REPUBLIC OF KENYA
IN THE HIGH COURT AT MACHAKOS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION CONSTITUTIONAL
PETITION NO. E003 OF 2025
IN THE MATTER OF ARTICLES 19, 20, 21, 22, 23, 28, 40, AND 43 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE ALLEED VIOLATION AND/OR THREATENED VIOLATION OF THE RIGHTS OF THE PETITIONERS OF LUKENYA WEST, KATHAMA AND SYOKIMAU MAVOKO COMMUNITY
BETWEEN
1. MAVOKO MUUNDANI RESIDENTS ASSOCIATION…….……......1ST APPLICANT
2. KCB MUUNDANI RESIDENTS ASSOCIATION…………….....…...2ND APPLICANT
3. KENNEDY MITAMBO MUNYAO……………………………….....…3RD APPLICANT
4. LUCY KERUBO MOMANYI…………………………………….....…..4TH APPLICANT
5. REBBECA ATIENO OKUMU………………………………….....……5TH APPLICANT
6. ROBERT MARUTI WAKWAMA……………………………….......….6TH APPLICANT
7. MARYANNE NDUKU MUTUKU…………………………..…......……7TH APPLICANT
8. LUCY KERBO MOMANYI…………………………………….....……8TH APPLICANT
9. JULIUS MBITHI ………………………………………………….......…9TH APPLICANT
10. SYLVESTER MUNGULA MAITHA…………………………....……10TH APPLICANT
11. GEORGE KIMANI MUIRURI…………………………………….....11TH APPLICANT
12. CONELLIUS KIMEU MUTUKU…………………………….…...…12TH APPLICANT
13. SALOME HASABA WENYAA…………………………………..…13TH APPLICANT
14. SOLOMON WAMBUA NGWILI……………………………………14TH APPLICANT
15. STELLA OMBASA………………………………………………..…15TH APPLICANT
16. GEORGE GIHURU WAWEU…………………………….…………16TH APPLICANT
17. CATHERINE NDIWA MWOBIA……………………………….…..17TH APPLICANT
18. PAUL CHAHIA KISIA……………………………………………....18TH APPLICANT
19. PAUL MUKUNZU MUNYAO…………………………………..…...19TH APPLICANT
20.JOSEPH NZAU NGUNZU……………………………………………20TH APPLICANT
21. FRANCISCAR KASUSU KIMENDE……………………………...…21ST APPLICANT
22. EJIDIOUS NGARI NDAMBIRI………………………………….…22ND APPLICANT
23.MARY KAMAA MUSYOKI……………………………………..…..23RD APPLICANT
24.PHANUEL MUTUNGA MUSYOKI……………………………....…24TH APPLICANT
25.WYCLIFFE MUSEMBI LONZI…………………………………’..….25TH APPLICANT
26. SHEM OMBASO OGECHI…………………………...……..…...…26TH APPLICANT
27. SBARINA KANINI SULEIMAN………………………..………….…27TH APPLICANT
28. LILIAN N. KEESI…………………………………………………..…28TH APPLICANT
29.JOASH OGAROI OBAI………………………………………....……29TH APPLICANT
30.RICHARD KYALO…………………………………………………...30TH APPLICANT
31. FRANCIS MUSYOKA…………………………………………..……31ST APPLICANT
32.PAUL NDILO…………………………………………………….…..32ND APPLICANT
33.PETER WANJE MULANDA………………………………..…..……33RD APPLICANT
34.DAVID KATIE MUSEMBI…………………………………..…….…34TH APPLICANT
35. SAMSON KAVILI KINYUA……………………………………....…35TH APPLICANT
36.MUKUI GLADYS NYAMU……………………………………......…36TH APPLICANT
37.DANIEL KIPKEMOI YATICH………………………………....….…37TH APPLICANT
38.OYUGI DANCAN ODOYO…………………………………………38TH APPLICANT
39.PETER MUENDO MUTHUI ……………………………....…...……39TH APPLICANT
40.PHANICE ANDISI NYANGI ………………………………….……40TH APPLICANT
41. NJERU SAMUEL KAUMBUTHU……………………………....……41ST APPLICANT
42.PAUL GIRISA……………………………………………………..…42ND APPLICANT
43.ANTONYNGOLWA MUSYOKI………………………….…………43RD APPLICANT
44. SIMON KAMAU KINYUA…………………………………….……44TH APPLICANT
45.JOYCE AKINYI OMUNE……………………………………….……45TH APPLICANT
46.KATUNGE MUMO………………………………………………….46TH APPLICANT
47.ROSE NDUNGE……………………………………………….…..…47TH APPLICANT
48. EDWIN KIMEMIA……………………………………………...……48TH APPLICANT
49. LAWRENCE SAMUEL…………………………………….….....……49H APPLICANT
50.REGINA DUWA…………………………………………,,…....……50TH APPLICANT
51. YUNIA MORAA MOSE………………………………….…..………51ST APPLICANT
52. ELIZABETH MUTHONI KAMAU………………………….....……..52NDAPPLICANT
53.ALFRED BARUDI…………………………………………...………..53RD APPLICANT
54. ST. ANN INTERCOUNTY CATHOLIC CHURCH………...………54TH APPLICANT
55.JOSEPH K. MBITHI…………………………………………......……55TH APPLICANT
VERSUS
KENYA COMMERCIAL BANK LIMITED…………………….…....…1ST RESPONDENT
EAST AFRICAN PORTLAND CEMENT COMPANY LIMITED…....2ND RESPONDENT
THE HON. ATTORNEY GENERAL ………………………………….3RD RESPONDENT
AND
ZAKARIA MOHAMED LUKMAN..........................................1ST INTERESTED PARTY
ANAB MAALIM..................................................................2ND INTERESTED PARTY
JELLE DUBO ABDI.............................................................3RD INTERESTED PARTY
RULING
1. Before me are two separate applications filed by the opposing Parties herein, each seeking the exercise of my discretion to allow their respective application The first and application is dated 07/02/2025 filed by the Applicants/Petitioners and the second application is by the 1st Respondent dated 18/02/2025. I must state from the onset that the outcome of one application could effectively determine the other.
The First application
2. The application dated 07/02/2025 seeks for orders that:
1. Spent
2. Spent
3. Spent
4. Spent
5. An order directing the Respondents to recognize and respect the investments and infrastructure established by the Petitioners on the Suit Land LR 8786 and 8484/654 situated in Mavoko Municipality in Machakos County pending the hearing and determination of this Petition.
6. An order directing the 3rd Respondent to establish mechanisms and guidelines to ensure equitable access to land and prevent the exploitation of vulnerable communities in Suit Land LR 8786 and 8484/654 situated in Mavoko Municipality in Machakos County pending the hearing and determination of this petition.
