BACK GROUND
1. The history of this matter is colorful, protracted, complex and convoluted. The parties have traversed all the tiers on our Judicial hierarchy. Prior to the current detour back to the Criminal Division, the dispute had been, and is still being adjudicated all the way in the Supreme Court. I have noted some meanders to the Kadhi’s court, the family court, the ELC then the vertical moment through the Appellate courts.
2. The last jab at the Apex court before they issue took a turn back to the Magistrates Criminal Division was the Application dated 28/08/2024 by Freedom Ltd, to adduce additional evidence, and in particular the letter dated 26/03/2025 and other documents by The Chief Land Registrar in respect to parcel MN- No. 287/V/MN the original parcel an subsequent divisions therein.
3. That Application was dismissed on 13/12/2024. That dismissal appears to be genesis of the current set of Applications as there was then filed the Application being MSA CM’S CR MISC APP .NO E174/2025. It was seeking orders to search and seize an original title to the land for plot no. 287/Section V South East of Mazeras CR. 632.
4. The order was granted on 7/3/2025 and it is those orders which led to the Application dated 10/03/2025. The Applicant was seeking that the court reviews and sets aside the orders granted by the sub ordinate court and that the documents seized be returned to them.
5. The respondents filled some grounds of opposition to the said Application then quickly added their own application dated 18/3/2025. It has two prayers: That leave be granted to enjoin the proposed interested party, being the chief land registrar, to the review application and that the said proposed 3rd party responds to the review application.
6. The Applicants/now respondents to second Application filed their response to the two Applications, submissions were filled and both sides made some brief highlights.
7. The following are the key issues for determination.
i. Whether the proposed 3rd party has meet the threshold for joinder.
ii. Whether the Applicant/in the original Application met the criteria for the review of the subordinate court’s orders.
8. The ruling is in respect to the two Applications .
SUBMISSIONS
9. Mr. Kemei for the proposed interested party argued that the Chief Land Registrar is the custodian of the government property and the title deed has been missing. That the document in issue is a closed office copy and it ought to be investigated.
10. That the proposed interested party being the Principal Land Registrar Mombasa, who is a public servant under Section 14(2) of the Lands Registration Act, 2012 whose office is the custodian of all records regarding registration of land transactions and other legal documents:
11. It was submitted that the title in question, which was recovered from the Applicants by the Respondent, is not a valid ownership title but rather a closed office copy meant to be retained by the Chief Land Registrar for record keeping purposes which is property of the state.
12. The applicants in the latter application relied on the Supreme Court decision in Harcharan Singh Sehmi & another vs Tarabana Company Ltd and others ; Petition (Application) no. E033 of 2023 eklr while citing the Muratetu case with approval set out the following principles when it comes to joinder:
i. The party must demonstrate a personal interest or stake in the matter.
ii. The party must show the prejudice they will suffer if they are not joined in the case.
iii. The party must present their case to the court and demonstrate its relevance.
13. It was argued that the proposed interested party’s stake is the property of the state being official land record, which is missing or may have been unlawfully taken. If the respondent’s investigation is impeded, the integrity of the land registry will be compromised. Therefore, the proposed interested party meets the criteria for joinder.
14. The proposed 3rd party also argued that the Supreme Court in John Florence Martime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & others eKLR (2015) held that the principle of res-judicata should be applied cautiously, especially in cases constitutional rights, to avoid potential injustice.
15. For res judicata to apply, the following conditions must be met:
i. A final judgment or order must have been issued.
ii. The Judgment or order must have been on merit.
iii. The judgment or order must have been made by a court with proper jurisdiction.
iv. The parties, subject matter, cause of action must be identical in both cases.
16. That this case, the matter before this court relates to criminal investigations about a missing official land record. Previous civil suits dealt only with land ownership disputes and did not involve criminal culpability for missing records. Additionally, the proposed interested party was not involved in those cases. Therefore, the principle of res judicata does not apply here.
17. That moreover, pursuant to Section 193A of the Criminal Procedure Code, ongoing civil proceedings do not prevent criminal investigation and prosecutions from proceeding. The Applicants claim that the criminal aspect was already determined in Mombasa Criminal Case No. 1278 of 2017 is misleading. The respondent is now investigating the applicants and their client with other numerous offence, including but not limited to concealing a register with intent to defraud, concealing a deed with intent to defraud, concealing a deed with intent to defraud, and conspiracy to defraud.
