https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6976

Kihingo Village (Waridi Gardens) Management Limited v Attorney General & 2 others (Commercial Case E606 of 2024) [2026] KEHC 6976 (KLR) (Commercial and Tax) (14 May 2026) (Judgment) Neutral citation: [2026] KEHC 6976 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E606 of 2024 MO Ado, J May 14, 2026 IN THE MATTER OF: AN APPLICATION BY KIHINGO VILLAGE (WARIDI GARDENS MANAGEMENT LIMITED UNDER THE FAIR ADMINISTRATIVE ACTIONS ACT FOR REVIEW OF THE RESPONDENT/S DECISION DATED 7TH MARCH 2023. -AND- IN THE MATTER OF: ARTICLES 10, 19, 20, 22, 23, 27, 47 & 50 OF THE CONSTITUTION OF KENYA, 2010. -AND- IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTION ACT, NO. 4 OF 2015. -AND- IN THE MATTER OF: ORDER 53 RULE 1 OF THE CIVIL PROCEDURE RULES. -AND- IN THE MATTER OF: THE VEXATIOUS PROCEEDINGS ACT Between Kihingo Village (Waridi Gardens) Management Limited Applicant and The Honorable Attorney General 1st Respondent The Registrar of Companies (Business Registration Services) 2nd Respondent James Ndungu Gethenji 3rd Respondent Judgment 1.The Ex-parte Applicant – Kihingo Village (Waridi Gardens) Management Limited – filed the prsent Notice of Motion application dated 20th December 2023 pursuant to the provisions of Articles 10, 19, 20, 22, 23, 27, 47 & 50 of the Constitution of Kenya, 2010, Sections 3, 4, 7, 8 & 11 of the Fair Administrative Action Act No. 4 of 2015, Section 2 of the Vexatious Proceedings Act & Order 53 Rule 3 of the Civil Procedure Rules. 2.The applicant sought a declaratory relief that the 2nd respondent’s decision dated 7th March 2023, which revoked an earlier decision of 29th January 2021, was unlawful, unreasonable, procedurally unfair, and made in breach of the rules of natural justice, having been undertaken without notice and in violation of the applicant’s constitutional rights to a fair hearing and fair administrative action, a declaration that the impugned decision constitutes an abuse of Court process, being res judicata and a collateral attack on prior arbitral and judicial determinations. 3.The applicant also challenged the validity of the complaint dated 13th December 2022 on the basis that it was lodged without proper authority from the relevant company organs, and a declaration that the 3rd respondent is a vexatious litigant warranting investigation under the Vexatious Proceedings Act. 4.In addition to the foregoing, the applicant sought judicial review orders, including certiorari to quash the decision of 7th March 2023, prohibition to restrain the respondents from revisiting the earlier decision or entertaining further complaints by the 3rd respondent in relation to the shareholders’ resolutions, and mandamus to compel the 1st respondent to institute proceedings against the 3rd respondent for vexatious conduct. 5.The applicant also sought an order striking out the impugned complaint, a permanent injunction restraining the 3rd respondent from filing further complaints or proceedings on the matter (save for a specified appeal), as well as an award of aggravated and exemplary damages for violation of constitutional rights. 6.The application was premised on the grounds on the face of the motion and a statutory statement dated 2nd November 2023, and was supported by an affidavit sworn on 2nd November 2023 by Gitahi Gethenji, a Director and Shareholder of the applicant company. 7.Mr. Gitahi averred that the dispute arises from a protracted conflict following an arbitral award dated 28th July 2016, which directed the 3rd respondent, then in control of the company, to convene a general meeting within 90 days, failure to which shareholders were to be at liberty to do so. He further averred that upon the 3rd respondent’s failure to comply, the shareholders convened a Special General Meeting (SGM) on 13th April 2019, attended by an overwhelming majority, where wide-ranging resolutions were passed to restructure the company’s shareholding, governance, and management in line with the arbitral award. He stated that the award was subsequently adopted as a decree of the court in ELC No. 1225 of 2013, and attempts to set it aside were dismissed, thereby conclusively determining the issues surrounding shareholding and management of the company. 8.It was deposed that following the SGM, the 3rd respondent persistently challenged the resolutions through multiple complaints and Court proceedings. His initial complaint to the Registrar of Companies in April 2019 triggered a series of detailed responses by the applicant over nearly three years, during which the applicant was accorded a fair hearing. 