Rop & 4 others v Surtan & 11 others

RULING 1. 2. The 7th, 8th and 12th defendants’ through Ngigi Mbugua and Company Advocates raised a preliminary objection dated 20th August 2026 to the application by way of a Notice of Motion dated 30th July 2026 mounted by the ve applicants on the following grounds; a. That the application is bad in law, incompetent and otherwise an abuse of the process of this Honourable Court. b. That the application and the prayers for eviction violate the principle of lis pendens, as the applicants seek to alter the physical status and possessory rights over the estate of properties while the root of their titles is actively being challenged for revocation and or annulment in a court of competent jurisdiction. c. That this Honourable Court lacks immediate jurisdiction and/or is procedurally barred from entertaining the application under the doctrine of sub judice, as enshrined in Section 6 of the Civil Procedure Act (Cap 21), given that the substratum of the application arises from sub divisions of Nandi/Kipkaren Salient/179, 182 and 183. In Eldoret P & A No. 9 of 2017 (In the Matter of the Estate of William Kiberen Serem, Deceased), the Honourable Justice Ndungu made interim orders touching on Nandi/Kipkaren Salient/1328, 1329, 1331, 1332 and 1336, all of which are resultant titles and is awaiting a ruling on 22nd October , 2026. In the application generated through J.K Kaptich and Associates Advocates, the applicants, are seeking orders, inter alia; a. Upon hearing the parties, this Honourable Court be pleased to authorize and supervise the enforcement of the statutory eviction notices dated 17th April 2026 issued upon the Respondents. b. The Respondents, whether by themselves, servants, employees, agents or any persons claiming through them, be ordered to vacate the suit properties. c. The applicants be granted liberty to remove all illegal structures erected by the respondent upon completion of the eviction. 3. By the replying adavit sworn on 17th August 2026 by the 8th respondent for and on behalf of the 7th respondent and himself through Ngigi Mbugua and Company Advocates, the application is termed untruthful, vexatious, brought in bad faith, malicious, premature and fails to disclose to this Honourable Court the existence of Eldoret High Court P & A No. 9 of 2017 (In the Matter of the Estate of William Kiberen Serem , Deceased) which is active and pending a ruling on 22nd October 2026. It is averred in part that the said Succession Court granted interim orders and that the same court be given an opportune time to resolve the matter. 4. In a further adavit sworn on 21st August 2026 by the 2nd applicant, Emma Chepchumba Serem, it is averred, inter alia, that the application is for enforcement of the eviction notices dated 17th April 2026 and no prejudice would befall the respondent if the application is allowed hence, the preliminary objection be dismissed it with costs. At paragraph 22 of the said adavit, she averred; ‘That the respondents’ preliminary objection is therefore misconceived as it seeks to transform the mere existence of a pending application in the succession cause into a https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5399/eng@2026-08-31 2

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substantive legal bar to proceedings which concern enforcement of statutory eviction notices against persons who have failed to vacate the applicants’ registered properties.’ 5. The rm of Jepkemboi Irene and Company Advocates is on record for the 9th and 11th Respondents. There is a consent dated 24th August 2026 between learned counsel for the 9th and 11th respondents and learned counsel for the applicants that the cases against the 9th and 11th respondents have been settled and closed herein. The consent has contractual eect between those parties as held in Brooke Bond Liebig (T) Limited v Malya [1975] the case of EA 266. 6. In the submissions dated 24th August 2026, learned counsel for the 7th, 8th and 12th respondents set out the orders sought in the application, the replying adavit that there was non-disclosure to this Honourable Court the existence of Eldoret High Court P & A No. 9 of 2017 (In the Matter of the Estate of William Kiberen Serem, Deceased) which is active and pending a ruling on 22nd October 2026. Counsel identied two issues for determination namely whether the application is premature and whether this Honourable Court has the jurisdiction to grant eviction orders in light of the pending Succession Cause. It was submitted in part, that the said Succession Cause has a direct bearing on the instant application which if entertained, would create contradictory decisions and or orders thus, the preliminary objection be upheld and the application be dismissed with costs. 7. To fortify the submissions, reliance was made on the case of Ogoi v Mogoi [2022] KEELC 12813 (KLR) regarding eviction. Also, the case of Odera v Ogawo & another [2020] KEELC 2249 (KLR) on the mandate of a Succession Court over cancellation of tittle to the estate of the subject deceased, was cited in the submissions. 8. In the submissions dated 21st August 2026, learned counsel for the applicants made reference to the preliminary objection, the application and response thereto. Counsel framed issues including whether the preliminary objection meets the threshold of a preliminary objection and whether the existence of Eldoret High Court P & A No. 9 of 2017 (In the Matter of the Estate of William Kiberen Serem, Deceased) ousts the jurisdiction of this Court over the application. Counsel discussed the same in the negative or against the preliminary objection. 9. To buttress the submissions, counsel relied upon Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd (1989) EA 696 and Oraro v Mbaja (2005) 1 KLR 141 on a true preliminary objection and the case of Chepkonga & 4 others v Cheruiyot [2024] KEELC 13854 that the court rejected a similar preliminary objection and ordered forceful eviction subject to strict compliance with section 152G of the Land Act 2016 (2012). Counsel implored the Court to dismiss the preliminary objection with costs to the applicants and grant the orders sought in the application. 10. On 25th August 2026, Ms Lagat appeared for the 5th respondent in this application. 11. In the foregone, the points of law including jurisdiction and sub judice as contained in the grounds of the preliminary objection, arise for determination herein. 12. On the rst ground, it is the respondents’ contention that the application is an abuse of the court process. Order 2 Rule 15 of the Civil Procedure Rules 2010 relates to striking out of pleadings for being frivolous, scandalous and an abuse of the court process, among other conditions. 13. It is trite that courts have a duty to guard their processes against simultaneous, vexatious or improper litigation tactics; see Energy Regulatory Commission v John Sigura Otido [2021] KECA 1060 (KLR). 14. In Ndungu v Macharia [2024] KEELC 1062 (KLR), it was noted that it is an abuse of the court process to le multiple simultaneous suits before dierent forums. Such incompetent sub judice matters inclusive of the present application will be struck out to protect the administration of justice. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5399/eng@2026-08-31 3

