Morara & 2 others v Koske (Suing as legal representative of the Estate of Michael Kichirchir Bor) & 2 others; Kipleitich (Interested Party) (Environment and Land Case E027 of 2024) [2025] KEELC 8436 (KLR)

and a replying afidavit on 19/6/2025 outside the stipulated timelines to the contempt application, which they had sought to be struck out. 4. Further, the applicants submit that they have a compelling response to the preliminary objection for the court’s consideration that the issues in Kitale ELC No. 78 of 2018 are difierent, given this instant suit sought for the determination of the location of the 6 acres, which is a fresh action post judgment, that other matter going by the surveyor’s report attached as annexure SMM-(6). 5. The applicants depose that none of the plaintifis herein were parties in Kitale ELC No. 76 of 2018, and so are the parcels of land, which are materially difierent. 6. The applicants depose that the order in Kitale ELC No. 76 of 2018 did not annul the certificates of titles; otherwise, the defendant has raised a counterclaim in this suit, which is yet to be determined by the court. 7. The application is opposed on the grounds of opposition dated 30/10/2025, that the application does not disclose any ground of review, the only remedy available was to set aside the orders of dismissal and not for review, and that the application is an abuse of the court process. 8. On 15/5/2025, the court gave directions on an application dated 14/5/2025. The same came up for mention on 26/5/2025 in the presence of Mr. Barongo for the applicants and Mr. Acharo for the 1st defendant. The 2nd and 3rd defendants were in person. Learned counsel Mr. Barongo told the court that he had received responses from the 1st and 2nd respondents. Counsel went on to say that he had not been served with the preliminary objection by the defendants. Learned counsel requested a ruling date since he had received the grounds of opposition and a replying afidavit, and also filed his written submissions. 9. Learned counsel also asked the court to expunge the grounds of opposition and the replying afidavit for being filed out of time. The last submission by Mr. Barongo's advocate was that “let the preliminary objection be dismissed”. The court gave a ruling date of 16/7/2025. 10. The basis upon which the court is asked to review its orders is that the ruling is centered on the preliminary objection dated 26/5/2025, which had not been served upon the applicants and had not been directed by the court to be the center of the determination, but the application for contempt of court dated 14/5/2025. 11. The applicants contend that the court condemned them unheard by determining a preliminary objection which had not been served upon them, or directions given that it would be determined alongside the application for contempt of court. 12. The starting point is whether the applicants were aware of the preliminary objection based on res judicata, among other grounds, dated 26/6/2025 in view of Kitale ELC No. 76 of 2018. Paragraph number 7 of the plaint dated 18/7/2024 and the verifying afidavit stated that there was no pending suit over the subject matter before any other court. 13. In the amended defence and counterclaim dated 3/3/2025 at paragraphs 2, 4, 9, 10, 11, 12, and 13, and in the reply to the defence and defence to the counterclaim, the reference of Kitale ELC No. 76 of 2018 was pleaded by all the parties. In the supporting afidavit sworn on 14/5/2025, the applicants attached a decree and an order in Kitale ELC No. 76 of 2018 as annexure marked SMM-(2). 14. Through the replying afidavit sworn by Joseph Kiprugut Koske on 13/6/2025 to the application dated 14/5/2025, paragraphs 3(ii), (iii), (iv), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xv), (xvi), (xvi), (xvii), (xx), https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8436/eng@2025-12-03 2

