Timbwani Baptist Academy and Timbwani Junior Secondary School suing through their Chairperson/Secretary/Treasurer has come to court vide application dated 10th March 2026 seeking orders that:
1. THAT this Honourable Court be pleased to grant a stay of execution of the Judgment and all consequential orders issued in this matter pending the hearing and determination of this Application.
2. THAT this Honourable Court be pleased to grant the Defendants leave to enter appearance and to file and serve their Statements of Defence and Counterclaim out of time.
3. THAT upon grant of leave, the Defendants be granted fourteen (14) days or such other period as this Honourable Court may deem fit to file and serve their Statements of Defence, Counterclaim and all accompanying pre-trial documents.
4. THAT this Honourable Court be pleased to set aside and/or vary the proceedings to the extent necessary to allow the Defendants to fully participate in the proceedings and ventilate their Defence and Counterclaim.
5. THAT this Honourable Court be pleased to set aside the Judgment delivered in ELC No. 52 of 2019 on 15th October 2025, and/or vary the proceedings to the extent necessary to allow the Defendants to fully participate in the proceedings and ventilate their Defence and Counterclaim, on the ground that the Defendants were not afforded a fair opportunity to be heard and delays in filing Defence and Counterclaim were occasioned by procedural errors and negligence of prior advocates.
6. THAT pending the hearing and determination of this Application, the Plaintiff, her agents, servants and/or any person acting under her authority be restrained from evicting, demolishing structures, interfering with possession, or in any manner dealing with the Defendants’ occupation of the suit property known as Mombasa/Block I/ MS/ 1668 and the adjoining property Mombasa/Block I/ MS/1750.
7. THAT this Honourable Court be pleased to grant such further or other orders as it may deem fit and just for the ends of justice, including preservation of the Defendants' homes, matrimonial residences, burial sites and community institutions situated on the said properties.
8. THAT the costs of this Application be in the cause.
The application is based on grounds;
1. THAT unless this Honourable Court urgently intervenes and grants the orders sought herein, the Defendants stand to suffer imminent and irreparable harm as execution of the Judgment herein threatens to result in the demolition of homes, destruction of schools, disturbance of matrimonial residences, and desecration of burial sites belonging to the Defendants and their families, The Defendants have resided on the said properties for several decades and have established permanent homes, family dwellings, and community institutions thereon. Eviction and demolition would therefore occasion irreversible damage that cannot be adequately remedied through monetary compensation. Such execution would violate the Defendants' constitutionally protected rights under Articles 40, 43 and 53 of the Constitution of Kenya, which safeguard the right to property, the right to accessible and adequate housing, and the protection and welfare of children.
2. THAT unless the orders sought herein are granted, the substratum of this dispute will be irreparably destroyed before the Court has an opportunity to fully determine the issues in controversy, Execution of the Judgment would lead to demolition of homes, destruction of community institutions, and displacement of families who have occupied the property for decades. Such actions would permanently alter the character of the land and render the Defendants' claims, including their claim for adverse possession and beneficial interest, nugatory and incapable of meaningful enforcement. It is therefore necessary for this Honourable Court to preserve the subject matter of the dispute pending the determination of this application
3. THAT the Defendants have not been accorded a meaningful opportunity to be heard on critical issues relating to the occupation, status, boundaries and use of Mombasa/B10ck I/ MS/ 1750, which parcel is distinct from the suit property and upon which several Defendants reside and operate community institutions. The failure to hear the Defendants on these material issues amounts to a violation of the fundamental principles of natural justice, particularly the doctrine of audi alteram partem and is contrary to the constitutional guarantee of a fair hearing enshrined under Article 50(1) of the Constitution of Kenya.
4. THAT the Defendants have a bona fide Defence and Counterclaim raising substantial and triable issues that merit full judicial interrogation. These include the proper identification and boundaries of Mombasa/Block 1/MS/1668 and Mombasa/B10ck 1/MS/1750, the legality of the Plaintiff's claim over the land, the Defendants' long occupation and beneficial interest in the property, and their entitlement to claim of ownership through adverse possession. These issues cannot be fairly resolved without granting the Defendants an opportunity to present their Defence and Counterclaim before this Honourable Court.
5. THAT the Defendants have been in open, continuous, peaceful and o uninterrupted occupation of portions of the land for several decades, during which period they have established homes, matrimonial of residences, burial sites and community institutions. Such occupation has been visible and notorious and gives rise to significant legal questions including claims based on adverse possession and beneficial ownership. These issues raise serious questions of law and fact which ought to be determined after hearing the Defendants fully.
