preventing public bodies from being unduly burdened with frivolous litigation.  The age-old rationale for the requirement that leave be sought and obtained under Order 53 (1) of the Civil Procedure Rules is to exclude frivolous, vexatious or applications which prima facie appear to be an abuse of the process of the Court or those applications which are statute-barred.
27. However, leave should be granted if, on the material available, the court considers, without going into the matter in depth, that there is an arguable case. The requirement for leave was explained in Matiba v. Attorney General, Nairobi H.C. Misc. Application No. 790 of 1993 by Bosire, Mbogholi-Msagha & Oguk, JJ, where the Court held that leave is supposed to exclude frivolous, vexatious or applications which prima facie appear to be an abuse of the process of the Court or those applications which are statute-barred.
28. Equally, in Republic vs. Land Disputes Tribunal Court Central Division and Another Ex Parte Nzioka [2006] 1 EA 321, Nyamu, J (as he then was) held that leave should be granted, if on the material available, the court considers, without going into the matter in depth, that there is an arguable case for granting leave and that leave stage is a filter whose purpose is to weed out hopeless cases at the earliest possible time, thus saving the pressure on the courts and needless expense for the applicant by allowing malicious and futile claims to be weeded out or eliminated to prevent public bodies being paralyzed for months because of pending court action which might turn out to be unmeritorious.
29. In Republic vs. County Council of Kwale & Another Ex Parte Kondo & 57 Others Mombasa HCMCA No. 384 of 1996 Waki, J (as he then was), put it thus, on the purpose of applying for leave in judicial review matters:
“The purpose of the application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless, and secondly to ensure that the applicant is only allowed to proceed to a substantive hearing if the Court is satisfied that there is a case fit for further consideration. The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived…".
30. This position was confirmed by the Court of Appeal in Meixner & Another vs. Attorney General [2005] 2 KLR 189, which held that the leave of the court is a prerequisite to making a substantive application for judicial review and that the purpose of the leave is to filter out frivolous applications, hence the granting of leave or otherwise involves an exercise of judicial discretion.
31. Further Court of Appeal in Mirugi Kariuki v Attorney General Civil Appeal No. 70 of 1991 [1990-1994] EA 156; [1992] KLR 8 as follows:
“It is wrong in law for the Court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the matter of his complaint. If he fails to show, when he applies for leave, a prima facie case, on reasonable grounds for believing that there has been a failure of public duty, the Court would be in error if it granted leave. The curb represented by the need for the applicant to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse of the legal process. It enables the Court to prevent abuse by busybodies, cranks and other mischief-makers…”
32. The 2nd to 4th Respondents filed a Notice of Preliminary Objection dated 20th December 2024 and the Replying affidavit sworn on 4th February 2025 and one sworn on 10th June 2025, claiming that the instant application is res judicata and res sub judice. The previous suits mentioned involving the suit land are Nyeri SRMCC No.237 of 1972, Nyeri HCCA No.6 of 1983, Nyeri CMCC NO.59 of 2007, Nyeri HCC No.240 of 2013 and Nyeri ELC No. 3 of 2014 (OS) and Nyeri Civil Appeal No. 167 of 2018. The said cases are attached to the replying affidavit of Onesmus Kibera Kagema and are said to have been heard and determined, save for a pending application for review of judgment in Nyeri Civil Appeal 167 of 2018. The Respondents claim that the cases determined with finality the claim of beneficial interest in the suit land.
33. It is noted that the objections raised in the Preliminary objection are the same ones raised in the Replying affidavits filed in response to the application herein. The Court will proceed to determine the issues raised in the preliminary objection together with the application.
34. According to Black''s Law Dictionary, a Preliminary Objection is defined as being:
“In case before the tribunal, an objection that if upheld, would render  further proceeding before the tribunal impossible or unnecessary…….”
35. The doctrine of “res judicata" is provided for under Section 7 of the Civil Procedure Act in 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 issue in which such issue has been subsequently raised, and has been heard and finally decided by such court.”