7. This Honourable Court be pleased to give a mandatory injunction compelling the Respondents to engage the Petitioners on a regularization model based on reasonable terms without violating their rights through public participation pending the hearing and determination of the petition.
8. Costs be provided for.
3. The application is supported by the supporting affidavit of KENNEDY MITAMBO MUNYAO, the 3rd Applicant sworn on 07/02/2025. The Applicants aver that:
a) They have occupied and developed the Suit Land for over 15 years, during which time they have made substantial investments, including but not limited to the construction of residential dwellings, places of worship, educational institutions, and healthcare facilities.
b) The 2nd Respondent, as the initial registered proprietor of the Suit Land, was fully aware of the Petitioners' occupation and development of the land and acquiesced to the same.
c) Upon the transfer of the Suit Land to the 1st Respondent, the Petitioners engaged the 1st Respondent in discussions regarding the purchase of the land.
d) The Petitioners, being occupants of the Suit Property, engaged the 1st and 2nd Respondents in a bid to regularize their occupation through the sale of the subject property. To this end, the Respondent convened a public meeting on 13th November 2024, intended to discuss and set terms of engagement for the regularization process.
e) During the said meeting, which was attended by heavily armed administrative police, the 1st Respondent, being the beneficial owner of the property, informed the public of the general procedures expected in the regularization process, which included:
i. Registration;
ii. Validation
iii. Survey, mapping and planning;
iv. Valuation.
f) At the conclusion of the meeting, no consensus was reached on how the regularization process would be undertaken, particularly due to outstanding issues emanating from a prior regularization process undertaken by the 2nd Respondent on a portion of the Suit Properties and other neighbouring properties owned by the 2nd Respondent.
g) Notwithstanding the lack of consensus, the 1st Respondent proceeded to issue a notice to the occupants, informing them that the regularization process would commence on 18th November 2024, despite the Petitioners having written to the Respondents demanding clear and concise terms of engagement.
h) The said notice directed the Petitioners to engage the 1st Respondent as follows:
i. Payment of a deposit of Kshs.200,000 per plot, payable within three weeks of the start of the regularization process;
ii. A directive for the Petitioners to halt all development on the Suit Property.
i) The regularization process included the following steps:
a) Submission of land occupation documents to the registration office.
b) Verification and enumeration of the resident as a bona fide occupant, after which a surveyor was assigned to survey the plots.
c) Completion of the survey and issuance of a plot number and plan number by KCB;
j) Issuance of an account number for payment to KCB Bank Kenya Limited:
Bank: KCB Bank Kenya Limited
-Account Name: KCB Asset Sales Account.
-Swift Code: KCBLKENX
-Branch: Moi Avenue
-Account No: 1333515979
` -Reference: Purchaser Name & Registration Number
k) Petitioners were required to deposit Kshs.200,000 per 40 x 80 plot and submit the deposit slip to the KCB regularization office for filing.
l) The 1st Respondent failed and/or refused to issue any substantive terms of offer for the sale and acquisition of the Suit Land, including the purchase price, payment terms, or timelines. Despite this, the Petitioners were coerced to pay Kshs.200,000 per plot without clarity on the terms, with threats that failure to pay would result in the loss of their plots and any developments thereon.
m) The Petitioners aver that after paying the Kshs.200,000 and submitting the deposit slips, they were required to sign a registration form containing unconscionable conditions, including:
i. Payment of non-refundable registration fee of Kshs.200,000 to facilitate planning, survey, and valuation;
ii. Agreement to pay for the Plots after valuation without disclosure of the valuation criteria;
iii. Compliance with all terms set by KCB Bank for the regularization process;
iv. Halting further development on the property until KCB Bank officially handed it over.
n) The form further stated that by signing it, the occupant agreed to cooperate with KCB Bank management on the regularization of ownership, while preserving KCB Bank's rights as the beneficial owner of the land.
o) Some Petitioners were informed that the plots they occupied fell within a "commercial zone" and were thus barred from registering their plots, despite holding allotment letters and having developed the plots.
p) The Respondents have arbitrarily dispossessed the current occupants of their parcels and commenced construction works, including the erection of site offices and perimeter walls, under the protection of the police.
q) The actions of the Respondents have caused widespread anxiety, outcry, and confusion among the Petitioners, who have enjoyed peaceful and quiet possession of the land since 2009.
r) The Petitioners have written several letters to the Respondents requesting a meeting to discuss the regularization process, including how the purchase price was determined and for the provision of valuation reports. These letters have gone unanswered, and the requested information has not been availed to date.
s) The sale prices of the plots in the Suit Land as indicated in the agreement are extortive and grossly overvalued compared to prices offered by the Interested Part, East Africa Portland PLC, for regularized plots on adjacent land parcels LR 8784/653, LR 8784/144, and LR 8784/143 who are paying Kshs.750,000 per plot 50ft by 100ft and 650,000 per plot 40ft by 80ft
t) The Petitioners aver that the Respondents are using the guise of regularization to deny them meaningful ownership of the land through coercion, threats and intimidation, including the fear of demolitions by selling 50 by 100 plots at 5 Million which is unaffordable by the Petitioners.
u) The process undertaken by the Respondents contained unconscionable terms, which are unenforceable in law.
v) The Petitioners are ready and willing to purchase the land at the prevailing market price. However, the 1st Respondent has demanded an exorbitant purchase price far beyond the financial means of the petitioners.
w) Despite repeated requests, the 1st Respondent has failed to provide any information regarding how the purchase price was arrived at, including valuation reports, further exacerbating the Petitioners' concerns over the lack of transparency and fairness in the process.
x) That the Respondents have started denying the Petitioners access to their respective.
The Second application
4. This application dated 18/02/2025 is by the 1st Respondent and seeks for orders that:
1. Spent;
2. The Honourable Court be pleased to suspend the implementation of the ex-parte Orders issued on 10th February, 2025 pending the hearing and determination of this Application on a date to be allocated by the Court;
3. The Honourable Court be pleased to vary, discharge and/or set aside the Orders granted on 10th February, 2025;
4. Costs of the Application be provided for.
5. This second application is based upon the grounds set out in the Supporting Affidavit of LILIAN SOGO and on grounds that:
a) The impugned ex-parte orders are final in nature to the extent that they order the Respondents to recognise and respect the investments of the Petitioners on the 1st Respondent's property without a hearing;
b) The impugned ex parte Orders have the effect of limiting the 1st Respondent's proprietary rights in the subject property with finality contrary to Article 40 of the Constitution as read with Sections 24 and 25 of the Land Registration Act thus denying the 1st Respondent of an opportunity to be heard;
c) The impugned ex-parte Orders include a structural interdict directed at the Attorney General to establish mechanisms and guidelines to ensure equitable access to land and prevent exploitation of vulnerable communities, which again is in the nature of a final order that cannot be issued ex-parte;
d) In seeking the Order, the Petitioners failed to disclose to the Court the existence of a decision in rem relating to the same suit land which was issued in Machakos ELC No. 155 of 2016-East Africa Portland Cement vs Sammy Kathilu & 272 Others wherein all occupants that were not the registered proprietor and claiming through associations were determined to be trespassers.
e) This Court has the jurisdiction to grant the Orders sought.
f) It is in the interest of justice that the Orders sought herein are granted.