6. THAT the delay in filing the Defendants' Defence and Counterclaim was occasioned primarily by mistakes and procedural lapses attributable to the Defendants' previous advocates who failed to comply with court directions and timelines despite having been duly instructed by the Defendants. The Defendants themselves remained keen and desirous of defending the suit and providing necessary information to their advocates. It is a well-established principle of law that litigants should not be punished for the inadvertent mistakes of counsel. This Honourable Court therefore has the discretion under Order 8 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 95 of the Civil Procedure Act to enlarge time and permit the filing of pleadings out of time.
7. THAT the land in question hosts community educational institutions including Timbwani Baptist Academy and Timbwani Junior Secondary School, which have operated for decades and serve numerous children within the surrounding community, many of whom come from underprivileged backgrounds. Execution of the Judgment would disrupt the operations of these institutions and deprive the affected children of access to education, thereby undermining the constitutional guarantees under Articles 43 and 53 of the Constitution, which recognize the right to education and the paramountcy of the best interests of the child.
8. THAT execution of the Judgment would disproportionately affect minors, vulnerable persons and families residing on the property. Many school going children would be displaced from their learning environment while families would be rendered homeless. Such action would offend the constitutional principle that the best interests of the child shall be of paramount importance in every matter concerning the child, as provided under Article 53(2) of the Constitution of Kenya.
9. THAT the balance of convenience overwhelmingly tilts in favour of preserving the status quo pending the determination of this application, granting a stay of execution will not occasion undue prejudice to the o Plaintiff, whereas refusal to grant the same would result in irreversible loss through demolition of homes, destruction of institutions and displacement of families.
10. THAT this Honourable Court is vested with inherent jurisdiction under o Section 3A of the Civil Procedure Act to make such orders as may be o necessary for the ends of justice and to prevent abuse of the court process. zo In the circumstances of this case, allowing execution to proceed without hearing the Defendants would occasion grave injustice and defeat the ends of justice.
11. THAT Article 159(2)(d) of the Constitution of Kenya obligates this Honourable Court to administer justice without undue regard to procedural technicalities and to ensure that disputes are determined on their substantive merits. Denying the Defendants an opportunity to defend the suit due to procedural lapses occasioned by previous counsel would offend the constitutional principles of fairness, equity and access to justice.
The supporting affidavit is sworn by MR. Lucas Njagi Njeru.
The respondent has filed grounds of opposition on the basis that the application is res judicata. The court directed parties to file submissions and gave a date for the ruling. I have perused the electronic record of the file buthave not seen the submissions.
In Kenyan law, res judicata is a legal doctrine that prevents parties from re-litigating a claim or issue that a court of competent jurisdiction has already conclusively decided. The doctrine is anchored in Section 7 of the Civil Procedure Act,which ensures the finality of judgments, saves judicial resources, and prevents a multiplicity of lawsuits. [
For a Kenyan court to uphold a plea of res judicata, the following five elements must be satisfied:-
1. Final Judgment: There must be a former conclusive judgment or order from the court.
2. Competent Jurisdiction: The previous court must have had the legal authority to hear and decide the matter.
3. Identity of Parties: The parties in the current suit must be the same (or their legal successors) as the ones in the previous suit.
4. Same Title: Both lawsuits must be litigated under the same legal right or title.
5. Substantially the Same Cause of Action: The matter directly in issue in the current case must have been directly and substantially in issue in the former case. Under Kenyan jurisprudence, the doctrine also extends to matters that could have and should have been raised in the previous suit, but were not. Because it affects the court's jurisdiction to hear a case, it is typically raised as a preliminary objection to have the suit struck out in limine (at the very beginning of the trial)
I do agree with the respondent that the application herein is res judicata. This court has twice heard applications by the said parties on the same issues of stay of execution and that the parties be allowed to file their defence but the same have been dismissed. The respondent has demonstrated the sameness of parties, sameness of the issues, sameness of title and that that the matter is before the same court. I do find that the application is res judicata the defendant’s notice of motion dated 17.8.2023 the subject of the court ruling dated 6.12.2023 and the notice of motions dated 20.2.2024 subject to court ruling dated 23.9.2024 and notice of motion dated 25.2.2023 which was subject to court ruling dated 25.2.2026 raised the same issues by the same parties before the same court. Litigation must come to an end. The application is dismissed with costs.