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(xxiii), (xxiv), (5), and (8), refer to Kitale ELC No. 76 of 2018 as to the legality of the title deed held by the applicant and the capacity to lodge the suit. 15. In paragraph 10 of the replying afidavit, the 1st respondent swears, “That I am advised by my advocates on record, which advice I verily believe to be true, that this court is functus oficio in the said matter, and even though the judicial oficers are difierent, the court has no jurisdiction to hear this case as the case is res judicata.” 16. In paragraphs 16 and 17 of the replying afidavit, the deponent deposes: (16) “That I am advised by my advocates on record that the eviction order against the plaintifi has not been set aside and hence, they cannot use this suit to regain access of the suit land without first setting aside the judgment and decree in ELC No. 76 of 2018, which is still in force and has not even been appealed against”. (17) “That I am advised by my advocate on record which advise I believe to be true that this suit is an abuse of the court process and an attempt by the plaintifis to have this court sit on its own appeal from the decision it already rendered in ELC No. 76 of 2018 through the back door by trying to have the court uphold the mutation and transaction it already rendered null and void ab initio.” 17. Section 80 of the Civil Procedure Act gives the court the power of review, while Order 45 Rule 1 of the Civil Procedure Rules sets out the rules. The rules restrict the grounds, scope, and jurisdiction of review. See Pancras T. Swai v Kenya Breweries Ltd [2014] eKLR. 18. In Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR, Mativo J, as he then was, observed that a court can only review its decision on either of the grounds enumerated in Order 45 Rule 1 of the Civil Procedure Rules and not otherwise. The court said that an erroneous order or decision cannot be corrected in the guise of the exercise of the power of review. 19. In Stephen Githua Kimani v Nancy Wanjira Waruingi T/A Providence Auctioneers [2016] eKLR, the court observed that an application for review will only be allowed on strong grounds, if its efiect will amount to re-opening the application or the case afresh. 20. In National Bank of Kenya v Ndungu Njau [1997] KECA 71 [KLR], the court observed that if the court had reached a wrong conclusion of law, it could be a good ground of appeal but not for review. 21. In Nyamogo and Nyamogo Advocate v Kogo (2001) EA 170, the court said that an error apparent on the face of the record is one requiring no long drawn process of reasons. The court held that a mere error or wrong view is certainly not a ground of review. The court said that such an error must be corrected through an appeal. 22. In this application, the applicants are alleging that they were not aware of the grounds of res judicata, the preliminary objection dated 26/6/2025 had not been served upon them, and directions were not given to canvass both the preliminary objection and the application for contempt of court. 23. The applicants depose that they were only anticipating a ruling on contempt of court, they were condemned unheard, rules of natural justice were violated, and that the plaintifis’ conduct is targeted to belittle and or undermine the authenticity, dignity, and integrity of this court, which is against the rule of law. 24. It is trite law that parties may not be permitted to divert from their pleadings. In an adversarial system, cases are tried and determined based on the pleadings made and the issues of fact or law arising therefrom. See Wareham T/A A.F. Wareham & Others v Kenya Post Ofice Savings Bank [2004] 2 KLR 91. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8436/eng@2025-12-03 3

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25. The purpose of pleadings is to inform the opposite party what the case of the opposite party is and also to inform the court of the issues between the parties at interlocutory proceedings before trial. See Dakianga Distributors v Kenya Seed Co. Ltd [2015] eKLR. 26. In Musila v Thengi & Others Civil Appeal 607 of 2019 [2025] KECA 750 [KLR] (9th May 2025) (Judgment), the court said that parties appearing before a court of law ought to be allowed to present their case and be heard. The court cited Union Insurance Co. of (K) Ltd v Ramzan Abdul Dhanji Civil Appl. No. Nairobi 779 of 1998, that whereas the right to be heard is a basic natural justice concept, it ought not to be taken away lightly. 27. The court said that the law is not that a party must be heard in every litigation, and as long as it is given an opportunity of being heard, and that once the opportunity is given and is not utilized, then the only point on which the party not utilizing the opportunity can be heard is why it did not utilize the opportunity. 28. Applying the foregoing case law to the instant application, it cannot be true that the issue of res judicata was not known to the applicants, simply because the preliminary objection had not been served or was not within their knowledge. It is Mr. Barongo, advocate, who brought the existence of the preliminary objection to the attention of the court on 26/5/2025. Learned counsel even urged the court to dismiss the preliminary objection. It cannot, therefore, be true that learned counsel did not know about the replying afidavit raising the issue of res judicata, abuse of the court process, lis pendens, and locus standi, not once but severally in the replying afidavit of the 1st respondent as demonstrated above. 29. The 1st respondent had raised a jurisdictional question on the competence of this court to be invited to sit on an appeal of its judgment, decree, and relitigate over issues previously determined in a previous suit. The applicants were aware of the replying afidavit by the respondents to the application. 30. It cannot be true that the applicants were not aware of the issues in response to the application for contempt raised by the respondents on both facts and the law. A party that fails to respond to and specifically address issues pleaded by the opposite party cannot turn around and deny knowledge or notice of the issues. 31. As held in Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others [2013] KECA 282 (KLR), the court held that it had inherent jurisdiction to dismiss suits in circumstances that would protect the integrity of the court process from abuse that could amount to injustice. 32. In Bashir Haji Abdullahi v Adan Mohamed Nooru & 3 others [2014] eKLR, the court held that a preliminary objection must be served, suficiently particularized and detailed to enable the other side and indeed the court to know exactly its nature. 33. In this application, it cannot be true that the applicants were not able to read the replying afidavit as amplified above, on the issue of res judicata. Therefore, I find no error apparent on the face of the record calling for the exercise of the review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. 34. The application is dismissed. 35. As to the counterclaim, it is governed by Order 7 Rule 3 of the Civil Procedure Rules. 36. It may proceed even after the termination of the main suit, since a counterclaim is independent of the main suit. A defendant to the counterclaim has to file a defence within 7 days under Order 8 Rule https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8436/eng@2025-12-03 4

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17(1), (2) and (b) of the Civil Procedure Rules. See Catering Concepts Ltd v Castle Brewing (K) Ltd, Nairobi HC Civil Case No. 744 of 200. 37. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 3RD DAY OF DECEMBER 2025. In the presence of: Court Assistant - Dennis 1st defendant present Mr. Bororio for Barongo for applicant present Ojienda for plaintifi present HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8436/eng@2025-12-03 5

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