1. This ruling pertains to the application, dated 23 May 2025, filed by the plaintiff. It has been brought under the provisions of Order 51, Rule 1 of the Civil Procedure Rules 2010, Section 3A of the Civil Procedure Act, and all other enabling provisions of the law. The plaintiff seeks the following reliefs from the court.
a. THAT the honourable court does order the defendants to refund the plaintiff the sum of 3 million paid towards the purchase of the defendants’ parcel of land known as Mavoko Municipality LR/27770 IR No. 132725.
b. THAT the honourable court does order the defendants to pay the plaintiff interest at court’s rate on the sum of 3 million from 14 September 2012 until payment in full.
c. THAT upon compliance with orders 1 and 2, an order be issued directed at the Chief Land Registrar/ Registrar of Titles to remove the caveat registered on 23 May 2025 by the plaintiff over a parcel of land known as Mavoko Municipality LR/27770 IR No. 132725.
d. THAT the costs of this application be provided for.
2. The motion is supported by the grounds set out in the body thereof and the supporting affidavit of the plaintiff, sworn on the instant date. In summary, she informs the court that on 23rd November 2017, the court dismissed the plaintiff's suit because the sale agreement dated 30 July 2012 was signed only by the 1st defendant and not by his wife, the 2nd defendant, thereby rendering it unenforceable.
3. That in paragraph 21 of the judgment, the court held that the plaintiff could recover only the money paid to the defendants. At that point, the court cancelled the sale, but the defendants still held the plaintiff's Kshs. 3 million. Dissatisfied with the judgment, the plaintiff appealed to the Court of Appeal in Nairobi Civil Appeal No. 248 of 2018, but the Court of Appeal upheld this court's decision. As a result, the defendants have retained the plaintiff's money as a debt, which the plaintiff now seeks to recover with interest at the court's rates.
4. In opposition, the 1st defendant, through his replying affidavit deposed on 11 July 2025, where he succinctly stated that the court did not order a refund to the plaintiff and, in any case, a review is unavailable to the plaintiff because the Court of Appeal affirmed this court's decision. He states that the application is therefore incompetent, untenable, and unsustainable. He informs the court that after the judgment, the plaintiff was offered a refund, which she declined; therefore, she is responsible for her current situation and should not be allowed to complain.
5. In rejoinder, the plaintiff filed a supplementary affidavit sworn on 14 August 2025, where she succinctly states that the application is not an abuse of the court process as claimed and she does not seek to review the judgment of this court or of the Court of Appeal.
6. Accordingly, following the court’s directions, the motion was argued through written submissions filed respectively by the law firms representing the parties. Ms. Ayieko Kangethe & Co. Advocates for the plaintiff filed theirs dated 3 March 2026, and Ms. Anassi Momanyi & Co. Advocates for the defendants filed theirs dated 6 March 2026. Thus, having carefully considered the motion, its grounds, affidavits, submissions, legal framework, and relevant jurisprudence, including those relied upon by counsel, the key issue for determination is whether the motion constitutes an abuse of court process.
7. Concerning this matter, it is a well-established legal principle that the court possesses inherent jurisdiction to protect itself against abuse or to prevent its processes from being misused. An abuse of court process is any departure from established good order that significantly deviates from the reasonable use of court process; such abuse occurs when an individual makes excessive, improper, or contradictory use of court procedures, thereby contravening the natural legal principles. The persuasive decision in Satya Bhama Gandhi v. Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR) outlined several examples of abuse of court process, thus: -
“(a) Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.
(b) Instituting different actions between the same parties simultaneously in different court even though on different grounds.
(c) Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and respondent notice.
(d) Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below.
(e) Where there no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.
(f) Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.
(g) Where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal.
(h) Where two actions are commenced, the second asking for a relief which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the irritation or annoyance of an opponent.”
8. As to the definition of the term “abuse of the court process,” reference is made to the decision in the Court of Appeal case of Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] KECA 453 (KLR), which reaffirmed the definition as set forth in two foreign court decisions in the following manner: -
“In BEINOSI v WIYLEY 1973 SA 721 [SCA] at page 734F-G a South African case heard by the Appeal Court of South Africa, Mohomad CJ, set out the applicable legal principle as follows: -
“What does constitute an abuse of process of the court is a matter which needs to be determined by the circumstances of each case. There can be no all-encompassing definition of the concept of “abuse of process.” It can be said in general terms, however, that an abuse of process takes place where the proceedings permitted by the rules of court to facilitate the pursuit of the truth are used for purposes extraneous, to that objective.”
Again the Court of Appeal in Abuja, Nigeria in the case of ATTAHIRO v BAGUDO 1998 3 NWLL pt 545 page 656, stated that the term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. The term abuse of process has an element of malice in it.
