Ndidi & another v Ratori & 5 others

respondent, David Angaya Ndidi, and which he states was gifted to him by his late father, Jacktone Ndidi. Upon sub-division, parcel 666 gave rise to L.R. Nos. Nyang’ori/Gamalenga/667, 676 and 677. 3. The 1st appellant, Carolyne Angaya Ndidi, is a sister of the 2nd respondent and a daughter of the late Jacktone Ndidi. The 2nd appellant, Mercy Kendi, is the wife of the 2nd respondent, married, as she asserts, under Maragoli customary law. Both appellants assert an interest in the suit land as family land and as their matrimonial and ancestral home. 4. Two suits were instituted in the subordinate court in respect of the sub-divisions of parcel 666: (a) Kisumu CMCELC No. E053 of 2022, led on 28th April 2022 by the 1st respondent, Erick Enock Ratori, against the 2nd respondent, the 3rd respondent (Calvin Angungu Kiverenge), the 2nd appellant and the late Jacktone Ndidi. The claim was founded in contract for the sale of a portion of parcel 666 measuring 0.03Ha, and sought the removal of a caution, transfer of the sold portion, alternatively a refund of Kshs. 531,000/=, specic performance and general damages. The 1st appellant was subsequently enjoined as an interested party. (b) Kisumu CMCELC No. E108 of 2022, led by the 4th and 5th respondents, Judith Alice Mukungu Mung’ore and Antony Opondo, against the 2nd respondent, founded on an agreement for sale dated 4th October 2021 in respect of a portion of parcel 666 measuring 0.10Ha at a consideration of Kshs. 1,400,000/=, of which a deposit of Kshs. 200,000/= was paid. 5. CMCELC No. E053 of 2022 proceeded to full hearing. In a judgment delivered on 12th September 2023, Hon. E. A. Obina, Senior Principal Magistrate, found that there was a valid agreement for sale between the 1st respondent and the 2nd respondent, and a valid agreement between the 2nd respondent and the 3rd respondent in respect of the alternative land L.R. No. Tiriki/Chepkoyai/1653. The learned magistrate further found that the 2nd appellant (then the 3rd defendant) and the 1st appellant (then the interested party) had each failed to prove an overriding interest in the sold portion, and that the family claim had already been dealt with in Kakamega ELC Cause No. 132 of 2015 before Mukunya, J. The court ordered, inter alia, the removal of all cautions and restrictions to permit the transfer of the portion purchased by the 1st respondent, and the removal of cautions on the Tiriki land to permit transfer to the 2nd respondent, dismissed the claim for general damages, and directed each party to bear its own costs. 6. No appeal was preferred against that judgment. 7. In CMCELC No. E108 of 2022, orders were issued on 9th October 2024 upon an application dated 4th March 2024, following the failure of the 2nd and 3rd defendants in that suit to enter appearance or le replying adavits. The orders directed the removal of the caution on L.R. No. Nyang’ori/ Gamalenga/676, directed the Chairman of the Vihiga Land Control Board to issue consent for transfer of that parcel into the names of the 4th and 5th respondents, and provided that upon transfer and payment of the balance of the purchase price the suit be marked as closed. 8. It was against that background that, on 27th January 2025, the appellants led in CMCELC No. E053 of 2022 a Notice of Motion expressed to be brought under Articles 45(3), 47(1) and 50(1) of the Constitution, seeking orders that the two suits be consolidated; that all proceedings, rulings, judgments and existing orders be stopped or suspended pending the hearing and determination of the application; and, in the alternative, that the court do issue review orders. The application was supported by the adavit of the 1st appellant sworn on 27th January 2025. 9. The grounds advanced were, in substance, that the subordinate court had been moving two separate les containing the same claim; that the parallel proceedings had caused serious harm to the family; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5984/eng@2026-09-30 2

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that the applicants had been denied the opportunity to defend themselves; that some proceedings had moved ex parte without their knowledge and without proof of service; that the cautions over parcels 667, 676 and 677 had been removed and the 2nd appellant barred from lodging fresh cautions by the 6th respondent; and that the 2nd appellant, who has children of a customary marriage with the 2nd respondent, stood to be rendered landless. 10. The application was opposed by the 2nd respondent by a replying adavit sworn on 10th March 2025, by the 3rd respondent by a replying adavit sworn on 24th February 2025, and by the 1st respondent through a replying adavit sworn on 24th February 2025 by Sylvia Nyambeki, advocate. The common thread of the opposition was that neither suit remained pending, both having been concluded; that no appeal had been preferred from the judgment of 12th September 2023; that the applicants had participated in the proceedings in E053 of 2022; and that what remained was compliance with the orders already issued. DIVISION - The impugned ruling 11. The learned magistrate framed three issues for determination: whether the suits should be consolidated; whether a case for review had been made; and whether the applicants had given sucient reasons to warrant the grant of the orders sought. 12. On consolidation, the learned magistrate traced the history of the two les. He noted that CMCELC No. E053 of 2022 had been heard and determined by judgment delivered on 12th September 2023, and set out the ndings and nal orders of Hon. E. A. Obina (SPM). He noted that the parties had thereafter moved to the execution stage. 13. On review, the learned magistrate set out the conditions governing the exercise of the power of review, observing that a mistake or error apparent on the face of the record means an error which is prima facie visible and does not require detailed examination, and that while section 80 of the Civil Procedure Act confers the substantive power of review, the conditions and limitations upon its exercise are prescribed by Order 45 rule 1 of the Civil Procedure Rules. 