Ragi & 3 others v Bosibori & 3 others (Environment and Land Case E038 of 2025) [2026] KEELC 2280 (KLR)

He further seeks the appointment of a court bailifi/auctioneer to execute the eviction order and that the oficer commanding station (OCS), Ongata Rongai Police station, be directed to provide security during the eviction and to maintain law and order. 2. The application is premised on the grounds on the face of it and on the supporting afidavit of the 4th Defendant, Jeremiah Mwebi Mayieka. The 4th Defendant/Applicant asserts that he is the registered proprietor of Ngong/Ngong/35216 since 11th March, 2025 after he purchased it at a public auction conducted by Garam Investments Auctioneers on 8th October 2024 following instructions from the Kenya Women Microfinance Bank PLC in exercise of the statutory power of sale and subsequent to a ruling by the High Court in civil suit No. E593 of 2021(Allan Ragi vs Kenya Women Microfinance Bank PLC [2024]KEHC 7850 (KLR) (Commercial and Tax, 27th June, 2024)( Ruling). 3. The Applicant laments that since purchasing the suit property, he has been unable to access, gain entry into or have possession of it as the 1st Plaintifi has through his agents, servants and or employees and other person(s) acting on his instructions violently, intimidatingly and threateningly denied him entry, access and possession of the suit property. The 1st Plaintifi has therefore continued to occupy and possess the suit property, albeit unlawfully, with the assistance of armed men who have threatened the Defendants with violence and dire consequences. The Applicant asserts that ownership of the suit property is not in contention or in dispute. 4. The Applicant notes that an application by the 1st Plaintifi to prevent him from entering and taking possession of the suit property was dismissed by this court with the court noting that the application was not about preserving justice but about preserving possession while forestalling title enforcement. 5. The Applicant asserts that he has served the 1st Plaintifi with the requisite notice of eviction with copies of the same being served upon the relevant sub-county police commander, SCPC Kajiado North Subcounty (formerly oficer in charge of police Division) and the Deputy County Commissioner, (DCC), Kajiado North sub-county. In spite of service, the 1st Plaintifi has not filed any application for relief against or in objection to the notice of eviction dated 4th August 2025, within three (3) months after service as by law required. 6. In his supporting afidavit, the Applicant exhibits copies of his title to the suit property, an oficial search and green card confirming his ownership of the suit property. The notice of eviction of 4th August, 2025 too is exhibited accompanied by an afidavit of service dated 5th August 2025 confirming service. 7. The 1st Plaintifi’s response to the 4th Defendant’s application is the belated notice of Preliminary Objection dated 2nd March, 2026 which the court had occasion to consider in its ruling of 10th April, 2026. That ruling was in respect of an application by the 1st Plaintifi seeking leave to prosecute the said preliminary Objection. The court found that the 1st Plaintifi’s application was unmerited and proceeded to dismiss it with costs to the 4th Defendant. 8. The 4th Defendant’s application is therefore unopposed. The 4th Defendant/Applicant relies on the grounds on the face of the application and in the supporting afidavit of the 4th Defendant, Jeremiah Mwebi Mayieka. Issues for determination 9. Having considered the application dated 3rd November 2025, the supporting afidavit thereto as well as the pleadings before this court, that is to say, the Plaint by the 1st Plaintifi and the amended statement of Defence by the Defendants and Counter-claim by the 4th Defendant, the sole issue for determination https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2280/eng@2026-04-23 2

