Samwel Nyabichere Muchomerson v Daniel Sereria Makara & 7 others

THE HON. ATTORNEY GENERAL.............................8TH RESPONDENT RULING Background 1. The Applicant instituted this suit by an Originating Summons dated 7th February 2019, under Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act. He claimed to Bukira/Bwisaboka/852, have acquired a five acres subdivision of of Bukira/Bwisaboka/136, by adverse possession. 2. He deponed that he had bought the five acres from the deceased Makara Sereria, also called Marwa Seria, the father of the 1st, 2nd, 3rd and 4th Respondents, in 1975, and 1977, with the consent of the Land Control Board, took possession, built a homestead, and cultivated the land. 3. The 1st Defendant's Replying Affidavit, sworn “for and on behalf of himself and other defendants,” partially conceded the Applicant's occupation of his homestead, but disputed the extent of his claim over the rest of Bukira/Bwisaboka/852. 4. On 28th July 2020, this court (Ongondo, J.) entered judgment for the Applicant on the ground of adverse possession. He directed the 1st Defendant to execute a transfer in the Applicant’s RULING ELCC NO. 6 OF 2019 2

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favour, and ordered a certified copy be availed to a related suit. 5. The Judgment was internally inconsistent as to the parcel number. Its introduction refers to “Bukira/Bwisaboka/823”; its framing of the issues refers to “Bukira/Bwisaboka/136 which is now Bwisaboka/825”, its discussion, at paragraphs 10 and 11, refers to “Bukira/Bwisaboka/852”. 6. Before that, in the vendor's lifetime, the Applicant had filed Kisii HCCC No. 3 of 1994 for specific performance. The vendor's defence, filed 7th March 1994, conceded the sale. The suit abated on the vendor's death on 11 th March 1998. 7. The Applicant filed Migori High Court Miscellaneous Succession Cause No. 4 of 2017 to compel representation of the vendor's estate. A grant issued to the 1 st and 4th Respondents in Migori Chief Magistrate's Succession Cause No. 113 of 2017, and was confirmed on 2nd July 2018. 8. The decree extracted on 8th October 2020 described the suit land as Bukira/Bwisaboka/136. 9. The Respondents moved this court for a stay of execution of the decree by a Notice of Motion dated 6 th November 2020. The Applicant cross-moved for correction of the decree by a Notice of Motion dated 18th November 2020. On 28th September 2021, this court granted the stay and declined the correction. RULING ELCC NO. 6 OF 2019 3

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10. On 30th June 2022, this court granted the Applicant leave to appeal out of time and ordered that the status quo over Bukira/Bwisaboka/852 be maintained. By that order it restrained any sale, lease, charge, trespass or interference. The Applicant lodged Kisumu Civil Appeal No. E182 of 2022. The 1st and 4th Respondents separately lodged Kisumu Civil Appeal No. E242 of 2022. Both appeals are still pending. 11. The Land Registrar had entered a prohibition against Bukira/Bwisaboka/852 on 31st March 2021. It was lifted, without any court order on 14th June 2023 and reinstated after the Applicant's advocates protested by letter dated 23 rd June 2023. It was lifted again, without any court order, on 3 rd September 2024, the date on which land parcel number Bukira/Bwisaboka/852 was subdivided into Bukira/Bwisaboka/16057, 16058 and 16059. 12. Land parcel registered in number the name Bukira/Bwisaboka/16058 of the 5 th Respondent, was and Bukira/Bwisaboka/16059 in the name of the 6th Respondent, in October 2024. 13. On 28th November 2025, the Court of Appeal sitting in Kisumu dismissed the 1st–4th Respondents' Notice of Motion dated 24th May 2024, filed within Civil Appeal No. E242 of 2022. The Motion had sought an injunction pending the appeal, with costs to the Applicant. That dismissal disposed of only the RULING ELCC NO. 6 OF 2019 4

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interlocutory application. It did neither dispose of the substantive appeal nor Civil Appeal No. E182 of 2022. 14. This is the background against which the Applicant filed the Notice of Motion dated 18th September 2025, the subject of this ruling. The Application 15. By a Certificate of Urgency and a Notice of Motion, both dated 18th September 2025, brought under Articles 40, 48, 50 and 159 of the Constitution, sections 1A, 1B and 3A of the Civil Procedure Act, section 29 of the Environment and Land Court Act, sections 68, 76 and 80 of the Land Registration Act, section 5 of the Judicature Act, and Orders 9, 40 and 51 of the Civil Procedure Rules, and supported by the Applicant's affidavit of the same date, the Applicant sought the following orders, as they appear on the face of the Motion: A. …Spent. B. THAT leave be granted to the firm of Sarara & Co. Advocates to come on record for the Applicant/Decree-Holder in place of Messrs. Kerario Marwa & Co. Advocates, pursuant to Order 9 Rule 9 of the Civil Procedure Rules, 2010. C. THAT leave be granted to the Applicant to move this Honourable Court post-judgment and decree for purposes of enforcement, rectification, preservation, and ancillary reliefs, the Court being seized with residual jurisdiction to enforce RULING ELCC NO. 6 OF 2019 5

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and ensure compliance with its decree and safeguard the substratum of the pending appeals. D. THAT leave be granted to institute contempt proceedings against Daniel Sereria Makara, James Rioba Makara, the Land Registrar – Kehancha Land Registry, and such other parties as the Court may find liable, for wilful disobedience of the status quo orders made on 30th June 2022. E. THAT leave be granted to join the Land Registrar – Kehancha Land Registry and the Hon. Attorney General, as well as Ezekiel Mose Ondieki and Naumi Maseke Mwita, as Respondents to these proceedings, the better to effectuate rectification of the register, preservation of the substratum, and to ensure that any orders of this Honourable Court bind all current registered proprietors. F. …Spent. G. THAT a finding of contempt be made against Daniel Sereria Makara, James Rioba Makara, and the Land Registrar – Kehancha Land Registry, for knowingly and wilfully disobeying the status quo order of 30 th June 2022 by procuring and transfers effecting of the unlawful subdivision Bukira/Bwisaboka/852 and into Bukira/Bwisaboka/6057, 16058 and 16059. H. THAT a similar finding of contempt be made against Ezekiel Mose Ondieki and Naumi Maseke Mwita, upon evidence being placed before the Court of their notice or knowledge of RULING ELCC NO. 6 OF 2019 6

