Kipyegon v Chumo & another (Environment and Land Case 10 of 2020) [2025] KEELC 8020 (KLR)

3. d. That the seven siblings be ordered to sign transfer forms and provide the respective copies of the identification cards, passport size photographs and KRA pin certificates on the date of the survey and sub-division and in the presence of the County Surveyor Kericho County, failure of which the Deputy Registrar is hereby directed to sign the transfer forms. e. That the cost of survey, subdivision, mutation, land board, land consents, land tax, transfer, issuance of title deeds and security during the survey and sub-division is to be shared equally amongst the seven siblings. f. That the OCS Kabartegan Police Station is hereby ordered to oversee the full implementation of this Court Orders. g. That the portions held by the 1st Defendant in trust of his siblings, that is Kericho/ Kabartegan/1013 was mentioned in the Mediation Agreement & Kericho/Kabartegan/1135 and which are part of the suit properties in this matter was not mentioned in the mediation agreement hence the two parcels shall be subject to further separate litigation by the parties herein. (sic) h. That the issues of sale agreements touching on Kericho/Kabartegan/1013, 1135, 1851 & 1852 and being not subjects of determination in this suit will be pursued by the afiected parties in separate litigation against the would be new title deed holders on subdivision of the four parcels under reference. (sic) i. That the costs of this application abide the outcome of this application. The application is based on the grounds on its face and the supporting afidavit of Erick Kipngeno Korir Counsel for the Plaintifi/Applicant. Factual Background. 4. 5. The Plaintifi/Applicant commenced the present proceedings vide the Plaint dated 5th March, 2020 wherein he seeks the following prayers; a. An order of injunction restraining the 1st and 2nd Defendants by themselves or their agents from subdividing, transferring, selling and or doing any other act that prejudices the Plaintifi right to equal use and enjoyment of Kericho/Kabartegan/1013, 1135, 1851 & 1852 (formerly Kericho/Kabartegan/74). b. An order revoking all the title deeds that have been issued against Kericho/Kabartegan/74, that is, Kericho/Kabartegan/1012, 1013, 1135, 1851 & 1852. c. An order directing the 1st & 2nd Defendants to subdivide Kericho/Kabartegan/1013, 1135, 1851 & 1852 (formerly Kericho/Kabartegan/74) into seven equal portions and transfer the same be declared null and void. (sic) d. Any other further relief that this Honourable Court may deem just and fit to grant. e. Cost (sic) of the suit. The Defendants/Respondents filed their Statement of Defence and Counterclaim dated 21st September, 2020. They seek the following order in their Counterclaim; a. An order to issue directing the Plaintifi (now Defendant) to sign mutation form, transfer form and application for consent form and/or appear before the Kapkatet Land Control Board with a view of seeking approval/consent for the transfer of 2 portions one measuring https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8020/eng@2025-11-20 2

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0.384 Ha and the other 0.05 Ha to be excised out of Kericho/Kabartegan/1851 and Kericho/ Kabartegan/1133 respectively and in default, the Deputy Registrar of this Honourable Court shall sign all the relevant documents and forms aforementioned on behalf of the Plaintifi (now Defendant) in respect of land parcel Kericho/Kabartegan/1851 and Kericho/ Kabartegan/1133. 6. The application under consideration first came up for hearing on 5th November, 2024. The Court directed that it be served upon the Defendants/Respondents. 7. On 11th November, 2024, the Court was informed that the parties were negotiating. The matter was mentioned severally to confirm the progress of negotiations. 8. On 6th February, 2025, the Court issued directions that the application under consideration be heard by way of written submissions. It was mentioned severally to confirm filing of submissions and on 5th May, 2025 it was reserved for ruling. 9. This Court notes that the 1st Defendant/Respondent filed a preliminary objection dated 8th November, 2024 in response to the application under consideration. 10. No directions as to the hearing of the preliminary objection were taken and/ or issued. The Plaintifi/Applicant’s Contention. 11. The afidavit in support of the application is sworn by Erick Kipngeno Korir Counsel for the Plaintifi/ Applicant. It is sworn on 15th October, 2024. 12. He contends that the matter was referred to mediation and the parties entered into a partial agreement to settle the matter. He goes on to state that the parties agreed to have land parcel No. Kericho/ Kabartegan/1133 (now Kericho/Kabartegan/1851 & 1852) measuring 4.75 acres divided equally amongst the seven sons of the second wife of Kiprob Arap Chumo (deceased). 13. He also contends that the parcel of land referred to in the mediation report as Kericho/ Kabartegan/1133 has been subdivided into land parcel No’s Kericho/Kabartegan/1851 and 1852. He adds that this are the parcels of land that have been stated in the Plaint dated 5th March, 2020. 14. He further contends that in the mediation agreement, parties agreed that any disputes over land parcel No. Kericho/Kabartegan/1013 that is registered in the name of the 1st Defendant and land parcel No. Kericho/Kabartegan/1135 were to be litigated separately by the parties herein. 15. It is his contention that land parcel No. Kericho/Kabartegan/74 was initially registered in the name of Kiprob A. Chumo (deceased) before it was sub divided into land parcel No’s Kericho/ Kabartegan/1013, 1851, 1852 and 1135. 16. It is also his contention that any issues over the sale of land parcel No’s Kericho/Kabartegan/ 1013, 1135, 1851 and 1852 can be pursued by the afiected parties separately as they do not form part of the subject matter of this suit. 17. It is further his contention that land parcel No. Kericho/Kabartegan/1132 which measured 4.75 acres was subdivided into land parcel No’s Kericho/Kabartegan/1851 and 1852. 18. He contends that land parcel No. Kericho/Kabartegan/1851 measures 4.25 acres and is registered in the name of the 2nd Defendant while land parcel No. Kericho/Kabartegan/1852 measures 0.5 acres and is registered in the 2nd Defendant’s son’s name. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8020/eng@2025-11-20 3