36. The Civil Procedure Act provides explanations for the application of the res judicata rule in the following  terms:
Explanation (1) —The expression “former suit” means a suit which has been decided before the suit in question, whether or not it was instituted before it.
Explanation (2) —For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
Explanation (3) —The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation (4) — Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation (5) — Any relief claimed in a suit, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation (6) — 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, for the purposes of this section, be deemed to claim under the persons so litigating.
37. The Supreme Court of Kenya in the case of Kenya Commercial Bank Limited v. Muiri Coffee Estate Limited & another Motion No. 42 of 2014 [2016] eKLR (Muiri Coffee case) held as follows regarding the doctrine of res judicata:
  “[52] Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights.”
38.  The Court went on to state that;
“The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to Court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine 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.”
39.  The authors of Mulla, Code of Civil Procedure, 18th Ed. 2012, have observed that the principle of res judicata, as a judicial device on the finality of Court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p.293):
"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, mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted in the rationale that issues decided may not be reopened and has little to do with the merit of the decision."
40. The essence of the res judicata doctrine is further explained by Wigram, V-C, in Henderson v. Henderson (1843) 67 E.R. 313, as follows:
“ … where a given matter becomes the subject of litigation in, and 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 matter which might have been brought forward, 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 the 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”
41. Whenever the question of res judicata is raised, a Court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The Court should ascertain whether the parties are the same, or are litigating under the same title, and whether the previous case was determined by a Court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v. James Nderitu Githae & 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.
42. Courts have been urged to be vigilant against the drafting of pleadings in such a manner as to obviate the res judicata principle. This was judicially remarked in E.T v. Attorney-General & Another, (2012) eKLR, thus:
“The Courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the Court. The test is whether the plaintiff in the second suit is trying to bring before the Court in another way and in a form of a new cause of action which has been resolved by a Court of competent jurisdiction.
43. In the present case, the Applicant filed with the 1st Respondent an application to the Department of Lands to register a Caution against Land Parcel No. NYERI/WARAZA/1362.  The application was entered under presentation Book Number 53/6/29. The application was supported by the Statutory Declaration sworn on 31st May 2024, where the Applicant claimed an interest in the land as a beneficiary. The remarks made by the 1st Respondent while declining to register the caution are: “I am unable to register because the interest claimed is not provided for in the act. The subject matter is overtaken by events. Kindly claim your interests in court”
44. State Counsel for the 1st Respondent opposed the application for lack of merit, stating that the Applicant does not fit the criteria under Section 71 of the Land Registration Act, 2012, since she claims a beneficiary interest. The said Section provides for lodging of cautions and states that;
(1) A person who—
(a) claims the right, whether contractual or otherwise, to obtain an interest in any land, lease or charge, capable of creation by an instrument registrable under this Act;
(b) is entitled to a licence; or
(c) has made an application for a bankruptcy order against the proprietor of any registered land, lease or charge.
(2) A caution may either—
(a) forbid the registration of dispositions and the making of entries; or
(b) forbid the registration of dispositions and the making of entries to the extent expressed in the caution.
(3) A caution shall be in the prescribed form, and the Registrar may require the cautioner to support the caution by a statutory declaration.
(4) The Registrar may reject a caution that is unnecessary or whose purpose can be effected by the registration of an instrument under this Act.
(5) Subject to this section, the caution shall be registered in the appropriate register.
45. The Court has perused the judgements, rulings and decrees in the cases said to have been determined and noted that all of them relate to disputes over Land Parcel Number NYERI/WARAZA/1362, a subdivision and/or derivative of the initial plot number 593, Waraza Scheme. The court agrees with the Respondents that the dispute over legal and/or beneficial ownership of the suit land has been heard and determined by courts of competent jurisdiction.  The court is satisfied that the Applicant did not have an interest in the suit land capable of registration, and registration of the Caution by the Applicant against the title to the suit land would not have served any purpose.  The court is informed by the reasons discussed hereunder.      