14. The learned magistrate held that the prayer to stop or suspend all proceedings, rulings and existing orders was a broad net cast in the hope of catching some sh; that it lacked specicity and was akin to throwing a stone in the darkness; that the question of suspending proceedings, rulings and existing orders had been overtaken by events; and that no orders requiring review had been identied. 15. Invoking the overriding objective under Article 159(2)(b) of the Constitution and the inherent jurisdiction of every court to prevent the abuse of its process, the learned magistrate declined the application, directed that each party bear its own costs, and observed that what remained to be done was compliance with the orders emanating from the two court les, with liberty to any aggrieved party to appeal. 16. It is convenient to record at this point that paragraphs 23 to 32 of the impugned ruling do not appear in the record of appeal placed before me, the copy of the ruling running from paragraph 23 at page 20 directly to the concluding portion of paragraph 32 at page 21. I have therefore had recourse to the original record of the subordinate court in respect of that portion of the ruling. The Appeal 17. Aggrieved by that ruling, the appellants led a memorandum of appeal dated 16th May 2025 raising ve grounds, namely that the learned trial magistrate erred in law and fact: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5984/eng@2026-09-30 3

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(a) in failing to appreciate that the orders issued had serious discrepancies and were biased and inuencing in a manner that could ignite criminal proceedings; (b) in failing to consolidate the two les for the purpose of review of the proceedings and standing orders; (c) in failing to appreciate that the ex parte orders were issued as a result of improper service, occasioning the application for review; (d) in failing to correct his proceedings, thereby deliberately agitating a conict of interest; and (e) in exhibiting an imbalance of justice. 18. The appellants pray that the appeal be allowed. 19. It is convenient to record at this point that, by a notice of motion dated 15th July 2025 led in this appeal, the appellants sought a stay of the ruling of 6th May 2025, a stay of execution of the decision of 9th October 2024 in Kisumu CMCELC No. E108 of 2022, and leave to appeal out of time against the judgments in both suits. That application was dismissed in its entirety by this court (Asati, J.) by a ruling delivered on 19th March 2026. The court held that the ruling of 6th May 2025 was a negative order incapable of execution, so that an order of stay of execution did not lie; that no decision in E108 of 2022 had been placed before it for consideration; and that no plausible explanation had been oered for the delay in appealing the judgments, which had in any event been delivered in the presence of the appellants or their privy. The court observed, however, that the memorandum of appeal against the ruling of 6th May 2025 had been led within time, on 19th May 2025. It is that appeal, and that appeal alone, which now falls for determination. Submissions 20. The appeal was canvassed by way of written submissions. 21. The 2nd appellant led written submissions dated 17th August 2026. She deposes that she is the wife of the 2nd respondent and that the 1st appellant is her sister-in-law. Her submissions may be summarised under four heads. 22. First, on jurisdiction, she submits that the suit land is situate in Vihiga, that the relevant lands oces are at Vihiga, and that there are courts in Vihiga competent to handle the dispute; she therefore questions the competence of the Kisumu court to entertain the matter. 23. Secondly, on spousal rights, she submits that she was married to the 2nd respondent when the couple had a single-roomed house; that through her own eorts, including the sale of boiled eggs at a market, the house was expanded into a three-roomed semi-permanent dwelling; that the house has since been demolished pursuant to court orders permitting the 1st, 4th and 5th respondents to take the land on the footing that they had bought the whole of it; and that she and the two children of the marriage are now homeless. She invokes Article 45(3) of the Constitution and section 12 of the Matrimonial Property Act, 2013, and relies on Resma Commercial Agencies v Ngattah (suing as the legal representative of the estate of Leah Wangui Ngata (deceased)) & another, Civil Appeal No. 16 of 2019; [2025] KECA 2214 (KLR). 24. Thirdly, on service and fair hearing, she submits that she did not participate in the agreement appearing at pages 205 to 210 of the record; that in CMCELC No. E053 of 2022 she was not served with summons and only learnt of the pleadings later, by which time judgment had been entered in favour of the 1st respondent; that a similar scenario occurred in CMCELC No. E108 of 2022, where an ex parte https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5984/eng@2026-09-30 4

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ruling issued in favour of the 4th and 5th respondents upon a purported service that never took place; and that Article 50(1) of the Constitution was thereby violated, she having been condemned unheard. 25. Fourthly, she submits that had she been properly served, the issues she now raises would have been raised before the trial court, and that they remain pertinent to this appeal. 26. No written submissions were led on behalf of the 1st appellant. I have nevertheless had regard to the grounds set out in the memorandum of appeal, which is expressed to be brought by both appellants, to the adavit which she swore on 27th January 2025 in support of the application in the court below, and to the material she placed before the subordinate court in Kisumu CMCELC No. E053 of 2022 as an interested party. 27. The 1st respondent led written submissions dated 24th August 2026 through M/s J. V. Obat & Co. Advocates, together with a list of authorities of even date. He opposes the appeal in its entirety and advances four contentions. 