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the subsisting orders, they having taken title pendente lite and contrary to the Court's directive. I. THAT, consequent upon such findings, the contemnors be punished by committal to civil jail and/or payment of deterrent fines, and further be denied audience until they purge their contempt. J. THAT a declaration do issue that the subdivisions and transfers of Bukira/Bwisaboka/852 Bukira/Bwisaboka/6057, 16058 and into 16059 during September to October 2024 were pendente lite, in breach of this Court's orders, and are null and void ab initio. K. THAT the Land Registrar – Kehancha Land Registry be directed, pursuant to section 80 of the Land Registration Act, to rectify the register by cancelling the said subdivisions and transfers, reinstating Bukira/Bwisaboka/852 as it stood prior to the 2024 dealings, and endorsing on the register the Judgment of 28th July 2020 and the Decree of 8th October 2020. L. …Spent. M. THAT the Land Registrar – Kehancha Land Registry be compelled, within seven days, to produce and file certified copies of the historical green cards for Bukira/Bwisaboka/852 and for Bukira/Bwisaboka/6057, 16058 and 16059, all mutations, RIM extracts/FR plans, Land Control RULING ELCC NO. 6 OF 2019 Board consents and minutes, transfer 7

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instruments, stamp duty and registration receipts, and the names and PINs of the parties who appeared before the registry during the 2024 transactions, and further to attend court in person if directed. N. …Spent. O. THAT the OCS Kehancha Police Station and/or the OCPD Kuria West Police Division do enforce these orders on the ground, secure compliance, prevent waste, deter further trespass, and maintain peace, pending further orders of this Honourable Court. P. THAT the costs of this Motion be borne by the contemnors, or as this Honourable Court may otherwise direct. 16. 16. It is worth noting that the Application was directed to be served and heard inter partes, and it was on different occasions. Prayers D, G, H, J, K, L and N refer, throughout the Motion, to “Bukira/Bwisaboka/6057.” No land parcel of that number exists on this record or even on the documents presented to this Court. Every other document, including the Applicant's own official search of 11 th September 2025, the green cards, and the Directions issued on this Motion, refers to Bukira/Bwisaboka/16057. The Applicant's Supplementary Affidavit later acknowledged this as “a typographical omission… [that] arose during drafting, without affecting substance.” RULING ELCC NO. 6 OF 2019 Thus, I read “Bukira/Bwisaboka/6057,” 8

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wherever it appears in the Motion, as Bukira/Bwisaboka/16057. 17. By the directions of 19th September 2025, issued on 23rd September 2025, the court directed, inter alia, that the Applicant serve the Respondents by 23 rd September 2025 and file an affidavit of service within four days. The Respondents file and serve their responses by 3 rd October 2025, an order of inhibition issued forthwith over Bukira/Bwisaboka/16057, 16058 and 16059 pending further directions. Leave was granted to serve the Land Registrar, the Attorney General, and the 5th and 6th Respondents. The Area Chief was directed to visit the land and report on 1st October 2025. The application was set to be heard in open court on 15th October 2025. 18. Further, pursuant to the Directions, the Area Chief, Bukira East Location, was required to visit the suit land and file a report by 1st October 2025. No such report was filed. He was subsequently served with the Hearing Notice for 18 th November 2025, by WhatsApp and by a follow-up phone call, as deponed to in the Affidavit of Service sworn by Sarara Maroa on 17 th November 2025. He did not attend court on that date, nor on any other subsequent one, and filed no report. He informed the process server, by telephone, that he had been born and found the Applicant already living on the suit land, and that he did not wish to involve himself in the matter. RULING ELCC NO. 6 OF 2019 9

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19. On 11th May 2026, the parties having already filed written submissions and the ruling awaiting delivery, it emerged from the Applicant’s learned counsel’s sentiments that alleged further acts of contempt had taken place during the pendency of the application. The court therefore granted the Applicant leave to file a Supplementary Affidavit disclosing those subsequent dealings in the resultant parcels. It equally granted leave to the Respondents to file any Further Affidavit in response thereto. The Applicant’s Further Affidavit of 20 th August 2026 was, on its own recital, sworn “pursuant to leave granted by this Honourable Court to clarify allegations” concerning the Applicant's relationship with Mr Sarara Maroa. Both of the Applicant's later affidavits were therefore filed with leave. THE APPLICANT’S CASE 20. The applicant contended, in the body of the application, and which he replicated in the Affidavits he swore, and which depositions this court now relies on, as hereafter. He deponed that on 10 February 1975, he purchased 2.5 acres from Makara Sereria, the Respondents’ father, out of Bukira/Bwisaboka/136 for Kshs. 2,200/=. He, again, on 5 June 1977 purchased an additional 2.5 acres for Kshs. 2,230/=. It made a total of five acres. He annexed and marked SNM1a and SNM1b copies of the sale agreements. The vendor applied for Land Control Board consent on 26th October 1977. The consent was duly RULING ELCC NO. 6 OF 2019 10

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granted on 23rd November 1977. It authorizing the subdivision and transfer of the five acres to him. That the consent validated the bargains and vested equitable rights binding upon the vendor and his estate. He annexed as SNM2 a copy of the Land Control Board consent dated 23rd November 1977 21. He added that acting on the purchase and consent, he took possession of the five acres, fenced the land, established a permanent homestead, planted trees on it, and cultivated food and cash crops. He and his family have since remained in continuous, open, and undisturbed possession. Further, that on 27 July 1979, Bukira/Bwisaboka/136 was subdivided, creating Bukira/Bwisaboka/852 in the vendor’s name. That this registry evolution did not alter his entitlement. The five acres he purchased remained carved within the larger parcel, awaiting transfer in accordance with the agreements and Land Control Board consent. 22. His further deposition was that when the vendor refused to complete transfer, he (applicant) instituted Kisii HCCC No. 3 of 1994 seeking specific performance. The vendor entered appearance and filed a defence conceding the transaction, judicially affirming my entitlement to the five acres. Further, to protect his interest, the applicant registered a Caution on 12th February 1994 and a Restriction on 5th January 1999 against Bukira/Bwisaboka/852. These entries preserved the register and flagged his interest, forestalling unlawful dealings or RULING ELCC NO. 6 OF 2019 11

