Joy Jenipher Adero Achola & Everlyn Odete Achola (suing as the legal representatives of the Estate of the late Jeckonia Oliver Achola Ndinya) v Kibagendi Robert Otachi, Fredrick Kimemia Kimani, Registrar of Titles Nairobi & Aden Hussein Mahad; Hassan Mohamd Hussein (Interested Party)

HASSAN MOHAMD HUSSEIN …………..…… INTERESTED PARTY (Claiming as a Tenant of the 4th Defendant) RULING 1. What is before the Court for determination are two applications filed by the Plaintiff and the 4 th Defendant. Notice of Motion dated 17th April 2026 2. It is filed by the 4th Defendant who seeks the following Orders; a) Spent. b) That the firm of Oscar Otieno and Co. Advocates be allowed to come on record as advocates for the 4th Defendant/Applicant herein. c) Spent. d) That the court be pleased to review and set aside its judgement dated, delivered and issued ELC CASE NO. 361 OF 2017 Page 2 of 18 Ruling

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on 17th November, 2025 and its decree and that the suit be ordered to start afresh and denovo. e) Spent. f) Spent. g) That the costs of this application be provided for. 3. The application is premised on grounds on its face and on the 4th Defendant’s supporting affidavit. He avers that he had rented out his shop on the suit premises to one Hassan Mohammed Hussein who operated a bookshop thereon. He states that following this Court’s judgement delivered on 17 th November 2025 in favour of the Plaintiff, they have since commenced execution and have confiscated all his said tenant’s goods and have failed to release them. Further, that he stands to suffer substantial loss if the Plaintiffs are allowed to proceed with execution. He also claims that he has discovered new and/or fresh evidence that is useful to his ELC CASE NO. 361 OF 2017 Page 3 of 18 Ruling

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case thus urges the Court to review its judgement and allow him to give fresh evidence in the matter. Response 4. The application is opposed by the Plaintiffs who filed Grounds of Opposition. They contend that the application is barred under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, since the 4 th Defendant preferred an Appeal to the Court of Appeal. Further, that no new evidence has been disclosed and that the Decree herein is partially executed as the 4th Defendant and persons claiming through him have been evicted. They aver that the application is an abuse of Court process, the 4 th Defendant having previously filed a similar application dated 26th February 2026. 5. The 1st to 3rd Defendants did not file responses. Notice of Motion dated 21st April 2026 6. It is filed by the Plaintiffs who seeks the following Orders: a) Spent. ELC CASE NO. 361 OF 2017 Page 4 of 18 Ruling

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b) Spent. c) That Nairobi BPRT Cause No. E411 OF 2026 be removed into this honourable court and struck out. d) That costs of this application be borne by Hassan Mohamed Hussein, the named Interested Party. 7. The application is premised on grounds on its face and on the 1st Plaintiff’s supporting affidavit. He avers that this Court’s Decree dated 17th November 2025 is binding on the Defendants and anybody claiming through them. Further, that subsequent to the issuance of the said Decree, the Interested Party filed Milimani MCELC No. E162 OF 2026 claiming protection as a tenant of the 4th Defendant, and sought an interlocutory injunction but the said suit was struck out on 18th March 2026 for want of jurisdiction. ELC CASE NO. 361 OF 2017 Page 5 of 18 Ruling

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8. Further, that undeterred, the Interested Party filed Nairobi BPRT Cause No. E411 OF 2026 at the Business Premises Rent Tribunal, herein referred to as the ‘BPRT’, where he deliberately failed to disclose material facts and improperly obtained ex parte orders reinstating him into the suit property. In response, the Plaintiffs filed an application dated 2nd April 2026, seeking to discharge the said Orders and strike out the reference. However, the Interested Party filed an application for contempt dated 31st March 2026 to which they responded. She states that thereafter, the BPRT, without a formal application being filed, made an ex parte order for a break-in, into the suit premises on 17th April 2026, even after being informed of this matter. She contends that serious prejudice shall be occasioned to the Plaintiffs herein by the BPRT unless the Orders sought are granted. 9. The application is not opposed. 10. Both applications were canvassed by way submissions. ELC CASE NO. 361 OF 2017 Page 6 of 18 Ruling of written

