Electrical Marketing Wholesale Ltd v Harish & 3 others (Environment and Land Miscellaneous Case 2 of 2013) [2026] KEELC 4571 (KLR)

Mis 2 of 2023 which vesting orders the Applicant seek to set aside and whose orders form the root of the Applicant’s title 3. That any orders issued in this matter will directly affect the Applicant’s proprietary rights including loss of title and if not enjoined he will be condemned unheard. 4. That the Applicant is a necessary party as the court cannot determine the issue of ownership and validity of title without involving the Applicant Reply to the intended interested party’s application 5. The Applicant/judgement debtor in opposition filed a replying affidavit sworn by one Sunil K. Patel. He deponed that the decision in Milimani ELC No. 22 of 2017 affirmed the decision of the lower court in Nairobi City Court Civil Suit No. 3/2011 that set aside the vesting orders in favour of the 1st and 2nd Respondents reverting ownership back to the Applicant/judgement debtor. 6. That further the Intended Interested Party had further failed to disclose to the court that it had previously sought joinder into the proceedings of ELC Appeal No. 22 of 2017, through two separate applications one dated 24th July 2019 and 21st April 2026, both of which were dismissed. That the issue of joinder here had been addressed by the court of appeal in ELC appeal no 22 of 2017 and was therefore res judicata 7. That the court of appeal had already decided on the issue of ownership of the suit property and the interested party’s ground for joinder that for this court to ventilate on issue of ownership, it needs to be enjoined fails ELCLMISC 2 OF 2013 R 2

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8. The court directed the application to be dispensed with by way of written submissions and at the time if drafting this ruling only the Applicant/judgement debtor had complied drafting submissions dated 9th July 2026. Applicant /judgement debtor’s submissions 9. The Applicant reiterated the content in its replying affidavit pointing out to the fact that issues of ownership had already been dealt with in ELC Appeal No 22 of 2017 in finality and therefore every issue concerning the validity of the public auction, the resultant transfer and the ownership of the suit property has been conclusively and finally determined .He deponed the judgment had not been set aside and on appeal by the 1st and 2nd Respondents the appeal was dismissed .That the present application is seeking for execution of the judgment and the intended interested party’s application at this stage is not tenable .Counsel relied in the case of Kayongo Vs Embakasi Ranching Co. Ltd; Munira (Proposed Interested Party) [2023] KEELC 21109 (KLR) The Applicant further reiterated the issue ownership to be res judicata to ELC Appeal no 22 of 2017. Analysis and determination 10. Having gone through the application, the response to it and the submissions, I find the following issues for determination i. Whether the application is res judicata ii. Whether the application for joinder is merited ELCLMISC 2 OF 2013 R 3

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11. The Applicant/judgement debtor has indicated the application is res judicata to ELC appeal No 22 of 2017 in respect of the application dated 21st April 2026. The said application was addressed in the ruling delivered on 21st May 2026.The said ruling also addressed a similar application that had been filed seeking for joinder of which application was found to be res judicata the application of 21st April 2026. 12. I have perused the ruling of the court delivered on 21 st May 2026 and the doctrine of res judicata was addressed of which the court held that the Applicant herein/intended interested party was seeking to relitigate the issue of ownership that had already been determined and hence the need for his joinder. The ruling clearly indicated that the issues raised had been heard determined to finality and the application before it was an abuse of the court process. The same issues are before me and I will not belabour as the application for joinder is res judicata having established that as per Section 7 of the civil procedure Act the following have been established; i. Similar issues in the application dated 21st April 2026 ii. The former application/suit is between the same parties iii. The issues in the application were dealt with to finality via the ruling of 21st May 2026 by a competent court. iv. The parties are litigating under the same title Final disposition In view of the foregoing discourse, I make the following orders i. The Notice of Motion application dated 12 th June 2026 is without merit and is hereby dismissed. ELCLMISC 2 OF 2013 R 4

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ii. Costs to be awarded to the judgement debtor. It is so ordered. DATED, SIGNED and DELIVERED via e-mail at NAIROBI on this 16th of July 2026. MOHAMMED N. KULLOW JUDGE ELCLMISC 2 OF 2013 R 5

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