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19. He contends that in the mediation agreement they agreed that each of the seven sons of the second wife of Kiprob Arap Chumo (deceased) will get 0.679 acres of land parcel No’s Kericho/Kabartegan/1851 and 1852. 20. He ends his deposition by stating that the 2nd Defendant/Respondent will get 0.179 acres of land parcel No. Kericho/Kabartegan/1851 together with a portion of land parcel No. Kericho/Kabartegan/1852. The 1st Defendant/Respondent’s Response. 21. The 1st Defendant/Respondent filed a Preliminary Objection dated 8th November, 2024 in response to the Plaintifi/Applicant’s application. 22. It is on the following grounds; a. That the application herein is an afiront to the provisions of Order 19 of the Civil Procedure Rules 2010. b. That the application herein is frivolous, vexatious and an abuse of the process of the Honourable Court. c. That the Plaintifi/Applicant has come to this Court with unclean hands and the application herein has been made in bad faith. d. That the application lacks merit both in facts and in law. (sic) e. That the 1st Defendant pray (sic) that this application be dismissed with costs. 23. The 1st Defendant/Respondent also filed a Replying Afidavit sworn on 8th November, 2024. 24. He deposes that the averments at paragraph 2 of the afidavit in support of the application are not true. 25. He also deposes that he was registered as the owner of land parcel No. Kericho/Kabartegan/1013 in the year 1997. He goes on to state that he was registered as the owner of the said parcel of land during the lifetime of the original owner and therefore the Plaintifi/Applicant has no right to interfere with the mediation agreement (sic). 26. He further deposes that the averments at paragraphs 3 and 4 of the afidavit in support of the application are not true. He adds that his step brother from the first house was given his share of land by their late father. 27. It is his deposition that the Plaintifi/Applicant’s allegations at paragraph 5 of the afidavit in support of the application are made in bad faith and with the intention to grab his land and the 2nd Defendant/ Respondent’s land. 28. He reiterates that he acquired his parcel of land in the year 1997 which was during the lifetime of the initial owner and therefore the Plaintifi/Applicant has no right to claim his property. He adds that this is in response to paragraph 6 of the afidavit in support of the application. 29. He denies the averments at paragraphs 7 and 8 of the afidavit in support of the application and deposes that the Plaintifi/Applicant only wants to interfere with the parcels of land belonging to the Defendants/Respondents. He goes on to state that the Plaintifi/Applicant is not entitled to land parcel No’s Kericho/Kabartegan/1013 and 1852 because he has his own parcel of land. 30. It is his deposition that the Plaintifi/Applicant’s application has been brought in bad faith and he is therefore not entitled to the prayers sought. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8020/eng@2025-11-20 4

