Maru v Wafula (Environment and Land Case 103 of 2008) [2026] KEELC 2376 (KLR)

the decree holder is yet to comply with Order 22 of the Civil Procedure Rules and Section 152B, C, E, and F of the Land Act. 6. The respondent deposes that on 2/10/2025, the Hon C.J. empowered a five-bench of the Supreme Court to determine his Originating Motion No. E012 of 2025, as per attached copies marked FW-1(a) and (b), seeking leave to appeal and stay of execution on account of confiicting judgments over the same parcel of land. 7. The respondent deposes that whereas the Court of Appeal dismissed his appeal on 11/10/2024, it did not invalidate or render useless the 1st decree rendered on 11/12/2015 and a consent decree adopted on 17/1/2022, as per annexures marked FW-2(b). It is deposed that neither of the two decrees has been set aside or appealed against; hence, they remain final, binding, and enforceable. 8. The respondent deposes that the consent decree was validly entered with the full approval of the County Surveyor and the Trustees of Kitale Club in their capacity representing the plaintifi, being a life member No. 310, and other members of the Club. The respondent deposes that the trustees of Kitale Club entered into a consent with him over L.R. No. 2116/1124, claiming his entire land, hence it binds the plaintifi. 9. In view of that, the respondent deposes that the applicant cannot post judgment assert and is estopped from taking a contrary position from that consent decree, which he benefited from or failed to object to its adoption at the time. The respondent terms the notice of motion as inconsistent with the consent decree and an abuse of the court process. 10. The respondent attached annexure FW-(3), a copy of a replying afidavit at the Supreme Court by the applicant. The respondent terms the application as ofiending the judicial hierarchy and risks relitigating matters presently subjudice before the Supreme Court, which is likely to render a confiicting decision. 11. The respondent deposes that on 23/6/2025, this court issued a formal order closing this file after an earlier execution application was withdrawn, as per a copy annexed as FW-(4), hence the present notice ofiends the order and invites the court to reopen a skeleton file. 12. The respondent deposes that the applicant had previously kept the suit in abeyance to await the outcome of Kitale CMC No. 334 of 2011, as per annexure marked FM-(5), which now shows abuse of process. The respondent deposes that the forfeiture notice dated 31/1/2011 issued to the plaintifi by the Land Registrar, extinguished any leasehold interest of the plaintifi, then 14 years ago, which has never been set aside as per annexure marked FW-(6). 13. The respondent deposes that the County Surveyor confirmed that his L.R. No. 2116/1124 was not converted to Kitale Municipality Block 12/26 and remains intact, and this court issued an order to the said County Surveyor on 30/5/2018, consistent with that position, as per annexure marked FW-(7). The respondent deposes that in paragraph 206 of the judgment dated 16/10/2023, it was established that the purported conversion lacked a gazette notice or lawful conversion instrument and was directly contradicted by the survey and court record. 14. The respondent deposes that the applicant misled the court to make a finding that a grant for L.R. No 211/1124 did exist on 27/3/1992. The respondent deposes that in paragraph 206 of the judgment, it was observed that there is no operative decree and cannot lawfully extinguish or override the existing final and binding decree alluded to above. 15. The respondent deposes that paragraph 206 is a mere obiter dictum and cannot nullify a consent decree or vested proprietary rights recognised under Article 40 of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2376/eng@2026-04-29 2