9.It was averred that ultimately, the 2nd respondent, by a letter dated 29th January 2021, rejected the 3rd respondent’s complaints and upheld the validity of the SGM and its resolutions. He contended that despite this, the 3rd respondent lodged a further complaint on 13th December 2022 without serving the applicant, allegedly misrepresenting material facts and failing to disclose prior determinations, including the Registrar’s earlier decision, Court rulings, and pending appeals. 10.Mr. Gitahi stated that, notwithstanding the history and prior determinations, the 2nd respondent, on 7th March 2023, reversed his earlier decision and purported to invalidate the SGM resolutions, an action the applicant characterized as unlawful, procedurally unfair, and a breach of natural justice, as it was undertaken without notice or hearing. He maintained that this decision also amounted to a collateral attack on the arbitral award and multiple Court decisions, and ignores substantial changes implemented since 2019, including lawful elections of directors, allotment of shares, and transfer of property interests in compliance with the award. 11.He further stated that the dispute between the parties herein has also been the subject of extensive litigation across various fora. He contended that a suit filed in HCCC No. E229 of 2019, challenging the SGM resolutions was struck out for lack of authority, with the Court affirming that the issues, including the validity of Class B shares, had been settled by the arbitral award. Appeals and cross-appeals arising from that decision remain pending. 12.Mr. Gitahii asserted that applications for injunctive relief and leave to institute derivative proceedings by the 3rd respondent were similarly dismissed, with Courts consistently finding that the matters raised were res judicata or constituted abuse of process. He contended that the 3rd respondent has engaged in a pattern of vexatious litigation, repeatedly re-litigating settled issues and subjecting the company and its shareholders to unnecessary expense and disruption. 13.Mr. Gitahi further asserted that the 3rd respondent lacked authority to lodge complaints or instruct Counsel on behalf of the company, as no valid resolutions were passed to that effect. He emphasized the urgency of judicial intervention to prevent further interference with the company’s management and operations. Mr. Gitahi averred that the actions of the respondents violated constitutional and statutory guarantees of fair administrative action and natural justice, particularly due to the failure to afford the applicant a hearing before the impugned decision of 7th March 2023 was made. 3rd Respondent’s Case 14.In opposition to the application, the 3rd respondent filed a replying affidavit sworn on 9th January 2024 by Hon. James Ndungu Gethenji, the 3rd respondent. Hon. Ndungu challenged the competence of the proceedings, asserting that the suit has not been authorized by the applicant and that the law firm on record lacks instructions to act for the company. He contended that no board resolution was passed to institute these proceedings or to appoint representation, and maintained that the applicant’s alleged representative ceased being a director long ago. 15.Accordingly, he asserted that this suit is improperly before the Court and should be struck out in limine, as any aggrieved party ought to act in their personal capacity rather than in the name of the company. Hon. Ndungu disputed the validity of the Special General Meeting held on 13th April 2019 and asserted that it was convened in breach of the company’s Articles of Association and without proper authority. 16.He maintained that, as Chairman, he was denied the opportunity to preside over the meeting, that the company secretary was absent, and that the proceedings were irregular, ultra vires, and failed to properly account for the votes of all shareholders, particularly the majority shareholder. He further contended that the resolutions passed at the meeting were unlawfully registered despite his complaint to the 2nd respondent, which he claims was initially not addressed. 17.Hon. Ndungu maintained that the 2nd respondent acted properly in revisiting the matter and ultimately reverting the company to its pre-2019 status after considering representations from all parties. He denied any violation of the right to fair administrative action and asserted that both sides were afforded an opportunity to be heard before the impugned decision was made. He averred that, on the contrary, any procedural unfairness arose earlier when the minority shareholders’ resolutions were registered without giving the 3rd respondent a hearing. 