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administrative dissipation by third parties or successors. He annexed copies of documents of the entries of the Caution and Restriction as SNM3. 23. He added that the vendor passed away on 11th March 1998 before completion of transfer. The Applicant and his family continued farming, living, and maintaining the homestead peacefully, our long possession and the existing consent affirming that the land was duly purchased and awaiting formal transfer. He then filed Migori Miscellaneous Succession Cause No. 4 of 2017 (citation) citing the Respondents. On 10th January 2018, a Grant issued to the 1st and 4th Respondents and was confirmed on 2 July 2018, enabling completion of transfer in law. He annexed a copy of the confirmed Grant and marked it SNM4. Further, that after obtaining representation, the 1st and 4th Respondents changed position, claiming succession vested them absolute ownership of Bukira/Bwisaboka/852, excluding him. They attempted to confine him to a small homestead, repudiating his five-acre entitlement despite the agreements, consent, protective entries, and decades of peaceful possession. 24. The hostility escalated. In March 2021, the Respondents trespassed onto my land, cut down trees, and destroyed crops. He reported to the Chief, Kehancha Police (OB 22/25/03/2021), Forestry and Agriculture Officers, the latter who assessed losses at Kshs. 262,635 for trees and Kshs. 450,780 for crops. RULING ELCC NO. 6 OF 2019 12

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He annexed and marked SNM5a and SNM5b copies of the reports from the Forestry and Agriculture Officers. 25. Further, the applicant filed Migori ELC (OS) No. 6 of 2019. On 28 July 2020, this Court delivered Judgment in my favour, declaring me lawful owner of five acres within Bukira/Bwisaboka/852. On 8th October 2020, the court issued a decree for transfer and registration. He annexed and marked SNM6a and SNM6b copies of the Judgment and Decree. The Respondents sought a stay of execution vide Motion dated 6th November 2020. He too filed a Motion on 18th November 2020 seeking correction of an error apparent on the face of the decree. On 28th September 2021, the Court granted the stay but declined the amendment. 26. On 30th June 2022, the Court ordered status quo to be maintained pending appeal, barring any dealings, trespass, sale, or interference with the land. The order was to be enforced by OCS Kehancha and OCPD Kuria West. The applicant lodged Kisumu Civil Appeal No. E182 of 2022. He annexed and marked SNM7 a copy of the status quo Order. The Respondents simultaneously lodged Kisumu Civil Appeal No. E242 of 2022 challenging the merits of the judgment, and an application within their appeal, seeking his eviction. The Court of Appeal heard the application on 20th February 2025 and reserved it for ruling. RULING ELCC NO. 6 OF 2019 13

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27. On 11th September 2025 the applicant conducted an official search and discovered that in September–October 2024 the Respondents, in collusion with the Land Registrar – Kehancha Land Registry, unlawfully subdivided Bukira/Bwisaboka/852 into three new parcels: Bukira/Bwisaboka/6057, 16058, and 16059, contrary to express status quo orders and during pendency of appeals. 28. The subdivisions resulted in fresh titles, namely Bukira/Bwisaboka/6057 to Daniel Sereria Makara and James Rioba Makara, the 1st Bukira/Bwisaboka/16058 and to 4th Ezekiel Respondents Mose herein; Ondieki; and Bukira/Bwisaboka/16059 to Naumi Maseke Mwita. He deposed that these dealings were pendente lite, unlawful, and intended to defeat justice. He annexed a copy of the official search dated 11th September 2025 and marked it as SNM8. 29. On 23rd June 2023, his advocates wrote to the Land Registrar, enclosing the 30th June 2022 order and warned against any dealings over Bukira/Bwisaboka/852. The Registrar received the notice on 6th July 2023 but still proceeded with subdivisions between September and October 2024. He annexed and marked SNM9 a copy of the letter dated 23rd June 2023 and the Registrar’s acknowledgment of 6th July 2023. The Registrar acted in open defiance, abetting contempt and facilitating illegal transfers, thereby aggravating the contempt of the Respondents. This demonstrates deliberate RULING ELCC NO. 6 OF 2019 14

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collusion to defeat the Court’s judgment, orders, and my lawful entitlement. 30. He deposed further that recently, and continuing contempt of this Court’s authority, the 1st to 4th Respondents have violently re-entered and invaded his portion of the land, and were now actively tilling it under the open protection of armed goons. The actions demonstrated aggravated defiance calculated to intimidate and disinherit me of my longestablished homestead. The Respondents’ conduct was calculated to frustrate and defeat the Judgement and Decree of this Court, as well as the outcome of the pending appeals by creating purported third-party rights, which would expose him to endless litigation, risks cascading alienations, and render any eventual relief nugatory. 31. He added that the Land Registrar was a necessary party to the proceedings for rectification and production of records. Without the Registrar, neither the impugned entries can be cancelled nor the judgment and decree be effectively enforced. That Section 80 of the Land Registration Act grants this Court jurisdiction to rectify the register by cancelling the illegal subdivisions and reinstating Bukira/Bwisaboka/852. The rectification is necessary to restore legality and uphold the authority of this Court’s decree. If cancellation was not immediately granted, inhibitions and restrictions ought to issue under Sections 68 and 76 of the Land Registration Act against RULING ELCC NO. 6 OF 2019 15

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Bukira/Bwisaboka/6057, 16058, and 16059 to prevent further dealings, charges, or alienations pending the determination of this Motion. Further, unless the Court intervened, the applicant stood to suffer irreparable loss as his home and livelihood rested entirely on the suit land, and no monetary compensation could adequately redress the threat of eviction, dispossession, and destruction of a homestead nurtured for nearly fifty years. It was in the interest of justice, preservation of the rule of law, and protection of the authority of this Court that the orders sought in the Notice of Motion be granted. THE RESPONDENTS' CASE The 1st–6th Respondents' Grounds of Opposition 32. On 1st October 2025, the 1st, 2nd, 3rd, 4th, 5th and 6th Respondents jointly filed Grounds of Opposition, each Respondent signing personally. They pleaded, that the Motion was an afterthought and that the 5 th, 6th, 7th and 8th Respondents were strangers to the suit. Further, that only three kinds of post-judgment applications were ordinarily entertained, review under Order 45 (of the Civil Procedure Rules), execution under Order 22, and stay of execution under Order 22 respectively. That this Motion fitted none of them since the court was functus officio. That no security had been deposited to warrant Civil Appeal No. E242 of 2022, so that the orders sought would render it nugatory and that the Motion RULING ELCC NO. 6 OF 2019 16

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was frivolous, vexatious, misconceived, brought in bad faith, and marred by undue delay. The 5th Respondent 33. The 5th Respondent, Ezekiel Mose Ondieki, filed a Replying Affidavit. He deponed that he purchased Bukira/Bwisaboka/16058 from the 1st and 4th Respondents. That the Land Control Board cleared the transaction on 25 th June 2024, and that title was issued to him on 1 st October 2024. 34. He deponed that there were no inhibitions or restrictions on the parcel at the time of his transaction, that he was a stranger to the suit, and that the application against him should be dismissed. The 7th and 8th Respondents 35. The 7th and 8th Respondents filed Grounds of Opposition to the Motion. They contended that the application was defective. That the court was functus officio and could not admit new parties. That further, they were not parties to the judgment and could not be cited for contempt. That the application offended Article 50 of the Constitution and that the Applicant had not established the elements of contempt set out in Cecil Miller v Jackson [2017] KEHC 1499 (KLR). Njeru Finally, that & Another the application offended the doctrine of exhaustion. RULING ELCC NO. 6 OF 2019 17