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31. He ends his deposition by stating that he is advised by his advocates on record that the Plaintifi/ Applicant’s application is baseless, scandalous, frivolous and is an abuse of the Court process. Issues for Determination. 32. The Plaintifi/Applicant filed his submissions on 3rd March, 2025, the 1st Defendant/Respondent filed his submissions on 12th March, 2025 while the 2nd Defendant/Respondent filed his submissions on 5th May, 2025. 33. The Plaintifi/Applicant submits on the following issues; a. Was there a trust created by the deceased father when he transferred his portions of land to his first and second born sons in the two houses? (sic) b. Does the 1st & 2nd Defendants hold good title deeds capable of being sub divided and transferred to their siblings or not hence to be cancelled? (sic) c. Who should bear the cost of the suit. 34. The Plaintifi/Applicant submits that the Defendants/Respondents admit in their witness statements that were filed on 21st October, 2023 that they are holding land parcel No’s Kericho/Kabartegan/1851, 1852 and 1135 in trust for their siblings. 35. The Plaintifi/Applicant sets out the contents of the 1st and 2nd Defendants/Respondents witness statements and submits that land parcel No’s Kericho/Kabartegan/1851, 1852 and 1135 should be subdivided equally. 36. The Plaintifi/Applicant also submits that those holding land in trust for others should release the said land to the intended recipients. 37. The Plaintifi/Applicant relies on the judicial decision of Isack Kieba M’inanga v Isaaya Theuri M’Lintari & another [2018] eKLR and submits that a customary trust has been created over the suit parcels of land. 38. The Plaintifi/Applicant relies on Sections 24 and 28 of the Land Registration Act and submits that the Court should enforce the partial mediation agreement and order the 2nd Defendant/Respondent to subdivide and transfer land parcel No’s Kericho/Kabartegan/1851, 1852 and 1135. 39. The Plaintifi/Applicant relies on the judicial decision of Muthuita vs Muthuita [1982-88] 1 KLR 42 as was cited in Njenga Chogera vs Maria Wanjira Kimani & 2 Others [2005] eKLR in support of his submissions. 40. It is the Plaintifi/Applicant’s submissions that the Court should invoke the doctrine of absolute necessity in ordering for the subdivision of the said parcels of land. The Plaintifi/Applicant relies on the judicial decisions of Peter Ndungu Njenga vs Sophia Watiri Ndungu [2000] eKLR and Juletabi African Adventure Limited & another vs Christopher Michael Lockley [2017] eKLR in support of his submissions. 41. On the second issue, the Plaintifi/Applicant submits that their deceased father registered the suit parcels in the names of the Defendants/Respondents to hold the land in trust for the other siblings. 42. The Plaintifi/Applicant relies on Article 40 of the Constitution of Kenya and the judicial decision of Henry Mwangi v Charles Mwangi CA 245 of 2004 as was cited in Justus Maina Muruku v Jane Waithira Mwangi [2018] eKLR in support of his submissions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8020/eng@2025-11-20 5

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43. The Plaintifi/Applicant relies on Section 27 of the Civil Procedure Act, the judicial decision of Levben Products v Alexander Films (SA) (PTY Ltd 1957 (4) SA 225 (SR) at 227 as was cited in Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 Others [2013] eKLR and urges the Court to allow his application with costs. 44. The 1st Defendant/Respondent submits that prayers 7, 8 and 9 of the application under consideration cannot be granted because the listed parcels of land were not included in the partial mediation agreement. 45. The 1st Defendant/Respondent also submits that the application dated 10th November, 2023 should be heard and determined before the application under consideration. 46. The 1st Defendant/Respondent further submits that the partial Mediation Agreement dated 24th February, 2023 was not conclusive and that is why the Interested Parties filed an application dated 10th November, 2023 seeking to be joined to the suit. 47. It is also the 1st Defendant/Respondent’s submissions that the partial mediation agreement does not address the prayers sought in the main suit. 48. The 1st Defendant/Respondent reiterates the averments in his Replying Afidavit and relies on Section 24 of the Land Registration Act. 49. The 1st Defendant/Respondent submits that the Plaintifi/Applicant is trying to grab his land and yet he owns his own parcel of land. 50. The 1st Defendant/Respondent also submits that the Plaintifi/Applicant did not have capacity to file the present suit and his application has been made in bad faith and it should therefore be struck out with costs. 51. The 1st Defendant/Respondent further submits that the Plaintifi/Applicant’s Counsel has on many occasions admitted that Zephania Rop, Patrick Rop and Simon Rop have sold their shares to the proposed Interested Parties in the application dated 10th November, 2023. 52. The 1st Defendant/Respondent sets out the following issues for determination; a. Whether the application ofiends Order 19 of the Civil Procedure Rules as regard the deponent’s afidavit dated 15th October, 2024. b. Who shall bear the costs of the application. 53. On the first issue, the 1st Defendant/Respondent submits that the afidavit in support of the application is sworn by Counsel for the Plaintifi/Applicant. 54. The 1st Defendant/Respondent also submits that the said afidavit is defective as it contains issues which cannot be within the personal knowledge of its deponent. 55. The 1st Defendant/Respondent relies on the judicial decisions of Lalago Cotton Ginnery and Oil Mills vs The Loans and Advances Realization Trust (LART) Civil Application No. 80 of 2002 (unreported), Raila Odinga & Others vs William Ruto & Others Presidential Election No. E005 of 2022 (Consolidated with Presidential Election Petition Nos. E001, E002, E003, E004, E007 and E008) in support of his submissions. 56. The 1st Defendant/Respondent also relies on Section 27 of the Civil Procedure Act, the judicial decisions of East African Foundry Works (K) Ltd v Kenya Commercial Bank Ltd [2002] eKLR, Albany Taylor & another v Stella Nafula Khisa & another [2009] eKLR, Trinity Investment Bank Limited https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8020/eng@2025-11-20 6

