I. Introduction
1. This Honourable Court is called upon to determine the Amended Notice of Motion application dated 6 th March, 2026 filed by Masudi Ali Mbaruku, suing as a duly appointed Legal Administrator of the Estate of the late Ali Masudi Karoyo alias Ali Masudi Mbaruku, the Applicant/Intended 3 rd Defendant herein. Equally, before the Court was the Preliminary Objection and Grounds of Opposition both dated 12 th March, 2026 filed by Benson Mosonik and Juma Omar Nyere , the 1 st and 2 nd Plaintiffs/Respondents herein, through the Law firm of Messrs. Marende Necheza & Company Advocates, challenging the competence of the Applicant’s motion, his locus standi, and the jurisdiction of this Court on account of the Consent Judgment recorded on 24 th July, 2025.
2. In addition, the Court was seized of the Notice of Motion application dated 6 th May, 2026 by Joshua Kipkosgei Korir, the 1 st Defendant/Respondent herein, reiterating that the suit herein was compromised by a valid Consent Judgment, that the Court was “ functus officio” , and that the Applicant’s claim is misconceived, “ the Doctrine of Res Judicata” , and an abuse of the court process. The 1 st Defendant further averred that the estate of the deceased was neither a party nor en-suited in the present proceedings, and that issues of ownership are already subject to active litigation in the civil suit – “ ECLC No. 121 of 2025 – Kwale, Masudi Ali Mbaruku – Versus - State Law Office & Others”.
3. Upon service of the application by the Applicant, the Plaintiffs/Respondents it through Grounds of Opposition dated 12 th March, 2026, affidavits, and written submissions, asserting that the application offends the provision of Section 26 of the Land Registration Act, No. 3 of 2012 violates the principles governing setting aside of Consent Judgments, and was devoid of merit.
4. This ruling therefore addresses the merits of the Applicant’s Amended Notice of Motion application dated 6 th March, 2026, the Notice of Preliminary Objection and Grounds of Opposition dated 12 th March, 2026, and the Notice of Motion application dated 6 th May, 2026 filed by the 1 st Defendant, guided by the applicable constitutional provisions, statutory framework, and judicial precedents.
II. The Amended Notice of Motion application dated 6 th March, 2026
5. The Application was brought under the provisions of Article 50 and 159 of the Constitution of Kenya of 2010, Sections 1A, IB, 3, 3A, 23 and 24 of the Civil Procedure Act, Cap. 21 and Order 1 Rule 10(2), Order 10 Rule 11, Order 16 Rule 1, Order 38 of Civil Procedure Rules, 2010 and all other enabling provisions of the law.
6. The Applicant sought the following orders:-
a. That this Honourable Court be pleased to grant leave to the law firm of Messrs. Wonanio & Kabiaro Advocates to come on record on behalf of the Applicant/ intended 3 rd Defendant herein.
b. That pending the hearing and determination of this application this Honourable Court be pleased to enjoin the Applicant as the 3 rd Defendant in this suit.
c. Spent.
d. That pending Inter - Partes hearing of this application this Honourable Court be pleased to set aside the Consent Judgment and decree delivered on 30 th July, 2025, ex debito justitiae and or suo moto for having been procured through fraud, collusion, misrepresentation and non-disclosure of material facts.
e. That pending the hearing and determination of this application and suit this Honourable Court be pleased to issue preservatory, Inhibition and or orders of status quo restraining subdivision, transfer, sale or alienation on all that parcel of land formerly registered as KWALE/ GALU KINONDO/ 616 which was later subdivided and registered as KWALE/GALU KINONDO/ 5069 and 5060 and any resultant sub - divisions emanating from KWALE/GALU KINONDO/ 5069 and 5060.
f. That pending hearing and determination of this application and suit this Honourable Court be pleased to set aside the Consent Judgment and decree delivered on 30 th July, 2025, ex debito justitiae and or suo moto for having been procured through fraud, collusion, misrepresentation and non-disclosure of material facts.
g. That pending the hearing and determination of this application and suit this Honourable Court be pleased to declare that the said Consent Judgment as null and void ab initio for purporting to compromise and or distribute all that parcel of land formerly known as L.R. No. KWALE/GALU KINONDO/616 which at the time of recording the consent judgment it was non-existent, having been closed and subdivided into 12 portions on 24 th March 2025 and registered as KWALE/ GALU KINONDO 4757 to 4768.
h. That pending the hearing and determination of this application and suit the court be pleased to declare that all the subsequent entries on the land register of consolidation, transfer and subdivisions and dealings emanating from the illegal consent judgment recorded on the land register for KWALE/ GALU KINONDO/ 616 be declared to be irregular, null and void for having been obtained through fraud, collusion, misrepresentation and non - disclosure of material facts between the Plaintiffs and the 1 st and 2 nd Defendant.
i. That during hearing of this application this Honourable Court do summon the 3 rd Respondent through their advocate on record i.e. the law firm of Marende Necheza &Company Advocates to personally appear before this Honourable Court for purposes of being cross examined on oath as to:
a) His participation in and/or knowledge of this suit and the alleged Consent Judgment entered on his behalf by the firm of Marende Necheza & Company Advocates;
b) Whether he instructed the law firm of Marende Necheza & Company Advocates to act for him in this matter.
c) To adduce material evidence of how they purchased the suit property by producing agreement for sale, evidence of payment of the purchase price, letter of consent to transfer, evidence of payment of stamp duty and evidence of booking forms and executed transfer forms by all the parties to the sale and by the land registrar.
j. That after the issuance of the orders above the proceedings of this suit herein be stayed pending hearing and determination of ECLC No. 121 of 2025- KWALE, MASUDI ALI MBARUKU VS STATE LAW OFFICE, BENSON MOSONIK & OTHERS which suit is actively pending hearing in this court.
k. That this Honourable Court be pleased to grant any other orders that it may seem fit and just to ensure the ends of Justice are met.
l. Costs of this application be borne personally by the parties found culpable for the fraud, collusion, misrepresentation and non-disclosure of material facts.