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36. The 7th and 8th Respondents also filed a Replying Affidavit sworn by Timothy M. Charagu, the Land Registrar, Kuria East and West. He deponed to the registry history of Bukira/Bwisaboka/852. He deponed further that the 1 st and 4th Respondents subdivided it on 3rd September 2024. That Bukira/Bwisaboka/16058 was transferred to the 5 th Respondent on 1st October 2024, and thereafter to one Jacob Gati Matiko on 21st April 2026. That Bukira/Bwisaboka/16059 was transferred to the 6th Respondent on 1st October 2024 and that a mutation for the further subdivision of Bukira/Bwisaboka/16057 into parcels 18390 and 18391, presented on 21st May 2026, did not take effect, as the proprietors did not surrender the existing title. He deponed that the inhibition ordered on 19 th September 2025 was registered against the parcels only on 26 th May 2026, and that the 7th and 8th Respondents were not in contempt, as they complied upon service. 37. Neither the Grounds of Opposition nor Mr Charagu's affidavit addressed the Applicant's specific allegation, made in the grounds of the Motion, that the Land Registrar unlawfully and repeatedly lifted a prohibition entered against Bukira/Bwisaboka/852 on 31st March 2021, in 2023, and again on 3rd September 2024, without any order of court. The 1st–6th Respondents' “Reply” to the Supplementary Affidavit RULING ELCC NO. 6 OF 2019 18

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38. On 29th May 2026, the 1st Respondent, Daniel Sereria Makara, swore a document titled “Replying Affidavit to Applicant's Supplementary Affidavit.” It was filed on 30 th May 2026. He deponed in it that he swore it “for myself and on their behalves,” purporting to represent the 2 nd, 3rd, 4th, 5th and 6th Respondents. 39. He deponed that the Applicant's Supplementary Affidavit was brought in bad faith, that Civil Appeal No. E242 of 2022 remained undetermined, that the Applicant's advocate was his (the Plaintiff’s/ Applicant’s) biological son. He deponed further that the Applicant had not served the Supplementary Affidavit on the Respondents as directed. That the succession of Makara Sereria's Estate was properly conducted, and that the subdivision of Bukira/Bwisaboka/852 was lawful. The Applicant's Rejoinder 40. The Applicant's Supplementary Affidavit of 29 th May 2026 disclosed the dealings in the resultant parcels after the orders of 19th September 2025. He annexed green cards, Land Control Board records, photographs of felled trees and new fencing, the Court of Appeal's ruling of 28th November 2025, and the plaint in Migori CMELC No. E005 of 2026. 41. The Applicant's Further Affidavit of 20 th August 2026 clarified that his advocate, Sarara Maroa, was not his son, and that his biological son, Jackson Maroa Muchomerson, was a different RULING ELCC NO. 6 OF 2019 19

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advocate entirely, holding Practice No. LSK/26/11297. He further annexed two documents marked “SNM-1” and “SNM-2” being his son’s national identity card and Practising Certificate respectively. The Applicant's Written Submissions 42. The Applicant submitted that his five-acre entitlement arose from sale agreements executed in 1975 and 1977, supported by consideration, Land Control Board consent and possession. He maintained that his occupation had continued for decades and that the Judgment of 28th July 2020 recognised his entitlement to five acres. 43. The Applicant submitted that the reference to parcel 136 in the extracted decree was an accidental error because parcel 136 had been subdivided and the Judgment itself identified parcel 852 as the subject of the dispute. He therefore urged the Court to correct the Judgment and decree under the slip rule without altering their substance. 44. The Applicant further submitted that the subdivision and subsequent dealings with parcel 852 occurred in breach of the status quo orders of 30th June 2022 and the subsequent orders of 19th September 2025. He contended that the Respondents' conduct amounted to wilful disobedience and that the resulting transactions should not be allowed to defeat the Court's orders. RULING ELCC NO. 6 OF 2019 20

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45. The Applicant submitted that the Land Registrar's dealings with the register, including the lifting of the prohibition over parcel 852, facilitated the impugned transactions. He urged the Court to invoke section 80 of the Land Registration Act and direct rectification of the register. 46. The Applicant also submitted that the 5 th and 6th Respondents, the Land Registrar and the Attorney General were necessary parties because the relief sought affected the titles and register. He maintained that the Court retained sufficient jurisdiction after judgment to enforce its decree, punish disobedience, preserve the subject matter and grant consequential relief. 47. Finally, the Applicant submitted that the Court should maintain the status quo pending determination of the pending appeals and award him the costs of the application because the Respondents' conduct had necessitated the proceedings. 48. In his Further Supplementary Submissions dated 20 th August 2026, the Applicant urged that Prayer E, seeking joinder, ought to be allowed, as the proposed Respondents had already been served, entered appearance, filed responses and participated fully, so that they could not now complain of exclusion or want of a hearing. 49. In his Supplementary Submissions dated 20 th August 2026, the Applicant further urged that the subsequent dealings, the RULING ELCC NO. 6 OF 2019 21

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transfer of Bukira/Bwisaboka/16058 on 21st April 2026, the subdivision of Bukira/Bwisaboka/16057 on 21st May 2026, the felling of trees and the erection of fencing, were undertaken in defiance of subsisting orders, and fortified the case for the substantive orders sought. 50. The Applicant characterised the Court of Appeal's ruling of 28th November 2025 as a dismissal of “the Respondents' appeal.” I shall address that in the determination. 1st-6st Respondents written submissions 51. On 27th November 2025, the same six Respondents filed Written Submissions, again each signing personally, repeating the Grounds of Opposition in substantially the same terms and urging dismissal with costs. Neither document was filed on behalf of one Respondent by another, each is signed by the Respondent it binds. No Respondent filed anything further by way of submissions after that date. 52. There are no written submissions on behalf of the 7 th and 8th Respondents on Record. I have had regard to all of the foregoing in determining this application. Issues for Determination 53. I have considered the Notice of Motion dated 18 th September 2025, the affidavits filed in support and in opposition thereto, the Grounds of Opposition, the law, the submissions by the respective parties, the judgment delivered on 28 th July 2020, RULING ELCC NO. 6 OF 2019 22