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& another v Guardian Bank Limited [2015] eKLR, Kenya Commercial Bank Limited v Stage Coach Management Ltd [2014] eKLR and Kellen Rose Rwakatare Kuntu & 4 Others vs Zithay Kabuga High Court of the United Republic of Tanzania Misc. Application No. 89 of 2023 in support of his submissions. 57. The 2nd Defendant/Respondent submits on whether or not the partial agreement entered into by the parties is enforceable as sought in the application dated 15th October, 2024. 58. It is the 2nd Defendant/Respondent’s submissions that the parties entered into a partial settlement agreement and four issues were referred to this Court for hearing and determination. The said issues are as follows; a. The sale agreement between Zephania Rop and Gilbert Rutto of 0.5 acres. (sic) b. The sale agreement between Simion Rop and Victor Koech of 0.1 acres. (sic) c. Land parcel Kericho/Kabartegan/1013 registered in the name of Samwel Kipkemoi Chumo. (sic) 59. The 2nd Defendant/Respondent submits that issues for determination in a suit generally fiow from the pleadings. 60. The 2nd Defendant/Respondent also submits that if the Court proceeds to hear and determine the application under consideration, then it will amount to an error on the face of the record as there is a pending application filed by the Proposed Interested Parties. 61. The 2nd Defendant/Respondent relies on the judicial decisions of Gandy vs Caspair [1956] EACA 139, Galaxy Paints Co. Ltd vs Falcon Guards Ltd [2000] 2 EA 385 and Standard Chartered Bank Kenya Limited vs Intercom Services Limited & 4 Others Civil Appeal No. 37 of 2003 [2004] 2 KLR 183 in support of his submissions. 62. The 2nd Defendant/Respondent relies on the judicial decisions of Odd Jobs vs Mubia [1970] EA 476, Ann Wairimu Wanjohi v James Wambiru Mukabi [2021] eKLR and submits that the Court can make a determination on an unpleaded issue in certain circumstances. 63. The 2nd Defendant/Respondent submits that the parties in the present suit are siblings. He also submits that during the mediation settlement meeting, persons who are not parties to the present proceedings were present and they were given responsibilities in the execution of the partial mediation agreement. The said persons were Gilbert Rutto and Victor Kipkoech. 64. The 2nd Defendant/Respondent also submits that the pending issues will afiect their rights and their claim over land parcel No. Kericho/Kabartegan/1135. 65. The 2nd Defendant/Respondent relies on the judicial decision of Stephen Boro Gitiha v Family Finance Building Society & 3 Others [2009] eKLR and submits that the issues that are pending determination though not pleaded, arose during the mediation process and have been referred to Court for determination. 66. The 2nd Defendant/Respondent concludes his submissions by stating that the Court should not proceed with the execution of the partial mediation settlement before the intended Interested Parties are joined to the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8020/eng@2025-11-20 7