1. THAT this Honourable Court be pleased to grant a stay of execution of the Judgment and all consequential orders issued in this matter pending the hearing and determination of this Application.
2. THAT this Honourable Court be pleased to grant the Defendants leave to enter appearance and to file and serve their Statements of Defence and Counterclaim out of time.
3. THAT upon grant of leave, the Defendants be granted fourteen (14) days or such other period as this Honourable Court may deem fit to file and serve their Statements of Defence, Counterclaim and all accompanying pre-trial documents.
4. THAT this Honourable Court be pleased to set aside and/or vary the proceedings to the extent necessary to allow the Defendants to fully participate in the proceedings and ventilate their Defence and Counterclaim.
5. THAT this Honourable Court be pleased to set aside the Judgment delivered in ELC No. 52 of 2019 on 15th October 2025, and/or vary the proceedings to the extent necessary to allow the Defendants to fully participate in the proceedings and ventilate their Defence and Counterclaim, on the ground that the Defendants were not afforded a fair opportunity to be heard and delays in filing Defence and Counterclaim were occasioned by procedural errors and negligence of prior advocates.
6. THAT pending the hearing and determination of this Application, the Plaintiff, her agents, servants and/or any person acting under her authority be restrained from evicting, demolishing structures, interfering with possession, or in any manner dealing with the Defendants’ occupation of the suit property known as Mombasa/Block I/ MS/ 1668 and the adjoining property Mombasa/Block I/ MS/1750.
7. THAT this Honourable Court be pleased to grant such further or other orders as it may deem fit and just for the ends of justice, including preservation of the Defendants' homes, matrimonial residences, burial sites and community institutions situated on the said properties.
8. THAT the costs of this Application be in the cause.
The application is based on grounds;
1. THAT unless this Honourable Court urgently intervenes and grants the orders sought herein, the Defendants stand to suffer imminent and irreparable harm as execution of the Judgment herein threatens to result in the demolition of homes, destruction of schools, disturbance of matrimonial residences, and desecration of burial sites belonging to the Defendants and their families, The Defendants have resided on the said properties for several decades and have established permanent homes, family dwellings, and community institutions thereon. Eviction and demolition would therefore occasion irreversible damage that cannot be adequately remedied through monetary compensation. Such execution would violate the Defendants' constitutionally protected rights under Articles 40, 43 and 53 of the Constitution of Kenya, which safeguard the right to property, the right to accessible and adequate housing, and the protection and welfare of children.
2. THAT unless the orders sought herein are granted, the substratum of this dispute will be irreparably destroyed before the Court has an opportunity to fully determine the issues in controversy, Execution of the Judgment would lead to demolition of homes, destruction of community institutions, and displacement of families who have occupied the property for decades. Such actions would permanently alter the character of the land and render the Defendants' claims, including their claim for adverse possession and beneficial interest, nugatory and incapable of meaningful enforcement. It is therefore necessary for this Honourable Court to preserve the subject matter of the dispute pending the determination of this application
3. THAT the Defendants have not been accorded a meaningful opportunity to be heard on critical issues relating to the occupation, status, boundaries and use of Mombasa/B10ck I/ MS/ 1750, which parcel is distinct from the suit property and upon which several Defendants reside and operate community institutions. The failure to hear the Defendants on these material issues amounts to a violation of the fundamental principles of natural justice, particularly the doctrine of audi alteram partem and is contrary to the constitutional guarantee of a fair hearing enshrined under Article 50(1) of the Constitution of Kenya.
4. THAT the Defendants have a bona fide Defence and Counterclaim raising substantial and triable issues that merit full judicial interrogation. These include the proper identification and boundaries of Mombasa/Block 1/MS/1668 and Mombasa/B10ck 1/MS/1750, the legality of the Plaintiff's claim over the land, the Defendants' long occupation and beneficial interest in the property, and their entitlement to claim of ownership through adverse possession. These issues cannot be fairly resolved without granting the Defendants an opportunity to present their Defence and Counterclaim before this Honourable Court.
5. THAT the Defendants have been in open, continuous, peaceful and o uninterrupted occupation of portions of the land for several decades, during which period they have established homes, matrimonial of residences, burial sites and community institutions. Such occupation has been visible and notorious and gives rise to significant legal questions including claims based on adverse possession and beneficial ownership. These issues raise serious questions of law and fact which ought to be determined after hearing the Defendants fully.