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16. The respondent deposes that the applicant is under active investigation by the DCI, regarding the authenticity of land registration documents he used to obtain the judgment of this court, as per the letter dated 6/2/2025 and a response dated 20/2/2025, attached as FW8(a) and (b). 17. The respondent deposes that the applicant, having disclaimed the existence of L.R. No. 2116/1124 Kitale Municipality, lacks locus standi to litigate or seek an eviction order or derive title through an irregular judicial pronouncement of conversion. The respondent deposes that he stands to sufier prejudice and loss of his property if the application is allowed, after the initial one was withdrawn without leave to refile. The respondent says that in view of non-compliance with the execution law, “the closed order”, pending proceedings at the Supreme Court, and the previous binding consent decree, this application is an abuse of the court process. 18. The respondent deposes that under Sections 59 and 60 of the Evidence Act, documents herein being oficial communication from the DCI and the Government Printers, there is no need for formal proof, and so is the consent decree and decree alluded to above, for this court to admit them. 19. In the preliminary objection dated 9/10/2025, the grounds are that: 20. 1. This court lacks jurisdiction post judgment to entertain the notice of motion dated 19/9/2025, owing to the existence of a parallel and final decree in Kitale CMCC No. 334 of 2011, and in view of the pending ruling before a five-judge bench of the Supreme Court, in Originating Motion No. E012 of 2025, which is seized of constitutional and jurisdictional questions arising from the same subject matter. 2. The application is barred by the doctrine of res judicata and amounts to an abuse of the court process in light of the existing final and unappealed first-in-time decree in Kitale CMCC No. 334 of 2011 and the consent decree in Kitale ELC No. 165 of 2014, both conclusively determining proprietary rights between the same parties over the same property. 3. The notice of motion ofiends the doctrine of subjudice and constitutional avoidance, since the constitutional questions raised are now properly before the Supreme Court and fall outside the purview of a single judge bench of this court. 4. The plaintifi’s application is incompetent, incurably defective, and incapable of conferring any lawful orders. 5. The notice of motion is defeated by the forfeiture notice (statutory notice) dated 31/1/20211 served by the District Land Registrar under the repealed Land Registration Act, Cap 300, which extinguished any proprietary interest the plaintifis purport to rely on in seeking eviction orders and which remain unchallenged and valid in law. 6. The judgment and decree dated 16/10/2023 are unconstitutional, procedurally void, and unenforceable for violating Articles 40 and 50 of the Constitution by disregarding prior valid decrees that conclusively determined proprietary rights between the same parties. (7) The court is functus oficio pursuant to the order issued on 23/1/2025, formally closing the file and cannot lawfully reopen or re-adjudicate matters already determined. What the applicant is seeking is post-judgment assistance in the execution of a decree of this court dated 19/10/2023, which was afirmed by the Court of Appeal on 11/10/2024. The respondent opposes the same since there are rival bidding decrees, there is non-compliance with Order 22 of the Civil Procedure Rules, and Section 152 B, C, E, and F of the Land Act. The respondent also says that there are pending proceedings at the Supreme Court; hence, this court should observe judicial hierarchy. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2376/eng@2026-04-29 3

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21. As a starting point, withdrawal of a previous application of this nature and marking the file as closed in law did not act as a bar to the applicant from moving the court with a fresh post-judgment application to efiect the decree of this court. The court, therefore, finds the objection unmerited. 22. Coming to the preliminary objection. It has to align with established jurisprudence requiring preliminary objection to be based on settled legal points compatible with undisputed facts as held in Salat -vs- Independent Electoral and Boundaries Commission & 7 others [2015] KESC 31 (KLR), Aviation & Allied Workers Union Kenya -vs- Kenya Airways Ltd & Others [2012] eKLR, Hassan Nyanje Charo -vs- Khatib Mwashetani & 3 others [2014] eKLR, Mukisa Biscuits Manufacturing Company Ltd -vs- West End Distributors Ltd (1969) EA 696, and in Independent Electoral and Boundaries Commission -vs- Cheperenger & 2 others [2018] KESC 46 (KLR). 23. In Oraro -vs- Mbaja [2005] eKLR, the court said that a preliminary objection based on disputed facts or requiring evidence to sustain it does not fit the description alluded to in the cited case law. Grounds Nos. (1), (5), and (6) of the preliminary objection dated 9/10/2025 require ventilation by way of evidence. 24. Res judicata cannot be brought by way of a preliminary objection without reference to the pleadings, proceedings, judgments, rulings, or orders in the former suit, for the court to establish if elements under Section 7 of the Civil Procedure Act, as held in Maina Kiai & 2 others -vs- Independent Electoral and Boundaries Commission & 2 others [2017] [2017] KEHC 8646 (KLR), have been established. 25. What is before the court is an application for assistance in the execution process, after a successful judgment and decree, which the respondent has been unable to overturn on appeal. This court has no ruling on a similar application determined on merits, over the same issues, by a competent court, for the applicant to be said to be seeking a second bite of the cherry, because the same court has already litigated over such issues. 26. Coming to subjudice, judicial hierarchy and constitutional avoidance, the respondent has not attached copies of pleadings showing that what is before the Supreme Court generally and in particular, whether the instant application or reliefs prayed for are also before the Supreme Court. 27. All that the respondent has attached is a communication of a ruling notice from the Apex Court. It is therefore not possible for this court to establish what is before the said court. Equally, the court has not been supplied with a stay of execution or stay of proceedings order from a higher court stopping the court from enforcing its decree. 28. In Independent Electoral & Boundaries Commission -vs- Cheperenger & 2 others [2015] KESC 2 (KLR), a preliminary objection based on incompetence, laches, lack of merit and the appeal being overtaken by events was disallowed by the Supreme Court, ruling that it was improperly being used as a sworn rather than a shield to preclude the Independent Electoral and Boundaries Commission from the appellate justice and for not raising a pure point of law. 29. The court said that a preliminary objection must be a pure question of law which is not based on contested factual disputes or touching on the exercise of discretion or requiring back up by way of evidence. The court said that the established jurisprudence requires that preliminary objections be based on settled legal points compatible with undisputed facts. 30. The respondent has also raised the issue of sub judice, whose aim is to prevent a confiicting decision by difierent courts. Sub judice is governed by Section 6 of the Civil Procedure Act. It is invoked by establishing that there is more than one suit over the same subject matter pending in the same or any other court having jurisdiction to grant the relief claimed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2376/eng@2026-04-29 4