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the ruling of this Court delivered on 28 th September 2021, the subsequent orders made in the matter, and the record relating to the pending appeals. 54. Having regard to the pleadings and the reliefs sought, the issues arising for determination are, in my view, as follows: a) Whether this Court is functus officio in respect of the reliefs sought b) Whether the Applicant is entitled to leave to change advocates under Order 9 Rule 9 of the Civil Procedure Rules; c) Whether the Applicant may reopen the question of correction of the judgment and decree under section 99 of the Civil Procedure Act; d) Whether the proposed additional parties should be joined; e) Whether contempt has been established against any of the alleged contemnors; f) Whether the Court can grant orders declaring the subsequent subdivisions and transfers null and void and directing rectification of the register; g) Whether the Land Registrar should be directed to produce the documents sought; h) Whether preservatory, inhibitory and police enforcement orders should issue; and RULING ELCC NO. 6 OF 2019 23

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i) What orders to issue as to costs and thecontempt established. a) Whether this Court is functus officio 55. The Respondents raised an objection to the application on the ground that this Court is functus officio and consequently lacks jurisdiction to entertain the present Motion. The Applicant, on the other hand, contends that the orders sought are consequential to the judgment and arise from subsequent events affecting the subject property. 56. The doctrine of functus officio is founded on the need for finality in litigation. Once a court has finally determined the matters submitted to it, it cannot reopen the merits of its determination merely because a party is dissatisfied with the outcome or seeks a different result. In Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] KECA 600 (KLR), the Court of Appeal held: "Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. It is a doctrine that has been recognized in the common law tradition from as long as the latter part of the 19th Century." 57. In Shollei v Judicial Service Commission & another [2023] KESC 8 (KLR), the Supreme Court reiterated that once RULING ELCC NO. 6 OF 2019 24

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a court has performed all its duties in a matter, the purpose of the doctrine is to ensure finality and any challenge to the adjudication lies, where available, before a higher court. 58. The doctrine, however, does not, in my humble view, mean that every application made after judgment is necessarily beyond the jurisdiction of the court. The court retain a limited jurisdiction to correct clerical errors within the confines of section 99 of the Civil Procedure Act, to enforce subsisting orders, or to make genuinely consequential and preservatory orders in the interest of justice of the case, which do not amount to reopening the merits of the dispute. 59. The distinction is material in the present case. The Applicant's Motion does not comprise one homogeneous request for post-judgment relief. Some prayers concern matters which are purely ancillary or preservatory, while others invite this Court to revisit questions which have already been determined and which are now implicated in the pending appellate proceedings. To the extent that the application invites the Court to trudge on the latter path, those prayers cannot be granted, and the court for that reason is functus officio but only to that extent of the specific prayers. 60. The Court must therefore consider each relief according to its nature rather than either accepting all wholesomely or rejecting the entire Motion on the broad proposition that the Court is functus officio. The question whether each prayer falls RULING ELCC NO. 6 OF 2019 25

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within that limited residual jurisdiction must therefore be considered separately. b) Whether the Applicant is entitled to leave to change advocates under Order 9 Rule 9 of the Civil Procedure Rules; 61. The second prayer (B), seeks leave for M/s Sarara & Co. Advocates to come on record in place of M/s Kerario Marwa & Co. Advocates after judgment. 62. Order 9 Rule 9 of the Civil Procedure Rules Provides as follows; “When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court— a) upon an application with notice to all the parties; or b) upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.” 63. The Rule permits a change of advocate by leave of the court, after judgment has been entered in a matter. No Respondent opposed Prayer B on any procedural ground. Their only objection, raised in the 1st Respondent's affidavit of 29th May RULING ELCC NO. 6 OF 2019 26

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2026, was that Mr. Sarara Maroa, of Sarara & Co. Advocates, is the Applicant's biological son. 64. That allegation is answered, on oath, by the Applicant's Further Affidavit of 20th August 2026. He deponed that the Applicant’s son Muchomerson, is a different advocate, holding Practice No. Jackson LSK/26/11297. Maroa It is unrebutted. While it may appear to be a professional practice issue, even if it had been so, a family relationship between an advocate and his client would not, without more, be a ground to refuse a change of advocate. It might bear on other questions, such as costs or conduct, but none of those are before me on this Motion. 65. The applicant’s current counsel brought the application seeking the change to be effected, and at the same time praying for the many substantive prayers herein. In my view, that procedure is not correct. Ordinarily, an advocate seeking to act for a party ought first to obtain leave to come on record, whether by a separate application with notice, or by consent under Order 9 Rule 9 before drawing and filing substantive process in that party's name. Sarara & Co. Advocates instead drew and filed this very Motion, including the substantive Prayers C to P, while seeking leave to come on record only as Prayer B within it. That sequence is irregular. No Respondent, however, has raised the irregularity, and none has suffered any prejudice from it. Every Respondent was served with the Motion in its entirety and had a full opportunity to respond to RULING ELCC NO. 6 OF 2019 27

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it. In the interest of substantive justice, given Article 159(2)(d) of the Constitution, which enjoins courts to administer justice without undue regard to procedural technicalities, and in the absence of any opposition on this point, I decline to visit this irregularity on the Applicant. 66. By virtue of this point having not been raised as a preliminary one, leave is granted, as from the time of the acquiescence, for Sarara & Co. Advocates to come on record for the Applicant in place of Kerario Marwa & Co. Advocates. c) Whether the Applicant may reopen the question of correction of the judgment and decree under Section 99 of the Civil Procedure Act; 67. This is the most consequential aspect of the Motion. The Applicant seeks, in substance, to have the Court recognize LR No. Bukira/Bwisaboka/852 as the suit property and thereafter direct consequential rectification of the register. 68. Section 99 of the Civil Procedure Act provides: “Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties.” 69. The jurisdiction is narrow. In Leonard Mambo Kuria v Ann Wanjiru Mambo [2017] KECA 782 (KLR), the Court of Appeal, adopting the principles in Republic v Attorney General RULING ELCC NO. 6 OF 2019 28

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& 15 others, Ex-Parte Kenya Seed Company Limited & 5 others [2010] eKLR, stated: “What is certainly not permissible in the application of section 99, is to ask the court to sit on appeal on its own decision, or to redo the case or application, or where the amendment requires the exercise of an independent discretion, or if it involves a real difference of opinion, or requires argument and deliberation or generally where the intended corrections go to the substance of the judgment or order.” 70. Similarly, in Dominic Alois George Omenye t/a Omenye & Associates v Prime Bank Limited [2017] KECA 539 (KLR), the Court of Appeal emphasized that the court must be satisfied that it is giving effect to the intention of the court at the time judgment was given and not exercising an appellate or substantive power over its own decision. 71. The court could have granted the prayer. But in the present case, the question of the correct parcel number is not being raised for the first time. The Applicant previously filed the Notice of Motion dated 18 th November 2020 seeking, inter alia, correction of the decree to reflect LR No. Bukira/Bwisaboka/852. That application was considered and declined by this Court in its ruling delivered on 28 th September RULING ELCC NO. 6 OF 2019 29