7. The application was premised on the grounds, testimonial facts and averments made out from the face of the application and the 26 Paragraphed annexed supporting affidavit of MASUDI ALI MBARUKU, the Applicant herein. The Affiant averred as follows that:-
a. He had authority to claim the suit on behalf of the late Masudi Mbaruku, who was the first registered owner of all that parcel of land registered as Kwale/Galu Kinondo/616 before it was sub - divided by the respondents. Annexed and marked as “MAM - 1 and 2” were copies of the Certificate of Death and Limited Grant Ad Litem dated 12 th November, 2025).
b. The late Masudi Mbaruku had acquired registration of the suit property as the first registered owner allottee on 15 th November, 1974 and was awaiting issuance of the title deed, but he died before it was issued. Annexed and marked as “MAM - 3 and 4” were copies of the Adjudication Record and Certified copy of the Green Card for the suit property confirming the deceased was the first allottee.
c. The Land Register had been fraudulently interfered with by the 3 rd Respondent in collusion with the 1 st and 2 nd Respondents, and illegal entries were made purporting that the deceased had transferred the suit property to third parties who were non - existing persons, with the intention of concealing the illegalities and fraud as to how the 3 rd Respondent acquired registration of the suit property.
d. The deceased had not transferred the suit property to any person during his lifetime since he had not been issued with a title deed that would have enabled him to validly enter into a transaction to transfer his interest in the suit property, where the family had been living since childhood.
e. The deceased had never confided to him or any member of the family that he had transferred their ancestral land, and they only came to learn of the illegal and fraudulent dealings on the land register in the year 2025.
f. After realizing the illegal and fraudulent dealings on the land register, he had instructed his advocates to institute a civil suit against all the alleged previous owners of the suit property seeking cancellation of the illegal entries on the land register. Annexed and marked as “MAM - 5” were copies of the pleadings in the civil suit “ECLC No. 121 of 2025 – Kwale, Masudi Ali Mbaruku – Versus - State Law Office, Benson Mosonik & Others”.
g. He had opted to file that suit so that the Court would have the benefit of evidence from all the previous owners before making an informed decision, and later filed the present application seeking the orders herein, since the suit herein was initiated through Originating Summons and could not adequately address the issues in dispute without the benefit of all the parties involved, as opposed to a suit instituted by way of a Plaint.
h. It would have been in the interest of justice to have the orders sought granted and the proceedings herein stayed pending hearing and determination of the main suit, since issues of fraud could not be adequately addressed in an originating summons and in the absence of all the parties involved in the fraud adducing their evidence.
i. On the 23 rd July, 2025, a Consent Judgment had been recorded in the matter to the effect that the 1 st to 3 rd Respondents were to share all that parcel of land known as Kwale/Galu Kinondo/616 as per the terms of the said consent. Annexed and marked as “MAM – 6 (a) and 6 (b)” was a copy of the order dated 24 th July, 2025 and the Respondents’ consent that was adopted.
j. At the time of recording the said consent, the parcel of land registered as Kwale/Galu Kinondo/616 had already been sub - divided and therefore did not exist as a registrable interest, and was incapable of being allocated to the 1 st to 3 rd Respondents. Annexed and marked as “MAM - 7” was a copy of the Land Register/Green Card confirming the suit property had been sub - divided into 12 portions on 24 th March, 2025 and registered as Kwale/Galu Kinondo/4757 to 4768).
k. Annexed and marked “MAM - 8” was a bundle of title deeds evidencing the subdivisions, and that the subject property was not available for alienation by the Court as at the date of recording the Consent Judgment.
l. The 1 st to 3 rd Respondents had been aware of the sub - division prior to recording the consent judgment but intentionally withheld this information from the Court, with the intent and purpose of sanitizing and legalizing the allocation and sub - division of the property between themselves.
m. The non - disclosure of material facts to this Honourable court the departure subject of the consent was nonexistent and the effect of the state consent was to mislead the Honourable court into endorsing an illegality of a property that had already been extinguished in the land register.
n. The Consent Judgment was therefore entered into fraudulently and in collusion with the intent to sanitize how the 1 st to 3 rd Respondents acquired ownership of the suit property and defraud the Applicant of the suit property.
o. It was a fraudulent fundamental principle in law that fraud vitiates a Constant Judgment recorded between the parties and also effects third parties acting on an illegal consent judgment that including any dealings arising out of a fraudulent and illegal Consent Judgment.
p. It was in the interest of justice that the 4 th Respondent be someone through the advocates on record and be cross examined on oath to establish his knowledge and participation in the fraudulent recording of the consent Judgment which would also establish to this court that the Consent Judgment entered herein was illegal and fraudulent.
q. As a result of the corrupt scheme and the unprocedural Consent Judgment, an order was issued and the Land Registrar in collusion with the 1 st and 3 rd Respondents proceeded to register the order and issue a Certificate of Title to the 1 st and 3 rd Respondents in total disregard of the terms of the order by issuing the 1 st and 3 rd Respondents with a Certificate of Title measuring 7.9 acres(i.e. 3.2 Ha) as opposed to 7 acres as directed by the Court. Annexed and marked as “MAM – 9” was a copy of the Certificate of Title and a Certificate of Official search in joint names of the 1 st to 3 rd Respondents.
r. After acquiring registration the 1 st to 3 rd Respondents later sub - divided the suit property and it into two ( 2 ) portions which were registered as KWALE/GALU KINONDO/5059 that was registered in the names of the 3 rd Respondent and KWALE/GALU KINONDO/5060 that was registered in the joint names of the 1 st and 2 nd Respondents.
s. According to the Affiant after acquiring registration the 1 st and 2 nd Respondents hurriedly started the process of sub - diving all that parcel of land registered as KWALE/GALU KINONDO/5060 into 48 portions and transferred it to MVUTO REAL ESTATE LIMITED a company dealing in real estate and it had started advertising and selling the sub - divided properties to third parties without making full disclosure that there was a pending civil suit in “the Environment and Land Court in Kwale being ECLC No. 121 of 2025 - KWALE, MASUDI ALI MBARUKU – Versus - STATE LAW OFFICE, BENSON MOSONIK & OTHERS in which all the Respondents herein are parties to that suit. Annexed and marked as “MAM - 10,11,12 and 13 were copies of the certificate of proposed sub - division plan by Mvuto real Estate Limited dated 24 th November, 2025, Certificate of Title and Certificate of Official search both dated 23 rd January, 2026 and advertisement for sale of the sub - divided portions in the social media).
t. Unless the Court issued the orders sought, the pending suit referred to above would have been rendered nugatory, and if successful, enforcement of the orders granted would have been an uphill task since the substratum of the suit would have been altered significantly and would have involved many third parties.
u. He had been informed, which information he verily believed to be true, that on or around 11 th February, 2026, the said company had obtained consent from the Msambweni Land Control Board to subdivide all that parcel of land registered as Kwale/Galu Kinondo/5060, and that the company was in the process of transferring the same to third parties who were not aware of the multiple pending suits in respect of the suit property.
v. It would be in the interest of justice if the orders sought herein were granted and the court to give directions on whether this suit would be heard stayed pending hearing the main suit instituted by way of Plaint since they related to the same subject matter.
w. This application according to the Affiant was made in good faith and to prevent abuse of the Court process and avoid multiplicity of potential suits by third parties on the subject matter.
