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MagistrateDismissed· [2026] KEMC 5 (KLR)

Chepkurui (Suing on Behalf of the Estate of the Late Christopher Lagat) v Ngeno & 7 others (Environment and Land Case 207 of 2019) [2026] KEMC 5 (KLR)

Magistrates' Court (Senior Principal Magistrate)
26 January 2026
ANAloyce Peter Ndege
1,218 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court threw out a second attempt to challenge auctioneer costs, ruling you cannot refile an identical application to fix weak evidence.

What this practically means

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Executive summary

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The plaintiff/applicant, Christine Ngerich, moved the court by Notice of Motion seeking to set aside the taxation of a Bill of Costs and the resulting Certificate of Costs for want of service, to strike out auctioneer's charges of Kshs. 89,900 as excessive, to declare execution by Bama Auctioneers irregular in view of re-issued warrants to Sanjomu Auctioneers, and to lift or stay warrants of attachment and consequential execution steps. The defendants/respondents opposed, contending the application was a 'cut and paste' replica of an earlier application dated 29/08/2025, which the court dismissed on 13/11/2025 after striking out the incompetent supporting affidavit and finding no evidence to support the application. The respondents argued the application was res judicata and an abuse of process. The court held that the earlier application was dismissed, not struck out, and that a dismissal for want of evidence is not a dismissal on a technicality. Applying the distinction between dismissal and striking out drawn in Mbaraka Issa Kombo v IEBC, and drawing an analogy with the Supreme Court's treatment of incompetent affidavit evidence in Raila Odinga v IEBC, the magistrate held that a litigant cannot file an identical application to cure an evidentiary defect and present evidence piecemeal. The application was found to be misconceived, lacking merit and an abuse of the court process, and was dismissed with costs to the defendants/respondents.

Key legal issues

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01

Res judicata / abuse of process by re-filing a replica application

Holding

The application dated 21/11/2025 was a replica of the earlier application dated 29/08/2025, which was dismissed; re-filing it to cure the evidentiary defect was an abuse of process and the application was dismissed with costs

Reasoning

The court found the present application identical in content and form to the earlier one dismissed on 13/11/2025. That dismissal was on account of want of evidence after the supporting affidavit was struck out as incompetent, and was therefore a dismissal, not a striking out on a technicality. The applicant could not re-litigate to present evidence afresh; the proper avenues were review or appeal.

p. 3
02

Distinction between dismissal and striking out

Holding

Adopting the Mbaraka Issa Kombo formulation, the court held that striking out investigates no merit while dismissal follows consideration of the merits and evidence; the earlier application was dismissed for lack of evidence, not struck out on a technicality

Reasoning

The court distinguished the two terms, adopting the quoted passage from Mbaraka Issa Kombo v IEBC. Since the earlier application was dismissed after the incompetent affidavit was struck out, leaving no evidence, the dismissal was not merely technical; the substance could not be re-agitated in a fresh application.

p. 3

Legal principles established

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  • Striking out is a summary procedure concerned with propriety rather than merit, whereas dismissal follows scrutiny of the merits after consideration of facts and evidence
  • A party may not file a fresh application identical to one previously dismissed for lack of evidence in order to re-present evidence that should have been adduced earlier; a litigant cannot present evidence piecemeal

Court orders

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  1. 1.The Notice of Motion dated 21/11/2026 is dismissed
  2. 2.Costs of the application awarded to the defendants/respondents
  3. 3.A certified copy of the ruling be supplied to counsel upon payment of the necessary costs/fee

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A & 63(e)
  • Civil Procedure RulesOrders 21 & 22
  • Auctioneers ActNo. 5 of 1996
  • Auctioneers RulesRule 55 and 4th Schedule
  • Advocates Remuneration OrderParagraph 13A
  • Oaths and Statutory Declarations Actnot specified
  • Constitution of KenyaArticle 50(1)

Cases cited (2)

  • Mbaraka Issa Kombo v Independent Electoral and Boundaries Commission & 3 others
    (2017) eKLR
  • Raila Odinga & 5 Others Vrs Independent Electoral & Bounderies Commission & 3 Others
    [2013] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act; Orders 21 & 22 of the Civil Procedure Rules; Auctioneers Act No. 5 of 1996; Rule 55 of the Auctioneers Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Chepkurui (Suing on Behalf of the Estate of the Late Christopher Lagat) v Ngeno & 7 others (Environment and Land Case 207 of 2019) [2026] KEMC 5 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/5/eng@2026-01-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.