Esther Njeri Ndungu v Caleb Otieno Ongoma & 2 Others

d. That the register/record of the suit land be rectified so as to remove the entries in favour of the first respondent and the title register to revert back to the proprietorship of the applicant by way of adverse possession; e. That subsequently the Registrar of The Titles, Lamu be ordered to register the applicant as the proprietor of the suit property in compliance with a court decree issued on 14th June 2022 by Honourable R.G. Mundia Mpeketoni PM ELC Case Number 13 Of 2021 Esther Njeri Ndungu Versus Caleb Otieno Ongoma; f. That this court do issue a vesting order in the suit property in the name of the applicant; g. That costs be in the cause. 3. Alongside the Originating Summons was filed a Notice of Motion seeking the following orders: a. That the first respondent by himself, servants, family members or agents be temporarily restrained from trespassing, intermeddling, encroaching, construction and/or use of the suit property pending the hearing and determination of the application; b. That the 1st respondent and his agents be temporarily restrained from trespassing intermeddling encroaching, construction and or use of the suit property pending hearing and determination of the suit; c. The injunctive orders be enforced by the Officer Commanding Kibaoni Police Station and DCIO Mpeketoni; d. That the costs of the application be borne by the first respondent. 4. The grounds for that application were set out at its bottom, and it was supported by a supporting affidavit dated 19 th May 2025 sworn by the applicant. The application came up for hearing before this court which MLDELCLOSE023/25-RLG/DF-18.012.25/FH-02.03.26/LH-13.05.26/DR-23.09.26F. Page 2 of 12

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issued a ruling on 22nd September 2025 after hearing it inter partes. It is that ruling that is impugned in the present application. 5. The main ground for the present application are that there is an error on the face of the record as the court proceeded on the mistaken premise that there was a subsisting case before the lower Court yet the same had been withdrawn much earlier; that the court therefore cited and relied on a suit that was non-existent and Section 80 of the CPA and Order 45 of the CPR do apply. The application is supported by the sworn affidavit of the first defendant. That affidavit focused on paragraph 8 of the ruling where the court stated as follows: "Owing to the nature of the case before the magistrate’s court and the present Case if the actions of the first respondent are not stopped at this stage the applicant may suffer loss." 6. The deponent states that after examining the court registry at Mpeketoni after delivery of the ruling, he obtained information from the Court Administrator that Mpeketoni ELC 013 Of 2021 was withdrawn and is not in existence as an active suit. He proceeded to state as follows in paragraphs 5 and 6 of his affidavits: "5. That this confirmation is critical because the courts finding that a pending Magistrate’s Court matter existed formed the central basis for its determination that the respondent stood to suffer a reparable harm. 6. That I verily believe that if the court had been aware that the suit was withdrawn it would not have relied on it to justify the ground of an injunction nor concluded that the respondent faced non-compensable loss. 7. That there is an error apparent on the record as the court proceeded on the mistaken premise that there was a subsisting MLDELCLOSE023/25-RLG/DF-18.012.25/FH-02.03.26/LH-13.05.26/DR-23.09.26F. Page 3 of 12

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case before the lower Court yet the same had been withdrawn much earlier as shown in exhibit COR 1. " 7. In his paragraph 10 he stated as follows: “10. That as confirmed above on 18 th October 2024 the Senior Resident Magistrate at Mpeketoni delivered a ruling setting aside the ex-parte judgment of 14th June 2022 which the respondent relied upon to claim adverse possession. 11. That upon the judgment being set aside the land legally reverted to me and the second respondent duly restored my title, evidenced by the restored title deed annexed earlier. 12.That the setting aside of judgment rendered the adverse possession claim non-existent and later as confirmed by the withdrawal order (COR1) the suit itself was completely withdrawn. 13.That there therefore was no lower court dispute upon which this court could rely as a basis for presuming ongoing contestation or possible irreparable harm. 14.That I am further advised by my advocate Mr Boaz Adallah which advice I verily believe to be true that the ruling is likely to bring an embarrassment to this court and to the administration of justice based on the fact that it is a basic principle of law that no two suits can proceed in two courts as purported herein that a suit is currently before the lower Court in Mpeketoni while this court is also having jurisdiction over the same subject matter and that the same raises eyebrows and leaves a lot of unanswered questions. I attached here in the affidavit of my advocate addressing the said issues and marked COR 2. 15. That instead of relying purely on the evidence of alleged activities on the suit land, the court based its conclusion on the perceived existence and nature of the lower Court case which it assumed to be ongoing. MLDELCLOSE023/25-RLG/DF-18.012.25/FH-02.03.26/LH-13.05.26/DR-23.09.26F. Page 4 of 12