28. First, and principally, he says that the appeal rests upon nothing. The ruling of 6th May 2025 dismissed the appellants’ application and directed each party to bear its own costs; it commanded no party to do anything, to pay anything, or to surrender anything. It is therefore, he submits, a negative order, incapable of execution save at most as to costs, and one which aords no foundation for an appeal. He relies on Western College of Arts and Applied Sciences v E. P. Oranga & 3 others [1976] KLR 63 and Raymond M. Omboga v Austine Pyan Maranga, Kisii HCCA No. 15 of 2010, and upon the ruling of this court delivered on 19th March 2026, in which the same characterisation was applied to the same ruling. 29. Secondly, he submits that the reliefs sought were without exception discretionary in character, and that nothing in the memorandum of appeal engages the threshold in Mbogo v Shah [1968] EA 93 for interference with the exercise of a discretion; each ground, he says, merely reasserts in slightly dierent language the complaint which the trial court had already considered and rejected. 30. Thirdly, he submits that the grounds of appeal do not meet the requirements of Order 42 rule 2 of the Civil Procedure Rules, which requires a memorandum of appeal to set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the order appealed from. Ground 1, he says, alleges discrepancy and bias without identifying either; ground 2 identies no wrong principle, consolidation being in any event impossible once E053 of 2022 had been concluded; ground 3 rests upon a decision in E108 of 2022 which was never exhibited; ground 4 is an unparticularised allegation of judicial misconduct made for the rst time on appeal, no recusal application having been made below; and ground 5 is a conclusion rather than a ground. 31. Fourthly, he draws attention to the description of the appeal on the face of the memorandum as an appeal and submits that the impugned ruling determined an application for consolidation, suspension of proceedings and review, and had no occasion to consider any question of quantum, so that the appeal is misconceived on its own terms. 32. He prays that the memorandum of appeal be dismissed in its entirety, that the ruling of 6th May 2025 be upheld, and that he be awarded the costs of the appeal. 33. The 2nd respondent, who appears in person, led written submissions dated 7th September 2026. Notwithstanding that he is a respondent, he supports the appeal and asks that it be allowed. 34. He describes himself as the key subject of this appeal. He states that he sold land to the 1st respondent but never prepared or eected any transfer to him; that the 1st respondent nonetheless obtained a title deed by forgery; and that, realising what he had done, the 1st respondent sold the land on to the 4th https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5984/eng@2026-09-30 5

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and 5th respondents. He states that when the matter came to court he was threatened and pressured into letting matters lie as they were, and that he has since come back to his senses and to his roots. 35. On service, he states that the 4th and 5th respondents served him, through their advocates, with a plaint only, and that no application was ever served upon him; that he believed the plaint to be the only document in the suit; that the main suit was never xed for hearing; and that it was premature for the court to determine the matter summarily upon an application that had not been served. He adds that the process server referred him to the very advocates who had drawn the documents, and that the document he eventually led was designed by that rm. 36. On the transactions themselves, he states that the 3rd respondent received money at the instance of the 1st respondent upon a promise to settle him elsewhere, and that he remains unsettled to this day; that the 4th and 5th respondents paid a deposit of Kshs. 200,000/= against a purchase price of Kshs. 1,400,000/= and did not keep their promise, so that the agreement collapsed; that what was paid to him was not substantial; that his house was pulled down, rendering him homeless; and that the agreement appearing at pages 205 to 210 of the record ought to be declared null and void as not having operated within the limitation of time and action. He further complains that the rm which drew that agreement ought to have stood as a witness rather than prosecuting the suit, which he characterises as a conict of interest and a red ag. 37. He asks this court to declare improper service, breach of contract, a refund of the consideration if any, and a conict of interest, and to allow the appeal as pleaded by the appellants. 38. No written submissions were led on behalf of the 3rd respondent. 39. The 4th and 5th respondents led written submissions dated 7th September 2026 through M/s P. D. Onyango & Co. Advocates, together with a list of authorities of even date. They oppose the appeal and address each ground in turn. 40. By way of introduction they submit that the impugned ruling found the trial court to be functus ocio, both suits having been heard and nal orders made; that allowing the application would have amounted to re-opening the suits and re-litigating issues already determined and never appealed; and that the prayer for review lacked specicity, no particular order having been identied for review, so that what remained was compliance with the orders emanating from the two les. 41. On the rst ground they submit that it is not clear which orders are impugned; that the complaint was not one which was before the learned trial magistrate, whose task was conned to consolidation and review; that the history of both les was nevertheless examined in the ruling; and that he who alleges must prove, no evidence of bias, of discrepancy, or of anything capable of igniting criminal proceedings having been placed before the trial court. They add that no appeal was preferred from the judgment in E053 of 2022, which appears at page 149 of the record, and that this appeal is an afterthought. 