Michieka v Muchungi & 2 others

plainti/respondent’s alleged possession amongst other orders and the court directed service of the pleadings and return for inter-partes hearing. 3. Further, on 29th July 2025, the plainti/respondent led another application seeking similar orders for reason that there was an order of eviction over the suit property between parties unknown to the plainti and was again ordered by the court to serve the said application and return for interpartes hearing on 30th July, 2025. On the said hearing date of 30th July 2025, the application proceeded for hearing in the absence of the defendants’/applicants’ advocate and the court granted an order of status quo. The 2nd defendant/applicant deposed that the status quo order was unlawfully and illegally obtained, as they were not served as directed by the court on 29th July, 2025. He deposed that the adavit of service sworn by Justus Sila Mutava conrms that there was a deliberate and calculated scheme to mislead the court and obtain orders based on deliberately wrong email addresses. 4. The 2nd defendant/applicant further deposed that the plainti/respondent failed to comply with Order 5 Rule 22B (2) of the Civil Procedure Rules, that requires the email to be accompanied with a delivery receipt. Regarding the originating summons that has instituted this suit, the defendants/ applicants argue that the ling of the summons has been done without disclosure of a material fact that the plainti/respondent is an uncle to Richard Nyamwange and Monica Nyamwange, the plaintis in ELC Suit No. ELC 577 of 2012 where an eviction order has been issued by this court against them and this court found that the defendants/applicants are the legitimate owners of the suit property. 5. It was further deposed that this nding is binding upon this court, hence this suit is an abuse of the court process. The defendants/applicant deposed that that the plainti/respondent is being used as a front by Richard Nyamwange Michieka and Monica Nyamwange, the plaintis in ELC 577 of 2012, in another attempt to lay claim on the property, that the issues have already considered by this court and the court of appeal and thus, the court lacks the jurisdiction to delve into these issues by dint of estoppel and that the claim through a proxy is also res judicata. 6. In response thereto, the plainti/respondent led the replying adavit sworn on 29th October, 2025. He deposed that upon entering appearance, the defendants/applicants served him with an eviction notice emanating from ELC no. E577 OF 2012 Richard Nyamwenga and Another v Samuel Kimani Githemba and Others, which he was surprised to receive as he did not know of the existence of such a suit. He highlighted that he was not a party to the said suit and did not participate in the aforesaid proceedings. 7. The plainti/respondent deposed that as a result, he moved the court vide the application dated 29th July, 2025 and thereafter obtained status quo. Upon service of the order, the plainti/respondent deposed that there was peace on the suit property until the ling of the instant application. He denied being related to the parties in ELC 577 of 2012 and deposed that he has been on the suit property since the year 1989, and continues to be there to this date and pays all the utilities of the property including electricity. 8. The plainti/respondent argues that he has vested interest in the suit property and it is only fair and just that he is heard and a fair determination be made, adding that the order of status quo was only for the preservation of the suit property. 9. The application was canvassed through written submissions. The defendants/applicants led their written submissions dated 6th March, 2026. The plainti/respondent did not le his written submissions. Be that as it may, I have considered the application, the reply thereof and the written submissions led. The issue for determination is whether the court ought to set aside the orders of status quo and whether the suit should be struck out with costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5387/eng@2026-09-03 2