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Submissions 11. In support of his application, the 4th Defendant urges the Court to allow his prayer (b), under Order 9 Rule 9 of the Civil Procedure Rules, so as not to impede his right to hearing. He urges the Court to allow a review of its judgement on the basis that he has discovered new evidence that would have been relevant in the determination of the suit, which he was not able to produce during trial. He denies appealing against the impugned judgement of this Court. He also submits that it is fair and in the interest of justice that this Court directs the Plaintiffs to return the 4 th Defendant’s goods taken from the suit premises and release them to his tenant. 12. On their part, the Plaintiffs submit that the 4 th Defendant’s application is incompetent as he has elected to Appeal the Judgement and Decree herein, there being on record a Notice of Appeal dated 16th March 2026 drawn by Osundwa ELC CASE NO. 361 OF 2017 Page 7 of 18 Ruling

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& Company Advocates, and a letter seeking typed proceedings for purposes of filing the Record of Appeal. 13. On a without prejudice basis, they submit that the 4 th Defendant has not disclosed the alleged new matter of evidence that he has since discovered and neither has he demonstrated that it was not within his knowledge at the time the Decree was passed. Further, that jurisdiction to review is narrow and cannot entail ordering fresh trial as the Court is functus officio. 14.They also submit that this Court has jurisdiction to exercise its supervisory jurisdiction of the BPRT, under Section 13 (4) (6) & (7) of the Environment and Land Court Act and Article 165(6) of the Constitution. They urge the Court to exercise the said jurisdiction over the BPRT, and strike out BPRT Cause No. E411 OF 2026 since the tribunal lacks jurisdiction to entertain the reference under the doctrine of estoppel, res judicata and judicial precedence, since the issue of their ownership and right to quiet possession of the suit ELC CASE NO. 361 OF 2017 Page 8 of 18 Ruling

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property and eviction of the 4th Defendant or anybody claiming through him, have been conclusively dealt with in the matter. 15. To buttress their averments, the Plaintiffs relied on the following decisions: Edmond Jilani Sadi v Kenya Ports Authority [2026] KECA 642 (KLR); Lilian S v Caltex Oil (k) Ltd [1989] KLR; Hinter v Chief Constable of the West Midland Police & others [1988)3WLR 900; William Koros v Hezekiah Kiptoo Komen & 4 others [2015] eKLR, and Dodhia v National and Grindlays Bank Ltd [1970] EA 195. 16. Upon consideration of the two instant Notice of Motion applications including the respective affidavits, Grounds of Opposition and rivalling submissions, the following are the issues for determination: a) Whether the firm of Oscar Otieno and Co. Advocates ELC CASE NO. 361 OF 2017 Page 9 of 18 Ruling

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should be allowed to come on record as advocates for the 4th Defendant. b) Whether the 4th Defendant has satisfied grounds for review and or setting aside of the judgement delivered on 17th November, 2025. c) Whether Nairobi BPRT Cause No. E411 OF 2026 should be struck out. 17. The 4th Defendant seeks to have the judgment delivered herein on 17th November 2025 reviewed on the basis that he has new and important evidence, which he was unable to present during the trial. He contends that he had rented out his shop on the suit premises to Hassan Mohamed Hussein, who operated a bookshop there. Following the judgment and commencement of execution, the tenant’s goods were allegedly confiscated and have not been released, thereby exposing the 4th Defendant to substantial loss. 18. In opposition, the Plaintiffs contend that the 4th Defendant has already elected to pursue an Appeal against this Court’s ELC CASE NO. 361 OF 2017 Page 10 of 18 Ruling

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Judgment thus he cannot simultaneously seek a review of the same Judgment. On the alleged new evidence, they contend that the 4th Defendant has not disclosed what the alleged new and important evidence is, nor demonstrated that it was not within his knowledge or could not, despite due diligence, have been produced at the trial. 19. On the first issue, the 4th Defendant seeks orders that the firm of Oscar Otieno and Co. Advocates to be allowed to come on record as his advocates, given that judgement has been entered herein. Order 9 Rule 9 of the Civil Procedure Rules provides that: “Where 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 courta. upon an application with notice to all parties or b. upon a consent filed between the outgoing advocate and the proposed incoming advocate or ELC CASE NO. 361 OF 2017 Page 11 of 18 Ruling

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party intending to act in person, as the case may be.” 20.In relying on the aforementioned legal provisions, I will proceed and allow the firm of messrs Oscar Otieno and Co. Advocates to come on record for the 4th Defendant. 21. On the second issue, this Court has discretion to review its orders, pursuant to Section 80 of the Civil Procedure Act as well as Order 45 of the Civil Procedure Rules. 22. On setting aside judgement, in the case of Shah v Mbogo and Another [1967] EA 116 it was held that: “This discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.” ELC CASE NO. 361 OF 2017 Page 12 of 18 Ruling