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31. In Kenya National Commission on Human Rights vs Attorney General & Others [2020] eKLR, the Supreme Court said: “ The term subjudice is defined in Black’s Law Dictionary, 9th Edition as 'Before the court or judge for determination.” The purpose of the subjudice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter to avoid abuse of the court process and diminish the chances of courts with competent jurisdiction issuing confiicting decisions over the same subject matter.” The court said that where two similar suits are filed, the latter in time ought to be stayed in order to allow the determination of the one filed earlier. 32. The court said that a party that invokes the doctrine must therefore establish that there is more than one suit over the same subject matter, the other suit was instituted before the other, that both suits are pending before courts of competent jurisdiction, and lastly, that the suits are between the same parties or their representatives. 33. In this application, the respondent has not availed before this court copies of proceedings and pleadings showing that there is before a competent court a similar application for execution, over the subject matter before a competent court, with the other suit or application preceding the instant application. 34. The next doctrine invoked is stare decisis, or the hierarchy of courts. This doctrine was discussed in Geofirey M. Asanyo & Others -vs- Attorney General [2020] eKLR. The court said that under Article 163(7) of the Constitution, other than the Supreme Court, all courts are bound by the decision (s) of the Supreme Court. 35. In Gatirau Peter Munya -vs- Dickson Mwenda Kithinji & Others [2014] eKLR, the court held that Article 163(7) of the Constitution was the embodiment of the time-hallowed common law doctrine of stare decisis, holding that the precedents set by the Supreme Court are binding on all other courts of the land, whose utility and purpose as a constitutional imperative for the administration of justice is that the authority of decision be scrupulously respected by all courts upon which they are binding. The court said that without the doctrine, the administration of justice would become disordered, uncertain, and would undermine public confidence; that law which has been pronounced should be accepted and applied as the tradition requires. 36. In this application, the respondent has not availed anything to show that after his appeal and an application for certification of the matter as of public importance was rejected by the Court of Appeal, there is a substantive petition and an application for stay of execution and proceedings of this court at the Apex Court. 37. Jurisdiction is primordial in every suit. It has to be there when a suit or application is filed, as held in Phoenix of E.A. Assurance Co. Ltd -vs- S.M. Thiga t/a Newspaper Service [2019] KECA 767. If there is a stay order from the Apex Court, then this court would be said to be acting against stare decisis or without jurisdiction. This court is a creature of Article 162 2(b) of the Constitution and the Environment and Land Court Act. It has the power to enforce the execution of its decree and orders unless the same have been stayed or set aside by a higher court than itself. See Kenya Hotels Properties Ltd -vs- Attorney General & Others [2022] KESC 62 [KLR]. 38. Lodging of a notice of appeal or proceedings before a higher court does not automatically stop or stay the execution of the judgment of a high court. There is no evidence that the Supreme Court, under Section 23A of the Supreme Court Act, has exercised its jurisdiction to order a stay of execution, injunction, or stay of proceedings or any other conservatory or interim orders, in favour of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2376/eng@2026-04-29 5

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respondent. See Kenya Airports Authority -vs- Otieno, Ragot & Company Advocates (Petition. (Application) E011 of 2023) [2023] KESC 56 (KLR) (Civ) (16 June 2023) (Ruling). 39. The last two issues invoked by the respondent are that res judicata and there are other pending decrees, such that if the execution of the instant decree of this court is allowed, there will be a confiict. 40. The issue of res judicata was raised as a preliminary issue before the judgment of this court and dwelt with by a ruling dated 2/3/2023. It was also declined in the judgment of the Court of Appeal at paragraph 55. The issue of DCI investigations was also raised on appeal at paragraph 53 of the judgment. The same case applies to the conversion of title deeds at paragraph 53 of the Court of Appeal judgment. 41. Looking at all the foregoing issues raised both as a preliminary objection and in the replying afidavit, the same do not answer as to the justification why the respondent, in the absence of a stay order, is on the suit land already decreed to the applicant by a valid decree of this court afirmed by the Court of Appeal. 42. The upshot is that I find the application dated 19/9/2025 merited. It is allowed with costs. 43. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 29TH DAY OF APRIL 2026. HON. C.K. NZILI JUDGE, ELC KITALE. In the presence of: Court Assistant - Dennis Imainata for Nyamu for the applicant present Wafula in person present https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2376/eng@2026-04-29 6

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