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2021. Part of the matter in the court of appeal touches that aspect. 72. While it does not change the actual occupation by the applicant and physical location of the suit land, this court’s action regarding the prayer is already fixed by way of determined unless altered by review, setting aside or appeal. The Applicant cannot therefore circumvent that determination by presenting the same substantive question under the present Motion. Section 7 of the Civil Procedure Act embodies the doctrine of res judicata, which bars a court from re-trying a matter or issue which has already been directly and substantially in issue between the parties, has been heard and finally determined by a competent court. The Court of Appeal has reiterated that the doctrine operates to prevent matters already determined from being re-litigated. 73. More importantly, the competing references or contentions in the judgment and decree to parcels Bukira/Bwisaboka/136, 823, 825 and/ or 852 demonstrate that identifying the intended parcel would require the Court to examine the pleadings, evidence and judgment afresh and determine which reference represents the substantive decision of the Court. That is not just a clerical correction. To resolve it would amount to reconsidering the substance of the judgment and, in effect, sitting on appeal over a matter which this Court has already considered and determined. RULING ELCC NO. 6 OF 2019 30

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74. The Court is functus officio in respect of the substantive question of correction, having previously considered and determined the Applicant’s application dated 18 th November 2020 seeking the same relief. That jurisdiction cannot be invoked a second time to revisit a determination already made The limited residual jurisdiction to correct an accidental slip cannot be used to reopen a substantive issue already determined by the Court. 75. Accordingly, the Court declines to reopen the question of correction of the judgment and decree under Section 99. The prayer seeking to revisit or perfect the judgment and decree so as to align it with land parcel LR No. Bukira/Bwisaboka/852 as the suit property is therefore declined. d) Whether the proposed additional parties should be joined 76. The Applicant seeks leave to join the Land Registrar, the Attorney-General, the 5th and 6th Respondents to these proceedings. It is not in dispute that the proposed joinder is sought after judgment and decree. This is after the substantive dispute between the Applicant and the 1 st–4th Respondents has already been determined before this Court. The question therefore is not merely whether the Court possesses a general power to join parties, but whether that power can properly be invoked at this stage to introduce individuals and or offices RULING ELCC NO. 6 OF 2019 31

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who were not parties in this original suit and thereafter issue substantive orders affecting their rights. 77. Order 1 Rule 10(2) of the Civil Procedure Rules provides: “The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 78. In Kithuka v Kabui & 2 others [2025] KEELC 172 (KLR), the court held; “...the court has power either on its own motion or on the application by either party, to join any person to the proceedings before it, either as plaintiff or defendant, where it is clear that such person is a necessary party to the suit and their joinder is necessary for the complete and effectual determination of...” 79. The definition of proceedings as per Black’s Law Dictionary Ninth Edition, at page 1324, is that it concerns … RULING ELCC NO. 6 OF 2019 32

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“the regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment”. 80. The expression “at any stage of the proceedings” cannot, however, be divorced from the purpose of the rule. The power is directed at adding a person whose presence is necessary for the Court to effectually and completely adjudicate upon and settle the questions involved in the suit. It is not a general power to introduce strangers after determination of the suit so as to enable the Court to determine fresh disputes or make substantive orders affecting persons who were not parties to the proceedings. 81. In JMK v MWM & another [2015] KECA 524 (KLR), the Court of Appeal considered the scope of Order 1 Rule 10(2) and emphasized that the provision contemplates joinder in proceedings which are still pending before the Court. It stated: “We would however agree with the respondent that Order 1 Rule (10)(2) contemplates an application for amendment or joinder of parties where proceedings are still pending before the Court.” 82. Similarly, in Lilian Wairimu Ngatho & another v Moki Savings Co-Operative Society Limited & another [2014] KEHC 7224 (KLR), the Court held as follows; RULING ELCC NO. 6 OF 2019 33

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“The Court noted the above definition and the effect of Order 1 Rule 10 (2) and held that a party can only be joined to a suit at any time during the pendency of the suit, but not after the same has been concluded. This finding is premised on the basis that the purpose for joinder is to enable the Court effectually and completely adjudicate upon and settle all questions involved in a suit. It is therefore of no use if a party seeks to be joined when the Court has already made its findings on the issues arising. However, joinder cannot confer upon this Court jurisdiction to grant substantive relief which it otherwise lacks. Neither can joinder be used to reopen the merits of the judgment or the question of correction of the decree.” 83. In this case there are no proceedings subsisting in Court for it to permit joinder of a party. The suit was heard and determined by the Court and a judgement delivered on the 28/7/2020. The Applicant seeks to enjoin the parties in a suit that was long determined. A party can and may legally be joined in a suit only to an existing one and or proceedings. What remains in this matter is the execution of the decree in favour of the Applicant. In addition,joinder at this stage will violate the right of the intended parties to be heard on the issues in controversy since they were not parties to the suit. In any event, it would obligate the court to reopen the matter. Therefore, equally, this prayer is declined. It means therefore RULING ELCC NO. 6 OF 2019 34

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that any substantive prayers against the proposed parties cannot be granted. It now turns this Court to the next issue. e) Whether contempt has been established against any of the alleged contemnors; 84. This court notes that prayer D of the application was that this court grants leave to the applicant to institute contempt proceedings against the parties he named therein. I do not find any basis for such a prayer hence I will not dwell on it but rather I proceed to the substantive one. 85. The Applicant seeks contempt orders against the 1 st, 4th, 5th, 6th and 7th Respondents, alleging disobedience of the order made on 30th June 2022. The allegation is that the said parties disobeyed the orders of status quo granted by this court on 30th June 2022. 86. The law regarding contempt proceedings is settled. In Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR), the Court of Appeal held: “...the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt... The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an offence which can be said to be quasi-criminal in nature.” RULING ELCC NO. 6 OF 2019 35