The Responses to the applications
6. The 1st Respondent filed a replying affidavit sworn on 01/04/2025 by LILLIAN SOGO, Head Counsel-Litigation at KCB Bank Kenya Limited, the 1st Respondent herein in opposition to the Petitioners’ application dated 07/02/2025.
7. Similarly, the 2nd Respondent filed a replying affidavit sworn on 07/04/2025 by ROSELINE OMINDE the acting Company Secretary/ Head of Legal Department of the 2nd Respondent in opposition to the Petitioners’ application dated 07/02/2025
8. The Petitioners then filed a further affidavit through KENNEDY MITAMBO MUNYAO sworn on 19/04/2025 in reply to the affidavits sworn on 01/04/2025 and 07/04/2025 by the 1st and 2nd Respondents.
9. The Interested Parties filed a replying affidavit sworn in April 2025 but without a date by ZAKARIA LUKMAN to the 1st Respondent’s application dated 18/02/2025.
10. The 3rd Respondent, the Honourable Attorney General entered appearance and filed a Memorandum of Appearance on 19/02/2025 but did not file any response or pleadings in this matter.
11. The applications were canvassed by way of written submissions. The Petitioner’s submissions are dated 28/04/2025, the 1st Respondent’s submissions are dated 14/04/2025 while the Interested Parties’ submissions are dated 12/5/2025.
12. The 2nd Respondent sought to associate themselves with the 1st Respondent’s submissions.
13. The 1st, 39th ,56th PETITIONERS (MAVOKO MUUNDANI RESIDENTS ASSOCIATION, DAVID MUSAU MUTISO & JOSEPH K. MBITHI RESPECTIVELY) withdraw the whole of their claim in the Petition as against the Respondents with no orders as to costs.
Analysis
14. I have considered the two applications as set out hereinabove, the Replying Affidavits thereof, the Grounds of Opposition and the Parties’ rival submissions. It my considered view that the determination of the 1st Respondent’s application dated 18/02/2025 which seeks to have the orders issued pursuant to the Petitioners’ application varied, discharged and/or set aside will automatically determine the Petitioners’ application dated 07/02/2025 as to whether the Petitioners are entitled to orders of interim injunction in respect to the suit properties pending the outcome of the Petition.
15. The 1st Respondent in its submissions contends that on 10th February, 2025, this Honourable Court granted prayers 2 and 3 of the Petitioners’ application dated 7th February, 2025 pending the inter-partes directions on the application. The Orders were extended on 4th March, 2025 and 20th March, 2025.
16. Prayers 2 and 3 of the application reads as follows:
“2. An Order directing the Respondents to recognise and respect the investments and infrastructure established by the Petitioners on the suit land LR 8786 and 8484/654 situated in Mavoko Municipality in Machakos County pending the hearing and determination of this application.
3. An Order directing the 3rd Respondent to establish mechanisms and guidelines to ensure equitable access to land and prevent the exploitation of vulnerable communities in suit land LR 8786 and 8484/654 situated in Mavoko Municipality in Machakos County pending the hearing and determination of this application.”
17. That the nature of the Orders coupled with the failure of the Petitioners to disclose material facts prompted the 1st Respondent to file application dated 18th February, 2025 wherein it seeks that this Honourable Court be pleased to vary, discharge and/or set aside the Orders granted on 10th February, 2025;
18. The 1st Respondent submitted that as at the date of filing their submissions, the 1st Respondent had not been served with any responses to its application.
19. The 1st Respondent submits that the sole issue for determination is whether this Honourable Court should vary, discharge and/or set aside the Orders granted on 10th February, 2025.
20. It is submitted that this Honourable Court’s authority to vary, discharge and/or set aside orders is anchored in Rule 25 of the Mutunga Rules. Rule 25 reads as follows:
“An order issued under Rule 22 may be discharged, varied or set aside by the Court either on its own motion or on application by a party dissatisfied with the order.”
21. That this authority is unfettered and discretionary in nature and therefore is to be exercised when presented with just reason to do so. This position was reiterated in the case of Northwest Capital Apartments Limited v Ohuru [2024] KEELC 3956 (KLR) wherein the Court held as follows:
“It means this court has discretionary powers to discharge, vary or set aside its own orders either on its own motion (“Suo Moto”) or on an application by a party…. From the stated provisions, it is clear that they are discretionary in nature. Thus, the unfettered discretion must be exercised judiciously, not capriciously and reasonably.”
22. The 1st Respondent submits that in the instant matter, the orders are final in nature to the extent that they order:
a) the Respondents to “recognize and respect the investments and infrastructure established by the Petitioners on the suit land LR 8786 and 8484/654”; and
b) the 3rd Respondent “to establish mechanisms and guidelines to ensure equitable access to land and prevent the exploitation of vulnerable communities in suit land LR 8786 and 8484/654.”
23. The 1st Respondent submits that the prayers ought to be granted only after allowing the Respondents an opportunity to be heard and not at the ex-parte stage. This would enable the court to determine the merits of the Petition as against the responses filed by the Respondents. This is re-affirmed by the fact that the aforementioned prayers are subject to the Petition as seen with prayers f and g of the Petition.
24. The 1st Respondent relied on the decision in Waguta v Equity Bank Limited & Another [2025] KEHC 3368 (KLR) wherein the Court opined as follows:
“By seeking the same reliefs at this interlocutory stage, the applicant was inviting this court to make final orders which would have the effect of prematurely disposing of the suit at this stage without having heard both parties on the merits or otherwise of the suit.”
25. They also relied on the Court of Appeal decision in Kenya Deposit Insurance Corporation v Richard and David Limited & Another, civil appeal 66 of 2016, [2015] KECA 4 wherein the Bench held as follows:
“It is in our jurisprudence that a Court will not at a preliminary stage determine with finality contested issues in litigation……Excepting where there are special circumstances, it is wrong for a Judge to grant at an interlocutory stage of proceedings final orders, thus disposing of the suit before parties are heard. The right to be heard is fundamental and only in extremely rare circumstances will a court of law issue orders the elect of which is to determine the suit with finality.”
