kemc-2026-00804

4. The Interested Party averred that he never participated in the primary suit since he had instructed the firm of Bwonchiri & Company Advocates, not the firm of Machage & Company Advocates, to file a suit on his behalf arising from the cause of action that led to the disputed primary suit. 5. Given the above, the Interested Party maintained that the proceedings in the primary suit were a forgery, hence his name should be struck out from this suit. 6. The Interested Party also filed a Supplementary Affidavit sworn on 11 th March 2026, where he averred that he had reported at Bungoma Police Station vide OB. No. 56/17/11/2025 about the alleged forgery committed in the primary suit. 7. He also averred that he lodged a complaint about the alleged forgery committed in the primary suit through a letter dated 27 th October 2026 addressed to this court’s Chief Magistrate. He further expressed willingness to be cross-examined on the veracity of the alleged forgery claims. 8. The instant Application was not opposed by the Respondents herein despite the Plaintiff/Respondent’s counsel taking directions before this court on how to dispose of the instant Application. 9. The Interested Party filed written submissions reiterating the contents of his pleadings. He also placed reliance on Order 1 Rule (10) (2) of the Civil Procedure Rules in urging this court to strike him out of this suit. ANALYSIS AND DETERMINATION 10. This court has given due regard and consideration to the pleadings, written submissions, and the authorities on record. 11. The only issue Application is merited. for determination is whether the instant

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12. A keen reading of the instant Application reveals that the Interested Party is implicitly urging this court to find and hold that the judgment in the primary suit was procured fraudulently. 13. It is the law that a fraudulently obtained judgment lacks the limbs to stand on in law. Such a judgment is a nullity; nothing in law. That is the import of the maxim ex nihilo nihil fit (Out of nothing comes nothing). In the words of Lord Denning in Macfoy V United Africa Co. Ltd [1961] 3 All E.R. 1169: “…if an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” 14. The question that this court should answer at this stage is whether this court has the power to determine whether the judgment in the primary suit was fraudulently obtained through the manner in which the Interested Party has moved this court. 15. The Interested Party cited Order 1 Rule 10 (2) of the Civil Procedure Rules in support of his position that this court has the power to strike out a party from a suit at any stage of the proceedings. Indeed, Order 1 Rule 10 (2) of the Civil Procedure Rules allows this court to strike out a party from a suit at any stage of the proceedings where a party has been improperly joined to the suit. 16. However, in this case, the Interested Party can only be deemed to have been improperly joined to this suit after a determination of whether the judgment in the primary suit was obtained fraudulently. 17. The law in this jurisdiction is that a fraudulent judgment can only be set aside through a fresh suit by invoking section 47 of the Evidence

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Act and the inherent powers of the court (see Steyn v Ruscone (Civil Suit 291 of 2013) [2025] KEHC 6196 (KLR)). 18. Therefore, until the Interested Party files a fresh suit for a declaration that the judgment in the primary suit was fraudulently obtained, and until a court of competent jurisdiction makes a declaration to that effect, the Interested Party remains a proper party to this suit. 19. It is also worth noting that this court delivered a ruling on 24 th March 2026, dismissing Bungoma CMC CC. No. E485 of 2025 for being res judicata the primary suit. In the circumstances, the Interested Party’s prayer for a stay of the proceedings herein pending the hearing and determination of Bungoma CMC CC. No. E485 of 2025 has been overtaken by events. DETERMINATION 20. Given the reasons above, the Interested Party’s Application dated 23rd February 2026 is bereft of merit; the same is dismissed with costs. 21. It is so ordered. Read, signed, and delivered in open court at Bungoma, this 31st day of March 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Wanyama for the Interested Party/Applicant Mr. Nabei for the Plaintiff/Respondent C/A: Mr. Rioba

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