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16. The court’s reliance on a non-existent suit materially affected its exercise of discretion and led to a conclusion founded on incorrect factual premises thus warranting review.” 8. Attached to the supporting affidavit is a letter dated 17 th December 2025 to Musa Boaz and Thomas advocates apparently written in response to their request for the position of the lower Court case MCELC E013 Of 2021 Esther Njeri Ndungu Versus Caleb Otieno Ongoma. It reads as follows in part: “A summary of the position in this matter is as follows: The trial Court in its ruling delivered on 20 th November 2024 found merit in the application dated 30 th September 2024 and among other orders set aside the ex parte judgment delivered on 14th June 2022 and granted the defendant/applicant leave to defend the suit. However, when the matter came up for directions on 18 th December 2024 Mr Adalla counsel for the respondent informed the court they had filed a Preliminary Objection following new development as regards the jurisdiction of Magistrates Courts in adverse possession claims because on 11 th October 2024 the Court Of Appeal sitting in Nairobi vide Civil Appeal Number ELC 141 of 2022 held conclusively the Magistrates’ Courts have no jurisdiction to handle adverse possession claims. Consequently, on 5th February 2025 Mr Komora, counsel for the plaintiff conceded to the Preliminary Objection and moved the court withdraw the matter for want of jurisdiction with no orders as to costs. Mr Adalla did not object to the same and the court therefore allowed the application to withdraw the claim for want of jurisdiction with no orders as to costs. MLDELCLOSE023/25-RLG/DF-18.012.25/FH-02.03.26/LH-13.05.26/DR-23.09.26F. Page 5 of 12

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The matter therefore stands closed having been withdrawn for want of jurisdiction." 9. The affidavit of Boaz Adallah, advocate, sworn on 18th December 2025 is also in the court record. Nothing new is raised in that affidavit. THE RESPONSE 10. The application is opposed by the applicant through her affidavit sworn on 11th February 2026 in which states as follows: that the application is only intended to delay the hearing and determination of the suit and has not met the legal threshold for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules as no new and important evidence has been demonstrated that could not have been produced with due diligence at the time of the hearing; that the allegations that the court relied on a non-existent suit is misleading and incorrect and does not constitute an error on the face of the record; that the ruling of the court in this matter was based on material placed before the court and on established legal principles governing the grant of injunctive relief; that the applicant ought to have challenged the ruling through an appeal and not by way of review. 11. Both parties filed their submissions which I have considered in the process of preparation of this ruling. ANALYSIS AND DETERMINATION. 12. The main ground relied upon by the applicant is that there is an error on the face of the record; that the error lay in that the court proceeded on the mistaken premise that there was a subsisting case before the lower Court yet the same had been withdrawn much earlier. 13. The letter dated 17th December 2025 to Musa Boaz and Thomas advocates was apparently written in response to their request for the MLDELCLOSE023/25-RLG/DF-18.012.25/FH-02.03.26/LH-13.05.26/DR-23.09.26F. Page 6 of 12

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position of the lower Court case Mpeketoni MCELC E013 Of 2021 Esther Njeri Ndungu Versus Caleb Otieno Ongoma. It is therefore apparent that the suit before the lower court was withdrawn. The present suit was filed about two and a half months later. 14. This court was aware of the lower court case. Indeed, in its ruling dated 22/9/2025, at paragraph 3 it analyzed the contents of the present applicant’s replying affidavit to the application where it noted that he had stated that there is no valid judgment of the Mpeketoni court that is capable of enforcement by way of a vesting order. In the same paragraph of the ruling the court acknowledged that the present applicant had stated that the lower court suit had been withdrawn and that it does not exist. The court proceeded in the same ruling to observe the discrepancies in the present applicant’s documents where the title deed registered in his name reflected the date of issuance as 28/8/2006 while his own document, a certificate of official search showed that title was issued on 13th February 2025. 15. This court thereafter proceeded to examine the plaintiff’s evidence in the application; that she acquired the title by way of adverse possession in the Mpeketoni Case; that she had exhibited a copy of a mutation showing the subdivision of the land at her instance; that a copy of an agreement that she had showed that she had purchased the suit land from the present applicant in 1997; that there was a receipt issued by the District Land Adjudication Officer being for Land Deposit and Conveyance; that she claimed to have paid for those receipts but they were issued in the name of the present applicant; that her assertion was that she had been in possession of the suit land since 1997; that owing to those facts the title issued wrongfully in the name of the present applicant. 16. This court then reverted to the further affidavit evidence of the present applicant in response to the injunction application. It noted that he had successfully applied to set aside the judgment in the lower MLDELCLOSE023/25-RLG/DF-18.012.25/FH-02.03.26/LH-13.05.26/DR-23.09.26F. Page 7 of 12

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court, and that the magistrate had granted him leave to defend the matter and file a response to that suit within 30 days failure to which his application would stand dismissed; that he was also to pay the thrown away costs within the same period. The court noted that nothing was said by any of the parties regarding compliance with those orders. The court noted that the ruling of the lower court never granted the present applicant leave to evict the plaintiff. That is the more wholistic structure of the impugned ruling, which the applicant herein has not been able to bring out in his application for the sole reason that he is focused solely on paragraph 8 thereof which states as follows: “Having examined the material before me I find that the applicant has established a prima facie case. I also find that owing to the nature of the case before the magistrate’s case and the present case, if the actions of the 1st respondent are not stopped at this stage, the applicant may suffer loss that may not be capable of compensation by way of damages.” 17. The applicant focuses only on the fact that in the impugned ruling this court referred to “the nature of the case before the magistrate’s court.” However, it is evident in the sentence that immediately preceded the reference to the lower court case that the court considered all the material that had been brought before it by both parties and found that it had sufficiently brought out a prima facie case. It only added a reference to the lower court case (and used the word “also to denote that). It also in the same sentence referred to the nature of the present case. The comment on the nature of the magistrates’ case came second to the court’s observation that the material produced had framed a prima facie case. MLDELCLOSE023/25-RLG/DF-18.012.25/FH-02.03.26/LH-13.05.26/DR-23.09.26F. Page 8 of 12