42. On the second ground they submit that consolidation presupposes matters that are pending; that E053 of 2022 had been concluded by a judgment which was never appealed, and E108 of 2022 by orders which marked the le as closed upon removal of the caution, issuance of land control board consent and transfer of the parcel into their names; and that the application came late and would have served no purpose but to re-open concluded litigation. They rely on Law Society of Kenya v Centre for Human Rights & Democracy & 12 others [2014] eKLR, Nyati Security Guards & Services Ltd v Municipal Council of Mombasa [2004] eKLR, Vincent Gradius Onyango (suing as administrator of the estate of Peter Gabriel Onyango Akileo) v Loice Achieng Agengo & another [2019] eKLR, Makala & 17 others v Kipteng; Kiplagat (proposed interested party) [2022] KEHC 11126(KLR) and Telkom Kenya Limited v John Ochanda [2014] eKLR. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5984/eng@2026-09-30 6

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43. On review they submit that the application identied no order for review, disclosed no new and important matter or evidence and no error apparent on the face of the record, and was brought more than a year after judgment without any explanation for the delay, relying on Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR. 44. On the third ground they submit that E053 of 2022 was heard on the merits with the appellants’ participation, so that no question of ex parte orders arises; and that in E108 of 2022 the appellants neither challenged service, nor applied to set aside the orders, nor sought to cross-examine the process server who had sworn an adavit of service. They rely on Innocent G. Ondieki v Julius Nakaya Kabole, Kakamega High Court Misc. Civil Application No. 13 of 2018 andJoseph Muhoho Gichimu t/a Muhoho Gichimu & Co. Advocates v Sinohydro Corporation Limited & 2 others, Nyeri HCC Misc. Civil Application No. E028 of 2024, and submit that improper service is in any event not a ground for review, the proper course having been an application to set aside the orders in E108 of 2022. 45. On the fourth and fth grounds they submit that there were no proceedings to be corrected, no ground for review having been established and the application being imprecise as to the orders complained of, and that the learned trial magistrate delivered a reasoned ruling which considered the adavits and submissions of all the parties and arrived at a just conclusion supported by law. They pray that the appeal be dismissed with costs. 46. No written submissions were led on behalf of the 6th respondent. Analysis and determination 47. This being a rst appeal, I am under a duty to re-evaluate the material placed before the trial court, analyse it afresh and arrive at my own independent conclusions, bearing in mind that I neither saw nor heard the parties. That duty was stated in Selle & another v Associated Motor Boat Co. Ltd [1968] EA 123 and restated in Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR. 48. That duty is, however, tempered by the nature of the decision appealed from. The impugned ruling did not follow a trial; it was the outcome of an interlocutory application calling for the exercise of judicial discretion. An appellate court will not interfere with the exercise of such discretion merely because it would itself have exercised it dierently. It will interfere only where the trial court misdirected itself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or where the decision is plainly wrong and occasions injustice. See Mbogo & another v Shah [1968] EA 93 and United India Insurance Co. Ltd & 2 others v East African Underwriters (Kenya) Ltd [1985] eKLR. 49. Having considered the memorandum of appeal, the record of appeal, the submissions on record and the law, the issues that fall for determination in this appeal are as follows; (i) What is the proper scope of this appeal, and whether the objections taken to its competence are well founded; (ii) Whether the learned trial magistrate erred in declining toconsolidate Kisumu CMCELC Nos. E053 of 2022 and E108 of 2022; (iii) Whether a case for review was made out; (iv) Whether the appellants were denied a fair hearing on account of improper service; (v) What is to be made of the position taken by the 2nd respondent; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5984/eng@2026-09-30 7

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(vi) Whether the appellants’ claims founded on spousal and family rights can be entertained in this appeal; and (vii) What orders should issue, and who should bear the costs. (i) The proper scope of this appeal and the objections to its competence 50. It is necessary to dene, at the outset, what is and what is not before me. This appeal is brought from a single decision: the ruling of 6th May 2025 in Kisumu CMCELC No. E053 of 2022. It is not an appeal from the judgment of Hon. E. A. Obina (SPM) delivered on 12th September 2023 in that suit. Nor is it an appeal from the orders of 9th October 2024 issued in Kisumu CMCELC No. E108 of 2022. 51. The distinction matters. An appellate court exercises a jurisdiction that is entirely statutory, and it is conned to the decision appealed from. Where a party is dissatised with a judgment, the remedy is an appeal from that judgment, brought within the time prescribed by Order 42 rule 1 of the Civil Procedure Rules or within such extended time as the court may allow. A party cannot, by the device of an interlocutory application brought long after judgment, obtain a fresh hearing of matters concluded by that judgment, and then appeal from the refusal of that application as though the appeal lay from the judgment itself. To permit that course would be to allow the time limits for appeal to be circumvented at will. See Telkom Kenya Limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited) [2014] eKLR on the principle that a court which has delivered its judgment is functus ocio, save in the limited instances permitted by law. 52. Much of what is urged in the 2nd appellant’s submissions, and a good deal of the material in the record of appeal, is directed at the correctness of the judgment of 12th September 2023 and at the orders issued in E108 of 2022. To the extent that those matters are raised, they are not properly before me on this appeal, and I say nothing that would prejudice the appellants should they seek their proper remedies in respect of them. 53. Before leaving the question of scope, I must deal with the three objections which the 1st respondent takes to the competence of the appeal itself. 