26. The 1st Respondent further cited the case of Rift Cars Limited v Cheruiyot & 2 others (Civil Appeal E012 of 2023) [2023] KEHC 24457 (KLR) (16 October 2023) (Ruling), where the Court added to Kenya’s jurisprudence by opining that:
“There was a slip up by this court when it issued an interim order which however had been crafted by the Applicant as a final order since the same was the subject of the Applicant’s appeal. The order as granted was final in nature and had the effect of determining the Appeal without hearing the said Appeal. Clearly, an interim order could not at the same time be a final order.”
27. The position was reiterated in Sameja v Sal Tree Hotel Limited [2024] KEHC 14040 (KLR) wherein the Court held:
“Making a final determination at an interlocutory stage is contrary to the settled principle that a court, at an interlocutory stage, is not expected to make a final determination of the issues that will be discussed at the trial.”
28. It was submitted that noting that the orders granted by this court are subject to the Petition, they are final in nature and granted without offering the Respondents an opportunity to substantially respond to the same. It is on this basis that the 1st Respondent looks to this Honourable Court to discharge, vary and/or set aside the Orders of 10th February, 2025.
29. Further, the 1st Respondent submits that the Orders, as is, limit the 1st Respondent’s proprietary rights in the suit property contrary to Article 40 of the Constitution as read with Sections 24 and 25 of the Land Registration Act without hearing the 1st Respondent.
30. This is because the Orders determine that the Petitioners have a right in the 1st Respondent’s land warranting recognition and respect from the 1st Respondent. As exhibited by annexure KCB-1 to the application dated 18th February, 2025, the 1st Respondent is the sole proprietor of the suit land. The Petitioners on the other hand, have no legally ascertainable right in the suit land.
31. It was submitted that Article 40 of the Constitution dictates and provides for the protection of the right to property. In realizing Article 40 of the Constitution, Parliament enacted Sections 24 and 25 of the Land Registration Act which provide as follows:
“24. Interest conferred by registration
The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.
25. Rights of a proprietor
The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever.”
32. That the Constitutional and statutory provisions affirm the rights of the 1st Respondent as the registered proprietor of the suit property. These rights, as provided for by Section 26 of the Land Registration Act, may only be limited on the ground of fraud or misrepresentation to which the proprietor is proved to be a party where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
33. This court was invited to note that none of these is argued, let alone raised in the Petition. It is thus the 1st Respondent’s submission that on this basis alone, the orders ought not to have been granted for they limited the 1st Respondent’s proprietary rights without a hearing.
34. Reliance was placed on Justice Ogolla’s decision in Mohansons (Kenya) Limited v Registrar of Titles & 2 others [2017] KEELC 2730 (KLR) wherein the Court held as follows:
“There is public interest in the observance of the Rule of Law principle of Article 10 of the Constitution. The law must keep its promise to the registered proprietor that his interest in land property will be protected unless it has been proved to have been obtained through fraud or misrepresentation to which he was a party or the title document has been acquired illegally, unprocedurally or through a corrupt scheme. This not having been shown and determined in this suit, the petitioner is entitled to protection of the law.”
35. That in Mutua & 2 others (Suing as the Officials of Aimi Ma Lukenya Society) v East Africa Portland Cement Company Ltd & 5 others (Environment & Land Case 7 of 2023) [2023] KEELC 20837 (KLR) (19 October 2023) (Ruling), the Court was of similar mind and held,
“This is because Article 40 of the Constitution of Kenya 2010 protects the right to acquire and own property and Sections 24 and 25 of the Land Registration Act 2012 provide for absolute ownership as an interest conferred by registration, and the rights appurtenant to registration respectively, which means that an owner of property ought not be limited in the enjoyment of their property without a clear lawful and justifiable basis.
56. An injunction limits enjoyment of proprietary rights until those rights are ultimately clarified in the judgment and decree; and therefore, the court is obligated to ensure that any limitation placed on a person’s title pass the legal threshold provided in law.”
36. The 1st Respondent urged this court to exercise similar mind and protect the rule of law in preserving the constitutionally and statutorily mandated rights of the 1st Respondent to set aside, vary and discharge the Orders issued that limited the 1st Respondent’s rights in the property without hearing it.
37. Finally, the 1st Respondent submits that the Petitioners duped this court by deliberately failing to disclose material facts that would have substantially have had a bearing on the issuance of the impugned Orders. That the Petitioners failed to disclose the in rem judgment relating to the suit property in East African Portland Cement Co Ltd & 6 others v Kathilu & 322 others; Kenya National Organization for Victims of Ethnic Clashes & Others (Interested Party) [2024] KEELC 7095 (KLR). In which judgment, Justice Ochieng determined the rights of parties such as the Petitioners who had set up establishments on the property as follows:
“Based on my analysis above, I find that the Defendants including Interested Parties have indeed trespassed on the Plaintiff’s land by building houses, school and churches thereon knowing fully well the said suit properties did not belong to them.”
38. That as a consequence of the above finding, the Court ordered as follows:
“A declaration be and is hereby issued that the Plaintiff is entitled to exclusive and unhindered right of possession and occupation of parcels of land known as LR No. 12948/17, LR No. 10425, LR No. 8784, LR No. 7815/1 and LR No. 8786.”
39. The 1st Respondent position is that the Petitioners, therefore, have no recognizable right in the suit properties as the same was determined by a Court of competent jurisdiction. The failure by the Petitioners to disclose the judgment is material and warrants discharging of the ex-parte Orders issued on 10th March, 2025.
40. This position was upheld in the decision in Bahadurali Ebrahim Shamji Vs Al Noor Jamal & 2 Others CA 210 of 1997 as cited with the approval of the Court in Delmonte Kenya Limited v Mishack Kibe Muiruri & 4 others [2020] KEELC 251 (KLR) where it held that;
“It is perfectly well settled that a person who makes an ex parte application to the Court - that is to say, in the absence of the person who will be affected by that which the Court is asked to do - is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained. That is perfectly plain and requires no authority to justify it…. and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement”
41. Similarly, the Court in D. Bank Mellat –V- Nikpour [1985] FSR 87, 92 as relied upon in Okiya Omtatah Okoiti v Joseph Kinyua & 2 others [2018] KEELRC 1750 (KLR) underscored the consequences of non –disclosure of material facts at interlocutory stage in the following words;
“The principle that no injunction obtained ex parte shall stand if it has been obtained in circumstances which there was a breach of the duty to make the fullest and frankest disclosure is of great antiquity. Indeed, it is so well enshrined in the law that it is difficult to find authority for the proposition; we all know, it is trite law”
42. From the foregoing, it is the 1st Respondent’s submission that had the Honourable Court had sight and knowledge of the judgment wherein the Court determined the rights of the parties with an interest in the suit property, this Court would not have issued the impugned Orders.