6. THAT the delay in filing the Defendants' Defence and Counterclaim was occasioned primarily by mistakes and procedural lapses attributable to the Defendants' previous advocates who failed to comply with court directions and timelines despite having been duly instructed by the Defendants. The Defendants themselves remained keen and desirous of defending the suit and providing necessary information to their advocates. It is a well-established principle of law that litigants should not be punished for the inadvertent mistakes of counsel. This Honourable Court therefore has the discretion under Order 8 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 95 of the Civil Procedure Act to enlarge time and permit the filing of pleadings out of time.
7. THAT the land in question hosts community educational institutions including Timbwani Baptist Academy and Timbwani Junior Secondary School, which have operated for decades and serve numerous children within the surrounding community, many of whom come from underprivileged backgrounds. Execution of the Judgment would disrupt the operations of these institutions and deprive the affected children of access to education, thereby undermining the constitutional guarantees under Articles 43 and 53 of the Constitution, which recognize the right to education and the paramountcy of the best interests of the child.
8. THAT execution of the Judgment would disproportionately affect minors, vulnerable persons and families residing on the property. Many school going children would be displaced from their learning environment while families would be rendered homeless. Such action would offend the constitutional principle that the best interests of the child shall be of paramount importance in every matter concerning the child, as provided under Article 53(2) of the Constitution of Kenya.
9. THAT the balance of convenience overwhelmingly tilts in favour of preserving the status quo pending the determination of this application, granting a stay of execution will not occasion undue prejudice to the o Plaintiff, whereas refusal to grant the same would result in irreversible loss through demolition of homes, destruction of institutions and displacement of families.
10. THAT this Honourable Court is vested with inherent jurisdiction under o Section 3A of the Civil Procedure Act to make such orders as may be o necessary for the ends of justice and to prevent abuse of the court process. zo In the circumstances of this case, allowing execution to proceed without hearing the Defendants would occasion grave injustice and defeat the ends of justice.
11. THAT Article 159(2)(d) of the Constitution of Kenya obligates this Honourable Court to administer justice without undue regard to procedural technicalities and to ensure that disputes are determined on their substantive merits. Denying the Defendants an opportunity to defend the suit due to procedural lapses occasioned by previous counsel would offend the constitutional principles of fairness, equity and access to justice.
The supporting affidavit is sworn by MR. Lucas Njagi Njeru.
The respondent has filed grounds of opposition on the basis that the application is res judicata. The court directed parties to file submissions and gave a date for the ruling. I have perused the electronic record of the file buthave not seen the submissions.
In Kenyan law, res judicata is a legal doctrine that prevents parties from re-litigating a claim or issue that a court of competent jurisdiction has already conclusively decided. The doctrine is anchored in Section 7 of the Civil Procedure Act,which ensures the finality of judgments, saves judicial resources, and prevents a multiplicity of lawsuits. [
For a Kenyan court to uphold a plea of res judicata, the following five elements must be satisfied:-
1. Final Judgment: There must be a former conclusive judgment or order from the court.
2. Competent Jurisdiction: The previous court must have had the legal authority to hear and decide the matter.
3. Identity of Parties: The parties in the current suit must be the same (or their legal successors) as the ones in the previous suit.
4. Same Title: Both lawsuits must be litigated under the same legal right or title.
5. Substantially the Same Cause of Action: The matter directly in issue in the current case must have been directly and substantially in issue in the former case. Under Kenyan jurisprudence, the doctrine also extends to matters that could have and should have been raised in the previous suit, but were not. Because it affects the court's jurisdiction to hear a case, it is typically raised as a preliminary objection to have the suit struck out in limine (at the very beginning of the trial)
I do agree with the respondent that the application herein is res judicata. This court has twice heard applications by the said parties on the same issues of stay of execution and that the parties be allowed to file their defence but the same have been dismissed. The respondent has demonstrated the sameness of parties, sameness of the issues, sameness of title and that that the matter is before the same court. I do find that the application is res judicata the defendant’s notice of motion dated 17.8.2023 the subject of the court ruling dated 6.12.2023 and the notice of motions dated 20.2.2024 subject to court ruling dated 23.9.2024 and notice of motion dated 25.2.2023 which was subject to court ruling dated 25.2.2026 raised the same issues by the same parties before the same court. Litigation must come to an end. The application is dismissed with costs.