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87. Republic v County Government of Nairobi & 2 others; Kingpost Limited (Ex parte Applicant) [2025] KEELC 579 (KLR), the court held: “In order to succeed in civil contempt proceedings, the Applicant has to prove that the terms of the order were clear, unambiguous and binding on the Respondent; Knowledge of these terms by the Respondent; failure by the Respondent to comply with the terms of the order; and deliberate conduct by the Respondent.” 88. For an application on a claim of contempt to succeed it requires proof of existence of a clear and unambiguous order, knowledge by or service of the order on the alleged contemnor, and deliberate or willful disobedience of the order. The standard of proof is higher than that required in ordinary civil cases, although not beyond reasonable doubt. 89. The Court must therefore satisfy itself on the precise order allegedly disobeyed before considering the conduct attributed to each alleged contemnor. The order of 30 th June 2022 was for the preservation of the status quo in respect of LR No. Bukira/Bwisaboka/852. It restrained dealings on and interference with the property pending the appellate process. Specifically, the 2nd prayer of the application dated 18 th February 2022 maintenance of which status was quo granted in was respect that of there parcel be L.R. Bukira/Bwisaboka/852 to the effect that the Defendants, their RULING ELCC NO. 6 OF 2019 36

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gents, servants and/ or employees should not sell, lease, charge, trespass into the Plaintiff’s property in any manner pending the hearing and determination of the Defendant’s Appeal to be mounted in the court of Appeal. The order was therefore sufficiently specific in relation to the suit property and the prohibited conduct. 90. The 1st and 4th Respondents participated in the proceedings that led to the delivery of the Ruling which granted the order in issue. They were parties to the proceedings and had knowledge of the order. 91. The evidence before the Court shows that notwithstanding the order, the 1st and 4th Respondents subdivided land parcel No. Bukira/Bwisaboka/852 on 3rd September 2024 into parcels 16057, 16058 and 16059. Further, the 5 th proposed Respondent swore and Affidavit admitting that he bought one of the subdivisions, which was sold to him by the 1 st and 4th Respondents. Similarly, and with audacity, the 1 st Defendant/ Respondent admitted in his Replying Affidavit that the Respondents sold the subdivisions to the 5 th and 6th Respondent. They 1st and 4th Respondents) then registered the subdivisions in various names. The subdivision of the suit parcel No. LR. Bukira/Bwisaboka/852 therefore constituted a breach of the subsisting order. Not only did it constitute a mere breach but one that was clearly willful. RULING ELCC NO. 6 OF 2019 37

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92. The order of 19th September 2025 subsequently restrained dealings with the resultant parcels. The subsequent registry evidence shows that a proposed further subdivision of Bukira/Bwisaboka/16057 into parcels 18390 and 18391 was presented on 21st May 2026, although the transaction did not ultimately take effect because the existing title was not surrendered. A distinction must, however, be drawn between a completed dealing and a proposed transaction which did not take effect. The evidence establishes the latter in respect of parcels 18390 and 18391. It means the title in respect of parcel no. LR. Bukira/Bwisaboka/16057 remained intact. 93. The completed subdivision of 852, and which the instant application complains of occurred in 2024 while the order of 30th June 2022 was in force. Actually, it was done after the registration of prohibitions were unprocedurally and irregularly removed from the parcel. The 1st to 6th Respondents raised a ground of opposition to the application that there was no security for costs deposited by the applicant, pending he hearing of appeal No. 242 of 2022 hence there was nothing to bar them from proceeding to deal on the suit land. Nothing can be further from the truth. There was an order issue directing maintenance of status quo as described above. It was sufficient to bar them from acting as they did, absent of deposit for security as there was none ordered. I reject their argument. I am satisfied to the requisite standard that the 1 st and 4th Respondents knowingly and wilfully breached that order. RULING ELCC NO. 6 OF 2019 38

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94. Prayer G of the application is therefore allowed only against the 1st and 4th Respondents. I therefore find them guilty of contempt of court and convict them accordingly. 95. As to t the 5th to 8th Respondent, the prayer cannot lie. The latter set of proposed parties does not constitute individuals or offices that were parties to the proceedings culminating in the order of 30th June 2022. Furthermore, they have not been properly joined in this suit, and they cannot at this stage of proceedings as they are. In any event the orders were directed at them for compliance. Consequently, no finding of contempt can properly be made against them for alleged disobedience of an order issued in proceedings to which they were not parties. 96. The prayer for contempt against the 5th, 6th, 7th and 8th Respondents is therefore dismissed. f) Whether the Court can grant orders declaring the subsequent subdivisions and transfers null and void and directing rectification of the register; 97. The Applicant seeks orders declaring the subdivision of Bukira/Bwisaboka/852 and all resultant titles and dealings null and void ab initio, and directing the Land Registrar to cancel the resultant titles and restore the register in compliance with the Judgment of 28th July 2020. The law regarding cancellation of title and rectification is clear. Section RULING ELCC NO. 6 OF 2019 39

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80 of the Land Registration Act empowers the Court to order rectification of title where it was done by fraud or mistake. 98. The evidence establishes that Bukira/Bwisaboka/852 was subdivided on 3rd September 2024 while the status quo order of 30th June 2022 was subsisting. The subdivision was therefore undertaken in breach of a subsisting court order and cannot confer a lawful interest capable of defeating or circumventing the Judgment of 28th July 2020. In any event, the Respondents insist that to them they knew that the suit land which the judgment referred to was parcel No. LR. Bukira/Bwisaboka/825 and not Bukira/Bwisaboka/852. While the reference to the former may be true, there were appeals preferred against the said judgment and both are pending in the Court of Appeal. Furthermore, the reference to the proper or different number of the parcel did not in any way alter the actual portion of earth (terra in Latin) that was in issue, whereon the applicant had been residing since he allegedly bought the in 1975 and 1977 and fenced it off for himself. As to whether it is referred to as parcel No. 825 or 852 both the Plaintiff and the 1 st to 4th Defendants know the exact “terra” this Court and any other referred to when the order of status quo was issued. Thus, the Defendant’s claim that it referred to parcel No. LR. Bukira/Bwisaboka/825 while the Order in issue clearly referred to parcel No. LR. Bukira/Buwisaboka/852 is a mistake, whether deliberate or otherwise which, in the circumstances, this Court can and does order a rectification of title. RULING ELCC NO. 6 OF 2019 40