III. The Notice of Preliminary Objection
8. The Plaintiffs/Respondents opposed the Applicant/Intended 3 rd Defendant amended application dated 6 th March, 2026 through a Notice of Preliminary objection dated 12 th March, 2026 on the following grounds:-
a) The Application was misconceived, bad in law and an abuse of court process.
b) The Honourable Court was “ functus officio ” therefore bound by the decision entered on the 24 th July, 2025.
c) The Application offended the mandatory provisions of Section 26 of the Land Registration Act, No. 3 of 2012.
d) The Applicants had “ no locus standi” to sue as MASUDI KAROYO (deceased) and ALI MASUDI MBARUKU (deceased) were two different persons.
e) The Application offended the principles of setting aside a Consent Judgment. A Consent Judgement could only be set aside and/ or varied by the parties to the consent.
f) The Applicants’ application lacked merit and should be dismissed with costs to the Respondents.
IV. The Grounds of Opposition
9. The Plaintiffs/Respondents opposed the Intended 3 rd Defendant’s amended application dated 6 th March, 2026 by way of Grounds of Opposition dated 12 th March, 2026 wherein the opposition was on the following grounds that:-
a. The Application was misconceived, bad in law and an abuse of court process.
b. The Honourable Court was “functus officio” therefore bound by the decision entered on the 24 th July, 2025.
c. The Application offended the mandatory provisions of Section 26 of the Land Registration Act, No. 3 of 2012.
d. The Applicants had “ no locus standi” to sue as MASUDI KAROYO (deceased) and ALI MASUDI MBARUKU (deceased) were two different persons.
e. The Application offended the principles of setting aside a Consent Judgment. The Consent Judgment could only be set aside and/ or varied by the parties to the consent.
f. The Applicants’ application lacked merit and should be dismissed with costs to the Respondents.
g. The Suit offended the provision of Section 7 of the Civil Procedure Act Cap. 21 was the doctrine of res judicata.
V. The Notice of Motion application dated 6 th May, 2026
10. The Application was brought under the provisions of Order 6 of the Civil Procedure Rules, 2010; Sections 1, 1A, 3A, and 63 (c) & (e) of the Civil Procedure Act, Cap 21 Laws of Kenya; Section 13 of the Environment and Land Court Act, No. 19 of 2011; Article 40 of the Constitution of the Republic of Kenya; the inherent powers and jurisdiction of this Honourable Court; and all other enabling provisions of the law.
11. The Applicant sought the following orders:-
a. Spent.
b. That the Honourable Court be pleased to strike out and proceed to dismiss the undated Amended Notice of Motion; filed in accompaniment of Amended Certificate Of Urgency dated the 6 th day of March, 2026 filed in further accompaniment of the Supporting Affidavit sworn on the 6 th day of March, 2026 herein the same having been filed in contravention of mandatory provisions of the Civil Procedure Rules.
c. That in tandem with prayer 3 hereinbefore stated the undated Amended Notice of Motion; filed in accompaniment of Amended Certificate Of Urgency dated the 6 th day of March, 2026 filed in further accompaniment of the Supporting Affidavit sworn on the 6 th day of March, 2026 offends the mandatory provisions of Section 26 of the Land Registration Act Laws of Kenya consequently the Honourable Court ought to strike out the application.
d. That the Honourable Court be pleased to make orders that there is nothing further to be considered and/or filed in the present suit the same having been compromised and file closed vide consent of the parties.
e. That the Honourable Court be pleased to issue such further orders it deems just and expedient in their circumstances.
f. That the cost of this application and consequent dismissal be borne by the Applicant/Intended 3 rd Defendant.
12. The application was based on the grounds, testimonial facts and averments made out of the application by the 9 Paragraphed annexed supporting affidavit of KIPKOSGEI KORIR, the 1 st Defendant herein. The Affiant averred as follows that:-
a. He had read, understood, and where in doubt had been explained the contents of the undated Amended Notice of Motion application filed in accompaniment of the Amended Certificate of Urgency dated the 6 th day of March, 2026, filed in further accompaniment of the Supporting Affidavit sworn on the 6 th day of March, 2026, which explanation he verily believed to be true, and he thereby proceeded to state as follows:
b. The suit offended the mandatory provisions and import of the provision Section 7 of the Civil Procedure Act, Cap. 21 of it having been filed after the Honourable Court had already delved into and rendered Judgment in the matter.
c. He had been further advised by his Advocates, which advice he verily believed to be true, that the suit in its entirety was an invitation to the Honourable Court to sit on its own appeal, a position frowned upon by constitutionalism, which invitation the Honourable Court ought to have immediately declined.
d. From inception, the undated Amended Notice of Motion application filed in accompaniment of the Amended Certificate of Urgency dated the 6 th day of March, 2026, filed in further accompaniment of the Supporting Affidavit sworn on the 6 th day of March, 2026, was ab initio and dead on arrival, the same having been closed, and that there was nothing further that could accrue from the present suit, the consent having not been challenged in any way.
e. He had been advised by his Advocates, which advice he verily believed to be true, that the Civil Procedure Rules, 2010 and indeed the law as espoused and mandatory to the present proceedings depicted a scenario that an Amended Supporting Affidavit was not an immutable statement of oath and could not in any way support an application. In fact, apart from there being no leave granted to file such amendments, the parties before the Honourable Court did not have any locus to progress the suit any further, which was exactly the predicament the Honourable Court was confronted with, and there was no other recourse other than dismissal.
f. It was further imperative to progress the advice from Counsel, which advice he verily believed to be true, that the Estate of Masudi Mbaruku was neither a party nor en-suited in the present proceedings, and that the same parties were deeply engrossed in another case of:- “ Kwale Environment and Land Case No. E121 of 2025” , by their own admission, thus rendering the present suit void.
g. He further deponed that a challenge to the consent, which the said Estate was not a party to, bespoke an attempt to engage the Honourable Court in a matter in which the Court was already functus officio.
h. The affidavit was made in support of the application filed, and that what was deponed therein above was true to the best of his knowledge and belief, save for matters of information in which case the source was disclosed where appropriate.