page 2 of 5

10. The rst order sought by the defendants/applicant is that the court be pleased to vacate, discharge and/or set aside the status quo order issued on 31st July 2025. Section 80 of the Civil Procedure Act provides that:“ Any person who considers himself aggrieved— 11. a. by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or b. by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks t.” Order 45 rule 1 of the Civil Procedure Rules provides that:“ Any person considering himself aggrieved— 12. a. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or b. by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sucient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.” The requirements necessary for orders of review to be granted have been widely elaborated by the courts. In the case of Francis Njoroge v Stephen Maina Kamore [2018] eKLR the court held that:“ Therefore, Order 45 of the Civil Procedure Rules, 2010 is very explicit that a court can only review its orders if the following grounds exist:- 13. a. There must be discovery of a new and important matter which after the exercise of due diligence, was not within the knowledge of the applicant at the time the decree was passed or the order was made; or b. There was a mistake or error apparent on the face of the record; or c. There were other sucient reasons; and d. The application must have been made without undue delay.” The defendants/applicants argue that there is an error on the adavit of service sworn by Justus Sila Mutava on 30th July 2025, where the wrong email address was served with the plainti/ respondent’s notice of motion dated 29th July, 2025. From the defendants/applicant documents led in court, the advocates on record email has clearly been indicated as ‘info@issadvocates.co.ke’. However, the aforesaid adavit of service indicates that the email that was served was ‘info@issadvocates@gmail.com’, which is not a possible email address. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5387/eng@2026-09-03 3

page 3 of 5

14. Further, from the return of service attached, it is indicated that the email was sent to ‘info@issadavocates.co.ke’, which is a misspelling of the word ‘advocate’ thus, the email did not reach the intended recipient, the defendants/applicants’ advocate herein. They argue that the court should vacate the status quo order that it ordered on 31st July 2025, when the plainti/respondent’s notice of motion was meant to be coming up for inter-partes hearing after they were duly served. 15. While the court acknowledges that the defendants/applicants advocate was not properly served as the court had ordered, the court is not convinced that it would issue alternative orders had the defendants/ applicants made an appearance for inter-partes hearing. Status quo orders are given for the preservation of the subject matter of a suit, and not because either party has won or argued their case. In Kenya Airline Pilots Association (KALPA) v Co-Operative Bank of Kenya Limited & another [2020] KEHC 1672 (KLR) the purpose of a status quo order was explained as follows:“ ... By maintaining the status quo, the court strives to safeguard the situation so that the substratum of the subject matter of the dispute before it is not so eroded or radically changed or that one of the parties before it is not so negatively prejudiced that the status quo ante cannot be restored thereby rendering nugatory its proposed decision.” 16. Thus, this court issued the said status quo order in a bid to preserve the current status of the locus in quo to preserve the same so as to not render these proceedings nugatory. However, on the 14th October 2025, the court declined to reinstate the order of status quo and as such there is nothing to vacate, discharge and/or set aside. 17. Secondly, the defendants/applicants pray that the originating summons dated 28th May, 2025 be struck out with costs and the suit be dismissed. They argue that the issues herein were already heard in ELC 577 of 2012, and that the plainti/respondent is related to the plaintis in the earlier suit, Richard Nyamwange and Monica Nyamwange. The plainti/respondent has denied being related to them, and the court notes that while the subject matter was the same, the cause of action and the parties in this suit are dierent, therefore the suit does not meet the bar of res judicata. 18. The doctrine of res judicata is codied in Section 7 of the Civil Procedure Act, which provides as follows:“ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and nally decided by such court. Explanation. — (1) The expression "former suit" means a suit which has been decided before the suit in question whether or not it was instituted before it. Explanation. — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court. Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5387/eng@2026-09-03 4

page 4 of 5

Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. Explanation. — (6) Where persons litigate bona de in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.” 19. The suit herein specically seeks for assertion of rights of adverse possession, which was not sought in the former suit, from a cursory perusal of the judgment annexed to the defendants/applicants’ supporting adavit. The plainti/respondent was not one of the parties in the former suit and it has not been proven that he is litigating under the name of the plaintis in the former suit. Thus, this suit does not oend the doctrine of res judicata from the face of it. 20. From the above, I nd no merit in the notice of motion dated 12th August 2025, and it is hereby dismissed with costs in the cause. Mention on 04th November, 2026 for further directions. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 3RD DAY OF SEPTEMBER, 2026. HON. MBOGO C.G. JUDGE 03/09/2026. In the presence of:Mr. Benson Agunga – Court assistant Mr. Sifuna holding brief for Mr. Were for the Plainti/Respondent Mrs. Maina for the Defendants/Applicants https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5387/eng@2026-09-03 5

page 5 of 5