43. The 1st Respondent submits that having determi
[...truncated]
IN THE HIGH COURT AT MACHAKOS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION CONSTITUTIONAL
PETITION NO. E003 OF 2025
IN THE MATTER OF ARTICLES 19, 20, 21, 22, 23, 28, 40, AND 43 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF THE ALLEED VIOLATION AND/OR THREATENED VIOLATION OF THE RIGHTS OF THE PETITIONERS OF LUKENYA WEST, KATHAMA AND SYOKIMAU MAVOKO COMMUNITY
BETWEEN
1. MAVOKO MUUNDANI RESIDENTS ASSOCIATION…….……......1ST APPLICANT
2. KCB MUUNDANI RESIDENTS ASSOCIATION…………….....…...2ND APPLICANT
3. KENNEDY MITAMBO MUNYAO……………………………….....…3RD APPLICANT
4. LUCY KERUBO MOMANYI…………………………………….....…..4TH APPLICANT
5. REBBECA ATIENO OKUMU………………………………….....……5TH APPLICANT
6. ROBERT MARUTI WAKWAMA……………………………….......….6TH APPLICANT
7. MARYANNE NDUKU MUTUKU…………………………..…......……7TH APPLICANT
8. LUCY KERBO MOMANYI…………………………………….....……8TH APPLICANT
9. JULIUS MBITHI ………………………………………………….......…9TH APPLICANT
10. SYLVESTER MUNGULA MAITHA…………………………....……10TH APPLICANT
11. GEORGE KIMANI MUIRURI…………………………………….....11TH APPLICANT
12. CONELLIUS KIMEU MUTUKU…………………………….…...…12TH APPLICANT
13. SALOME HASABA WENYAA…………………………………..…13TH APPLICANT
14. SOLOMON WAMBUA NGWILI……………………………………14TH APPLICANT
15. STELLA OMBASA………………………………………………..…15TH APPLICANT
16. GEORGE GIHURU WAWEU…………………………….…………16TH APPLICANT
17. CATHERINE NDIWA MWOBIA……………………………….…..17TH APPLICANT
18. PAUL CHAHIA KISIA……………………………………………....18TH APPLICANT
19. PAUL MUKUNZU MUNYAO…………………………………..…...19TH APPLICANT
20.JOSEPH NZAU NGUNZU……………………………………………20TH APPLICANT
21. FRANCISCAR KASUSU KIMENDE……………………………...…21ST APPLICANT
22. EJIDIOUS NGARI NDAMBIRI………………………………….…22ND APPLICANT
23.MARY KAMAA MUSYOKI……………………………………..…..23RD APPLICANT
24.PHANUEL MUTUNGA MUSYOKI……………………………....…24TH APPLICANT
25.WYCLIFFE MUSEMBI LONZI…………………………………’..….25TH APPLICANT
26. SHEM OMBASO OGECHI…………………………...……..…...…26TH APPLICANT
27. SBARINA KANINI SULEIMAN………………………..………….…27TH APPLICANT
28. LILIAN N. KEESI…………………………………………………..…28TH APPLICANT
29.JOASH OGAROI OBAI………………………………………....……29TH APPLICANT
30.RICHARD KYALO…………………………………………………...30TH APPLICANT
31. FRANCIS MUSYOKA…………………………………………..……31ST APPLICANT
32.PAUL NDILO…………………………………………………….…..32ND APPLICANT
33.PETER WANJE MULANDA………………………………..…..……33RD APPLICANT
34.DAVID KATIE MUSEMBI…………………………………..…….…34TH APPLICANT
35. SAMSON KAVILI KINYUA……………………………………....…35TH APPLICANT
36.MUKUI GLADYS NYAMU……………………………………......…36TH APPLICANT
37.DANIEL KIPKEMOI YATICH………………………………....….…37TH APPLICANT
38.OYUGI DANCAN ODOYO…………………………………………38TH APPLICANT
39.PETER MUENDO MUTHUI ……………………………....…...……39TH APPLICANT
40.PHANICE ANDISI NYANGI ………………………………….……40TH APPLICANT
41. NJERU SAMUEL KAUMBUTHU……………………………....……41ST APPLICANT
42.PAUL GIRISA……………………………………………………..…42ND APPLICANT
43.ANTONYNGOLWA MUSYOKI………………………….…………43RD APPLICANT
44. SIMON KAMAU KINYUA…………………………………….……44TH APPLICANT
45.JOYCE AKINYI OMUNE……………………………………….……45TH APPLICANT
46.KATUNGE MUMO………………………………………………….46TH APPLICANT
47.ROSE NDUNGE……………………………………………….…..…47TH APPLICANT
48. EDWIN KIMEMIA……………………………………………...……48TH APPLICANT
49. LAWRENCE SAMUEL…………………………………….….....……49H APPLICANT
50.REGINA DUWA…………………………………………,,…....……50TH APPLICANT
51. YUNIA MORAA MOSE………………………………….…..………51ST APPLICANT
52. ELIZABETH MUTHONI KAMAU………………………….....……..52NDAPPLICANT
53.ALFRED BARUDI…………………………………………...………..53RD APPLICANT
54. ST. ANN INTERCOUNTY CATHOLIC CHURCH………...………54TH APPLICANT
55.JOSEPH K. MBITHI…………………………………………......……55TH APPLICANT
VERSUS
KENYA COMMERCIAL BANK LIMITED…………………….…....…1ST RESPONDENT
EAST AFRICAN PORTLAND CEMENT COMPANY LIMITED…....2ND RESPONDENT
THE HON. ATTORNEY GENERAL ………………………………….3RD RESPONDENT
AND
ZAKARIA MOHAMED LUKMAN..........................................1ST INTERESTED PARTY
ANAB MAALIM..................................................................2ND INTERESTED PARTY
JELLE DUBO ABDI.............................................................3RD INTERESTED PARTY
RULING
1. Before me are two separate applications filed by the opposing Parties herein, each seeking the exercise of my discretion to allow their respective application The first and application is dated 07/02/2025 filed by the Applicants/Petitioners and the second application is by the 1st Respondent dated 18/02/2025. I must state from the onset that the outcome of one application could effectively determine the other.
The First application
2. The application dated 07/02/2025 seeks for orders that:
1. Spent
2. Spent
3. Spent
4. Spent
5. An order directing the Respondents to recognize and respect the investments and infrastructure established by the Petitioners on the Suit Land LR 8786 and 8484/654 situated in Mavoko Municipality in Machakos County pending the hearing and determination of this Petition.
6. An order directing the 3rd Respondent to establish mechanisms and guidelines to ensure equitable access to land and prevent the exploitation of vulnerable communities in Suit Land LR 8786 and 8484/654 situated in Mavoko Municipality in Machakos County pending the hearing and determination of this petition.
