Wagacha & 2 others (Suing for and on Behalf of Members of Githu Zima Society) v Muigai & 20 others

DAVID KAGIRI ........................................................................... 14TH RESPONDENT MWANGI KARIUKI ................................................................... 15TH RESPONDENT MUCHIRI MATHENGE ............................................................. 16TH RESPONDENT HENRY GITAU ............................................................................ 17TH RESPONDENT MWANGI KIMANI ..................................................................... 18TH RESPONDENT KOHORERIA THUITA ............................................................. 19TH RESPONDENT AND ROBERT WAMITHI .............................................................................. DEFENDANT AND PETER KIMANGA WAIGANJO ....................................................... RESPONDENT RULING 1. The Court, by an application dated 13.10.2025, is asked to; i. Stay the proceedings in this le. ii. Find that there was consolidation of this le with ELC No. 346 of 2002 pursuant to orders issued on 1.11.2017 and 27.11.2017. iii. Order that the matter be concluded as per the judgment made on 27.2.2025. iv. Find the Court functus ocio. v. Find the 1-19 and 21ST Defendants deceased and hence any suits against them to have abated after the plainti failed to substitute them within a year of their deaths. 2. The reasons are contained on the face of the application made in a supporting adavit sworn by Robert Wamithi on 13.10.2025. It is deposed that the hearing date for 14.10.2025 was taken without any pretrial conference to ascertain its status under Order 11 CPR and without disclosure of material facts. 3. The applicant deposes that when the matter came up on 1.11.2017, and again on 27.11.2017, it was brought to the Court’s attention of other pending suits; thus, an order of consolidation was made in ELC No. 346 of 2002 as the lead le, while judgment was delivered on 27.2.2025 concluding the matters. The applicant has attached copies of the cause lists and the judgment as annexures marked RW 1 – 1A, 2, and 3. 4. It is deposed that the plainti actively participated in the matter; the parties are almost similar, and the 3rd interested party in the judgment le was the plainti herein, ably represented by the same lawyers as per a ruling annexed as RW -4. 5. The applicant deposes that there was correspondence as per annexures RW5 A and B and that this le has only been re-activated post-judgment so that the plainti can have a second bite at the cherry through forum shopping in a dierent Court. The applicant has attached copies of the death certicate for the deceased defendant as per annexures marked RW (6). https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5796/eng@2026-09-23 2

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6. The applicant deposes that, without substitution of the plainti, by pushing the hearing date, seeks to ambush the estate of the deceased, oending Article 50 of the Constitution, the Civil Procedure Rules and the Law of Succession Act. 7. The application is opposed through a replying adavit sworn by Francis Kibe Wagacha 9.9.2025. 8. Learned Counsel Mr. Owang, in support of the replying adavit, insists that the issue of adverse possession, which forms the core of the instant suit, was not determined in the judgment of February 2025. Learned Counsel denies that the interest suit was ever consolidated, heard and determined for a party to invoke the doctrine of res judicata. 9. Learned Counsel Mr.Odhiambo for the 20th defendant submitted that the application is merited and should be allowed. 10. The question for determination is whether the application before the court has merit.TO determine the same, the court has to review the records herein. 11. The Court record show that on 1.11.2017, 27.11.2017, 29.1.2019, 29.10.2019, 12.2.2020, 22.9.2021, 14.2.2022, 2.11.2022 the issue of le No. 346 of 2002 and other pending suits was brought to the attention of the Court. A specic order of stay was made on 12.2.2020; on 9.3.2023 the plainti sought a hearing date. 12. When the matter came up on 5.7.2023, learned Counsel for the plainti stated that, by consent on record, the defendants were of the view that the matter be stayed. 13. The suit was adjourned as the plainti was not ready to proceed. Another date was given for 2.11.2023 when learned Counsel for the plainti told the Court the matter was intertwined with ELC no 346 of 2002 in which Hon. Justice Okongo, as he then was, had stayed the hearing of this matter pending the outcome of that suit. The record shows that on 2.11.2023 the Court conrmed the existence of a stay order. 14. On 5.2.2024, Mr. Owang, Advocate, told the Court that ELC No.346 of 2002 had been concluded and was awaiting judgment. Learned Counsel thereafter led an application dated 11.10.2024, which was withdrawn on 20.1.2025. 15. Later, learned counsel told the Court that judgment in the ELC No. 346 of 2002 was due on 29.1.2025. On 24.2.2025, counsel for the plainti conrmed the judgment was on the same day. On 17.3.2025, Counsel conrmed the delivery of judgment, whereafter he took a hearing date for 14.10.2025, which prompted the ling of the instant application. 16. The Court has perused the application dated 11.10.2020 in whose supporting adavit the plainti had acknowledged the existence of the determined suit and the ruling by Mutunga J. on 28.8.2014 and the admission that they were not interested parties in the ELC No. 346 of 2002. 17. The suit by the plaintis was led through an amended Originating Summons dated 11.7.2016. They are seeking to be declared entitled to Nairobi Block 123/1279, formerly LR No 57 /2026, situated in Kasarani, Nairobi Area by virtue of adverse possession. The suit is supported by an adavit sworn by Francis Kobe Wagacha. The 6th & 10th Respondents entered appearance through Murugu, Rigoro & Co. Advocates, while F.M Kuria Advocates came on record for the 1st Defendant on 16.1.2016. 18. By an application dated 5.10.2015, the applicants were allowed to serve the rest of the defendants through substituted service. The applicants had also expressed an intention to apply for consolidation of this suit with ELC 346 of 2002, but no such prayer was made or allowed from the Court record. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5796/eng@2026-09-23 3