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15. As regards jurisdiction, I am guided by the decision in the case of Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others (2013) KECA 279 (KLR) where the Court of Appeal stated; ‘ A question of jurisdiction once raised by a party or by the court on its motion must be decided forthwith…….’ 16. Halsbury’s Laws of England 4th Edition Volume 9 at page 350, describes the term ‘Jurisdiction’ thus; ‘…..the authority of the Court which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for decision…….’ 17. It is settled law that jurisdiction denotes whether the adjudicatory body has the power to entertain the proceedings; see Benson Ambuti Adega & 2 others v Kibos Distillers Ltd & 5 others (2020) eKLR. 18. Further, in the landmark case of Owners of the Motors Vessels “Lilian S” (supra), the Court of Appeal held that jurisdiction is everything and without it, a court has no power to take one more step. That jurisdiction must be acquired before judgment is given. That where the court has no jurisdiction there is no need to continue the proceedings. 19. Section 6 of the Civil Procedure Act Chapter 21 Laws of Kenya anchors sub judice principle. That parallel proceedings on the same subject matter render the later suit sub judice and liable to be struck out as an abuse of the court process. 20. As pertains to Lis pendens, it is averred at paragraph 5 of the replying adavit that on 21st April 2026, the Succession Court granted interim orders in Eldoret HC P & A Cause No. 9 of 2017. The said orders are meant to preserve the property in dispute pending the outcome of the matter; see Festus Ogada v Hans Mollin (2009) eKLR. 21. In the said Succession Cause, there is a pending application dated 16th April 2026 for temporary prohibitory orders and review of orders of 18th March 2026 and 31st March 2026. The same relates to revocation and or cancellation of titles to LR Nos. Nandi/Kipkaren Salient/1328, 1329, 1331, 1332 and 1336 as per ground number (c) of the Preliminary Objection. 22. It is therefore, my considered view that this Honourable Court lacks immediate jurisdiction over the application that is inept, bad in law as it violates sub judice principle. To entertain the application would risk conicting decisions and an abuse of the court process hence, I nd the preliminary objection tenable. 23. Wherefore, the application dated 30th July 2026 in entirety is hereby struck out with no orders as to costs being guided by Jasbir Rai & 3 others v Tarlochan Rai & others [2014] KESC 31(KLR) and the proviso to section 27 (1) of the Procedure Act Chapter 21 Laws of Kenya. 24. It is so ordered. DATED AND DELIVERED VIRTUALLY THIS 31ST DAY OF AUGUST 2026 HON. G M A ONGONDO JUDGE In the presence of; 1. Mr Collins Kigen learned counsel for the applicants 2. Ms Chelangat instructed by Mr Ngigi learned counsel for the 7th 8th and 12th respondents https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5399/eng@2026-08-31 4

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3. Mr Kariuki, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5399/eng@2026-08-31 5

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