7. This Honourable Court be pleased to give a mandatory injunction compelling the Respondents to engage the Petitioners on a regularization model based on reasonable terms without violating their rights through public participation pending the hearing and determination of the petition.
8. Costs be provided for.
3. The application is supported by the supporting affidavit of KENNEDY MITAMBO MUNYAO, the 3rd Applicant sworn on 07/02/2025. The Applicants aver that:
a) They have occupied and developed the Suit Land for over 15 years, during which time they have made substantial investments, including but not limited to the construction of residential dwellings, places of worship, educational institutions, and healthcare facilities.
b) The 2nd Respondent, as the initial registered proprietor of the Suit Land, was fully aware of the Petitioners' occupation and development of the land and acquiesced to the same.
c) Upon the transfer of the Suit Land to the 1st Respondent, the Petitioners engaged the 1st Respondent in discussions regarding the purchase of the land.
d) The Petitioners, being occupants of the Suit Property, engaged the 1st and 2nd Respondents in a bid to regularize their occupation through the sale of the subject property. To this end, the Respondent convened a public meeting on 13th November 2024, intended to discuss and set terms of engagement for the regularization process.
e) During the said meeting, which was attended by heavily armed administrative police, the 1st Respondent, being the beneficial owner of the property, informed the public of the general procedures expected in the regularization process, which included:
i. Registration;
ii. Validation
iii. Survey, mapping and planning;
iv. Valuation.
f) At the conclusion of the meeting, no consensus was reached on how the regularization process would be undertaken, particularly due to outstanding issues emanating from a prior regularization process undertaken by the 2nd Respondent on a portion of the Suit Properties and other neighbouring properties owned by the 2nd Respondent.
g) Notwithstanding the lack of consensus, the 1st Respondent proceeded to issue a notice to the occupants, informing them that the regularization process would commence on 18th November 2024, despite the Petitioners having written to the Respondents demanding clear and concise terms of engagement.
h) The said notice directed the Petitioners to engage the 1st Respondent as follows:
i. Payment of a deposit of Kshs.200,000 per plot, payable within three weeks of the start of the regularization process;
ii. A directive for the Petitioners to halt all development on the Suit Property.
i) The regularization process included the following steps:
a) Submission of land occupation documents to the registration office.
b) Verification and enumeration of the resident as a bona fide occupant, after which a surveyor was assigned to survey the plots.
c) Completion of the survey and issuance of a plot number and plan number by KCB;
j) Issuance of an account number for payment to KCB Bank Kenya Limited:
Bank: KCB Bank Kenya Limited
-Account Name: KCB Asset Sales Account.
-Swift Code: KCBLKENX
-Branch: Moi Avenue
-Account No: 1333515979
` -Reference: Purchaser Name & Registration Number
k) Petitioners were required to deposit Kshs.200,000 per 40 x 80 plot and submit the deposit slip to the KCB regularization office for filing.
l) The 1st Respondent failed and/or refused to issue any substantive terms of offer for the sale and acquisition of the Suit Land, including the purchase price, payment terms, or timelines. Despite this, the Petitioners were coerced to pay Kshs.200,000 per plot without clarity on the terms, with threats that failure to pay would result in the loss of their plots and any developments thereon.
m) The Petitioners aver that after paying the Kshs.200,000 and submitting the deposit slips, they were required to sign a registration form containing unconscionable conditions, including:
i. Payment of non-refundable registration fee of Kshs.200,000 to facilitate planning, survey, and valuation;
ii. Agreement to pay for the Plots after valuation without disclosure of the valuation criteria;
iii. Compliance with all terms set by KCB Bank for the regularization process;
iv. Halting further development on the property until KCB Bank officially handed it over.
n) The form further stated that by signing it, the occupant agreed to cooperate with KCB Bank management on the regularization of ownership, while preserving KCB Bank's rights as the beneficial owner of the land.
o) Some Petitioners were informed that the plots they occupied fell within a "commercial zone" and were thus barred from registering their plots, despite holding allotment letters and having developed the plots.
p) The Respondents have arbitrarily dispossessed the current occupants of their parcels and commenced construction works, including the erection of site offices and perimeter walls, under the protection of the police.
q) The actions of the Respondents have caused widespread anxiety, outcry, and confusion among the Petitioners, who have enjoyed peaceful and quiet possession of the land since 2009.
r) The Petitioners have written several letters to the Respondents requesting a meeting to discuss the regularization process, including how the purchase price was determined and for the provision of valuation reports. These letters have gone unanswered, and the requested information has not been availed to date.
s) The sale prices of the plots in the Suit Land as indicated in the agreement are extortive and grossly overvalued compared to prices offered by the Interested Part, East Africa Portland PLC, for regularized plots on adjacent land parcels LR 8784/653, LR 8784/144, and LR 8784/143 who are paying Kshs.750,000 per plot 50ft by 100ft and 650,000 per plot 40ft by 80ft
t) The Petitioners aver that the Respondents are using the guise of regularization to deny them meaningful ownership of the land through coercion, threats and intimidation, including the fear of demolitions by selling 50 by 100 plots at 5 Million which is unaffordable by the Petitioners.
u) The process undertaken by the Respondents contained unconscionable terms, which are unenforceable in law.
v) The Petitioners are ready and willing to purchase the land at the prevailing market price. However, the 1st Respondent has demanded an exorbitant purchase price far beyond the financial means of the petitioners.
w) Despite repeated requests, the 1st Respondent has failed to provide any information regarding how the purchase price was arrived at, including valuation reports, further exacerbating the Petitioners' concerns over the lack of transparency and fairness in the process.
x) That the Respondents have started denying the Petitioners access to their respective.
The Second application
4. This application dated 18/02/2025 is by the 1st Respondent and seeks for orders that:
1. Spent;
2. The Honourable Court be pleased to suspend the implementation of the ex-parte Orders issued on 10th February, 2025 pending the hearing and determination of this Application on a date to be allocated by the Court;
3. The Honourable Court be pleased to vary, discharge and/or set aside the Orders granted on 10th February, 2025;
4. Costs of the Application be provided for.
5. This second application is based upon the grounds set out in the Supporting Affidavit of LILIAN SOGO and on grounds that:
a) The impugned ex-parte orders are final in nature to the extent that they order the Respondents to recognise and respect the investments of the Petitioners on the 1st Respondent's property without a hearing;
b) The impugned ex parte Orders have the effect of limiting the 1st Respondent's proprietary rights in the subject property with finality contrary to Article 40 of the Constitution as read with Sections 24 and 25 of the Land Registration Act thus denying the 1st Respondent of an opportunity to be heard;
c) The impugned ex-parte Orders include a structural interdict directed at the Attorney General to establish mechanisms and guidelines to ensure equitable access to land and prevent exploitation of vulnerable communities, which again is in the nature of a final order that cannot be issued ex-parte;
d) In seeking the Order, the Petitioners failed to disclose to the Court the existence of a decision in rem relating to the same suit land which was issued in Machakos ELC No. 155 of 2016-East Africa Portland Cement vs Sammy Kathilu & 272 Others wherein all occupants that were not the registered proprietor and claiming through associations were determined to be trespassers.
e) This Court has the jurisdiction to grant the Orders sought.
f) It is in the interest of justice that the Orders sought herein are granted.