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19. An order to serve through daily newspaper advertisement was also granted on 23.10.2015. An advertisement was done on 28.10.2015 as per the adavit of service dated 13.6.2016 attached to a request for interlocutory judgment dated 13.6.2015. 20. It is after this that a formal proof date was issued due to the Respondents' failure to enter or le responses to the amended Originating Summons. 21. The Court has not come across any response by the 20th Respondent other than the application dated 13.10.2025. Having set out the parties' pleadings and the Court records, the applicant seeks a raft of prayers. 22. Stay of proceedings is a grave judicial action which severely interferes with the right of a litigant to expeditiously prosecute his case. It is a discretionary power that has to be exercised sparingly and only in exceptional circumstances. It cannot be granted if it will cause greater hardship than if the application is refused. 23. In Itumbi Vs LSK & 55 others (2023) KECA 593 KLR, the Court termed such an application as premature. In Re Global Tours & Travels Ltd NBB winding up case No. 43 of 2020 and in KWS vs Mutembei (2019) EKL, the Court said that stay of proceedings is an extraordinary remedy that has an opposite eect in the administration of justice without inordinate delay and on the right to a fair trial. 24. The Court said that the test for stay of proceedings is high and stringent. The Court said that stay of proceedings is not a matter of right but of judicial discretion to be exercised in the interest of justice by weighing the pros and cons of granting or not granting the orders. 25. In Turbo Highway Eldoret Ltd Vs Muniu (2022) KEHC 2019 1KLR, the Court said that stay of proceedings is a serious, grave, and fundamental inter optional in the right, and the party has to conduct litigation based on the substantive merits of his case, unless the case is vexatious, groundless, frivolous, or an abuse of the Court process. 26. The other prayer sought is that the Court is functus ocio. The doctrine of functus ocio was discussed in Outa vs Okello, Petition No. 6 of 2014. The Court said a Court becomes functus ocio once it has delivered judgment or made a nal decision and therefore, the stamp of nality with which it does so could only in exceptional circumstances be degraded; otherwise litigation must come to an end. 27. Regarding consolidation of suits, it arises where there are two or more suits or matters pending in the same Court where there is commonality of law or facts or where the rights or reliefs claimed in them are in respect of or arise out of the same transactions or series of transactions, making it desirable for consolidation. The purpose, as held in Joseph Okeyo vs Dickson Wasuua (2014) eKLR, is to achieve the overriding objective of the Civil Procedure Act for expeditious and proportionate disposal of suits, by saving time, costs, and eort and to make the conduct of several actions more convenient by treating them as one action. 28. On striking out parties, or claims against them, the power to do so is discretionary, and sparingly used and only in the clearest of cases where the impugned pleading is incurable by way of amendments, as held in DT Dobie Kenya Ltd Vs Muchina(1982) KLR 1 (CA). 29. Res judicata is governed by section 7 of the Civil Procedure Act. The elements to consider were discussed in IEBC & others vs Kiai & others (2017) eKLR. They include commonality of parties, title and issues in the consent and former suit, hearing and disposal of the former suit to nality by a Court competent to try the subsequent suit or the suit in which the issue is raised. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5796/eng@2026-09-23 4