54. The rst is that the ruling of 6th May 2025 was a negative order, and that nothing can therefore be recovered upon an appeal from it. I do not accept that proposition in the breadth in which it was advanced. Western College of Arts and Applied Sciences v E. P. Oranga & 3 others [1976] KLR 63, and the line of authority that follows it, including Raymond M. Omboga v Austine Pyan Maranga, Kisii HCCA No. 15 of 2010, are concerned with execution, and with applications for stay of execution. Their point is that where a court has dismissed a suit or an application and has ordered nothing to be done, there is nothing capable of being executed, and therefore nothing capable of being stayed. That reasoning was correctly applied by this court on 19th March 2026 in refusing a stay of the very ruling now impugned. 55. It does not follow that such an order lies beyond appeal. A right of appeal is conferred by statute; it is not conferred by the existence of something capable of execution. An order dismissing an application is a decision of the subordinate court, and where an appeal lies from it, this court is seized of that appeal and must determine it upon its merits. Were it otherwise, every unsuccessful applicant would be without recourse, however plainly the dismissal might be shown to have proceeded upon a wrong principle. The negative character of the order is relevant to the interim relief that may be granted pending appeal, and to the form of the orders this court may make if the appeal succeeds. It is not an answer to the appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5984/eng@2026-09-30 8

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56. The second objection is that the grounds do not comply with Order 42 rule 2 of the Civil Procedure Rules, and there is force in both criticisms as matters of drafting. The grounds are compressed, and in places they assert conclusions where particulars were required; and the reference to quantum is, on any view, a misdescription. But the appellants are lay persons who have acted throughout without the assistance of counsel, and Article 159(2)(d) of the Constitution requires that justice be administered without undue regard to procedural technicalities. Read as a whole, the substance of the memorandum is discernible: that the two les ought to have been consolidated; that review ought to have been granted; that orders were obtained without proper service; and that the process below miscarried. The respondents have plainly understood those complaints, and have answered each of them fully. I therefore decline to dispose of the appeal upon the pleading point, and turn instead to its substance. 57. I would add, however, that indulgence of this kind has limits. Article 159(2)(d) is not a licence to disregard the rules of procedure altogether, and allegations of bias or misconduct against a judicial ocer, in particular, are not saved by it. To those I return below. Consolidation 58. Consolidation of suits is governed by Order 11 rule 3(1)(b) of the Civil Procedure Rules, read with sections 1A, 1B and 3A of the Civil Procedure Act. Its object is to save judicial time and costs, to avoid a multiplicity of proceedings and to eliminate the risk of conicting decisions where two or more matters raise common questions of law or fact, or arise out of the same transaction, and are pending before the same court. The principles were restated by the Supreme Court in Law Society of Kenya v Centre for Human Rights & Democracy & 12 others [2014] eKLR. 59. The premise of consolidation, therefore, is that there exist two or more live matters capable of being heard together. That premise was absent here. Kisumu CMCELC No. E053 of 2022 had been heard and determined by judgment delivered on 12th September 2023, more than sixteen months before the application was led. Kisumu CMCELC No. E108 of 2022 had proceeded to orders issued on 9th October 2024, some three months before the application was led. Neither suit awaited hearing. What remained in each was compliance with, or execution of, the orders already made. 60. There is nothing to consolidate where nothing remains to be heard. The learned magistrate was therefore plainly right to hold that a concluded suit cannot be consolidated with another concluded suit. Consolidation is a case management tool; it is not a mechanism for reopening decided cases, and it certainly cannot operate to vacate the judgment of a court of coordinate jurisdiction. 61. I would add this. The appellants’ real complaint under this head is not truly one of consolidation, but of the risk of inconsistent outcomes as between the two les. That complaint, properly understood, is a complaint about the orders in E108 of 2022, and it has its own remedies, to which I return below. The second ground of appeal accordingly fails. 62. That conclusion accords with the authorities relied upon by the 4th and 5th respondents. In Nyati Security Guards & Services Ltd v Municipal Council of Mombasa [2004] eKLR consolidation was described as the process by which two or more suits or matters pending in the same court are combined and treated as one, its purpose being to save costs, time and eort and to render the conduct of several actions more convenient. In Vincent Gradius Onyango (suing as administrator of the estate of Peter Gabriel Onyango Akileo) v Loice Achieng Agengo & another [2019] eKLR a prayer to consolidate concluded matters with a pending one was held to be untenable, and in Makala & 17 others v Kipteng; Kiplagat (proposed interested party) [2022] KEHC 11126 (KLR) consolidation was refused where the matter sought to be consolidated had already been concluded by consent. The common thread is that consolidation operates upon live proceedings, and upon nothing else. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5984/eng@2026-09-30 9