VI. The Supplementary Affidavit by the Applicant/Intended 3 rd Defendant
13. The Applicant/Intended 3 rd Defendant filed a 20 Paragraphed Supplementary Affidavit which he swore himself on 22 nd May, 2026 wherein the Affiant averred as follows that:-
a. He had read, understood and been explained to the contents of the grounds of opposition and the Notice of the Preliminary objection filed by the 1 st Respondent dated 12 th March, 2026. He had also read to the Notice of Motion application by the 3 rd and 4 th Respondents dated 6 th May, 2026 and wished to respond to it as follows:
b. The Preliminary Objection and the Grounds of Opposition dated 12 th March, 2026 were incompetent as they raised contested matters rather that pure point of law, therefore, they did not qualify as proper Preliminary Objection and Grounds of Opposition.
c. This Honourable Court was clothed with residual and inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21 to set aside the fraudulent or illegal Judgment dated 24 th July, 2025, therefore the doctrine of functus officio does not arise in the current circumstance for the reasons stated hereunder;
a) The Applicant was directly affected by the Consent Judgment and decree of the court thus setting it a side shall afford him the right to fair hearing as espoused in Article 50 of the Constitution of Kenya;
b) The Consent Judgment was procured through fraud and illegality due to material non – disclosure thus the Respondent misled this Honourable Court into adopting the illegal consent;
c) The Respondents failed to disclose to this Honourable Court the glaring error on the citation of the parties of the 2 nd Respondent, (Antony Ngugi Mbage), according to the initial originating summons dated 30 th May, 2025 was expunged as a party to this case therefore the order of the Court ought not to have borne his name. (Annexed and marked as “MAM – 1(a) and (b)” was a copy of the Originating Summon dated 30 th May, 2025 and the Amended Originating Summons dated 11 th July, 2025).
d) A Consent Judgment was vitiated just like any other contract by fraud, collusion if it affects the parties to that suit, the same rule applied if the Consent Judgment affects a non - party to the suit.
e) This Honourable Court had inherent jurisdiction to bypass the doctrine of functus in order to do substantive justice particularly in this case where the Applicant has pleaded fraud against the suit property which is his beneficial right.
f) The doctrine of functus officio could not be used to sanitize fraud, concealment of material fact and illegality.
g) The 1 st and 2 nd Respondents misled the Court that they lived on the suit property for more than 12 years and had invested on it which was untruth, the Applicant had been utilizing the suit property and had never seen the 1 st and 2 nd Respondents therefore the Affiant prayed for the opportunity to present the Affiant case thus unravel the fraudulent activities of the Respondents herein.
h) The doctrine of functus officio was not a shield against fraud, particulars of fraud as follows amongst them, the suit property, Kwale/Galu Kinondo/616 did not exist as it had been sub - divided into 12 sub plots, the Respondents failed to disclose to court that the suit property did not exist, that the Respondent were untruth in that they failed to reveal that they did not live of the suit property.
d. The doctrine of functus officio could not be a defence to shield or sanitize Respondents who had un - procedurally, through fraud and illegality procured the suit property which was the inheritance of the Applicant and other family members. Further invite this Honourable Court to invoke the common law principle to wit fraud vitiate everything' to set aside its previous orders and had this matter meritoriously heard and determined.
e. This Honourable Court had unfettered jurisdiction to stay/ set aside its previous orders/judgment and Decrees in order to afford the Applicant substantive justice based on the merits of the case.
f. The title deeds issued to the Respondents could be impeached pursuant to the provisions of Section 26 (1) (a) and (b) of the Land registration Act, No. 3 of 2012 which were the very grounds the Applicant case was anchored upon. Further, the Applicant has elucidated the elements of fraud committed by the Respondents in his pleadings marked as “MAM – 5” of the Amended Notice of motion application dated 6 th March, 2026.
g. Before filing of this suit, the Applicant secured the Grant Letters of Administration Ad Litem to sue on behalf of the estate of his father, Ali Masudi Karoyo, Ali Masudi Mbaruku deceased. The issue as to whether Ali Masudi Karoyo and Ali Masudi Mbaruku was one or two people was a factual issue that calls for evidence which could be fully canvassed at the hearing of the main suit. The Respondents were put to strict proof thereof that the above-mentioned person was not known by the name, Ali Masudi Karoyo also Ali Masudi Mbaruku
h. Further response to ground number 4 of the Grounds of Opposition, the Applicant averred that the Assistant Chief and the Area Chief confirmed that the Affiant’s father was known as Ali Masudi Karoyo and Ali Masudi Mbaruku. Annexed and marked as “MAM - 2 (a) and (b)” was a letter by the Assistant Chief dated 11 th September, 2025, the letter by the Area Chief dated 27 th April, 2026.
i. The Applicant’s mother, Mishi Ali Mbaruku, who had been married for more than 50 years, knew that her husband, the Affiant’s father, was called Ali Masudi Karoyo, Ali Masudi Mbaruku, and Masudi Mbaruku, which were names of one and the same person. The Respondents were put to strict proof of their contention that the names Ali Masudi Karoyo and Ali Masudi Mbaruku referred to two different people. Annexed and marked as “MAM – 3” was a copy of the affidavit of marriage and names dated 8 th March, 2026.
j. The Affiant had been informed by his advocate on record, which information he verily believed to be true, that locus standi as raised by the Respondents was misplaced for the reason that a deceased person had no legal personality to sue in his name. The question of locus standi only arose with respect to the Applicant, who acted on behalf of the Estate of Ali Masudi Karoyo also known as Ali Masudi Mbaruku and Masudi Mbaruku, subject to the letters of administration ad litem dated 12 th November, 2025. (“Trouistik Union International & Another – Versus - Jane Mbeyu & Another [1993] eKLR” ).
k. The Applicant denied in toto the Respondents’ interpretation of the provision of Order 24 of the Civil Procedure Rules, 2010 which deals with abatement of suits. He had been advised by his advocate, which advice he verily believed to be true, that the Applicant was not a party to the suit filed by the Respondents, and therefore the principle of abatement did not bind him.
l. On the issue of multiplicity of suits, the Affiant deponed that the Applicant filed the present suit because his interest in the land had been defeated by the impropriety of the Respondents, who concealed the fact that parcel Kwale/Galu Kinondo/616 (the mother title) was non-existent at the time the Respondents filed ELC E002/2025 (OS), the pro
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1. This Honourable Court is called upon to determine the Amended Notice of Motion application dated 6 th March, 2026 filed by Masudi Ali Mbaruku, suing as a duly appointed Legal Administrator of the Estate of the late Ali Masudi Karoyo alias Ali Masudi Mbaruku, the Applicant/Intended 3 rd Defendant herein. Equally, before the Court was the Preliminary Objection and Grounds of Opposition both dated 12 th March, 2026 filed by Benson Mosonik and Juma Omar Nyere , the 1 st and 2 nd Plaintiffs/Respondents herein, through the Law firm of Messrs. Marende Necheza & Company Advocates, challenging the competence of the Applicant’s motion, his locus standi, and the jurisdiction of this Court on account of the Consent Judgment recorded on 24 th July, 2025.