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30. Abatement of suit was discussed in Rebecca Mijire Mungole & Another vs KPLC & Others (2017) eKLR and in said Suleiman Gheithan Sanus vs Commissioner of Land (2015) eKLR. The Court said that the eort to be termed of the suit is that it ceases to exist in the eyes of the law, and that it takes place on its own force by passage of time, whose legal consequence ows from the omission to take the necessary steps within one year to implead the legal representative of the deceased party. 31. In Issa Masudi Mwabumba vs Alice Kavinya Mutunga & others (2013) EKL, the Court said that allowing for the revival of the suit, since the dispute involved ownership stand and a durable solution that addressed issues as always a better option and a key consideration. 32. The Court said that abatement provisions are not therefore immune from the Court’s inherent equitable jurisdiction in extraordinary circumstances. In Ndambo vs Ndambo (2022) KEHC 14723 KLR, the Court held that a rigid and literalist approach to abatement provisions was inconsistent with the Court’s duty to render substantive justice, since delay to substitute may arise out of factors external to the parties' control. 33. In Amalgamated Investment & Property Co. Ltd vs Texas Commercial Investment Bank Ltd (1982) 1QB 84(CA), the Court said that a party who, by its conduct, representation, or acquiescence, led others to believe that strict legal rights will not be enforced cannot thereafter assert those strict rights to the detriment of the other party. 34. In State of Punjab vs Nathan Ram AR (1963) SC 89, the Civil Court held that the doctrine of abatement cannot be used as a technical device to defeat substantive right where the spirit of justice demands otherwise. 35. Applying the foregoing principles to the instant suit, the applicant’s Advocate does not appear to act on behalf of the rest of the defendants other than the 20th Respondent. 36. There are no certied copies of the death certicates of the alleged deceased Respondents or an adavit by the legal representative to state as such. 37. The applicant has not attached any order for consolidation and directions given on the mode of hearing the consolidated suits. The law is that interested parties, even after being joined to a suit, the primary issues under consideration or determination remain those raised by the principal parties, as was held in Methodist church in Kenya vs Mohammed Fugicha (2019) KESC 59/KLR) and Francis Muruatetu & Another vs Republic & Others (2016)eKLR 38. In Seth Panyako vs Kenyatta National Hospital Board, Civil Appeal Application No. 357 of 2014, the court said that the powers of the Court under sections 3 A & 3B of the Civil Procedure Act, as read together with Article 159 of the constitution 20 not operate in a vacuum. Courts also, as held in Nicholus Kiptoo Arap Salat vs IEBC & others, Civil Appeal Application No 228 of 2013, have to promote substantive justice by leaning towards sustaining rather than striking out suits as far as is practicable and fair. See also Kamau Addi & others versus SRC & Civil Application No. 25 of 2020. 39. In the judgment attached to the supporting adavit, there is no evidence that the issue of adverse possession, the subject matter in this suit, was heard and determined on merit to nality by the Court. 40. The Judgment shows that the court mentioned that there were other Respondents to the suit, even if there was credible and reliable evidence of death of some of the Respondents to the suit. 41. The Court nds no evidence that the 20TH Respondent/ Applicant sought consolidation of the suit with the ELC No.346 of 2002. Equally, the Court nds no basis to hold that the issue of adverse possession was settled in the judgment allowed above to summarily determine the matter. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5796/eng@2026-09-23 5

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42. The upshot: I nd the application dated 13.10.25 incompetent and lacking merit. It is dismissed with costs. 43. Orders accordingly. DATED, SIGNED AND DELIVERED ON 23RD SEPTEMBER,2026 ……………………………….. HON C.K NZILI JUDGE In the presence of; Mr. Odhiambo for 20th Defendant present Mr. Owang for plainti Absent 1-19th & 21st Defendants Absent Court assistant ; Julius https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5796/eng@2026-09-23 6

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