The Responses to the applications
6. The 1st Respondent filed a replying affidavit sworn on 01/04/2025 by LILLIAN SOGO, Head Counsel-Litigation at KCB Bank Kenya Limited, the 1st Respondent herein in opposition to the Petitioners’ application dated 07/02/2025.
7. Similarly, the 2nd Respondent filed a replying affidavit sworn on 07/04/2025 by ROSELINE OMINDE the acting Company Secretary/ Head of Legal Department of the 2nd Respondent in opposition to the Petitioners’ application dated 07/02/2025
8. The Petitioners then filed a further affidavit through KENNEDY MITAMBO MUNYAO sworn on 19/04/2025 in reply to the affidavits sworn on 01/04/2025 and 07/04/2025 by the 1st and 2nd Respondents.
9. The Interested Parties filed a replying affidavit sworn in April 2025 but without a date by ZAKARIA LUKMAN to the 1st Respondent’s application dated 18/02/2025.
10. The 3rd Respondent, the Honourable Attorney General entered appearance and filed a Memorandum of Appearance on 19/02/2025 but did not file any response or pleadings in this matter.
11. The applications were canvassed by way of written submissions. The Petitioner’s submissions are dated 28/04/2025, the 1st Respondent’s submissions are dated 14/04/2025 while the Interested Parties’ submissions are dated 12/5/2025.
12. The 2nd Respondent sought to associate themselves with the 1st Respondent’s submissions.
13. The 1st, 39th ,56th PETITIONERS (MAVOKO MUUNDANI RESIDENTS ASSOCIATION, DAVID MUSAU MUTISO & JOSEPH K. MBITHI RESPECTIVELY) withdraw the whole of their claim in the Petition as against the Respondents with no orders as to costs.
Analysis
14. I have considered the two applications as set out hereinabove, the Replying Affidavits thereof, the Grounds of Opposition and the Parties’ rival submissions. It my considered view that the determination of the 1st Respondent’s application dated 18/02/2025 which seeks to have the orders issued pursuant to the Petitioners’ application varied, discharged and/or set aside will automatically determine the Petitioners’ application dated 07/02/2025 as to whether the Petitioners are entitled to orders of interim injunction in respect to the suit properties pending the outcome of the Petition.
15. The 1st Respondent in its submissions contends that on 10th February, 2025, this Honourable Court granted prayers 2 and 3 of the Petitioners’ application dated 7th February, 2025 pending the inter-partes directions on the application. The Orders were extended on 4th March, 2025 and 20th March, 2025.
16. Prayers 2 and 3 of the application reads as follows:
“2. An Order directing the Respondents to recognise and respect the investments and infrastructure established by the Petitioners on the suit land LR 8786 and 8484/654 situated in Mavoko Municipality in Machakos County pending the hearing and determination of this application.
3. An Order directing the 3rd Respondent to establish mechanisms and guidelines to ensure equitable access to land and prevent the exploitation of vulnerable communities in suit land LR 8786 and 8484/654 situated in Mavoko Municipality in Machakos County pending the hearing and determination of this application.”
17. That the nature of the Orders coupled with the failure of the Petitioners to disclose material facts prompted the 1st Respondent to file application dated 18th February, 2025 wherein it seeks that this Honourable Court be pleased to vary, discharge and/or set aside the Orders granted on 10th February, 2025;
18. The 1st Respondent submitted that as at the date of filing their submissions, the 1st Respondent had not been served with any responses to its application.
19. The 1st Respondent submits that the sole issue for determination is whether this Honourable Court should vary, discharge and/or set aside the Orders granted on 10th February, 2025.
20. It is submitted that this Honourable Court’s authority to vary, discharge and/or set aside orders is anchored in Rule 25 of the Mutunga Rules. Rule 25 reads as follows:
“An order issued under Rule 22 may be discharged, varied or set aside by the Court either on its own motion or on application by a party dissatisfied with the order.”
21. That this authority is unfettered and discretionary in nature and therefore is to be exercised when presented with just reason to do so. This position was reiterated in the case of Northwest Capital Apartments Limited v Ohuru [2024] KEELC 3956 (KLR) wherein the Court held as follows:
“It means this court has discretionary powers to discharge, vary or set aside its own orders either on its own motion (“Suo Moto”) or on an application by a party…. From the stated provisions, it is clear that they are discretionary in nature. Thus, the unfettered discretion must be exercised judiciously, not capriciously and reasonably.”
22. The 1st Respondent submits that in the instant matter, the orders are final in nature to the extent that they order:
a) the Respondents to “recognize and respect the investments and infrastructure established by the Petitioners on the suit land LR 8786 and 8484/654”; and
b) the 3rd Respondent “to establish mechanisms and guidelines to ensure equitable access to land and prevent the exploitation of vulnerable communities in suit land LR 8786 and 8484/654.”
23. The 1st Respondent submits that the prayers ought to be granted only after allowing the Respondents an opportunity to be heard and not at the ex-parte stage. This would enable the court to determine the merits of the Petition as against the responses filed by the Respondents. This is re-affirmed by the fact that the aforementioned prayers are subject to the Petition as seen with prayers f and g of the Petition.
24. The 1st Respondent relied on the decision in Waguta v Equity Bank Limited & Another [2025] KEHC 3368 (KLR) wherein the Court opined as follows:
“By seeking the same reliefs at this interlocutory stage, the applicant was inviting this court to make final orders which would have the effect of prematurely disposing of the suit at this stage without having heard both parties on the merits or otherwise of the suit.”
25. They also relied on the Court of Appeal decision in Kenya Deposit Insurance Corporation v Richard and David Limited & Another, civil appeal 66 of 2016, [2015] KECA 4 wherein the Bench held as follows:
“It is in our jurisprudence that a Court will not at a preliminary stage determine with finality contested issues in litigation……Excepting where there are special circumstances, it is wrong for a Judge to grant at an interlocutory stage of proceedings final orders, thus disposing of the suit before parties are heard. The right to be heard is fundamental and only in extremely rare circumstances will a court of law issue orders the elect of which is to determine the suit with finality.”