In the Nigerian Case of KARIBU-WHYTIE J Sc in SARAK v KOTOYE (1992) 9 NWLR 9pt 264) 156 at 188-189 (e) the concept of abuse of judicial process was defined:-
“The concept of abuse of judicial process is imprecise, it implies circumstances and situations of infinite variety and conditions. Its one feature is the improper use of the judicial powers by a party in litigation to interfere with the administration of justice …”
9. The plaintiff has moved this court in a very strange manner and has invoked the court’s inherent power under Section 3A of the Civil Procedure Act. However, her application has contravened this very provision, as the application is found to be an abuse of the court process.
10. According to the record, in the plaint dated 9 October 2013, the plaintiff, in her capacity as a vendor among other reliefs, sought an order of specific performance concerning Mavoko Municipality L.R. No. 27770 I.R. No. 132725 (the suit land). She did not claim a refund of the purchase price, and as is well established in law, she was bound by her pleadings. After hearing the parties on the merits, the court, in dismissing the plaintiff’s case in its judgment of 23 November 2017, made an obiter dictum stating as follows: -
“21. Considering that one of the Vendors did not execute the Sale Agreement, it does not matter that the Plaintiff is willing to pay the balance of the purchase price. The most that the Plaintiff can do is to recover the money paid to the Defendants and not otherwise.”
11. Black’s Law Dictionary, 11th Edn, page 569, states that obiter dictum is a Latin word meaning “something said in passing” and then defines it as follows:
“A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive.”
12. Being aware that paragraph 21 was not enforceable and that this court was thus functus officio having dismissed her suit, she lodged an appeal. Upon hearing her, the Court of Appeal, in its judgment of Okoth v Omweri & another [2024] KECA 427 (KLR) of 24 April 2024, held as follows:
“We agree with the trial Judge that the suit had no merit. Equally, this appeal has no merit and is dismissed with costs to the respondents.”
13. As previously stated, the application is peculiar in that it lacks any legal backing permitting her to approach this particular court in the manner she did. She categorically stated that she is not seeking a review, which is proper, as a matter heard and determined by an appellate court can only be reviewed by it and not by a trial court. In this instance, she exercised her right of appeal, which resulted in the affirmation of this court’s decision, namely, a dismissal. The decision of the Court of Appeal is binding upon this court. Consequently, there are no other legal avenues available to her in this court, and her application therefore constitutes an abuse of the court process. This court is functus officio. This court need not say more.
14. In the end, the plaintiff’s application dated 23 May 2025 is found not to be merited. Each party shall bear their own costs on the motion. This file is now effectively marked as closed.
Orders accordingly.
Delivered and Dated at Machakos this 22nd day of September, 2026.
HON. A. Y. KOROSS
JUDGE
22.09.2026
Ruling delivered virtually through Microsoft Teams Video Conferencing Platform;
In the presence of;
Ms. Kanja Court Assistant.
Miss Wachira for Mr. Ayieko for plaintiff.
No appearance for other parties.
a. THAT the honourable court does order the defendants to refund the plaintiff the sum of 3 million paid towards the purchase of the defendants’ parcel of land known as Mavoko Municipality LR/27770 IR No. 132725.
b. THAT the honourable court does order the defendants to pay the plaintiff interest at court’s rate on the sum of 3 million from 14 September 2012 until payment in full.
c. THAT upon compliance with orders 1 and 2, an order be issued directed at the Chief Land Registrar/ Registrar of Titles to remove the caveat registered on 23 May 2025 by the plaintiff over a parcel of land known as Mavoko Municipality LR/27770 IR No. 132725.
d. THAT the costs of this application be provided for.
2. The motion is supported by the grounds set out in the body thereof and the supporting affidavit of the plaintiff, sworn on the instant date. In summary, she informs the court that on 23rd November 2017, the court dismissed the plaintiff's suit because the sale agreement dated 30 July 2012 was signed only by the 1st defendant and not by his wife, the 2nd defendant, thereby rendering it unenforceable.
3. That in paragraph 21 of the judgment, the court held that the plaintiff could recover only the money paid to the defendants. At that point, the court cancelled the sale, but the defendants still held the plaintiff's Kshs. 3 million. Dissatisfied with the judgment, the plaintiff appealed to the Court of Appeal in Nairobi Civil Appeal No. 248 of 2018, but the Court of Appeal upheld this court's decision. As a result, the defendants have retained the plaintiff's money as a debt, which the plaintiff now seeks to recover with interest at the court's rates.
4. In opposition, the 1st defendant, through his replying affidavit deposed on 11 July 2025, where he succinctly stated that the court did not order a refund to the plaintiff and, in any case, a review is unavailable to the plaintiff because the Court of Appeal affirmed this court's decision. He states that the application is therefore incompetent, untenable, and unsustainable. He informs the court that after the judgment, the plaintiff was offered a refund, which she declined; therefore, she is responsible for her current situation and should not be allowed to complain.
5. In rejoinder, the plaintiff filed a supplementary affidavit sworn on 14 August 2025, where she succinctly states that the application is not an abuse of the court process as claimed and she does not seek to review the judgment of this court or of the Court of Appeal.