2. In addition, the Court was seized of the Notice of Motion application dated 6 th May, 2026 by Joshua Kipkosgei Korir, the 1 st Defendant/Respondent herein, reiterating that the suit herein was compromised by a valid Consent Judgment, that the Court was “ functus officio” , and that the Applicant’s claim is misconceived, “ the Doctrine of Res Judicata” , and an abuse of the court process. The 1 st Defendant further averred that the estate of the deceased was neither a party nor en-suited in the present proceedings, and that issues of ownership are already subject to active litigation in the civil suit – “ ECLC No. 121 of 2025 – Kwale, Masudi Ali Mbaruku – Versus - State Law Office & Others”.
3. Upon service of the application by the Applicant, the Plaintiffs/Respondents it through Grounds of Opposition dated 12 th March, 2026, affidavits, and written submissions, asserting that the application offends the provision of Section 26 of the Land Registration Act, No. 3 of 2012 violates the principles governing setting aside of Consent Judgments, and was devoid of merit.
4. This ruling therefore addresses the merits of the Applicant’s Amended Notice of Motion application dated 6 th March, 2026, the Notice of Preliminary Objection and Grounds of Opposition dated 12 th March, 2026, and the Notice of Motion application dated 6 th May, 2026 filed by the 1 st Defendant, guided by the applicable constitutional provisions, statutory framework, and judicial precedents.
II. The Amended Notice of Motion application dated 6 th March, 2026
5. The Application was brought under the provisions of Article 50 and 159 of the Constitution of Kenya of 2010, Sections 1A, IB, 3, 3A, 23 and 24 of the Civil Procedure Act, Cap. 21 and Order 1 Rule 10(2), Order 10 Rule 11, Order 16 Rule 1, Order 38 of Civil Procedure Rules, 2010 and all other enabling provisions of the law.
6. The Applicant sought the following orders:-
a. That this Honourable Court be pleased to grant leave to the law firm of Messrs. Wonanio & Kabiaro Advocates to come on record on behalf of the Applicant/ intended 3 rd Defendant herein.
b. That pending the hearing and determination of this application this Honourable Court be pleased to enjoin the Applicant as the 3 rd Defendant in this suit.
c. Spent.
d. That pending Inter - Partes hearing of this application this Honourable Court be pleased to set aside the Consent Judgment and decree delivered on 30 th July, 2025, ex debito justitiae and or suo moto for having been procured through fraud, collusion, misrepresentation and non-disclosure of material facts.
e. That pending the hearing and determination of this application and suit this Honourable Court be pleased to issue preservatory, Inhibition and or orders of status quo restraining subdivision, transfer, sale or alienation on all that parcel of land formerly registered as KWALE/ GALU KINONDO/ 616 which was later subdivided and registered as KWALE/GALU KINONDO/ 5069 and 5060 and any resultant sub - divisions emanating from KWALE/GALU KINONDO/ 5069 and 5060.
f. That pending hearing and determination of this application and suit this Honourable Court be pleased to set aside the Consent Judgment and decree delivered on 30 th July, 2025, ex debito justitiae and or suo moto for having been procured through fraud, collusion, misrepresentation and non-disclosure of material facts.
g. That pending the hearing and determination of this application and suit this Honourable Court be pleased to declare that the said Consent Judgment as null and void ab initio for purporting to compromise and or distribute all that parcel of land formerly known as L.R. No. KWALE/GALU KINONDO/616 which at the time of recording the consent judgment it was non-existent, having been closed and subdivided into 12 portions on 24 th March 2025 and registered as KWALE/ GALU KINONDO 4757 to 4768.
h. That pending the hearing and determination of this application and suit the court be pleased to declare that all the subsequent entries on the land register of consolidation, transfer and subdivisions and dealings emanating from the illegal consent judgment recorded on the land register for KWALE/ GALU KINONDO/ 616 be declared to be irregular, null and void for having been obtained through fraud, collusion, misrepresentation and non - disclosure of material facts between the Plaintiffs and the 1 st and 2 nd Defendant.
i. That during hearing of this application this Honourable Court do summon the 3 rd Respondent through their advocate on record i.e. the law firm of Marende Necheza &Company Advocates to personally appear before this Honourable Court for purposes of being cross examined on oath as to:
a) His participation in and/or knowledge of this suit and the alleged Consent Judgment entered on his behalf by the firm of Marende Necheza & Company Advocates;
b) Whether he instructed the law firm of Marende Necheza & Company Advocates to act for him in this matter.
c) To adduce material evidence of how they purchased the suit property by producing agreement for sale, evidence of payment of the purchase price, letter of consent to transfer, evidence of payment of stamp duty and evidence of booking forms and executed transfer forms by all the parties to the sale and by the land registrar.
j. That after the issuance of the orders above the proceedings of this suit herein be stayed pending hearing and determination of ECLC No. 121 of 2025- KWALE, MASUDI ALI MBARUKU VS STATE LAW OFFICE, BENSON MOSONIK & OTHERS which suit is actively pending hearing in this court.
k. That this Honourable Court be pleased to grant any other orders that it may seem fit and just to ensure the ends of Justice are met.
l. Costs of this application be borne personally by the parties found culpable for the fraud, collusion, misrepresentation and non-disclosure of material facts.