page 2 of 4

is whether the orders sought by the 4th Defendant/Applicant may lawfully issue at this stage of the proceedings. Analysis and determination 10. It is noteworthy that the 4th Defendant/Applicant has a Counter-claim in this case against the 1st Plaintifi. In the Defendants’ statement of Defence and Counter-claim amended on 22nd October 2025, the 4th Defendant specifically counter-claims against the 1st Plaintifi asserting his ownership of the suit property, Ngong/Ngong/35216. He avers that he bought it for the sum of Kshs. 35,630,000/- at a public auction on 8th October, 2024 following an advertisement in the Standard Newspaper of 23rd September, 2024. 11. The 4th Defendant in his Counter-claim prays for; i. The striking out of the Plaintifi’s suit; ii. A declaration that he (4th Defendant) is the rightful and lawful owner of the suit property; iii. A declaration that he (4th Defendant) is entitled to exclusive and unimpeded right of possession and occupation of the suit property and that the alleged occupation of the Plaintifis and or any other persons is illegal and unlawful; iv. A permanent injunction against the Plaintifis, their employees, servants, representatives, agents or any other person(s) purporting to act on their behalf/instructions restraining them from occupying, alienating, collecting rent, trespassing and or in any other manner whatsoever dealing or interfering with the 4th Defendants ownership control, quiet possession and or title of the suit property; v. An order for accounts and payment to the 4th Defendant of rental income and mesne profits accrued/accruing from the suit property from October 2024, until the hearing and determination of this suit; vi. General damages for trespass, harassment and defamation; and vii. Costs and interest. 12. Essentially therefore, in the context of the Counter-claim, the 4th Defendant’s application is an application for summary judgement of part of his claim against the 1st Plaintifi. Such applications for summary judgement are governed by the provisions of Order 36 of the Civil Procedure Rules. The established principle is that an application for summary judgement will not be allowed where the Defendant demonstrates a reasonable prospect of success or raises bona fide triable issue(s). 13. The Court of Appeal in Job Kilach vs Nation Media Group Limited, Salaba Agencies Ltd & Michael Rono (2015) eKLR, stated that; “ Before the grant of summary judgment, the court must satisfy itself that there are no triable issues raised by the Defendant, either in his statement of defence or in the afidavit of opposition to the application for summary judgment, or in any other manner.” What then is a defence that raises a bona fide triable issue? A bona fide triable issue is any matter raised by the Defendant that would require further interrogation by the court during a full trial. The Black’s law Dictionary defines the term https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2280/eng@2026-04-23 3

page 3 of 4

“triable” as, “subject or liable to judicial examination and trial.” It therefore does not need to be an issue that would succeed but just one that warrants further intervention by the court.” 14. In Giciem Construction Company vs Amalgamated Trade and Services LLR No. 103 CAK which was quoted with approval in the above cited case by the Court of Appeal, the court held that; “ A triable issue is said to exist if there is a dispute in the facts, which dispute can only be resolved after ventilation in a full hearing. As a general principle, where a defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or ever a fair probability that he has a bona fide defence, he ought to have leave to defend.” 15. Considering the pleadings filed in this matter, more so the plaint by the 1st Plaintifi, I am not persuaded that this is a proper case for summary judgment. I do not agree with the 4th Defendant’s assertion that the issue of ownership was conclusively determined by the High Court in Nairobi Civil Case E593 of 2023. From my reading of the ruling of the court, which is reported, what was before the High Court, was an interlocutory application seeking a temporary order of injunction to prevent the bank (chargee) from exercising its statutory power of sale. The application was dismissed. The 1st Plaintifi filed an application to review the ruling which too was declined by the court. Ownership of the suit property was not an issue for determination in either of the applications. 16. More importantly, this court in its ruling of 31st July, 2025 determined a similar application by the 4th Defendant dated 7th April 2025 whereby the 4th Defendant was seeking eviction orders; the same orders he seeks in the current application under consideration, rendering the application res judicata. This court is therefore statutorily barred under section 7 of the Civil Procedure Act from entertaining the application. 17. The upshot is that the 4th Defendant’s application is dismissed but with no orders as to costs considering that the 1st Plaintifi did not participate in the hearing of the application.. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF APRIL, 2026. M.D. MWANGI JUDGE In the virtual presence of: Mr. Manani for the 1st Plaintifi/Respondent Mr. Gesumwa for the Defendants/4th Defendant/Applicant Court Assistant: Peninah https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2280/eng@2026-04-23 4

page 4 of 4