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Analysis and Determination. 67. I have considered the Plaintifi/Applicant’s application, the responses thereto and the rival submissions. It is my view that the following issues arise for determination; a. Whether the Plaintifi/Applicant’s application dated 15th October, 2024 has merit. b. Who is to bear costs of the application. A. Whether the Plaintifi/Applicant’s application dated 15th October, 2024 has merit. 68. 69. The prayers sought by the Plaintifi/Applicant in the application dated 15th October, 2024 have been set out in the preceding paragraphs but I will nonetheless replicate them as hereunder. a. Spent b. That parcel referred to in the mediation report as Kericho/Kabartegan/1133 has been subdivided into two portions, namely, Kericho/Kabartegan/1851 & 1852 and these are the portions that we have referred to in our plaint dated 5th March, 2020 and are subject to the Court orders. (sic) c. That the Honourable Court do issue an order that the partial mediation agreement in respect of Kericho/Kabartegan/1851 & 1852 (formerly Kericho/Kabartegan/1133) measuring 4.75 acres be implemented forthwith through survey and sub-division into seven equal portions by the County Surveyor, Kericho County. d. That the seven siblings be ordered to sign transfer forms and provide the respective copies of the identification cards, passport size photographs and KRA pin certificates on the date of the survey and sub-division and in the presence of the County Surveyor Kericho County, failure of which the Deputy Registrar is hereby directed to sign the transfer forms. e. That the cost of survey, subdivision, mutation, land board, land consents, land tax, transfer, issuance of title deeds and security during the survey and sub-division is to be shared equally amongst the seven siblings. f. That the OCS Kabartegan Police Station is hereby ordered to oversee the full implementation of this Court Orders. g. That the portions held by the 1st Defendant in trust of his siblings, that is Kericho/ Kabartegan/1013 was mentioned in the Mediation Agreement & Kericho/Kabartegan/1135 and which are part of the suit properties in this matter was not mentioned in the mediation agreement hence the two parcels shall be subject to further separate litigation by the parties herein. (sic) h. That the issues of sale agreements touching on Kericho/Kabartegan/1013, 1135, 1851 & 1852 and being not subjects of determination in this suit will be pursued by the afiected parties in separate litigation against the would be new title deed holders on subdivision of the four parcels under reference. i. That the costs of this application abide the outcome of this application. Both the Plaintifi/Applicant and the Defendants/Respondents submit that the application under consideration is meant to aid the implementation of the partial mediation agreement that the parties entered into on 24th February, 2023. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8020/eng@2025-11-20 8

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70. The background of this matter is that on 17th January, 2023 the parties herein were referred to mediation pursuant to which they entered into a partial settlement agreement. 71. The partial settlement agreement was filed in Court on 24th February, 2023 and it is as follows; 72. 1. That Samuel Kipkemei Rop Chumo and Reuben Kipkoech Rop to pay Philip Rop Kshs. 27,500 which he paid to the surveyor. 2. That their mother, Sara Chuma to be allowed to live in her house. 3. That the family as listed will buit (sic) a house for their mother and grandmother Sara Chuma. 4. That Reuben Rop had distributed/Subdivided the land, Kericho/Kabartegan/1133 to all his brothers as per his father’s wish. The report also states that the following issues were referred back to Court for determination; a. The sale agreement between Zephania Rop and Gilbert Ruto of 0.5 acres. (sic) b. Sale agreement between Simeon Rop and Victor Koech of 0.1 acres. (sic) c. Sale agreement between Samuel Kipkemoi Chuma and Patrick Rop of one acre. (sic) d. Kiricho (sic) /Kabartegan/1013 registered in the name of Samuel Kipkemei Chumo. (sic) 73. On 16th March, 2023 the Court adopted the partial settlement agreement as an order of the Court. 74. The Plaintifi/Applicant submits that their deceased father transferred land parcel No’s Kericho/ Kabartegan/1851, 1852 and 1135 to the Defendants/Respondents for them to hold in trust for the other siblings. 75. The Plaintifi/Applicant also submits that the said parcels of land should therefore be subdivided between the parties in this suit and the other siblings. 76. The 1st Defendant/Respondent on the other hand submits that the parcels of land listed under prayers 7, 8 and 9 of the application under consideration were not included in the partial mediation agreement. 77. He further submits that the mediation agreement was not conclusive. 78. This Court notes that the 1st Defendant/Respondent also submits on whether the afidavit in support of the application contravenes Order 19 of the Civil Procedure Rules. 79. It is important to note that this issue was raised in the preliminary objection dated 8th November, 2024 and no directions as to its hearing were sought and/or issued. 80. The 2nd Defendant/Respondent submits that the Court ought to have heard the application dated 10th November, 2023 before hearing the application under consideration. 81. The 2nd Defendant/Respondent also submits that the application dated 10th November, 2023 seeks for joinder of some parties who are instrumental in the implementation of the partial mediation agreement. 82. The 2nd Defendant/Respondent further submits that the issues that are pending determination though not pleaded, arose during the mediation process and have been referred to Court for determination. 83. The application under consideration essentially seeks for declaratory orders and for orders of subdivision of land parcel No’s Kericho/Kabartegan/1851 and 1852. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8020/eng@2025-11-20 9