7. The application was premised on the grounds, testimonial facts and averments made out from the face of the application and the 26 Paragraphed annexed supporting affidavit of MASUDI ALI MBARUKU, the Applicant herein. The Affiant averred as follows that:-
a. He had authority to claim the suit on behalf of the late Masudi Mbaruku, who was the first registered owner of all that parcel of land registered as Kwale/Galu Kinondo/616 before it was sub - divided by the respondents. Annexed and marked as “MAM - 1 and 2” were copies of the Certificate of Death and Limited Grant Ad Litem dated 12 th November, 2025).
b. The late Masudi Mbaruku had acquired registration of the suit property as the first registered owner allottee on 15 th November, 1974 and was awaiting issuance of the title deed, but he died before it was issued. Annexed and marked as “MAM - 3 and 4” were copies of the Adjudication Record and Certified copy of the Green Card for the suit property confirming the deceased was the first allottee.
c. The Land Register had been fraudulently interfered with by the 3 rd Respondent in collusion with the 1 st and 2 nd Respondents, and illegal entries were made purporting that the deceased had transferred the suit property to third parties who were non - existing persons, with the intention of concealing the illegalities and fraud as to how the 3 rd Respondent acquired registration of the suit property.
d. The deceased had not transferred the suit property to any person during his lifetime since he had not been issued with a title deed that would have enabled him to validly enter into a transaction to transfer his interest in the suit property, where the family had been living since childhood.
e. The deceased had never confided to him or any member of the family that he had transferred their ancestral land, and they only came to learn of the illegal and fraudulent dealings on the land register in the year 2025.
f. After realizing the illegal and fraudulent dealings on the land register, he had instructed his advocates to institute a civil suit against all the alleged previous owners of the suit property seeking cancellation of the illegal entries on the land register. Annexed and marked as “MAM - 5” were copies of the pleadings in the civil suit “ECLC No. 121 of 2025 – Kwale, Masudi Ali Mbaruku – Versus - State Law Office, Benson Mosonik & Others”.
g. He had opted to file that suit so that the Court would have the benefit of evidence from all the previous owners before making an informed decision, and later filed the present application seeking the orders herein, since the suit herein was initiated through Originating Summons and could not adequately address the issues in dispute without the benefit of all the parties involved, as opposed to a suit instituted by way of a Plaint.
h. It would have been in the interest of justice to have the orders sought granted and the proceedings herein stayed pending hearing and determination of the main suit, since issues of fraud could not be adequately addressed in an originating summons and in the absence of all the parties involved in the fraud adducing their evidence.
i. On the 23 rd July, 2025, a Consent Judgment had been recorded in the matter to the effect that the 1 st to 3 rd Respondents were to share all that parcel of land known as Kwale/Galu Kinondo/616 as per the terms of the said consent. Annexed and marked as “MAM – 6 (a) and 6 (b)” was a copy of the order dated 24 th July, 2025 and the Respondents’ consent that was adopted.
j. At the time of recording the said consent, the parcel of land registered as Kwale/Galu Kinondo/616 had already been sub - divided and therefore did not exist as a registrable interest, and was incapable of being allocated to the 1 st to 3 rd Respondents. Annexed and marked as “MAM - 7” was a copy of the Land Register/Green Card confirming the suit property had been sub - divided into 12 portions on 24 th March, 2025 and registered as Kwale/Galu Kinondo/4757 to 4768).
k. Annexed and marked “MAM - 8” was a bundle of title deeds evidencing the subdivisions, and that the subject property was not available for alienation by the Court as at the date of recording the Consent Judgment.
l. The 1 st to 3 rd Respondents had been aware of the sub - division prior to recording the consent judgment but intentionally withheld this information from the Court, with the intent and purpose of sanitizing and legalizing the allocation and sub - division of the property between themselves.
m. The non - disclosure of material facts to this Honourable court the departure subject of the consent was nonexistent and the effect of the state consent was to mislead the Honourable court into endorsing an illegality of a property that had already been extinguished in the land register.
n. The Consent Judgment was therefore entered into fraudulently and in collusion with the intent to sanitize how the 1 st to 3 rd Respondents acquired ownership of the suit property and defraud the Applicant of the suit property.
o. It was a fraudulent fundamental principle in law that fraud vitiates a Constant Judgment recorded between the parties and also effects third parties acting on an illegal consent judgment that including any dealings arising out of a fraudulent and illegal Consent Judgment.
p. It was in the interest of justice that the 4 th Respondent be someone through the advocates on record and be cross examined on oath to establish his knowledge and participation in the fraudulent recording of the consent Judgment which would also establish to this court that the Consent Judgment entered herein was illegal and fraudulent.
q. As a result of the corrupt scheme and the unprocedural Consent Judgment, an order was issued and the Land Registrar in collusion with the 1 st and 3 rd Respondents proceeded to register the order and issue a Certificate of Title to the 1 st and 3 rd Respondents in total disregard of the terms of the order by issuing the 1 st and 3 rd Respondents with a Certificate of Title measuring 7.9 acres(i.e. 3.2 Ha) as opposed to 7 acres as directed by the Court. Annexed and marked as “MAM – 9” was a copy of the Certificate of Title and a Certificate of Official search in joint names of the 1 st to 3 rd Respondents.
r. After acquiring registration the 1 st to 3 rd Respondents later sub - divided the suit property and it into two ( 2 ) portions which were registered as KWALE/GALU KINONDO/5059 that was registered in the names of the 3 rd Respondent and KWALE/GALU KINONDO/5060 that was registered in the joint names of the 1 st and 2 nd Respondents.
s. According to the Affiant after acquiring registration the 1 st and 2 nd Respondents hurriedly started the process of sub - diving all that parcel of land registered as KWALE/GALU KINONDO/5060 into 48 portions and transferred it to MVUTO REAL ESTATE LIMITED a company dealing in real estate and it had started advertising and selling the sub - divided properties to third parties without making full disclosure that there was a pending civil suit in “the Environment and Land Court in Kwale being ECLC No. 121 of 2025 - KWALE, MASUDI ALI MBARUKU – Versus - STATE LAW OFFICE, BENSON MOSONIK & OTHERS in which all the Respondents herein are parties to that suit. Annexed and marked as “MAM - 10,11,12 and 13 were copies of the certificate of proposed sub - division plan by Mvuto real Estate Limited dated 24 th November, 2025, Certificate of Title and Certificate of Official search both dated 23 rd January, 2026 and advertisement for sale of the sub - divided portions in the social media).
t. Unless the Court issued the orders sought, the pending suit referred to above would have been rendered nugatory, and if successful, enforcement of the orders granted would have been an uphill task since the substratum of the suit would have been altered significantly and would have involved many third parties.
u. He had been informed, which information he verily believed to be true, that on or around 11 th February, 2026, the said company had obtained consent from the Msambweni Land Control Board to subdivide all that parcel of land registered as Kwale/Galu Kinondo/5060, and that the company was in the process of transferring the same to third parties who were not aware of the multiple pending suits in respect of the suit property.
v. It would be in the interest of justice if the orders sought herein were granted and the court to give directions on whether this suit would be heard stayed pending hearing the main suit instituted by way of Plaint since they related to the same subject matter.
w. This application according to the Affiant was made in good faith and to prevent abuse of the Court process and avoid multiplicity of potential suits by third parties on the subject matter.