18. That these are new charges that warrant independent investigation and prosecution in line with the precedent set in the Nicholas Kipsigei Ngetich Case. Moreover, the complainant in this fresh matter is the state, while the proposed interested party in Mombasa Criminal Case no. 1278 of 2017 was just a witness.
19. The Applicants have opposed the Application for joinder vide their Replying Affidavit sworn by NAOMI H. KINUVA on 20th March 2025 on grounds that the Proposed Interested Party will offer no legal or factual information to assist this Court’s determination on the Notice of Motion Application dated 10th March 2025 filed by the Applicants.
20. The Applicants in the Application for Review maintain that the Application filed by the Proposed Interested Party is merely an attempt by the Respondent to muddy the waters, delay the determination of the substantive Application.
21. They added that the Proposed Interested Party has offered nothing that would be worthy of this Court’s consideration in the Substantive Application.
22. They grounded their position in the decision by the Supreme Court in Everton Coal Enterprises Limited V Rose Wakanyi Karanja & 5 Others [2023] eKLR: That
“…An interested party may not frame its own fresh issues or introduce new issues for determination by the Court.”
23. They submitted that it is indubitable that the Substantive Application seeks a revision of the order issued by Honourable G.A. Ollimo (SRM) in MOMBASA MISCELLANEOUS CRIMINAL NO. E174 OF 2025 on grounds that she did not have the jurisdiction to interfere in the subject matter of a petition pending before the Supreme Court (SUPREME COURT PETITION NO. E009 OF 2024).
24. It is also undisputed that the Proposed Interested Party was not a party in MOMBASA MISCELLANEOUS CRIMINAL NO. E174 OF 2025 and neither are they a party to SUPREME COURT PETITION NO. E009 OF 2024.
25. The prayers sought and the grounds predicated thereupon pertain to matters not pending before this Honorable Court for determination.
26. That, all the issues raised by the Proposed Interested Party were determined in finality in MOMBASA CIVIL APPEAL NO. E028 OF 2022; and were excluded in SUPREME COURT PETITION NO. E009 OF 2024 through the Ruling of the Supreme Court dated 13th December 2024 (provided as Annexure “NHK-2” in the Applicants Supplementary Affidavit sworn on 17th March 2025) where it was held:
“ For the foregoing reasons, it is our considered opinion that the evidence sought to be adduced does not meet the established threshold as the documents in question will lead to the Court considering in a 2 second appeal matters of fact; their relevance to this appeal is doubtful; their introduction will be tantamount to filling the gaps identified in the judgment of the Court of Appeal; the evidence has always been available and could have easily been obtained; and it has not been demonstrated in what way it will impact on the decision of this Court.
xiii) Looking at the nature of the additional evidence, we doubt that it would be of any use to this Court in reaching a fair and final decision on the dispute between the parties. The two superior courts below based their respective decisions upon the evidence presented by the parties, the ELC finding in favour of the appellant and the Court of Appeal for the respondent. Based on this fact, we are being asked in this appeal to determine, on the basis of the material on record, whether or not the Court of Appeal erred in its determination as to the ownership of the suit property. We believe this question is capable of being answered without the introduction of further evidence”.
27. It remains that since this Court is constitutionally subordinate to the Court of Appeal and the Supreme Court due to Articles 163, 164 and 165 of the constitution, it lacks the jurisdiction to entertain the issues decisively handle by the Court of appeal, and those pending before the Supreme Court.
28. Lastly, any allegations of criminality were also determined on 21st November 2021 (over three (3) years ago) in MOMBASA CRIMINAL CASE NO. 1278 of 2017 in which the Proposed Interested Party gave evidence. That judgment has never been varied nor set aside despite the Proposed Interested Party’s involvement.
ANALYSIS
29. I have noted that the proposed interested party, featured prominently in the Supreme Court as it was their evidence that the Applicant therein sought to introduce. The Apex dismissed the 2 Applications . I also note that all the cases in this series revolve around the ownership of this parcel and the documents in issue touch. In particular there was the criminal case that handled the elements of fraud relating to the issuance of the title deed.
30. Further even if we were to go by the proposed third parties position that these are new criminal matters, this is not the forum to raise them. This was just an application for review and as stated above a third party can not get into the proceedings and introduce their own issues.
31. Further even by going by the second prayer that the chief registrar would then respond to the application, that is not the correct procedure. The Attorney General BEING THE GOVERNMENT’S Chief Legal adviser and counsel is competent could have filed the relevant replying affidavit sworn by the Officers of the relevant Government Agency.
