Osogo & 4 others v Maseki & 6 others (6th and 7th Defendants Both Practicing Law in the Firm Name and Style of Bryant & Associates) (Environment and Land Case 1042 of 2013) [2025] KEELC 6398 (KLR)

RULING 1. In this application dated the Defendant seeks an order that the court do order that the registration efiected pursuant to court order dated 1st November 2019 and registered on 20th November 2019 as entry 19 in File No 9644 for land parcel no LR 209/9652 be cancelled and the property revert to Superiorfone Communications Ltd and a fresh entry be made in favour of Superiorfone Communications as the registered proprietor of the suit property. 2. The Defendants director averred that the Plaintifis/ Respondents proceeded ex parte leading to delivery of a Judgement on 24th October 2019. Execution of the Judgement resulted in cancellation of the 4th Defendant /Applicant as the proprietor of the suit property. Upon learning of the Judgement. The 4th Defendant applied for it to be set aside. She asked the court to order that the register revert to the original position before the issuance of the Judgement. 3. The Plaintifis opposed the application on grounds that the application was being made in bad faith as the issue of ownership was still seriously contested. That the matter should be heard whereupon the court can give directions on the way forward once and for all. The Plaintifis also pointed out that the process of registration is expensive 4. Counsel for the 4th Defendant filed submissions in which he submitted that Section 91 of the Civil Procedure Act provides that where a decree is varied or reversed, the parties should be placed in the position they would have been if the decree was not issued. Counsel argued that following the ruling dated 12th May, 2022 which set aside the Judgement of the court, the prayers sought in the application ought to issue. 5. The only issue for determination is whether the court the application is merited. 6. Section 91 of the Civil Procedure Code reads; “ (1) Where and in so far as a decree is varied or reversed, the court of first instance shall, on the application of the party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position they would have occupied but for such decree or such part thereof as has been varied or reversed; and for this purpose the court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.” 7. A reading of the section makes it evident that the key elements envisaged by this section are there is a decree varied or reversed; the party applying is entitled to restitution and the party is to revert back to the position they would have been in were it not for the decree. 8. While the court appears to have been given a wide discretion to make the orders of restitution and to outline the terms thereof, I hold the view that each case must be weighed against the requirements of section 91 and considered in the circumstances of each case. 9. On the question of the decree, although the Judgement was set aside, the matter is yet to proceed for hearing of both parties with a possibility of success by either party. There is no final outcome yet. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6398/eng@2025-02-06 2

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10. The oxford dictionary defines restitution as the restoration of something lost or stolen to the proper owner. It would be premature to find that 4th Defendant is the proper owner when this is the issue this court is expected to determine. 11. Rectification of the register is a process that requires use of resources in terms of time and money. It is more eficient that this cost be incurred after the issues herein are finally determined. 12. One of the grounds for filing of the present application is that the Defendants are fearful that the title may be interfered with while the matter is awaiting hearing. It is indeed incumbent that the court preserve the substratum of the suit. A status quo order can help achieve this. Justice Murithi J in the case of Mombasa Misc. Civil Application (JR) No.26 of 2010 Republic v The Chairperson Business Premises Rent Tribunal at Mombasa (Bench Mochache) Exparte Baobab Beach Resort (Mombasa Limited) & Monica Clara Schriel observed “An order for status quo merely leaves the situation or things as they stand pending the hearing of the reference or complaint.” 13. Before the final determination, I find that the proper order that commends itself is that the status quo existing at the lands registry should be maintained. There should be no dealings, action on or transfer on the suit property and on the register pending the hearing and determination of the case. 14. In the meantime, I urge the parties herein to prioritize the hearing of this old matter on merit so that the issues herein can be determined once and for all and with finality. RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 6TH DAY OF FEBRUARY 2025 JUDY OMANGE JUDGE In the presence of: Ms Odo for 4th Defendant Ms Ndinda for Mr. Mbaabu for the Plaintifis Mr. Misebe for Mr. Saende for 6th and 7th Defendants Mr Mutua for Ms Tanu for IP Court Assistant Meryline https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6398/eng@2025-02-06 3

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