18.He disputed the applicant’s interpretation of the arbitral award and the Court decree, arguing that the award did not extinguish Class B shares or dispossess any shareholder of their ownership; it merely required rectification of the company’s constitutional documents to remove the distinction between share classes, without affecting proprietary rights. Hon. Ndungu further contended that the minority shareholders acted prematurely and unlawfully in convening the SGM, as the company had already initiated steps to hold a meeting within the prescribed timeline and had, in any event, consistently held general meetings over the years. 19.Hon. Ndungu denied allegations of vexatious conduct and maintained that his actions constitute legitimate attempts to protect shareholder interests and enforce compliance with the law. He emphasized the constitutional right of access to justice and asserted that he has merely responded to proceedings brought against him. Ex-Parte Applicant’s Rejoinder 20.In rejoinder, the applicant filed a supplementary affidavit sworn on 24th November 2023, again, by Gitahi Gethenji. He deposed that the 3rd respondent was removed as a director on 13th April 2019 and has not participated in any board meetings since, and that he has provided no evidence to support his claims that the suit was filed without proper authorization. Mr. Gitahi highlighted that the 3rd respondent has himself failed to produce any resolution authorizing the law firm of Otieno Ogola & Co. Advocates to act on behalf of the company, despite alleging lack of authority on the applicant’s side. He asserted that no AGM has been held since incorporation, no board or shareholder resolution was passed to authorize the complaint regarding Class B shares, and that the 3rd respondent acted unilaterally without corporate authority, a position previously affirmed by the Court of Appeal. 21.Mr. Gitahi stated that the applicant’s directors formally objected to the 3rd respondent’s actions as early as 10th August 2019, following his removal. He further stated that a valid board resolution dated 19th November 2020 appointed the law firm of Wamae & Allen Advocates to represent the company in all litigation, and this resolution remains in force. 22.According to him, the law firm of Wamae & Allen Advocates has consistently acted for the Applicant in various proceedings since 2019, including HCCOMM No. E188 of 2021, without any challenge to its authority. He therefore averred that there is no legitimate ground for the 3rd respondent to question the law firm’s representation. The deponent maintained that where representation is disputed, the proper course is for the Court to refer the issue to shareholders for ratification rather than strike out proceedings. He further averred that the arbitral award and the EGM of 13th April 2019 have already been upheld by the Court. Parties’ submissions 23.The application was canvassed by way of written submissions. The Ex parte applicant, through the law firm of Wamae & Allen LLP, filed two sets of submissions, one dated 25th March 2024 and the other dated 17th April 2024, whereas the 3rd respondent’s submissions were filed by the law firm of Otieno Ogola & Company Advocates on 31st July 2024. 24.It is manifest from the Court record and the Case Tracking System that the 1st & 2nd respondents neither filed any responses nor submissions in opposition to the application herein. 25.Mr. Allen Gichuhi SC, learned Counsel for the applicant, outlined that the 3rd respondent lodged multiple complaints before the 2nd respondent, first in April 2019 and later in January 2020, which were ultimately dismissed in January 2021, affirming the legality of the SGM of 13th April 2019 and its resolutions. However, a third complaint dated 13th December 2022, which was not served on the applicant, led to the impugned decision of 7th March 2023, whereby the 2nd respondent reversed its earlier position. Counsel maintained that this decision was reached in breach of the rules of natural justice, as it condemned the applicant unheard, contrary to the provisions of Articles 47 & 50 of the Constitution and Section 4 of the Fair Administrative Action Act. 26.Learned Counsel submitted that the impugned decision constituted a collateral attack on settled matters and is barred by the doctrines of res judicata and estoppel. He relied on the cases of Salim Yusuf Mohamed & another v Nabhan Swaleh Salim & 2 others [2012] KEHC 760 (KLR) and Charles Momanyi Mageto v Co-operative Insurance Company of Kenya Limited [2016] KEHC 1310 (KLR). Counsel emphasized that the matters raised had already been determined in prior proceedings, including High Court decisions and pending appeals, rendering the 2nd respondent functus officio. Mr. Gichuhi asserted that the 3rd respondent lacked any company resolution to lodge the complaint or instruct counsel. 