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Review 63. The power of review is conferred by section 80 of the Civil Procedure Act and is regulated by Order 45 rule 1 of the Civil Procedure Rules. An applicant must show that he or she is aggrieved by a decree or order from which no appeal has been preferred, or from which an appeal is allowed but has not been preferred, and must establish one of three grounds: the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his or her knowledge or could not be produced at the time the decree was passed or the order made; some mistake or error apparent on the face of the record; or any other sucient reason. In every case, the application must be made without unreasonable delay. 64. An error apparent on the face of the record is one that is self-evident and requires no elaborate argument to establish. Where a nding must be demonstrated to be wrong by a process of reasoning on the merits, the appropriate remedy is an appeal, not a review. See Nyamogo & Nyamogo Advocates v Kogo [2001] eKLR and Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019]eKLR. 65. Measured against those requirements, the application before the learned magistrate was fatally decient in three respects. 66. First, it did not identify the decree or order sought to be reviewed. The prayer was cast in the widest possible terms, seeking the suspension of "all proceedings, rulings, judgments and existing orders" and, in the alternative, that the court "do issue review orders". A court cannot review at large. The learned magistrate’s observation that the prayer lacked specicity was, if colourfully expressed, entirely correct. 67. Secondly, no ground under Order 45 rule 1 was established. No new and important matter or evidence was pointed to. No error apparent on the face of the record was identied. The complaints raised, principally as to service and as to the merits of the family’s claim to the land, are complaints which, if they are to be pursued at all, require argument and evidence, and are therefore the province of an appeal or of an application to set aside, not of a review. 68. Thirdly, there was inordinate and unexplained delay. The judgment in E053 of 2022 was delivered on 12th September 2023. The application was led on 27th January 2025. No explanation for the intervening period of some sixteen months was oered. Order 45 rule 1 requires that an application be made without unreasonable delay, and that requirement is not a formality. 69. I would add that a review lies to the court that made the order sought to be reviewed. It was not open to Hon. Matutu (SPM), sitting in E053 of 2022, to review orders made by another magistrate in E108 of 2022, a suit that was not before him. The third ground of appeal therefore also fails. 70. It follows that the learned magistrate was right to hold himself functus ocio in respect of both les. A court which has delivered a nal judgment or made nal orders has discharged its oce in the matter, and may not reopen it save within the narrow exceptions which the law permits, of which review under section 80 and Order 45 rule 1, and the correction of accidental slips, are the principal instances: Telkom Kenya Limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited) [2014] eKLR. What remained in each le was compliance and, where necessary, execution. Service and the right to a fair hearing 71. The most substantial complaint pressed by the appellants, and the one that deserves the most careful treatment, is that they were condemned unheard. Article 50(1) of the Constitution guarantees to every person the right to have any dispute that can be resolved by the application of law decided in a fair https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5984/eng@2026-09-30 10

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and public hearing. Service of process is the mechanism by which that right is given practical eect; a judgment obtained against a party who was never served is a judgment obtained in breach of that right. 72. The complaint must, however, be examined separately in respect of each of the two les, because the position is materially dierent in each. 73. As regards Kisumu CMCELC No. E053 of 2022, the record does not support the assertion that the appellants were condemned unheard. The 2nd appellant was sued as the 3rd defendant. The record shows that she wrote to the Chief Magistrate on 26th August 2022 seeking to be supplied with the pleadings so as to enter appearance and le a defence. The judgment of 12th September 2023 records that the 3rd defendant cross-examined the plainti’s witnesses, and that her claim to an overriding interest, founded on her customary marriage to the 2nd respondent and the presence of the family home on the land, was considered and rejected on the merits. The 1st appellant was enjoined as an interested party by order of the court, led a statement and written submissions, and her claim to an overriding interest was likewise considered and rejected. Whether that judgment was right or wrong is not before me. What is clear is that both appellants were heard in that suit. 74. As regards Kisumu CMCELC No. E108 of 2022, the position is dierent. The orders of 9th October 2024 issued expressly upon the failure of the 2nd and 3rd defendants in that suit to enter appearance or le replying adavits despite service. The appellants deny that they were served, and they have raised specic complaints as to the suciency of the adavits of service. Those complaints may or may not be well founded. But they are complaints that must be made in that suit and to that court. 