Kitiyo & another v Mwoi & 3 others (Environment and Land Case 184 of 2016) [2026] KEELC 3850 (KLR)

4. When the matter came up on 23/3/2026, Miss Chilaka appeared for the 2nd and 3rd defendants, while Mr. Kiarie appeared for the 2nd plaintifi. Mr. Omaiyo stood on the ground that his client, following the ruling, had lodged an appeal, since the suit by the 1st plaintifi had abated, the same applies to the counterclaim by the 1st defendant. 5. Further learned counsel also submitted that the suit by the 2nd plaintifi had also abated. Mr. Kiarie, advocate for the 2nd plaintifi, took a difierent view and submitted that the 2nd plaintifi was ready to take a further defence hearing for DW2, who had been stood down for cross-examination before the 1st plaintifi passed on. 6. In a rejoinder, Mr. Omaiyo submitted that there was nothing to discuss among the parties on the way forward since the suit, according to his client, had abated for all the plaintifis. 7. The court directed the parties to formally address the court on the way forward in view of the ruling of 26/1/2026, as regards the 2nd plaintifi’s case. The court gave the parties a mention dated 5/5/2026, during which Mr. Omaiyo reiterated his earlier submission that the ruling on the case abating means that the file should be closed, and since the estate of the 1st plaintifi was pursuing an appeal against the ruling, the court should decline any application to extend time or to re-open the case, unless by an order from the Court of Appeal. Learned counsel urged the court to have the suit rest until the intended appeal is heard and determined. 8. As to recusal, learned counsel submitted that after the initial trial court was transferred, the instant court should not forward the file to the said court for completion, for the estate had reservations on the said court in hearing the matter, which still subsists, given the ruling issuing anticipatory bail and costs. 9. In a response, learned counsel Mr. Nyamu submitted that no notice of appeal regarding the ruling of 26/1/2026 had been served upon the 1st defendant, and the 1st plaintifi’s counsel has no audience before the court. 10. In a rejoinder, learned counsel Mr. Omaiyo submitted that following the ruling on abatement, the authority to plead which the 2nd plaintifi used to file the plaint stands nullified. 11. Mr. Ndarwa, holding brief for Mr. Kiarie for the 2nd plaintifi, submitted that the suit should now proceed with the 2nd plaintifi or as against the 2nd plaintifi in respect of the counterclaim. Learned counsel submitted that he was not privy to the authority to plead alluded to by Mr. Omaiyo. 12. Learned counsel Mr. Nyamu, on his part, submitted that the 1st and 2nd plaintifis had testified separately before the court closed their cases, hence the 2nd plaintifi, from the court record, had diverted from the suit authority to advance a separate case from that of the 1st plaintifi, making the argument by Mr. Omaiyo lack merit. 13. Further, learned counsel submitted that the 1st plaintifi’s estate wants to drag the suit as they continue occupying the 1st defendant’s land, to defeat the very purpose of the 1st defendant’s case. 14. Learned counsel submitted that the 1st plaintifi’s estate should not be allowed to take advantage of the ruling of 26/1/2026, by alleging that the case should rest as closed, to make the 1st defendant sufier; otherwise, the rules are clear that if the suit is substantially heard by a presiding oficer, regardless of his transfer, he should hear the matter. 15. Learned counsel, Mr. Omaiyo, with leave of court, submitted that the decision by the court was made in rem. Learned counsel submitted that it is not possible for a determination of a suit against the 2nd plaintifi, since he is only holding a title that fiows from the 1st plaintifi. In this case, learned counsel https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3850/eng@2026-06-24 2

page 2 of 5

submitted that the 2nd plaintifi did not file a standalone plaint with his own verifying afidavit, and that the one on record is the one filed by the 1st plaintifi, now deceased, whose case has abated. 16. Learned counsel submitted that if the defence case continues without the participation of the estate of the 1st plaintifi, it will sufier prejudice and a miscarriage of justice. The learned counsel urged the court to hold the suit in abeyance as the estate pursues an appeal against the ruling of 26/1/2026. 17. Order 18 Rule 8 of the Civil Procedure Rules provides that when a judge is on transfer or incapable of concluding the trial of a suit or the hearing, his successor may deal with any evidence, take down, or proceed with the suit from the stage at which his predecessor left it. 18. In Abdi Adam Mohamed -vs- Republic [2017] eKLR, the court held that it is highly desirable that a trial judge hears a case to conclusion and ultimately renders judgment, as it is important for a final arbiter to be in a position to weigh evidence taken together with his observation of the witnesses’ demeanor. 19. As to a de novo hearing in Mandavia -vs- Rattan Singh (1965) E.A, para 26, the court observed that the considerations to take are: a. Whether the successor judge is in a good position to evaluate the evidence and submissions like his predecessor. b. Availability of witnesses. c. Prejudice to the parties. d. Balance between the overriding objectives and justice under Article 159(2) of the Constitution, vis-à-vis the cost-efiectiveness of the order. 20. This court record shows that this matter was filed on 20/12/2016, and after many adjournments, PW1 testified on 18/11/2021 and closed his case on 22/1/2022 and 3/10/2023, paving the way for the defence hearing. 21. The 1st defendant closed their defence case on 3/10/2023, whereafter the 2nd and 3rd defendants testified through DW2, who was stood down for cross-examination on 4/12/2023. 22. Through an application by the 1st plaintifi, the 1st defendant’s case was allowed to recall and crossexamine DW1 and DW2. It is at that juncture that the 1st plaintifi filed a notice to act in person on 28/11/2023. 23. The 1st plaintifi, on 30/1/2024, cross-examined DW1 and DW2, though he was unable to finalize with DW2 on 12/4/2024, 24/4/2024, and 21/5/2024. The 1st plaintifi later passed on, on 30/10/2024, at which point Mr. Omaiyo advocate had come on record for the 1st plaintifi. 24. This court for the first time dwelt with this matter on 1/4/2025. From the court record, the plaint, the subject matter of this suit, is dated 16/12/2026. The 1st plaintifi had brought the suit as the registered trustee who had transferred Land Title No. Kitale Municipality Block 3/974 to the 2nd plaintifi, who took vacant possession of the same. 25. The plaintifis sued the 1st defendant after they discovered that a certificate of lease was issued to him by the 2nd defendant for the initial mother Title No. Kitale Municipality Block 3/474, which had given forth to Land Title Nos. Kitale Municipality Block 3/973 and 974, which were re-merged by the 2nd defendant, and ceased to exist in 2004. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3850/eng@2026-06-24 3