27.Mr. Gichuhi contended that the dispute herein is sub judice, as the same issues, particularly concerning the SGM resolutions and Class B shares, are pending before the Court of Appeal. Counsel relied on Joel Kenduiywo v District Criminal Investigation Officer Nandi & 4 others [2019] KECA 76 (KLR), Samuel Kahiu v Jecinta Akinyi Soso, Assistant County Commissioner, Iloodokilani Ward/Division & another [2018] KEHC 2654 (KLR) and Republic v Kenya Revenue Authority ex parte Paul Makokha Okoiti & 4 others [2018] KEHC 8015 (KLR). 28.Mr. Gichuhi further relied on the Supreme Court decision in Githiga & 5 others v Kiru Tea Factory Company Ltd [2023] KESC 41 (KLR) and submitted that the failure to accord the applicant a hearing rendered the impugned decision null and void. Counsel further cited Kenya Human Rights Commission & another v Non-Governmental Organizations Co-ordination Board; Law Society of Kenya (Interested Party) [2018] KEHC 8915 (KLR) and urged the Court to award damages. 29.Mr. Willis Otieno, learned Counsel for the 3rd respondent, submitted that the present proceedings are incompetent for want of a valid company resolution authorizing their institution. He relied on Kenya Commercial Bank Limited v Stage Coach Management Ltd [2014] KEHC 7474 (KLR), East African Portland Cement Ltd v Capital Markets Authority & 4 others [2014] KEHC 6532 (KLR) and Dhanjal Brothers Limited v Joginder Singh Dhanjal & another [2021] KEHC 13626 (KLR) in support of that argument. 30.Learned Counsel submitted that the 2nd respondent adhered to due process in handling complaints lodged on diverse dates and that all affected parties were invited to respond and did in fact make representations, thereby satisfying the requirements of Article 47 of the Constitution. Counsel relied on Municipal Council of Mombasa v Republic; Umoja Consultants Ltd (Interested Party) [2002] KECA 8 (KLR). 31.Mr. Otieno contended that any procedural unfairness arose not from the impugned decision of 7th March 2023, but from the earlier registration of minority resolutions on 4th November 2020, which occurred without affording the 3rd respondent a hearing. 32.Counsel maintained that the arbitral award did not extinguish any shareholder’s interests but merely required the unification of share classes and that the 2nd respondent was bound to uphold the company’s Articles of Association. Counsel cited Mombasa Bricks and Tiles Limited & 5 others v Arvind Shah & 7 others [2017] KEHC 626 (KLR). 33.Regarding the legality of the meeting of 13th April 2019, Counsel submitted that the same was improperly convened in contravention of Section 279 of the Companies Act. 34.On the prayer that a declaration be made that the 3rd respondent is a vexatious litigant, he submitted that the same is misconceived and that the applicant failed to exhaust internal remedies as required under Section 9 of the Fair Administrative Action Act. Counsel relied on Republic v Firearms Licensing Board; Ex parte Steve Mbogo Ndwiga [2020] KEHC 745 (KLR). 35.In rejoinder, Mr. Gichuhi relied on the company’s Annual Returns dated 12th April 2022 and refuted the assertion that Gitahi Gethenji resigned as a director. Counsel relied on Paragon Electronics Limited v Kariuki [2021] KEHC 8742 (KLR), Kenya Agricultural and Livestock Research Organization v Okoko & another [2022] KEHC 3302 (KLR), Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] KECA 816 (KLR) and East African Safari Air Limited v Anthony Ambaka Kegode & another [2011] KECA 160 (KLR). Analysis and Determination 36.I have considered the application, the statutory statement dated 2nd November 2023, and the affidavits filed in support thereof. I have also considered the replying affidavit by the 3rd respondent and the written submissions filed by Counsel for the parties. The issues that arise for determination are:-i.Whether this Court has jurisdiction to entertain the application.ii.Whether the present application was competently instituted on behalf of the Applicant companyiii.Whether the 2nd respondent’s decision dated 7th March 2023 was unlawful and in breach of the rules of natural justice.iv.Whether the impugned is barred by the doctrines of res judicata, estoppel, or sub judice.v.Whether the Ex-Parte Applicant is entitled to the reliefs sought. Whether this Court has jurisdiction to entertain the application. 