75. The remedy for a party against whom an order or judgment has been entered in default is an application to set aside under Order 10 rule 11 of the Civil Procedure Rules. That is a wide and unfettered discretion, exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, but not designed to assist a party who has deliberately sought to obstruct or delay the course of justice: see Shah v Mbogo & another [1967] EA 116 and Patel v East African Cargo Handling Services Ltd [1974] EA 75. Where a party contends that he or she was never served at all, the order is a nullity and the court is bound to set it aside ex debito justitiae. 76. What the appellants could not do was to seek, in E053 of 2022, the suspension or review of orders made in E108 of 2022. The learned magistrate had no jurisdiction to grant that relief, and his refusal to do so cannot be faulted. It follows that the third ground of appeal, in so far as it relates to E108 of 2022, is misconceived in this forum, though nothing in this judgment should be read as foreclosing the appellants from pursuing the appropriate remedy in the appropriate le. 77. The 4th and 5th respondents submits that a party who neither impeaches the adavit of service nor seeks to cross-examine the process server cannot afterwards be heard to deny that he was served. That may in the end prove a complete answer to the appellants’ complaint concerning E108 of 2022. But it is an answer which must be given by the court seized of that suit, upon an application properly brought before it and upon the material then placed before it. I express no view upon it, and nothing in this judgment is to be taken as deciding it either way. 78. I have considered the allegations of bias, conict of interest and "imbalance of justice" made in grounds 1, 4 and 5 of the memorandum of appeal. Allegations of that gravity against a judicial ocer must be pleaded with particularity and established by evidence; they are not made out by dissatisfaction with an outcome. Nothing in the record before me discloses any basis for them, and I reject them. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5984/eng@2026-09-30 11

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The position taken by the 2nd respondent 79. The submissions led by the 2nd respondent call for separate treatment, because he is a respondent who asks that the appeal be allowed, and who seeks in addition declarations of improper service, breach of contract and conict of interest, and an order for the refund of the consideration. 80. I have read those submissions with care. They are the submissions of a man who plainly believes that he has lost his land and his home and received very little in return, and I do not doubt the sincerity with which they are made. They cannot, however, be acted upon in this appeal, for four reasons. 81. First, a respondent who is content with the decision below need do nothing; a respondent who wishes that decision set aside or varied in his own favour must appeal or cross-appeal. The 2nd respondent has done neither. He did not appeal the judgment of 12th September 2023, which found a valid agreement for sale between himself and the 1st respondent; he did not appeal the orders of 9th October 2024; and he has not appealed the ruling of 6th May 2025. He cannot obtain in submissions the relief he did not seek by appeal. 82. Secondly, the reliefs he asks for declarations of breach of contract and of conict of interest, an order for a refund, and a declaration that the agreement at pages 205 to 210 of the record is null and void are substantive reliefs of a kind that must be claimed in a properly constituted suit or counterclaim, pleaded with precision and established by evidence. They were not sought in the court below, they could not have been granted upon the application dated 27th January 2025, and still less can they be granted here upon an appeal from the refusal of that application. 83. Thirdly, the allegation that the 1st respondent obtained title by forgery is an allegation of fraud. Fraud must be specically pleaded and strictly proved; the standard, while not that of the criminal law, is more exacting than the ordinary balance of probabilities, and an allegation of that gravity is not made out by assertion from the bar or in written submissions: see Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR. No such plea was made below, and no evidence supporting it is before me. 84. Fourthly, and in any event, the 2nd respondent’s complaints are directed at the merits of the two concluded suits and not at the ruling of 6th May 2025. They fall outside the scope of this appeal for the same reasons already given in Part E(i) above. 85. I would add only this. The 2nd respondent, like the appellants, retains such remedies as the law aords him, in the proper forum and by the proper procedure. Whether those remedies remain open to him after the lapse of time, and whether they would succeed if pursued, are not questions upon which I can or should express any opinion in this appeal. The claims founded on spousal and family rights 86. I turn to the matters urged in the 2nd appellant’s submissions concerning her rights as a spouse. I do so conscious that she appears in person, that she says her home has been demolished, and that she says she and her children are now homeless. Those are grave matters, and they deserve to be addressed rather than passed over on procedural grounds alone. 87. Two diculties nevertheless stand in the way of the relief she seeks in this appeal. 88. The rst is procedural. The claim that the suit land is matrimonial property in which she holds a benecial interest, and that her consent was a prerequisite to its alienation, was the very claim advanced by her before Hon. E. A. Obina (SPM) and determined against her by the judgment of 12th September https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5984/eng@2026-09-30 12