page 3 of 5

26. The plaintifis sought a declaration that they are the proprietors of the two subdivisions of the mother title, which no longer exist, such that the certificate of lease held by the 1st defendant is invalid, null, and void, in the alternative, compensation for the same by the 1st defendant at market value. The 1st plaintifi swore the verifying afidavit on behalf of himself and the 2nd plaintifi. Alongside the plaint, the plaintifis brought an application dated 16/12/2016, to which they obtained a temporary order of injunction on 5/1/2017. 27. The 2nd and 3rd defendants opposed the suit through a statement of defence dated 9/7/2018. The record shows that Mr. Kuria, advocate, was instructed by the 2nd plaintifi through a notice of change of advocates, who, on 7/3/2022, filed a list of documents and a list of witnesses' statements dated 25/7/2022. 28. Rev. Nathaniel Kendagwo described himself as a trustee of the 2nd plaintifi, which, by a sale agreement dated 22/12/2003, bought 1 acre out of the mother title from the 1st plaintifi. By 30/9/2022, the 1st plaintifi sought to amend the initial plaint, which the court declined by a ruling dated 23/3/2023, leading to a notice of appeal dated 28/3/2023. Thereafter, the firm of Appollo Ambutsi & Co. Advocates sought to cease acting for the 1st plaintifi. 29. The 1st plaintifi thereafter filed an application dated 20/11/2023 to recall DW1 and DW2. Subsequently, he filed a notice to act in person on 28/11/2023 and another application dated 1/12/2023, for recusal of the court for its open bias. He later withdrew the application by a notice of withdrawal dated 5/1/2024. 30. By a notice of change of advocates dated 9/4/2024, the firm of Masaki & Mathu Advocates LLP came on record for the 1st plaintifi. It sought copies of typed proceedings and pleadings to appeal against the ruling delivered on 12/4/2024. The notice of appeal appears to be unsigned by the Deputy Registrar. 31. From the foregoing case, it is obvious that even though the plaintifis’ initial plaint was one, the claim by the 1st plaintifi is completely difierent from that of the 2nd plaintifi, who, as per the 2nd plaintifi's list of witness statements and documents dated 14/9/2018 and 25/7/2022, holds a certificate of lease and a lease dated 5/3/2004. 32. Coming to a counterclaim, the same is governed by Order 7 of the Civil Procedure Rules. It is a stand-alone, independent suit. It may proceed on termination of the main suit. It falls or succeeds independent of the main suit. 33. A defendant is at liberty to file the same against any of the plaintifis in the main suit. It is not merely a defence to the plaintifi’s claim but a distinct claim capable of standing on its own if the main suit is struck out or withdrawn. 34. The court record shows that only the 1st plaintifi’s suit abated. There is no evidence that the 1st plaintifi’s estate has sought to amend the defence to the counterclaim by the 1st defendant. Again, no formal application has also been filed by the estate of the 1st plaintifi to challenge the counterclaim by the 1st defendant as abated or a nullity in view of the ruling of this court on 26/1/2026. 35. The fact that the suit by the 1st plaintifi has abated does not automatically mean that the matter should not advance to the next stage, which is having the remaining parties, who are the 2nd plaintifi and the defendants in the main suit, to conclude the matter. 36. There is no pending application for a stay of proceedings under Order 42 Rule 6 of the Civil Procedure Rules for this court to freeze the hearing of the defence case. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3850/eng@2026-06-24 4

page 4 of 5

37. Given that the court that substantially heard the matter is still available to conclude it, I direct that the file be transmitted to the former presiding judge for the conclusion of the defence witnesses. 38. The court finds that the application for recusal had been withdrawn by the deceased, hence there is no bar for the matter to be referred to that court in the interests of justice. 39. The Deputy Registrar to transfer the file to Homabay ELC Court for further hearing. 40. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 24TH DAY OF JUNE 2026. In the presence of: Court Assistant - Dennis No appearance for the parties. HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3850/eng@2026-06-24 5

page 5 of 5