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23. Further, in the case of Wachira Karani v Bildad Wachira [2016] eKLR Mativo J (as he then was) held that: “Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must demonstrate that he was prevented from attending court by a sufficient cause...” 24. It is trite that for review or setting aside of judgement, the Applicant has to demonstrate that there was error apparent on the face of record, discovery of new and important materials which was not available at the point of the trial. Further, a party seeking review should not have filed an Appeal against the decision sought to be reviewed. Insofar as setting aside is discretionary, the Court has to consider ELC CASE NO. 361 OF 2017 Page 13 of 18 Ruling

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sufficient cause proffered by the Applicant, before proceeding to do so. 25. From the averments of the 4th Defendant, he has not indicated which new materials he has discovered that was not available at the point of trial. Further, from the Court record, his erstwhile Counsel had already filed a Notice of Appeal against the impugned judgement and sought for typed proceedings so as to file a Record of Appeal. 26. Based on the facts before me, I find that it is improper for the 4th Defendant to seek a review and or setting aside of the judgement yet he has already sought an Appeal. In my view, there is no error apparent on record or discovery of new and important materials, which was not within the 4 th Defendant’s knowledge, at the time of hearing to warrant the review and or setting aside of the judgement. I opine that he has not demonstrated sufficient cause nor provided plausible reasons to warrant the setting aside of the impugned ELC CASE NO. 361 OF 2017 Page 14 of 18 Ruling

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judgement. In the foregoing, I will decline to review and or set aside the said judgement. 27. On the third issue, the Plaintiffs contend that the Interested Party is claiming occupation through the 4th Defendant, whose right to remain on the premises was determined by this Court. Further, that despite this Court’s Orders, the Interested Party approached the BPRT, which permitted a break-in and reinstatement into the suit premises. They contend that the said Orders interfere with the execution of this Court's Decree and urge the Court to invoke its supervisory jurisdiction and strike out BPRT Cause No. E411 OF 2026.The Court will determine whether it has jurisdiction to supervise the BPRT and whether it can strike out BPRT Cause No. E411 OF 2026. 28. Angote J stated as follows on this Court’s supervisory jurisdiction in Lariak Pharmaceuticals Limited Miscellaneous ELC CASE NO. 361 OF 2017 Page 15 of 18 Properties Limited v Metro (Environment & Land Case E19 of 2022) Ruling

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[2022] KEELC 15000 (KLR) (25 November 2022) (Ruling): “…In conclusion, it is the finding of this court that supervisory jurisdiction refers to the power of superior courts of general superintendence over all subordinate courts. Through supervisory jurisdiction, superior subordinate courts courts within aim their to keep prescribed sphere, and prevent usurpation. The supervisory power over the lower courts by the superior courts is a sui generis jurisdiction accorded to superior courts through which they keep checks on subordinate courts and tribunals.” 29. In this instance the Interested Party proceeded to obtain Orders from the BPRT after this Court had issued its judgement on 17th November, 2025. I note the BPRT proceeded to issue a break in Order and reinstated the Interested Party into the suit premises yet this Court had already determined that the Plaintiffs were the proprietors of the suit property and not the 4 th Defendant who had leased to the Interested Party. In my view and once the BPRT was ELC CASE NO. 361 OF 2017 Page 16 of 18 Ruling

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informed of the existing Judgement, I find that it did not have capacity to interfere with this Court’s decision as it is subordinate to it. Further, I opine that the decision the BRPT issued was void ab initio since there was a subsisting judgement. I further find that the BPRT reference cannot be used to challenge a Judgement of a Court of competent jurisdiction. 30. In the foregoing while associating myself with the aforementioned decision, and since the Environment and Land Court has supervisory jurisdiction over the BPRT by dint of Article 162(2)(b) of the Constitution as well as Section 13 of the ELC Act, which empowers this Court to regulate the BPRT proceedings, I will proceed to remove the Nairobi BPRT Cause No. E411 OF 2026 into this Court and strike it out. I will award costs to the Plaintiffs to be borne by Hassan Mohamed Hussein, the named Interested Party herein. 31. In the foregoing, I find the Plaintiffs’ Notice of Motion application dated the 21st April 2026 merited and will allow ELC CASE NO. 361 OF 2017 Page 17 of 18 Ruling

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it. I however find the 4th Defendant’s Notice of Motion application dated the 17th April 2026 unmerited and will dismiss it with costs to the Plaintiffs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 1ST DAY OF OCTOBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Mungla for Plaintiffs/Decree holders Mutua for Oscar Otieno for 4th Defendant/Applicant Court Assistant: Joan ELC CASE NO. 361 OF 2017 Page 18 of 18 Ruling

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