III. The Notice of Preliminary Objection
8. The Plaintiffs/Respondents opposed the Applicant/Intended 3 rd Defendant amended application dated 6 th March, 2026 through a Notice of Preliminary objection dated 12 th March, 2026 on the following grounds:-
a) The Application was misconceived, bad in law and an abuse of court process.
b) The Honourable Court was “ functus officio ” therefore bound by the decision entered on the 24 th July, 2025.
c) The Application offended the mandatory provisions of Section 26 of the Land Registration Act, No. 3 of 2012.
d) The Applicants had “ no locus standi” to sue as MASUDI KAROYO (deceased) and ALI MASUDI MBARUKU (deceased) were two different persons.
e) The Application offended the principles of setting aside a Consent Judgment. A Consent Judgement could only be set aside and/ or varied by the parties to the consent.
f) The Applicants’ application lacked merit and should be dismissed with costs to the Respondents.
IV. The Grounds of Opposition
9. The Plaintiffs/Respondents opposed the Intended 3 rd Defendant’s amended application dated 6 th March, 2026 by way of Grounds of Opposition dated 12 th March, 2026 wherein the opposition was on the following grounds that:-
a. The Application was misconceived, bad in law and an abuse of court process.
b. The Honourable Court was “functus officio” therefore bound by the decision entered on the 24 th July, 2025.
c. The Application offended the mandatory provisions of Section 26 of the Land Registration Act, No. 3 of 2012.
d. The Applicants had “ no locus standi” to sue as MASUDI KAROYO (deceased) and ALI MASUDI MBARUKU (deceased) were two different persons.
e. The Application offended the principles of setting aside a Consent Judgment. The Consent Judgment could only be set aside and/ or varied by the parties to the consent.
f. The Applicants’ application lacked merit and should be dismissed with costs to the Respondents.
g. The Suit offended the provision of Section 7 of the Civil Procedure Act Cap. 21 was the doctrine of res judicata.
V. The Notice of Motion application dated 6 th May, 2026
10. The Application was brought under the provisions of Order 6 of the Civil Procedure Rules, 2010; Sections 1, 1A, 3A, and 63 (c) & (e) of the Civil Procedure Act, Cap 21 Laws of Kenya; Section 13 of the Environment and Land Court Act, No. 19 of 2011; Article 40 of the Constitution of the Republic of Kenya; the inherent powers and jurisdiction of this Honourable Court; and all other enabling provisions of the law.
11. The Applicant sought the following orders:-
a. Spent.
b. That the Honourable Court be pleased to strike out and proceed to dismiss the undated Amended Notice of Motion; filed in accompaniment of Amended Certificate Of Urgency dated the 6 th day of March, 2026 filed in further accompaniment of the Supporting Affidavit sworn on the 6 th day of March, 2026 herein the same having been filed in contravention of mandatory provisions of the Civil Procedure Rules.
c. That in tandem with prayer 3 hereinbefore stated the undated Amended Notice of Motion; filed in accompaniment of Amended Certificate Of Urgency dated the 6 th day of March, 2026 filed in further accompaniment of the Supporting Affidavit sworn on the 6 th day of March, 2026 offends the mandatory provisions of Section 26 of the Land Registration Act Laws of Kenya consequently the Honourable Court ought to strike out the application.
d. That the Honourable Court be pleased to make orders that there is nothing further to be considered and/or filed in the present suit the same having been compromised and file closed vide consent of the parties.
e. That the Honourable Court be pleased to issue such further orders it deems just and expedient in their circumstances.
f. That the cost of this application and consequent dismissal be borne by the Applicant/Intended 3 rd Defendant.
12. The application was based on the grounds, testimonial facts and averments made out of the application by the 9 Paragraphed annexed supporting affidavit of KIPKOSGEI KORIR, the 1 st Defendant herein. The Affiant averred as follows that:-
a. He had read, understood, and where in doubt had been explained the contents of the undated Amended Notice of Motion application filed in accompaniment of the Amended Certificate of Urgency dated the 6 th day of March, 2026, filed in further accompaniment of the Supporting Affidavit sworn on the 6 th day of March, 2026, which explanation he verily believed to be true, and he thereby proceeded to state as follows:
b. The suit offended the mandatory provisions and import of the provision Section 7 of the Civil Procedure Act, Cap. 21 of it having been filed after the Honourable Court had already delved into and rendered Judgment in the matter.
c. He had been further advised by his Advocates, which advice he verily believed to be true, that the suit in its entirety was an invitation to the Honourable Court to sit on its own appeal, a position frowned upon by constitutionalism, which invitation the Honourable Court ought to have immediately declined.
d. From inception, the undated Amended Notice of Motion application filed in accompaniment of the Amended Certificate of Urgency dated the 6 th day of March, 2026, filed in further accompaniment of the Supporting Affidavit sworn on the 6 th day of March, 2026, was ab initio and dead on arrival, the same having been closed, and that there was nothing further that could accrue from the present suit, the consent having not been challenged in any way.
e. He had been advised by his Advocates, which advice he verily believed to be true, that the Civil Procedure Rules, 2010 and indeed the law as espoused and mandatory to the present proceedings depicted a scenario that an Amended Supporting Affidavit was not an immutable statement of oath and could not in any way support an application. In fact, apart from there being no leave granted to file such amendments, the parties before the Honourable Court did not have any locus to progress the suit any further, which was exactly the predicament the Honourable Court was confronted with, and there was no other recourse other than dismissal.
f. It was further imperative to progress the advice from Counsel, which advice he verily believed to be true, that the Estate of Masudi Mbaruku was neither a party nor en-suited in the present proceedings, and that the same parties were deeply engrossed in another case of:- “ Kwale Environment and Land Case No. E121 of 2025” , by their own admission, thus rendering the present suit void.
g. He further deponed that a challenge to the consent, which the said Estate was not a party to, bespoke an attempt to engage the Honourable Court in a matter in which the Court was already functus officio.
h. The affidavit was made in support of the application filed, and that what was deponed therein above was true to the best of his knowledge and belief, save for matters of information in which case the source was disclosed where appropriate.