26. The 1st Respondent further cited the case of Rift Cars Limited v Cheruiyot & 2 others (Civil Appeal E012 of 2023) [2023] KEHC 24457 (KLR) (16 October 2023) (Ruling), where the Court added to Kenya’s jurisprudence by opining that:
“There was a slip up by this court when it issued an interim order which however had been crafted by the Applicant as a final order since the same was the subject of the Applicant’s appeal. The order as granted was final in nature and had the effect of determining the Appeal without hearing the said Appeal. Clearly, an interim order could not at the same time be a final order.”
27. The position was reiterated in Sameja v Sal Tree Hotel Limited [2024] KEHC 14040 (KLR) wherein the Court held:
“Making a final determination at an interlocutory stage is contrary to the settled principle that a court, at an interlocutory stage, is not expected to make a final determination of the issues that will be discussed at the trial.”
28. It was submitted that noting that the orders granted by this court are subject to the Petition, they are final in nature and granted without offering the Respondents an opportunity to substantially respond to the same. It is on this basis that the 1st Respondent looks to this Honourable Court to discharge, vary and/or set aside the Orders of 10th February, 2025.
29. Further, the 1st Respondent submits that the Orders, as is, limit the 1st Respondent’s proprietary rights in the suit property contrary to Article 40 of the Constitution as read with Sections 24 and 25 of the Land Registration Act without hearing the 1st Respondent.
30. This is because the Orders determine that the Petitioners have a right in the 1st Respondent’s land warranting recognition and respect from the 1st Respondent. As exhibited by annexure KCB-1 to the application dated 18th February, 2025, the 1st Respondent is the sole proprietor of the suit land. The Petitioners on the other hand, have no legally ascertainable right in the suit land.
31. It was submitted that Article 40 of the Constitution dictates and provides for the protection of the right to property. In realizing Article 40 of the Constitution, Parliament enacted Sections 24 and 25 of the Land Registration Act which provide as follows:
“24. Interest conferred by registration
The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.
25. Rights of a proprietor
The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever.”
32. That the Constitutional and statutory provisions affirm the rights of the 1st Respondent as the registered proprietor of the suit property. These rights, as provided for by Section 26 of the Land Registration Act, may only be limited on the ground of fraud or misrepresentation to which the proprietor is proved to be a party where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
33. This court was invited to note that none of these is argued, let alone raised in the Petition. It is thus the 1st Respondent’s submission that on this basis alone, the orders ought not to have been granted for they limited the 1st Respondent’s proprietary rights without a hearing.
34. Reliance was placed on Justice Ogolla’s decision in Mohansons (Kenya) Limited v Registrar of Titles & 2 others [2017] KEELC 2730 (KLR) wherein the Court held as follows:
“There is public interest in the observance of the Rule of Law principle of Article 10 of the Constitution. The law must keep its promise to the registered proprietor that his interest in land property will be protected unless it has been proved to have been obtained through fraud or misrepresentation to which he was a party or the title document has been acquired illegally, unprocedurally or through a corrupt scheme. This not having been shown and determined in this suit, the petitioner is entitled to protection of the law.”
35. That in Mutua & 2 others (Suing as the Officials of Aimi Ma Lukenya Society) v East Africa Portland Cement Company Ltd & 5 others (Environment & Land Case 7 of 2023) [2023] KEELC 20837 (KLR) (19 October 2023) (Ruling), the Court was of similar mind and held,
“This is because Article 40 of the Constitution of Kenya 2010 protects the right to acquire and own property and Sections 24 and 25 of the Land Registration Act 2012 provide for absolute ownership as an interest conferred by registration, and the rights appurtenant to registration respectively, which means that an owner of property ought not be limited in the enjoyment of their property without a clear lawful and justifiable basis.
56. An injunction limits enjoyment of proprietary rights until those rights are ultimately clarified in the judgment and decree; and therefore, the court is obligated to ensure that any limitation placed on a person’s title pass the legal threshold provided in law.”
36. The 1st Respondent urged this court to exercise similar mind and protect the rule of law in preserving the constitutionally and statutorily mandated rights of the 1st Respondent to set aside, vary and discharge the Orders issued that limited the 1st Respondent’s rights in the property without hearing it.
37. Finally, the 1st Respondent submits that the Petitioners duped this court by deliberately failing to disclose material facts that would have substantially have had a bearing on the issuance of the impugned Orders. That the Petitioners failed to disclose the in rem judgment relating to the suit property in East African Portland Cement Co Ltd & 6 others v Kathilu & 322 others; Kenya National Organization for Victims of Ethnic Clashes & Others (Interested Party) [2024] KEELC 7095 (KLR). In which judgment, Justice Ochieng determined the rights of parties such as the Petitioners who had set up establishments on the property as follows:
“Based on my analysis above, I find that the Defendants including Interested Parties have indeed trespassed on the Plaintiff’s land by building houses, school and churches thereon knowing fully well the said suit properties did not belong to them.”
38. That as a consequence of the above finding, the Court ordered as follows:
“A declaration be and is hereby issued that the Plaintiff is entitled to exclusive and unhindered right of possession and occupation of parcels of land known as LR No. 12948/17, LR No. 10425, LR No. 8784, LR No. 7815/1 and LR No. 8786.”
39. The 1st Respondent position is that the Petitioners, therefore, have no recognizable right in the suit properties as the same was determined by a Court of competent jurisdiction. The failure by the Petitioners to disclose the judgment is material and warrants discharging of the ex-parte Orders issued on 10th March, 2025.
40. This position was upheld in the decision in Bahadurali Ebrahim Shamji Vs Al Noor Jamal & 2 Others CA 210 of 1997 as cited with the approval of the Court in Delmonte Kenya Limited v Mishack Kibe Muiruri & 4 others [2020] KEELC 251 (KLR) where it held that;
“It is perfectly well settled that a person who makes an ex parte application to the Court - that is to say, in the absence of the person who will be affected by that which the Court is asked to do - is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained. That is perfectly plain and requires no authority to justify it…. and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement”
41. Similarly, the Court in D. Bank Mellat –V- Nikpour [1985] FSR 87, 92 as relied upon in Okiya Omtatah Okoiti v Joseph Kinyua & 2 others [2018] KEELRC 1750 (KLR) underscored the consequences of non –disclosure of material facts at interlocutory stage in the following words;
“The principle that no injunction obtained ex parte shall stand if it has been obtained in circumstances which there was a breach of the duty to make the fullest and frankest disclosure is of great antiquity. Indeed, it is so well enshrined in the law that it is difficult to find authority for the proposition; we all know, it is trite law”
42. From the foregoing, it is the 1st Respondent’s submission that had the Honourable Court had sight and knowledge of the judgment wherein the Court determined the rights of the parties with an interest in the suit property, this Court would not have issued the impugned Orders.
43. The 1st Respondent submits that having determi
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