Bady v Kanyi & another (Environment and Planning Civil Case E006 of 2023) [2025] KEELC 4470 (KLR)

4. The application was based on the very same grounds upon which the earlier application was based. The first was that the court had no jurisdiction to entertain the suit by dint of Article 165 (3) (a) of the Constitution. For good measure, it was emphasized that the court had improperly disregarded binding precedent in its ruling of 12.11.2024. The 2nd ground was that the plaintifi had no locus standi to file the suit against it. It was emphasized that the court had failed to make a specific determination on this issue in the earlier ruling. C. Plaintifi ’s response 5. The plaintifi filed grounds of opposition dated 27.01.2025 in response to the application. The plaintifi opposed the application on the following grounds; a. The application lacks merit and should be dismissed in the first instance. b. The case laws quoted by the applicant that is Bia Distribution vs Kenya Breweries (2023) KESC 12(eKLR), Lydia Nyambura Mbugua vs Diamond Trust Bank (2018) eKLR and Bank of Africa TSS Investment Limited are irrelevant on the issues at hand because the respondents are not tenants but owners of the mentioned portions of land sold to them by the 1st defendant. c. The court has jurisdiction to adjudicate the matter d. The issues raised in the present application were dealt with by the court in the 1st application dated 11.06.2024 and therefore the matter is res judicata. e. The application is defective and is brought under the wrong provisions since it has not been supported by a supporting afidavit. f. The application is an abuse of the court’s process and a total waste of time and the same should be dismissed with costs. D. Directions on submissions 6. When the application was listed for inter partes hearing, it was directed that it shall be canvassed through written submissions. The parties were consequently granted timelines within which to file and exchange their respective submissions. The record shows that the 2nd defendant filed its submissions on 06.02.2023 whereas the plaintifi’s submissions were filed on 14.02.2025. E. Issues for determination 7. The court has perused the 2nd defendant’s application dated 13.01.2025, the plaintifi’s grounds of opposition as well as the material on record. The court is of the view that the following are the main issues which arise for determination herein; a. Whether the application is res judicata b. Whether the 2nd defendant has made out a case for review of the ruling made on 12.11.2024. F. Analysis and determination SUBDIVISION - a. Whether the application is res judicata 8. The plaintifi submitted that the instant application is nearly identical to the earlier application dated 11.06.2024 which was dismissed by the court on 12.11.2024. It is also evident that the application https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4470/eng@2025-06-12 2

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is based upon essentially the same grounds save that the court is being called upon to determine the question of locus standi which was not specifically determined in the earlier ruling. 9. The court is of the opinion that the question of the court’s jurisdiction to entertain the suit was conclusively determined vide the ruling dated 12.11.2024. The court also gave its reasons for the decision. If the 2nd defendant was dissatisfied with that determination, the only option lawfully available to it was to appeal. It was not at liberty to file a similar application and re-litigate the same issue with a view to obtaining a difierent decision thereon. 10. The court is of the view that even if the 2nd defendant were to persuade the court that the Judge was wrong in the earlier ruling of 12.11.2024, there is nothing this court can lawfully do to annul the earlier decision. The court has not power or jurisdiction to review or overturn a decision made by a court of co-ordinate jurisdiction on the basis that it was erroneous in law. That mandate belongs to a higher appellate court. The 2nd defendant’s application on the first ground must fail. b. Whether the 2nd defendant has made out a case for review of the ruling made on 12.11.2024 11. The court has also considered the material and submissions on record on the second ground. The plaintifi’s pleaded case was that on or about 12.10.2018 he purchased the bungalow No.7 (with a parking) from the 1st plaintifi, paid the purchase price and took possession thereof. It was his case that later on he discovered that the 1st defendant had or about 11.11.2021 fraudulently charged the property to the 2nd defendant to secure payment of a sum of Kshs.29 million. It was thus his case that the latter transaction took place on account of fraud of the 1st defendant and the negligence of the 2nd defendant. 12. Although the plaintifi was not party to the charge instrument, his claim to bungalow No. 7 is of a proprietary nature. He claims to have acquired a legal interest in the property which belonged to the 1st defendant prior to the creation of the charge in favour of the 2nd defendant. The plaintifi does not claim as a tenant or licencee of the 1st defendant. The court is thus of the view that the plaintifi has locus standi to ventilate his claim and the case of Bank of Africa Kenya Ltd vs TSS Investments Limited and 2 others(supra) is clearly distinguishable. As to whether or not the plaintifi shall ultimately succeed in his suit that is a difierent matter altogether which has nothing to do with the existence of locus standi. 13. The court is of the view that the plaintifi’s claim cannot be completely and efiectively adjudicated upon in the absence of the 2nd defendant who is the holder of a legal charge over the mother title. At the very least, the 2nd defendant shall be a necessary party in any litigation as between the plaintifi and the 1st defendant. For that reason, it would be premature to remove the 2nd defendant from the proceedings at this stage or to have the claim against it struck out. G. Conclusion and disposal order 14. The upshot of the foregoing is that the court finds no merit in the 2nd defendant’s application. As a consequence, the notice of motion dated 13.01.2025 is hereby dismissed with costs to the plaintifi. It is so ordered. RULING DATED AND SIGNED AT MOMBASA AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS ON THIS 12TH DAY OF JUNE, 2025. …………………… Y. M. ANGIMA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4470/eng@2025-06-12 3

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In the presence of: Gillian - Court assistant Mr. Birir for plaintifi Mr. Karanja for the 2nd defendant No appearance for the 1st defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4470/eng@2025-06-12 4

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