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18. Regarding the court’s attention to the nature of the presnt case, it is worthy of note that the replying affidavit of the applicant to the Originating Summons, dated 30th September 2024, dwelt extensively on the denial that the plaintiff has achieved the threshold of adverse possession through the Originating Summons (see paragraphs 10, 11, 12, 13, 14, 15,16,17 and 18) while the same affidavit admits developments by a third party (said to be a relative of the plaintiff) on the same land. The material before this very court clearly showed both parties thought there is an issue of adverse possession to be dealt with, and this was only logical given the withdrawal of the lower court case on jurisdictional grounds, and hence the court’s finding of a prima facie case. 19. Besides, the nature of the present case is that very serious queries were raised as to by which legal process the title documents of the applicant were obtained while the plaintiff was still the registered owner and had conducted subdivision of the land. Paragraph 24 and 25 of the supporting affidavit to the Originating Motion appears to dwell on such questions when the plaintiff states as follows: “…that any transfer can only be effected by the court order or by two parties consent… (sic) I have not shown (sic) the document used by the 1st respondent transfer (sic) my suit land to his name…the suit … herein was transferred to the 1 st respondent through the back door, fraud and illegal falsification of the register documents…” 20. All the plaintiff’s averments in her claim come against the backdrop of the fact that as at the end of the Magistrate’s court case the suit property had evidently been registered in the plaintiff’s name, and that subsequently, the title thereto appears to have inexplicably been registered in the 1st defendant’s name begging the question as to what procedure was employed therefor. MLDELCLOSE023/25-RLG/DF-18.012.25/FH-02.03.26/LH-13.05.26/DR-23.09.26F. Page 9 of 12

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21. The import of the above analysis therefore sharply contrasts with the ground relied on for the present application which is couched as follows: “That there is an error apparent on the record as the court proceeded on the mistaken premise that there was a subsisting case before the lower court yet the same had been withdrawn much earlier.” 22. It takes a lot of argument for the 1 st defendant’s counsel as he tries to justify the claim that there is an error on the face of the record. This ought not be the case. In the case of Chino General Merchants Xtreem Ltd v Chen Zhebit & another [2021] KEHC 9009 (KLR) the court held as follows: “12. That was the Court of Appeal’s decision in Court of Appeal case of Anthony Gachara Ayub vs. Francis Mahinda Thinwa [2014] eKLR which quoted with approval the judgment of the High Court in Draft and Develop Engineers Limited vs. National Water Conservation and Pipeline Corporation, by stating: “An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long-drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said MLDELCLOSE023/25-RLG/DF-18.012.25/FH-02.03.26/LH-13.05.26/DR-23.09.26F. Page 10 of 12

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to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was also possible.” 23. In the case of National Bank of Kenya Limited Vs Ndungu Njau [1997] KECA 389 (KLR) it was held as follows: “A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.” 24. With all due respect to counsel for the applicant and his client, the above sentence which is relied on by the applicant can not even in the most elasticized meaning be said to mean that this court thought or meant that the magistrate’s court case was still pending for hearing. If that is the meaning that it conveyed to their understanding, they must have been critically mistaken. And even if they were genuinely mistaken on the meaning of that sentence, it could not have escaped them that this court had delved deeply into the affidavit evidence of the parties at an interlocutory stage while restrained only by the caution that it should not embark on a premature mini-trial of the entire case before the main hearing of the case by way of evidence of the parties was due. And further, even if the court was mistaken, which MLDELCLOSE023/25-RLG/DF-18.012.25/FH-02.03.26/LH-13.05.26/DR-23.09.26F. Page 11 of 12

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is not the case, the court’s consideration of the material before it had brought it to the conclusion that an injunction was deserved. 25. The application for review can not succeed in the above circumstances where the court demonstrably not only knew of the withdrawal of the case but also on the basis of the material before it issued an order that would enable the preservation of the suit property pending hearing of the main suit. 26. There is thus no error discernible from the face of the record or any new matter or evidence brought before this court to enable it exercise its review jurisdiction under Section 80 CPA and Order 45 CPR, and the application dated 18th December 2025 lacks merit and the same is dismissed with costs to the plaintiff. The present suit shall be mentioned on 27th October 2026 for directions as to hearing. Dated, signed and delivered at Malindi on this 23 rd September 2026. MWANGI NJOROGE JUDGE, ELC MALINDI. MLDELCLOSE023/25-RLG/DF-18.012.25/FH-02.03.26/LH-13.05.26/DR-23.09.26F. Page 12 of 12

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