37.The locus classicus on jurisdiction is the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 where Nyarangi JA held that:“…. Jurisdiction is everything. Without it, a court has no power to make one more step.” 38.The 3rd respondent contended that the Court lacks jurisdiction to entertain the application herein on account of alleged non-compliance with the doctrine of exhaustion under Section 9 of the Fair Administrative Action Act and lapse of the statutory timeline. The applicant, on the other hand, maintained that the impugned decision raises constitutional questions under Articles 47 & 50 of the Constitution, as well as issues of procedural fairness, natural justice, and legality of administrative action. 39.The doctrine of exhaustion is now firmly embedded in Kenyan jurisprudence. The principle requires that where Parliament has established a dispute resolution mechanism, that mechanism ought ordinarily to be exhausted before a party approaches the Court. 40.Section 9(2) of the Fair Administrative Action Act provides as follows:“The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.” 41.Section 9(4) of the Act, however, grants the Court discretion to exempt a party from exhausting internal remedies where exceptional circumstances exist and where the Court considers such exemption to be in the interest of justice. 42.The leading authority on the doctrine is Speaker of the National Assembly v Karume [1992] KLR 21, where the Court of Appeal held that where the Constitution or statute provides a clear procedure for redress, that procedure ought to be strictly followed. 43.However, the Court of Appeal in Republic v National Environment Management Authority Ex Parte Sound Equipment Limited [2011] eKLR recognized that the exhaustion doctrine does not bar judicial review where the impugned process is itself alleged to be fundamentally flawed, unfair, or undertaken without jurisdiction. 44.In the present case, the impugned decision was rendered by the Registrar of Companies, who is the statutory administrator charged with maintaining company records under the Companies Act. 45.The Applicant complains that it was condemned unheard and that the Registrar improperly reopened matters already determined by courts of competent jurisdiction. It would in the view if the Court, be contrary to logic and fairness to require the Applicant to revert to the same administrative office accused of violating the Constitution in order to seek redress. I am therefore satisfied that the present matter falls within the recognized exceptions to the exhaustion doctrine. 46.In any event, contrary to the established principle in law that a party that pleads exhaustion has the burden of proving the existence of alternative mechanisms, the Respondents did not identify any specific statutory appellate or review mechanism available to the Applicant against the Registrar’s decision dated 7th March 2023. 47.The Court of Appeal in Nairobi Bottlers Ltd v Ndung’u & Another [2023] KECA 839 (KLR) was clear that the party invoking exhaustion bears the burden to demonstrate the availability, effectiveness, and sufficiency of the alternative remedy; statutory fora cannot usurp the High Court’s constitutional mandate. 48.In the premises, I find and hold that the doctrine of exhaustion does not bar these proceedings and that this Court properly assumed jurisdiction to entertain the application. Whether the present application was competently instituted on behalf of the Applicant company 49.The 3rd respondent raised a preliminary objection to the competence of the suit on the ground that it was instituted without a valid company resolution and that the law firm of Wamae & Allen Advocates lacked instructions to act on behalf of the applicant. 50.The Ex-Parte opposed the Respondent’s allegations and produced a certified board resolution dated 19th November 2020 executed by the Board of Directors. This resolution unequivocally appointed the firm of Wamae & Allen Advocates to represent the company and granted them general instructions to "act in any litigation involving the company." 51.It is well settled that a company, being a legal person, acts through its organs, principally the board of directors or through resolutions of shareholders. In East African Portland Cement Ltd v Capital Markets Authority & 4 others [2014] KEHC 6532 (KLR), the Court emphasized the necessity of authorization for institution of proceedings in the company’s name. 52.However, Courts have been slow to invalidate proceedings merely because no formal resolutions were contemporaneously on the filing of a suit. In East African Safari Air Limited v Anthony Ambaka Kegode & another [2011] KECA 160 (KLR), the Court of Appeal held that where authority is disputed, the proper course is not necessarily to strike out proceedings, but to permit ratification. The Court stated that:“It is our view that the proper thing for the