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84. It is important that to note that item No. 4 on the partial mediation agreement is follows; “ 4. That Reuben Rop had distributed/Subdivided the land, Kericho/ Kabartegan/1133 to all his brothers as per his father’s wish.” 85. The Plaintifi/Applicant is under prayer (2) of the application under consideration seeking that the Court finds that land parcel No. Kericho/Kabartegan/1133 has been subdivided into land parcel No’s Kericho/Kabartegan/1851 and 1852. 86. The Plaintifi/Applicant is seeking under prayer (3) of the application that land parcel No’s Kericho/ Kabartegan/1851 and 1852 be subdivided into seven equal portions. 87. Under prayer (4), the Plaintifi/Applicant seeks that the seven siblings be ordered to sign the transfer forms and that they avail the requisite documents for the transfers to be efiected. 88. Under prayer (5), the Plaintifi/Applicant seeks that the costs be shared equally amongst the seven siblings while prayer no. 7 is for an order that land parcel No. Kericho/Kabartegan/1013 is held in trust by the 1st Defendant/Respondent and that the said parcel of land and land parcel No. Kericho/ Kabartegan/1135 should be subject of separate litigation. 89. It is important to note that the said prayers as sought do not relate to any specific terms of the partial mediation settlement agreement. 90. Secondly, the Plaintifi/Applicant seeks for the Court to make certain orders for the benefit of some “seven siblings” who are neither parties to this suit nor are their identities disclosed. 91. It is apparent that Prayers 2, 3, 4, 5 and 6 as drafted refer to the partial mediation settlement agreement dated 24th February, 2023. 92. It is evident that the partial mediation agreement was adopted as an order of the Court on 16th March, 2023. Having been so adopted, the Plaintifi/Applicant ought to have proceeded with its execution. 93. It is my view that it was not necessary for the Plaintifi/Applicant to file an application seeking implementation of the partial mediation settlement agreement and yet it had already been adopted as an order of the Court. 94. Prayers 7 and 8 of the application under consideration are in respect of issues which parties were not able to agree on. 95. It is evident that parties agreed on certain issues which form part of the partial mediation settlement agreement. It follows that any other issues that was not agreed upon would be subject of litigation. 96. If at all new issues arose during mediation, then nothing is easier than parties seeking leave to amend their pleadings as they deem appropriate and/ or file another suit. 97. In the judicial decision of Arthur Wamiti Njoroge v The Disciplinary Tribunal & another [2017] KEHC 8906 (KLR) the Court held as follows; “ I have in numerous decisions of this Court[3] observed that "It is trite law that the Court has an inherent jurisdiction to protect itself from abuse or to see that its process is not abused. The black's law dictionary defines abuse as “Everything which is contrary to good order established by usage that is a complete departure from reasonable use. An abuse is done when one makes an excessive or improper use of a thing or to employ such thing in a manner contrary to the natural legal rules for its use."[4] https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8020/eng@2025-11-20 10

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The concept of abuse of Court/judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. It is recognized that the abuse of process may lie in either proper or improper use of the judicial process in litigation.” (Emphasis mine) 98. It is evident that the Plaintifi/Applicant’s application is misconceived, not well thought out and is clearly an abuse of the Court process. B. Who is to bear costs of the application. 99. The general rule is that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act. (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. Disposition. 100. Taking the foregoing into consideration, I find that the Plaintifi/Applicant’s application dated 15th October, 2024 lacks merit and is an abuse of the Court process. It is hereby dismissed with costs. 101. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 20th DAY OF NOVEMEBER, 2025. L. A. OMOLLO JUDGE. In the presence of: Mr. Bii for the 1st Defendant/Respondent. No appearance for the 2nd Defendant/Respondent. No appearance for the Plaintifi/Applicant. Court Assistant; Mr. Joseph Makori. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8020/eng@2025-11-20 11

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