46. Order 53 Rule 2 (b) of the Civil Procedure Rules requires that an applicant seeking leave must file affidavits verifying the facts and averment that there is no other cause pending, and that there have been no previous proceedings in any court between the applicant and the respondent, over the same subject matter and that the cause of action relates to the Applicants named in the application. As submitted by the Respondents, the Court finds that the failure by the Applicant to disclose the existence of the previous suits was in contravention of the law.
47.  The court has also looked at the various cases mentioned by the Respondents. In Nyeri SRMCC No.237 of 1972, George Gichuki Mwaniki Versus George Gichuhi Mwaniki, the Court made the following decision;
“I find that the defendant has not proved any of the allegations against the arbitrator and I will dismiss his application to set aside the award, subject to the following orders---
1. That the land plot No. 593, Waraza Scheme, belongs to the plaintiff and that all cattle on the land were bought by a loan obtained by the plaintiff from the Ministry of Lands and Settlement. The counter-claim is therefore dismissed with costs.
2. That the plaintiff obtained a loan of Shs. 800 from the defendant and allowed the defendant to occupy three acres of his land on which the defendant has built a permanent house. I will direct that the plaintiff obtain consent from the Commissioner of Land to transfer the three acres to the defendant out of brotherly love.
3. I will direct that the costs deposited in court as thrown away costs be paid to the plaintiff forthwith, plus any costs incurred after 31st January, 1980”
54. The Applicant in the present suit is a widow of George Gichuhi Mwaniki, the Defendant in the above suit, Nyeri SRMCC 237 of 1972.  She filed Nyeri ELC Case No. 3 of 2014 (0S), which was consolidated with HCCC No. 240 of 2013, Mary Njeri Gicheha Versus Benedict Obonyo Omollo, Patrick Muraguri and Onesmus Kagema. The Applicant sought a declaration that she had become entitled to the suit land NYERI/WARAZA/1362 by adverse possession.
55.  The Respondents objected to the Originating Summons in ELC Case No. 3 of 2014 (0S) on various grounds. One of them was that the summons was res judicata. On 28th February 2018, the learned Judge L.N. Waithaka, J. agreed with the Respondents and held as follows:-
"Although the plaintiff was not a party to that suit, the evidence on record shows that the plaintiff''s husband was a party to that suit. To that extent, as far as the plaintiff''s claim relates to her husband''s claim to the original parcel of land, the claim is res judicata, the determination made in Nyeri SRMCC No. 237 of 1997. Despite being impleaded as a claim purely based on the plaintiff''s occupation of the suit property, it is clear from the pleadings filed in this suit that the plaintiff''s claim to entitlement to the suit property relates to the dispute between her late husband and the brother of her late husband, whom she accuses of having unlawfully subdivided the original parcel of land. In that regard, see paragraphs 4 to 12 of the plaintiff, which attests to that fact.
There is also evidence that the plaintiff sued the predecessor in entitlement to the title held by the defendants/applicants, among other people, the 3 defendant/applicant herein included, vide Nyeri CMCC No. 59 of 2007, where she inter alia contended that the suit property was fraudulently transferred to the defendants in that suit. The suit was dismissed on, among other grounds, the ground that the issues raised in that suit were res judicata.
  Though packaged as a claim different from the former claims in that the plaintiffs claims to be entitled to the suit property on account of her long possession and occupation of the suit property, it is clear that the issues concerning the plaintiffs claim to the suit property have been litigated in previous proceedings and a decision in respect thereof made by courts with competent jurisdiction to hear those issues.
  If the plaintiff was aggrieved by the decisions made in those suits, she ought to have appealed those suits instead of filing other suits raising the same issues or substantially similar issues concerning the suit properties.
On account of the above revelation concerning the plaintiff''s claim, I find the claim to be res judicata and to that extent bad in law."