High Court to have done was not to strike out the proceedings, but to stay the same pending ratification if it was of the view that the evidence of ratification was not clear. Here is what Palmer states: -“If an individual shareholder, without authority to do so, initiates litigation in the name of the company, the normal practice upon a motion to strike out the company’s name is for the court to adjourn, whilst ordering that a meeting of the shareholder’s be held to see if the company supports the litigation. If it does not, the motion will succeed and the solicitor who commenced the proceedings without authority of the company will be personally liable for the defendant’s costs.”Cordery’s Law Relating to Solicitor states that:“Proceedings will not be set aside because the solicitor acted without authority, if the party on whose behalf they were taken adopts what has been done, but ratification of an agent’s act can only be effective where, at the time of the act, the principal was himself competent to perform it, or to authorize its performance, and a plaintiff cannot so adopt an action after having apparently repudiated it to the defendant.” 53.In this case, the applicant has placed before the Court a board resolution dated 19th November 2020 appointing Wamae & Allen Advocates to act for the applicant in all litigation involving the company. 54.This Court is therefore satisfied that the demonstrated history of representation by the said law firm supports the applicant’s contention that the firm is properly on record. To strike out the proceedings on this ground would be to sacrifice substantive justice on account of procedural technicality. 55.Accordingly, this Court is satisfied that the applicant has sufficiently demonstrated that the institution of this suit was authorized and that the law firm of Wamae & Allen Advocates had the requisite instructions to act. Whether the 2nd respondent’s decision dated 7th March 2023 was unlawful and in breach of the rules of natural justice. 56.The Applicant contends that the Registrar acted without jurisdiction, violated the rules of natural justice, disregarded binding court decisions, reopened matters previously determined, and unlawfully interfered with accrued corporate rights that had crystallized over several years. 57.The applicant’s case is anchored on the ground that the 2nd respondent reversed a prior decision without affording it notice or a hearing. Articles 47 & 50 of the Constitution, together with Sections 4 & 7 of the Fair Administrative Action Act, require that administrative decisions affecting rights must be procedurally fair, lawful, reasonable, and preceded by notice and a fair hearing. 58.In particular, the Applicant consistently maintained that it was never served with the complaint dated 13th December 2022 upon which the impugned decision was anchored, and that he was never accorded an opportunity to be heard before the decision was rendered. 59.There is no evidence on record that the Ex-Parte Applicant was ever served with the said complaint 13th December 2022, which culminated into the impugned decision of 7th March 2023. The undisputed facts here demonstrate a fatal procedural infirmity. The 3rd Respondent filed a fresh complaint on 13th December 2022 regarding the long-settled 2019 resolutions. The 2nd Respondent received this complaint and proceeded to completely alter the corporate structural status of the Ex-Parte Applicant on 7th March 2023 without giving the Applicant any notice, a copy of the complaint, or an opportunity to make representations. 60.Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act require public authorities to give affected persons notice and an opportunity to be heard before adverse action is taken. 61.In Republic v Minister for Lands & another Ex-Parte Catherine Mateta Musinga [2021] KEELC 431 (KLR), the Court held that where a party has not been heard, a decision made in breach of the rules of natural justice is null and void ab initio. The Court stated as follows: -“It is the finding of this court that where a party has not been heard, a decision made is in breach of the rules of natural justice is null and void ab initio.” 62.The Registrar was under a positive legal obligation to notify the Applicant of the complaint, disclose the allegations against it, invite representations and fairly consider its response before making a determination. Failure to do so rendered the process procedurally unfair, arbitrary and unconstitutional. 63.The upshot of the foregoing is that this Court is persuaded that the 2nd respondent’s decision dated 7th March 2023 was unlawful, unreasonable, procedurally unfair, and made in breach of the rules of natural justice. Whether the impugned decision is barred by the doctrines of res judicata, estoppel, or sub judice. 