Kassimu Sungura Kulecho v Norah Nyakoa Kulecho & Butali Sugar Mills Limited

as Kakamega/N. Kabras/Malava/1206 and an order of vacant possession of the property to be delivered to the applicant. c) That this Honourable court be pleased to issue a permanent injunctive order restraining the Respondents by themselves, servants, employees, agents and or other persons acting under their instructions or their interests from entering, occupying, remaining, trespassing or in any other manner interfering with all that parcel of land number Kakamega/N. KABRAS/Malava/1206/. d) An order be issued directing the Kakamega County Commandant, the officer Commanding Police Division Malava and the Officer Commanding station Malava Police Station, to ensure compliance with the eviction order by overseeing and providing security and enforcing the eviction of the defendants from the suit property. e) That costs of this application be provided for. 2.The application is anchored on the supporting affidavit sworn by one John Anyasi the legal officer of the applicant. The applicant’s case is that, it is the current owner of the suit property which it acquired through 2

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purchase at a consideration of Kshs. 4, 000, 000/=. That the issue of ownership of the suit property between the respondents was litigated upon in Kakamega CMELC Case No. 94 of 2018 and ELC 336 OF 2014. 3.The applicant maintained that when the respondent sought to relitigate the matter by filing this suit, this court found that the suit was res judicata. That on that basis Norah Kulecho was justified in selling the land to the applicant. That the plaintiff’s occupation is unlawful. That the application ought to be allowed in the interests of justice. 4.Despite service, the application was not opposed. Analysis and determination 5.The court has carefully considered the application, the supporting affidavit and the record. Two issues arise for determination; a) Whether the applicant deserves grant of leave to his new counsel MNO Advocates LLP, to come on record for him in the place of Getanda & Company Advocates. 3

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b) Whether the applicant deserve the orders sought. 6.Order 9 Rule 9 of the Civil Procedure Rules requires a party who wishes to change advocates or act in person post judgment, to do so upon grant of leave of court. Legal representation by an advocate of one’s choice remains a Constitutional right held by parties appearing before court. Therefore, the applicant’s prayer to have the firm of MNO Advocates LLP come on record for it in the place of Getanda & Company Advocates is merited and therefore the same is hereby allowed. 7.On whether the applicant deserves orders sought in the instant application, this court has considered the record. The plaintiff filed a plaint dated 10th December 2021 alleging fraud on the part of the defendants in the acquisition of the suit property. He sought cancellation of the defendants’ registration and for orders that the suit property reverts to him. 8.The defendants filed defence dated 17th June 2022 denying the plaintiff’s claim and sought dismissal of the plaintiff’s suit. 4

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9.In addition, the defendants filed application dated 20 th September 2022 seeking the dismissal of the plaintiff’s suit for being res judicata. 10.By its ruling dated 3rd May 2023, this court found that the suit herein was res judicata and proceeded to strike it out with costs. 11.Subsequently, the defendants filed their bill of costs in June 2023 and the same was taxed, vide the ruling of the taxing officer of 27th September 2023. Nothing happened from that period until 23th November 2025, when the 2nd defendant filed the instant application. 12.Now the 2nd defendant seeks eviction and permanent injunction against the plaintiff. These are orders which the 2nd defendant ought to have sought by way of counterclaim if it was interested in such orders or prayers before the suit was heard. The court is mandated to determine issues arising before it. The issue that came before court was whether the suit was res judicata and the court having agreed with the 5

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defendant that this suit was res judicata and having struck it out, it became functus officio. 13.The prayers sought in the instant application are substantive claims which can only be raised in a separate suit and not within a determined suit like the one herein. Therefore, the application is an abuse of the court process. 14.In the premises, save for the order that the firm of MNO Advocates LLP have been granted leave to come on record for the 2nd defendant in the place of Getanda & Co. Advocates in this matter, this court finds that it has no jurisdiction to hear and determine the application dated 12th November 2025. I therefore, hereby strike out the said application, with no order as to costs. 15.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 23RD DAY OF SEPTEMBER 2026 6

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A. NYUKURI JUDGE In the presence of; Mr. Maonga for the applicant No appearance for the respondent Court Assistant: Delphine 7

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