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2023. That judgment was not appealed. It stands, and it binds the parties to it. This court, sitting on appeal from a subsequent interlocutory ruling, cannot revisit it. 89. The second is substantive, and it arises from the very authority upon which the 2nd appellant relies. In Resma Commercial Agencies v Ngattah (supra), the Court of Appeal held, by a majority, that the characterisation of property as the matrimonial home or a family asset does not answer the legal question of benecial ownership; that the status of marriage does not automatically confer entitlement to equality in matrimonial property; and that benecial ownership must be established through contribution, whether direct or indirect, to the acquisition or improvement of the property, and not through labels, occupation or marital status. That reasoning follows Peter Mburu Echaria v Priscilla Njeri Echaria [2007] eKLR, which was armed by the Supreme Court in JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae) [2023]KESC 4 (KLR). 90. The authority therefore cuts both ways. It conrms that a spouse who proves contribution acquires a benecial interest capable of defeating a disposition; but it equally conrms that the burden of proving contribution rests squarely on the spouse asserting it, and that the burden is a heavy one, precisely because proprietary rights aect not only the spouses but all who may deal with the property. The 2nd appellant’s account of her contribution, through her trading and her labour in expanding the family dwelling, is exactly the kind of evidence that had to be placed before the trial court and tested there. 91. I should not be understood as endorsing the proposition that documentary proof is the only acceptable proof of contribution. The dissenting opinion of Ngugi, JA in Resma, that a heightened documentary threshold risks systematically disadvantaging women whose economic contributions occur in domestic spaces and informal enterprises where no formal accounts exist, states a concern of real force, and one to which courts in this jurisdiction must remain alive. But whether the 2nd appellant discharged the burden upon her was a question for the trial court on the evidence before it, and thereafter for an appellate court seized of an appeal from that judgment. It is not a question I can determine on an appeal from a ruling declining consolidation and review. 92. As to the submission on jurisdiction, namely that the suit land is situate in Vihiga and that the Kisumu court ought not to have entertained the suits, three observations suce. First, the point does not appear in the memorandum of appeal, and a ground not pleaded may not be argued without leave under Order 42 rule 2 of the Civil Procedure Rules. Secondly, the point is in substance one of venue rather than of jurisdiction: section 15 of the Civil Procedure Act governs the place of institution of suits for the recovery of or determination of rights in immovable property, while section 18 of the same Act provides that no objection as to the place of suing shall be allowed by an appellate court unless the objection was taken in the court of rst instance at the earliest possible opportunity and there has been a consequent failure of justice. Neither condition is satised here. Thirdly, the subordinate courts at Kisumu exercise the jurisdiction conferred upon them by section 9 of the Magistrates’ Courts Act, 2015 in respect of environment and land matters, and no material has been placed before me to show that the suits were beyond their pecuniary or territorial competence. Disposition and costs 93. Drawing the threads together, I nd that the learned trial magistrate correctly held that suits already concluded cannot be consolidated; correctly held that no case for review under Order 45 rule 1 had been made out, the application having failed to identify any order for review, having disclosed no ground under the rule, and having been brought after inordinate and unexplained delay; and correctly declined to suspend or review, in one le, orders made in another. He directed himself properly in law, took into account the relevant considerations, and reached a conclusion that was open to him. There is no basis upon which this court can interfere with the exercise of his discretion. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5984/eng@2026-09-30 13

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94. The appeal must therefore fail. I am, however, anxious that this judgment should not be read as extinguishing remedies that remain open to the appellants in respect of the orders of 9th October 2024 in Kisumu CMCELC No. E108 of 2022, which orders were not before the learned magistrate in E053 of 2022 and are not before me on this appeal. Whether the appellants were served in that suit, and whether the default orders should stand, are questions to be determined in that suit upon a properly constituted application, or on an appeal from that decision brought with leave to appeal out of time if such leave is sought and granted. 95. On costs, the ordinary rule under section 27 of the Civil Procedure Act is that costs follow the event however, a dispute between members of one family and the purchasers who have been drawn into and to avoid deepening the acrimony within this family, I consider that the justice of the case is met by an order that each party bear its own costs of the appeal. Disposition 96. In the result, and for the reasons set out above, I make the following nal orders: i. The appeal against the ruling of Hon. D. K. Matutu, Senior Principal Magistrate, delivered on 6th May 2025 in Kisumu CMCELC No. E053 of 2022 is hereby dismissed. ii. The ruling of the subordinate court delivered on 6th May 2025 is hereby upheld in its entirety. iii. For the avoidance of doubt, nothing in this judgment shall preclude the appellants from pursuing such remedies as may be available to them in Kisumu CMCELC No. E108 of 2022 in respect of the orders issued therein on 9th October 2024. iv. Each party shall bear its own costs of this appeal. DATED, SIGNED AND DELIVERED AT KISUMU THIS 30TH DAY OF SEPTEMBER 2026. E. K. WABWOTO JUDGE In the presence of:1st Appellant : Carolyne Angaya Ndidi in person. 2nd Appellant : N/A. For the 1st Respondent : Ms. Nyambeki. For the 2nd Respondent : David Angaya Ndidi in person. For the 3rd and 4th Respondents: Mr. Bagada. Court Assistant : Joanne Omondi. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5984/eng@2026-09-30 14

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