VI. The Supplementary Affidavit by the Applicant/Intended 3 rd Defendant
13. The Applicant/Intended 3 rd Defendant filed a 20 Paragraphed Supplementary Affidavit which he swore himself on 22 nd May, 2026 wherein the Affiant averred as follows that:-
a. He had read, understood and been explained to the contents of the grounds of opposition and the Notice of the Preliminary objection filed by the 1 st Respondent dated 12 th March, 2026. He had also read to the Notice of Motion application by the 3 rd and 4 th Respondents dated 6 th May, 2026 and wished to respond to it as follows:
b. The Preliminary Objection and the Grounds of Opposition dated 12 th March, 2026 were incompetent as they raised contested matters rather that pure point of law, therefore, they did not qualify as proper Preliminary Objection and Grounds of Opposition.
c. This Honourable Court was clothed with residual and inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21 to set aside the fraudulent or illegal Judgment dated 24 th July, 2025, therefore the doctrine of functus officio does not arise in the current circumstance for the reasons stated hereunder;
a) The Applicant was directly affected by the Consent Judgment and decree of the court thus setting it a side shall afford him the right to fair hearing as espoused in Article 50 of the Constitution of Kenya;
b) The Consent Judgment was procured through fraud and illegality due to material non – disclosure thus the Respondent misled this Honourable Court into adopting the illegal consent;
c) The Respondents failed to disclose to this Honourable Court the glaring error on the citation of the parties of the 2 nd Respondent, (Antony Ngugi Mbage), according to the initial originating summons dated 30 th May, 2025 was expunged as a party to this case therefore the order of the Court ought not to have borne his name. (Annexed and marked as “MAM – 1(a) and (b)” was a copy of the Originating Summon dated 30 th May, 2025 and the Amended Originating Summons dated 11 th July, 2025).
d) A Consent Judgment was vitiated just like any other contract by fraud, collusion if it affects the parties to that suit, the same rule applied if the Consent Judgment affects a non - party to the suit.
e) This Honourable Court had inherent jurisdiction to bypass the doctrine of functus in order to do substantive justice particularly in this case where the Applicant has pleaded fraud against the suit property which is his beneficial right.
f) The doctrine of functus officio could not be used to sanitize fraud, concealment of material fact and illegality.
g) The 1 st and 2 nd Respondents misled the Court that they lived on the suit property for more than 12 years and had invested on it which was untruth, the Applicant had been utilizing the suit property and had never seen the 1 st and 2 nd Respondents therefore the Affiant prayed for the opportunity to present the Affiant case thus unravel the fraudulent activities of the Respondents herein.
h) The doctrine of functus officio was not a shield against fraud, particulars of fraud as follows amongst them, the suit property, Kwale/Galu Kinondo/616 did not exist as it had been sub - divided into 12 sub plots, the Respondents failed to disclose to court that the suit property did not exist, that the Respondent were untruth in that they failed to reveal that they did not live of the suit property.
d. The doctrine of functus officio could not be a defence to shield or sanitize Respondents who had un - procedurally, through fraud and illegality procured the suit property which was the inheritance of the Applicant and other family members. Further invite this Honourable Court to invoke the common law principle to wit fraud vitiate everything' to set aside its previous orders and had this matter meritoriously heard and determined.
e. This Honourable Court had unfettered jurisdiction to stay/ set aside its previous orders/judgment and Decrees in order to afford the Applicant substantive justice based on the merits of the case.
f. The title deeds issued to the Respondents could be impeached pursuant to the provisions of Section 26 (1) (a) and (b) of the Land registration Act, No. 3 of 2012 which were the very grounds the Applicant case was anchored upon. Further, the Applicant has elucidated the elements of fraud committed by the Respondents in his pleadings marked as “MAM – 5” of the Amended Notice of motion application dated 6 th March, 2026.
g. Before filing of this suit, the Applicant secured the Grant Letters of Administration Ad Litem to sue on behalf of the estate of his father, Ali Masudi Karoyo, Ali Masudi Mbaruku deceased. The issue as to whether Ali Masudi Karoyo and Ali Masudi Mbaruku was one or two people was a factual issue that calls for evidence which could be fully canvassed at the hearing of the main suit. The Respondents were put to strict proof thereof that the above-mentioned person was not known by the name, Ali Masudi Karoyo also Ali Masudi Mbaruku
h. Further response to ground number 4 of the Grounds of Opposition, the Applicant averred that the Assistant Chief and the Area Chief confirmed that the Affiant’s father was known as Ali Masudi Karoyo and Ali Masudi Mbaruku. Annexed and marked as “MAM - 2 (a) and (b)” was a letter by the Assistant Chief dated 11 th September, 2025, the letter by the Area Chief dated 27 th April, 2026.
i. The Applicant’s mother, Mishi Ali Mbaruku, who had been married for more than 50 years, knew that her husband, the Affiant’s father, was called Ali Masudi Karoyo, Ali Masudi Mbaruku, and Masudi Mbaruku, which were names of one and the same person. The Respondents were put to strict proof of their contention that the names Ali Masudi Karoyo and Ali Masudi Mbaruku referred to two different people. Annexed and marked as “MAM – 3” was a copy of the affidavit of marriage and names dated 8 th March, 2026.
j. The Affiant had been informed by his advocate on record, which information he verily believed to be true, that locus standi as raised by the Respondents was misplaced for the reason that a deceased person had no legal personality to sue in his name. The question of locus standi only arose with respect to the Applicant, who acted on behalf of the Estate of Ali Masudi Karoyo also known as Ali Masudi Mbaruku and Masudi Mbaruku, subject to the letters of administration ad litem dated 12 th November, 2025. (“Trouistik Union International & Another – Versus - Jane Mbeyu & Another [1993] eKLR” ).
k. The Applicant denied in toto the Respondents’ interpretation of the provision of Order 24 of the Civil Procedure Rules, 2010 which deals with abatement of suits. He had been advised by his advocate, which advice he verily believed to be true, that the Applicant was not a party to the suit filed by the Respondents, and therefore the principle of abatement did not bind him.
l. On the issue of multiplicity of suits, the Affiant deponed that the Applicant filed the present suit because his interest in the land had been defeated by the impropriety of the Respondents, who concealed the fact that parcel Kwale/Galu Kinondo/616 (the mother title) was non-existent at the time the Respondents filed ELC E002/2025 (OS), the pro
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