56. The Plaintiff (Applicant herein) in the above-mentioned consolidated suits was dissatisfied with the decision of Waithaka J., and she filed Nyeri Court of Appeal Civil Appeal No. 167 of 2028, Mary Njeri Gicheha Versus Benedict Obonyo Omollo, Patrick Muraguri and Onesmus Kagema. After hearing the parties, the Court of Appeal dismissed the appeal and found as follows;
"The question is whether the objection raised by the respondents that the suit was res judicata was on the basis of facts that had been pleaded and which were not in contest. We have looked at the pleadings by the parties. When the appellant filed the summons against the respondents, she filed a supporting affidavit in which she raised Nyeri SRMCC 237 of 1972 and Nyeri CMCC No. 59 of 2007. She swore that in Nyeri SRMCC No. 237 of 1972, her husband (then alive) had sued his brother George Gichuki Mwaniki, claiming that he was entitled to half of Plot No. 593 Waraza Scheme. This plot was the mother, as it were, of all the subsequent subdivisions, including the suit property. The court found that all that plot belonged to George Gichuki Mwaniki, except that he was asked, purely on brotherly grounds, to cede 3 acres of the appellant''s husband. The appellant''s husband was aggrieved. He appealed to the High Court in Nyeri HC Civil Appeal No. 6 of 1983. He lost.
  Our considered view is this. The appellant''s husband and all members of his family, including the appellant, became bound by the court''s determination in relation to the interest in Plot No. 593 Waraza Scheme, and all the subsequent subdivisions in the plot. The interest of the appellant''s husband was limited to only 3 acres in the plot. He did not plead in Nyeri SRMCC No. 237 of 1972 that he had become entitled to the plot by adverse possession. He, or the appellant, was precluded from raising adverse possession in a subsequent claim over the plot. This is the reason why, when in Nyeri CMCC No. 59 of 2007 the appellant sued the trustees of Kids Alive Kenya claiming Nyeri/Waraza/633 and 634 (the subdivisions of Plot No. 593 now in the hands of buyers from George Gichuki Mwaniki), the defence of res judicata was successfully pleaded, and the suit was dismissed. There was no appeal.”(Emphasis added)
57. This Court and the Land Registrar are bound by the above decision of the Court of Appeal on the finding that the Applicant''s husband and all members of his family, including the applicant herein, became bound by the court''s determination in relation to the interest in Plot No. 593 Waraza Scheme, and all the subsequent subdivisions of the plot. As stated by the Court of Appeal, the interest of the Applicant''s husband was limited to only 3 acres in the plot. The Applicant’s husband did not plead in Nyeri SRMCC No. 237 of 1972 that he had become entitled to the plot as a beneficiary. He and the Applicant are therefore precluded from raising a claim based on beneficial interest in a subsequent suit.
58.  The court is satisfied that the Applicant has failed to show that there is a prima facie case, on reasonable grounds for believing that there has been a failure of public duty by the Land Registrar Nyeri in rejecting the Applicant’s application to register a Caution to warrant the granting of leave and allowing the Applicant to proceed to the hearing of the judicial review application. The Court has considered the material available from the Applicant and the Respondents, and without going into the matter in depth, the Court is convinced that the Applicant has not made out an arguable case. The Court further considers that the matters raised in the application herein are res judicata, the Applicant’s legal and/or beneficial interests in the suit land have been heard and determined by courts of competent jurisdiction. The Court finds that the application herein is frivolous, vexatious and an abuse of the process of the Court.
59. The upshot of the above is that the Chamber Summons dated 7th October 2024 lacks merit and the same is dismissed with costs to the Respondents.
Dated, Signed and Delivered at Nyeri, this 27th day of November 2025

Delivered in the presence of:-
M/S C. Kendi– Court Assistant
Moyala holding brief for Nchogu for the Applicant
No attendance for the 1st Respondent
M/S Mugo for the 2nd, 3rd and 4th Respondents

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