Kathinja v Northern Galaxy Hotel Limited & another (Environment and Land Case E002 of 2026) [2026] KEELC 4402 (KLR)
The bottom line
#The Environment and Land Court in Isiolo struck out a land suit because the plaintiff's own lawyer improperly signed her affidavits, and her claims had already been decided.
What this practically means
#Executive summary
#Key legal issues
#Validity/competence of the suit and application
The verifying affidavit and supporting affidavit were commissioned by the advocate on record in violation of Section 4 of the Oaths and Statutory Declaration Act; they are nullities to be expunged, leaving the suit and application incompetent.
The suit was filed by M/s Karanja W and Associates, yet Mr Karanja W commissioned the verifying affidavit to the plaint and the supporting affidavit to the application. Section 4 of the Oaths and Statutory Declaration Act prohibits a commissioner for oaths from acting in a matter in which he is the advocate or is interested. The court rejected counsel's submission that the commissioner was a separate legal person, finding it had no evidential anchorage since submissions cannot replace evidence. The violation was substantive, not curable under Article 159(2)(d); the affidavits had to be expunged, leaving the suit without a verifying affidavit as required by Order 4 Rule 1 and rendering both suit and application incompetent.
Res judicata
The issues raised were res judicata, having been canvassed in Nairobi HCC Commercial Case E550 of 2024 and the Court of Appeal application E174 of 2025; constructive res judicata applies even though the Applicant sues personally.
The Applicant, a 50% shareholder and director of the 1st Defendant, participated in a board meeting of 12.09.2024 authorising the filing of a suit against the 2nd Defendant over the charge and intended statutory power of sale. The High Court injunction application was dismissed and the Court of Appeal application E174 of 2025 was dismissed on 27.02.2026. Applying constructive res judicata under Section 7(4) of the Civil Procedure Act and cause-of-action res judicata, the court held the issues should have been raised in the previous suits and their re-litigation was barred.
Abuse of the due process of the court
The suit and application constitute an abuse of process as a subtle attempt to use a lower court to defeat the Court of Appeal's dismissal of injunction relief.
The Applicant, as director of the 1st Defendant, knew of the previous suit and the dismissed Court of Appeal application seeking to restrain the statutory power of sale over the same property, yet concealed them and filed parallel proceedings raising the same issues. Relying on authority that superior courts cannot reopen decisions of higher courts, the court found that allowing the application would bring the Court of Appeal into disrepute, breed anarchy and undermine stare decisis. The concealment of prior proceedings compounded the abuse.
Temporary injunction conditions
No prima facie case was established; the Applicant's claim of ignorance of the transfer was dishonest, the transfer bearing her executed signature and photograph, so the application collapsed at the first sequential hurdle.
A prima facie case requires an apparent right infringed calling for rebuttal. The 2nd Defendant produced a transfer of lease duly executed by the Applicant bearing her unchallenged signature and passport photograph, attested before an advocate with no complaint lodged against him with the LSK or Advocates Complaints Commission. The court found the Applicant's affidavit misleading, demonstrating gross dishonesty bordering on perjury, and noted she also failed to disclose prior proceedings. Citing Nguruman, the conditions are sequential, so without a prima facie case the inquiry into irreparable loss does not arise.
Legal principles established
#- A commissioner for oaths may not commission affidavits in a matter in which he is the advocate or in which he is interested; self-commissioning renders the affidavits nullities and leaves the suit incompetent.
- Article 159(2)(d) of the Constitution cannot be invoked to cure violation of substantive mandatory provisions such as Section 4 of the Oaths and Statutory Declaration Act.
- Constructive res judicata applies to issues which a party, with due diligence, ought to have raised in previous proceedings, even where the claimant was not a party to the earlier suit.
- A party who has sought orders before a superior court and failed cannot reinvent itself and approach a lower court to defeat the superior court's decision; such conduct is an abuse of the due process of the court.
- The conditions for a temporary injunction are sequential; failure to establish a prima facie case disposes of the application.
Court orders
#- 1.The Application dated 17.03.2026 be and is hereby struck out.
- 2.The suit vide Plaint dated 17.03.2026 be and is hereby struck out.
- 3.The Interim Orders which were issued on the 24.03.2026 be and are hereby Discharged.
- 4.The costs of the application and the main suit be and are hereby awarded to the 2nd Defendant only.
- 5.The costs in terms of clause (iv) shall be agreed upon and in default be taxed in the conventional manner.
- 6.The costs in terms of clause (v) shall be recovered from the security which was deposited before the court.
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act (Cap 21); Sections 68 of the Land Registration Act, 2012; Section 780 of the Companies Act, 2015; Order 40 Rules 1 and 2 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kathinja v Northern Galaxy Hotel Limited & another (Environment and Land Case E002 of 2026) [2026] KEELC 4402 (KLR)", Case Analysis (2026). Application dated 17.03.2026 (Plaint dated 17.03.2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4402/eng@2026-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.