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99. As to the 5th and 6th Respondent’s claim as to being innocent purchasers for value, I totally disagree. They either did not carry out due diligence before buying the suit parcels of land in issue, or they are deliberately being used by the 1 st to 4th Respondents to defeat he decree of this Court. They should have inquired from the person on the suit land (Plaintiff) how and why he was thereon, or from the 1 st to 4th Defendants as to whether the latter were permitted to sell the parcels or if the titles were clear. They cannot claim innocence. No wonder the 1st Defendant purported to swear affidavits on their behalf and urge their positions until the Court insisted that they appear in person. They bought the parcels against the doctrine of lis pendens, and worse still contrary to a existing court order. 100. In County Government of Busia v (Deceased) & another [2022] KECA 1245 (KLR), the Court of Appeal considered the doctrine of lis pendens and the effect of dealings with disputed property during the pendency of litigation. The underlying principle is that a litigant cannot, by alienating the subject matter of litigation during the pendency of proceedings, defeat the court process or render the eventual determination nugatory. 101. Accordingly, any title or interest purportedly created out of Bukira/Bwisaboka/852 in breach of the subsisting orders of this Court is illegal, null and void ab initio, and cannot found a valid proprietary interest as against the decree and orders of RULING ELCC NO. 6 OF 2019 41

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this Court. The subsequent registration does not validate a transaction undertaken in defiance of a subsisting court order. 102. The Court therefore allows Prayers J and K. The subdivision of Bukira/Bwisaboka/852 and the resultant titles and dealings arising therefrom are declared null and void ab initio. The Land Registrar, Kehancha Registry, is hereby directed to cancel the resultant titles and restore the register to the position necessary to give full effect to the Judgment and Decree of 28th July 2020, together with the orders subsequently issued by this Court, subject to any contrary order in the pending appeals. 103. Any persons who entered upon, occupied, or acquired possession of any portion of the land pursuant to the impugned subdivision or the resultant titles are hereby directed to vacate forthwith, the said titles having been declared null and void ab initio and incapable of conferring any lawful interest in the land, and their entry having been contrary to the existing order of this court over the said parcel of land. g) Whether the Land Registrar should be directed to produce the documents sought; 104. The applicant prayed for an order that the land registrar Kehanca be compelled to produce conveyance or registration documents in relation to the parcel No. 852 and the subdivisions thereto. The order production of documents is governed by Section 69 of the Evidence Act, Chapter 80 Laws RULING ELCC NO. 6 OF 2019 42

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of Kenya, and serves its place in relation to adduction of evidence in proceedings. 105. In my humble view, by this suit not being alive at this stage, the prayer for production of the registry documents is, in its present form, overly broad and amounts to a fishing expedition. The Applicant seeks a blanket production of historical green cards, mutation forms, survey records, consents, transfer instruments, stamp duty records and other related documents without sufficiently identifying the specific issue it is intended to prove, or purpose the production is to serve, or its nexus to the determination of the present application. In any event this application is now determined. Discovery and production of documents is not intended to permit a party to embark on an unrestricted search through public records in the hope of uncovering evidence that may support its case. In the circumstances, the Court declines to grant the prayer in its omnibus form. h) Whether order for police enforcement should issue; and 106. The Applicant further seeks orders for police assistance for enforcement of the Court’s orders and prohibiting further contemptuous dealings on the land. The Court has considered these prayers against the procedural history of the matter and the orders already issued. 107. . RULING ELCC NO. 6 OF 2019 43

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108. The Court likewise declines the prayer for police assistance and other orders framed as enforcement measures. Enforcement of a judgment or order is undertaken through the procedure prescribed by law and, where disobedience is alleged, through appropriate contempt proceedings. It is not a matter to be achieved through a general order directing the police to enforce disputed proprietary or possessory rights. 109. The caution expressed in Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR) is instructive, that: “Recourse ought not to be had to process contempt of court in aid of a civil remedy where there is any other method of doing justice.” The Applicant having already invoked the Court’s contempt jurisdiction in respect of the alleged disobedience, no separate omnibus enforcement order is necessary or appropriate. Nevertheless, for reasons of the final directions this Court grants below, it is upon the contemnors, and the other two Respondents, the 2nd and 3rd, who are not part of the instant application to reconsider their actions on the suit parcel of land and act prudently forthwith to avoid being brought before this court once more over allegations of further contempt of court. i) What orders to issue regarding costs and the contempt established 110. Having found the 1st and 4th Respondents in contempt of court, this Court must determine the appropriate consequential orders. RULING ELCC NO. 6 OF 2019 44

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111. Contempt jurisdiction is coercive and punitive and must be exercised judiciously. But this Court is of the view that before imposing a fine or sentence of committal to civil jail, the contemnors herein should be afforded an opportunity to address the Court on mitigation and on the steps, if any, taken to purge the contempt. I therefore give the two contemnors chance to purge the contempt. 112. For the above reason, I direct that the 1 st and 4th Respondents shall, within fourteen (14) days of the date of this ruling, file and serve written affidavits setting out the steps they have taken to comply with the preservation orders and, where appropriate, an undertaking to comply with all subsisting orders of the Court pending the determination of the appeals. Specifically, a) they are ordered to restore the status quo, in terms of occupation of the suit land (being the 5 acres that the Court had found to be adversely held by the Plaintiff), as it was before their invasion of the parts which had been fenced for and in favour of the Applicant, as at the time of Judgment and decree of this Court. Thus, they, together with any persons they invited or sold to in order to enter thereon. b) Secondly, they are to cause the subdivisions of the suit land, that were done during the pendency of the orders of status quo to be cancelled, and the title reverts to Bukira/ Bwisaboka/852. RULING ELCC NO. 6 OF 2019 45

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c) These directions to be extracted by the two contemnors and be used and or presented by them, for service immediately on the Land Registrar, Kuria Sub County to facilitate the compliance by the two contemnors. 113. Thereafter, or in default of compliance with this direction, the matter shall be placed before the Court on 08th October 2026, for appropriate sentencing. Costs 114. The general principle under Section 27 of the Civil Procedure Act is that costs follow the event, although the Court retains a discretion to determine by whom and to what extent costs should be borne. 115. The Applicant has succeeded in part and proving contempt against the 1st and 4th Respondents. In the circumstances, a blanket award of costs in favour of either side would not fairly reflect the outcome. The Court considers it just that the Applicant's costs of the Motion as against the 1 st and 4th Respondents be borne by those Respondents, jointly and severally, but that the 5th, 6th, 7th and 8th Respondents bear their own costs. 116. Orders accordingly. Ruling dated, signed and delivered virtually via the Teams Platform this 24th day of September 2026. HON DR. IUR NYAGAKA, RULING ELCC NO. 6 OF 2019 46

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JUDGE In the presence of, Court Assistant, Ms. Lola Mr. Sarara Advocate for the Applicant, online 1st Respondent in open court 4th Respondent also in open court 3rd Respondent also in open court 2nd Respondent also in open court 5th Respondent also in open court 6th Respondent (absent) Ms. Opiyo State Counsel for 7th and 8th Respondent, online RULING ELCC NO. 6 OF 2019 47

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