1. Before this Court is a Notice of Motion brought under certificate of urgency dated 15th August 2025 filed contemporaneously with a Petition of even date by the Petitioner/Applicant, James Maruti, seeking, among other orders, that this Court be pleased to set aside the judgment, decree and vesting orders issued in Bungoma CMCC No. 185 of 2006 and to stay execution of the said orders pending the hearing and determination of the Petition. The Application is supported by the Applicant’s affidavit sworn on 15th August 2025 and a further affidavit sworn on 24th October 2025. The said Application is opposed vide a Replying Affidavit and written submissions filed on behalf of the Respondents.
2. The background to the dispute is largely uncontested. The Applicant entered into a land sale agreement with the 1st Respondent for the sale of one (1) acre out of land parcel number BOKOLI/CHWELE/1329 at a consideration of Kenya Shillings One Hundred and Seventy-One Thousand (Kshs. 171,000/=), part of which was paid. A dispute arose following the collapse of the transaction.
3. As a consequence, the 1st Respondent filed Bungoma CMCC No. 185 of 2006 seeking a refund of the purchase price paid. The matter was heard and Judgment was delivered on 13th June 2007 in favour of the 1st Respondent. The Applicant did not appeal against the said judgment.
4. The decree was subsequently executed through attachment and sale of the suit land by public auction, at which the 2nd Respondent emerged as the purchaser. Vesting orders were thereafter issued and the suit land was subsequently transferred to the 3rd Respondent.
5. The Applicant also instituted Kimilili SRMCC No. 75 of 2010, which was later transferred to Bungoma as ELC No. 128 of 2013. That suit was dismissed for want of prosecution on 19th May 2014. No appeal was also preferred against the dismissal.
6. It is against that background that the Applicant has now approached this Court by way of a constitutional Petition, alleging violation of his rights under Articles 40 and 50(1) of the Constitution.
7. The Applicant submits that the judgment in CMCC No. 185 of 2006 was entered ex parte, that he was not accorded a fair hearing due to the mistake of his advocate, and that the court erred in vesting one (1) hectare as opposed to one (1) acre. He invokes Order 10 Rule 11 of the Civil Procedure Rules and urges the Court to exercise its discretion to set aside the judgment and preserve the suit land.
8. The Respondents oppose the Application and the Petition, contending that the same are incompetent, res judicata and an abuse of court process. They submit that this Court lacks jurisdiction to set aside judgments of courts of concurrent jurisdiction or to grant stay of execution where no appeal exists. They further contend that the Court is functus officio and that the constitutional jurisdiction of the Court is being improperly invoked to reopen matters that were conclusively determined many years ago.
9. Having considered the pleadings, affidavits, submissions and authorities cited by the parties, the Court is of the view that the following issues arise for determination:
a) whether this Court has jurisdiction to entertain the Application and the Petition;
b) whether the matter is barred by the doctrine of res judicata and the principle of functus officio;
c) whether the Applicant has met the threshold for grant of stay of execution;
d) whether the impugned judgment, decree and vesting orders are liable to be set aside; and
e) whether any violation of Articles 40 and 50(1) of the Constitution has been demonstrated.
10. Jurisdiction is the cornerstone upon which judicial authority rests. A court must satisfy itself that it has jurisdiction before taking any further step. This principle was firmly stated in the case of; Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1.
11. The Applicant is inviting this Court to interrogate and set aside a judgment delivered by a Magistrate’s Court in 2007 and consequential orders that were executed many years ago. This Court derives its jurisdiction from Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act. That jurisdiction does not extend to exercising appellate or supervisory powers over final decisions of courts of concurrent jurisdiction.
12. The constitutional framing of the Petition cannot be used to confer jurisdiction where none exists. As stated by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR, constitutional litigation should not be employed as a substitute for appeal or review.
13. The record before the Court shows that issues relating to the suit land were the subject of litigation in Bungoma CMCC No. 185 of 2006, Kimilili SRMCC No. 75 of 2010 and Bungoma ELC No. 128 of 2013, all of which were finally determined. The Applicant did not appeal against any of the decisions rendered therein.
14. Section 7 of the Civil Procedure Act bars this Court from re-opening matters that have been conclusively determined between the same parties or those claiming under them. In addition, this Court is functus officio in respect of ELC No. 128 of 2013, having rendered a final determination therein.
15. On the prayer for stay of execution, stay under Order 42 Rule 6 of the Civil Procedure Rules is ordinarily granted in aid of an appeal. In the present case, no appeal has been filed. The decrees complained of were fully executed and third-party rights have since crystallised.
16. As was held in James Wangalwa Joseph Simiyu v Agnes Naliaka Cheseto [2012] eKLR, execution, even when completed, does not by itself amount to substantial loss warranting the grant of stay.
17. The Applicant also relies on Order 10 Rule 11 of the Civil Procedure Rules to seek the setting aside of the judgment. That provision empowers the court which entered a default judgment to set it aside. The judgment in CMCC No. 185 of 2006 was a regular judgment and was never challenged by way of appeal or review.
18. This Court lacks jurisdiction to set aside that judgment. Allegations of advocate negligence, even if established, do not invalidate a lawful judgment. The appropriate remedy, if any, lies elsewhere.
19. With regard to the alleged violation of constitutional rights, Article 50(1) guarantees the right to a fair hearing but does not entitle a party to reopen litigation indefinitely. Article 40 does not protect property that has been lawfully acquired through court process adverse to the claimant, as expressly provided under Article 40(6) of the Constitution.
20. The Applicant has not demonstrated any violation of his constitutional rights. The Petition and Application, viewed holistically, amount to an attempt to reopen finalized litigation through constitutional disguise, which offends the overriding objectives under sections 1A and 1B of the Civil Procedure Act.
21. In light of the foregoing, this Court finds that it lacks jurisdiction to grant the orders sought, that the matter is res judicata, that the Court is functus officio, and that the Applicant has not met the threshold for grant of stay or for setting aside the impugned judgment and orders.
22. Consequently, the Notice of Motion dated 15th August 2025 as well as the Petition herein are dismissed in their entirety.
23. Costs shall follow the event and are awarded to the Respondents.
DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 15th DAY OF December, 2025.
HON. JUSTICE ENOCK C. CHERONOJUDGE
In the presence of;
1. Mr. Alubala for the Respondents.
2. M/S Akwabi H/B for Mr. Walubengo for the Applicant.
3. Bett C/A.