6. Accordingly, following the court’s directions, the motion was argued through written submissions filed respectively by the law firms representing the parties. Ms. Ayieko Kangethe & Co. Advocates for the plaintiff filed theirs dated 3 March 2026, and Ms. Anassi Momanyi & Co. Advocates for the defendants filed theirs dated 6 March 2026. Thus, having carefully considered the motion, its grounds, affidavits, submissions, legal framework, and relevant jurisprudence, including those relied upon by counsel, the key issue for determination is whether the motion constitutes an abuse of court process.
7. Concerning this matter, it is a well-established legal principle that the court possesses inherent jurisdiction to protect itself against abuse or to prevent its processes from being misused. An abuse of court process is any departure from established good order that significantly deviates from the reasonable use of court process; such abuse occurs when an individual makes excessive, improper, or contradictory use of court procedures, thereby contravening the natural legal principles. The persuasive decision in Satya Bhama Gandhi v. Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR) outlined several examples of abuse of court process, thus: -
“(a) Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.
(b) Instituting different actions between the same parties simultaneously in different court even though on different grounds.
(c) Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and respondent notice.
(d) Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below.
(e) Where there no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.
(f) Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.
(g) Where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal.
(h) Where two actions are commenced, the second asking for a relief which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the irritation or annoyance of an opponent.”
8. As to the definition of the term “abuse of the court process,” reference is made to the decision in the Court of Appeal case of Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] KECA 453 (KLR), which reaffirmed the definition as set forth in two foreign court decisions in the following manner: -
“In BEINOSI v WIYLEY 1973 SA 721 [SCA] at page 734F-G a South African case heard by the Appeal Court of South Africa, Mohomad CJ, set out the applicable legal principle as follows: -
“What does constitute an abuse of process of the court is a matter which needs to be determined by the circumstances of each case. There can be no all-encompassing definition of the concept of “abuse of process.” It can be said in general terms, however, that an abuse of process takes place where the proceedings permitted by the rules of court to facilitate the pursuit of the truth are used for purposes extraneous, to that objective.”
Again the Court of Appeal in Abuja, Nigeria in the case of ATTAHIRO v BAGUDO 1998 3 NWLL pt 545 page 656, stated that the term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. The term abuse of process has an element of malice in it.
In the Nigerian Case of KARIBU-WHYTIE J Sc in SARAK v KOTOYE (1992) 9 NWLR 9pt 264) 156 at 188-189 (e) the concept of abuse of judicial process was defined:-
“The concept of abuse of judicial process is imprecise, it implies circumstances and situations of infinite variety and conditions. Its one feature is the improper use of the judicial powers by a party in litigation to interfere with the administration of justice …”
9. The plaintiff has moved this court in a very strange manner and has invoked the court’s inherent power under Section 3A of the Civil Procedure Act. However, her application has contravened this very provision, as the application is found to be an abuse of the court process.
10. According to the record, in the plaint dated 9 October 2013, the plaintiff, in her capacity as a vendor among other reliefs, sought an order of specific performance concerning Mavoko Municipality L.R. No. 27770 I.R. No. 132725 (the suit land). She did not claim a refund of the purchase price, and as is well established in law, she was bound by her pleadings. After hearing the parties on the merits, the court, in dismissing the plaintiff’s case in its judgment of 23 November 2017, made an obiter dictum stating as follows: -
“21. Considering that one of the Vendors did not execute the Sale Agreement, it does not matter that the Plaintiff is willing to pay the balance of the purchase price. The most that the Plaintiff can do is to recover the money paid to the Defendants and not otherwise.”
11. Black’s Law Dictionary, 11th Edn, page 569, states that obiter dictum is a Latin word meaning “something said in passing” and then defines it as follows:
“A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive.”
12. Being aware that paragraph 21 was not enforceable and that this court was thus functus officio having dismissed her suit, she lodged an appeal. Upon hearing her, the Court of Appeal, in its judgment of Okoth v Omweri & another [2024] KECA 427 (KLR) of 24 April 2024, held as follows:
“We agree with the trial Judge that the suit had no merit. Equally, this appeal has no merit and is dismissed with costs to the respondents.”
13. As previously stated, the application is peculiar in that it lacks any legal backing permitting her to approach this particular court in the manner she did. She categorically stated that she is not seeking a review, which is proper, as a matter heard and determined by an appellate court can only be reviewed by it and not by a trial court. In this instance, she exercised her right of appeal, which resulted in the affirmation of this court’s decision, namely, a dismissal. The decision of the Court of Appeal is binding upon this court. Consequently, there are no other legal avenues available to her in this court, and her application therefore constitutes an abuse of the court process. This court is functus officio. This court need not say more.
14. In the end, the plaintiff’s application dated 23 May 2025 is found not to be merited. Each party shall bear their own costs on the motion. This file is now effectively marked as closed.
Orders accordingly.
Delivered and Dated at Machakos this 22nd day of September, 2026.
HON. A. Y. KOROSS
JUDGE
22.09.2026
Ruling delivered virtually through Microsoft Teams Video Conferencing Platform;
In the presence of;
Ms. Kanja Court Assistant.
Miss Wachira for Mr. Ayieko for plaintiff.
No appearance for other parties.