64.The applicant contended that the 2nd respondent’s decision dated 7th March 2023 constituted a collateral attack on issues already determined by arbitral and judicial fora. 65.Section 7 of the Civil Procedure Act codifies the doctrine of res judicata. It 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 finally decided by such court.” 66.The doctrine of estoppel was on the other hand defined by the Court of Appeal in the case of Serah Njeri Mwobi v John Kimani Njoroge [2013] KECA 501 (KLR) as hereunder -The doctrine of estoppel operates as a principle of law which precludes a person from asserting something contrary to what is implied by a previous action or statement of that person. 67.In John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), the Supreme Court summarized the applicable principles governing res judicata. The Court stated that: -“Hence, 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.” 68.Section 6 of the Civil Procedure Act embodies the doctrine of sub judice, and provides that:“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” 69.It is manifest from the record that the dispute over shareholding structure, governance, and validity of the SGM has been the subject of prior judicial and arbitral determinations, some of which remain pending on appeal. 70.The record clearly indicates that the 2nd Respondent spent nearly three years reviewing the 3rd Respondent's original objections to the 13th April 2019 SGM. On 27th January 2021, the 2nd Respondent rendered a definitive decision dismissing those objections, confirming that the registration of the resolutions was lawful and aligned with the Environment and Land Court decree in ELC No. 1225 of 2013. 71.Once an administrative body exercises its statutory power and delivers a final determination on a dispute, it becomes functus officio regarding that specific matter. It cannot subsequently review, reverse, or sit on appeal of its own decision unless explicitly authorized by a statute. The Registrar of Companies possesses no appellate jurisdiction over her own finalized corporate dispute determinations. 72.By entertaining a parallel, identical complaint on 13th December 2022 and issuing the letter of 7th March 2023, the 2nd Respondent acted ultra vires and allowed its offices to be used as an instrument for a collateral attack on both its own prior decision and the valid judicial decree issued by the Environment and Land Court. This constitutes a profound abuse of administrative process. Whether the Ex-Parte Applicant is entitled to the reliefs sought. 73.Judicial review remedies are discretionary. Having found that the impugned decision was reached in breach of the rules of natural justice and in excess of jurisdiction, I am satisfied that the Applicant has established grounds for the grant of judicial review orders. 74.However, the Court is not convinced that the prayer for an order of mandamus to compel the 1st Respondent (Attorney General) to institute proceedings against the 3rd Respondent under Section 2 of the Vexatious Proceedings Act has been made out at this stage. 75.While the 3rd Respondent's conduct of repeatedly instituting complaints across alternative forums exhibits a worrisome trend of litigation multiplication, the invocation of the Vexatious Proceedings Act requires strict statutory adherence. The Court must be cautious not to equate persistence in litigation with vexatiousness where legitimate legal grievances exist. The prayer is therefore declined. 76.Accordingly, the Notice of Motion dated 20th December 2023 succeeds to the following extent:i.A declaration is hereby issued that the decision of the 2nd Respondent dated 7th March 2023 violated Articles 47 and 50 of the Constitution and Section 4 of the Fair Administrative Action Act for failure to accord the Applicant a fair hearing.ii.An order of certiorari is hereby issued removing into this Court and quashing the decision of the 2nd Respondent dated 7th March 2023.iii.An order of prohibition is hereby issued prohibiting the 1st and 2nd Respondents from implementing or giving effect to the impugned decision dated 7th March 2023.iv.The remainder of the prayers in the Notice of Motion are declined.v.The Ex Parte Applicant shall have the costs of the application as against the 3rd Respondent. 77.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 14TH DAY OF MAY 2026HON. MR. JUSTICE MOSES ADOJUDGE OF THE HIGH COURTIn the Presence of:Moses C/AOtieno h/b for Allen Gichuhi SC…………for the Ex-Parte ApplicantMs. Chani h/b for Willis Otieno……………for the 3rd Respondent