32. I am therefore inclined to agree with the applicants in the initial motion that the application for joinder was only a ruse to muddle the already convoluted proceedings.
39.That takes us back to the original Application dated 10/08/2025. I note that before it was filled and even before the parties moved to the Supreme Court, there was a flurry of correspondence between the Applicants and the Respondents over these documents.
The ODPP eventually advised the Respondents that the matter was res judicata. That is when it escalated to the Supreme Court and then plummeted down to the Magistrates court and hence the review application.
REVISIONARY POWERS
40.The applicable law Article 165 (6) & (7) of the Constitution which provides that ;
6. The High court has supervisory jurisdiction over the subordinate court and over any person body or authority exercising a judicial or quasi-judicial function but not over a superior court
7.For the purpose of clause 6 the high court may call for all the record of any proceeding before any subordinate court or person, body or authority referred in clause (6) and may make any order or give any direction it considers appropriate to ensure the fair administration ofactions.
41. Section 362 of the criminal procedure states as follows: “That the high court may call for and examine the record of any criminal proceedings before any subordinate court for purposes of satisfying itself as to the correctness, legality, or proprietress of any finding order, decision, recorded and as to the regularity of any proceedings of the other subordinate court”
42. In Article 20 (2) (3) (4) of the Constitution it says that: 2.Every person shall enjoy the right and fundamental freedom in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom
3.In applying a provision of Bill of Rights a court shall:
a.Develop the law to the extent that it does not give effect to a right of fundamental freedom and
b.Adopt the interpretation that most favors the enforcement of a right or fundamental freedom
4.In the interpreting the Bill of Rights, a court tribunal or other authority shall promote
a.The values that underlie an open and democratic society based on human dignity, equality, equity and freedom
b.The spirit support and object of the Bill of Rights
43. The other fundamental principles embodied in the general supervisory powers of the High Court pursuant to Article 165 (6) and (7) of the Constitution is to prevent abuse of the process of the court, to make orders for expeditious trial to ensure that substantive justice shall be administered without undue regard to technicalities. Similarly, the consideration of illegality, impropriety, uncertainty, irregularity, illegality, irrationality, error of fact and law on the face of the record within the scope of discretion purportedly exercised by the session magistrate or chairman of a tribunal. In this respect the persuasive dicta in Hitila v Uganda (1969) E.A 219.
ANALYSIS
44. In considering matters involving the mandate of other constitutional bodies, this court has been careful not to be seen to shackle their hands. The court only steps in when the other body acts in breach of the rights enshrined in the constitution.
45.In this particular case, the applicant argues that there is an abuse of the criminal justice system because the respondents are re litigating issues which have been gone all the way to the supreme court. That the subordinate court was not made aware of the true position before issuing the orders in question.
46. The respondents position is that this is a fresh issue .
47. In dismissing the Application dated 28/08/2024, PETITION (APPLIC) NO. E009 OF 2024 this is what the Supreme court said:
A pplying these principles to the Motion, it is evident that the material sought to be introduced consists of documents, plans, and correspondence in relation to land parcel No. 287/V/MN (the Original Parcel) and the subsequent sub-divisions thereof. These documents are aimed at addressing certain questions raised by the Court of Appeal as to the authenticity of the applicant’s Certificate of Ownership; and the propriety of the process which was adopted by the Registrar of Titles to facilitate the reconstruction of file to the suit property, based on documents supplied solely by the applicant.
v) The applicant, having initiated the action, first before the High Court for the reconstruction of the file and subsequently before the ELC claiming ownership of the suit property as against the respondent’s rival claim was expected, indeed, required to bring the entire evidence at that initial stage to support that claim. vi) The applicant has not demonstrated that the additional evidence it seeks to adduce could not have been obtained with reasonable diligence for use at the trial or could not have otherwise been produced earlier. To the contrary, within a short time of the applicant writing to the relevant government departments, the documents were supplied, confirming that they were always available.
vii) By its admission, the applicant pleads that the additional evidence it wishes to present could not have been obtained and introduced before the trial court “because its necessity has only been brought about by the skewed decision of the Court of Appeal which has decided to disregard documents of title and instead determine a matter concerning property on a medieval doctrine of seisin… that the applicant had no way of predicting that the Court of Appeal would render such a skewed decision and veer away from the title documents which had been produced and analysed by the ELC”.
viii) The documentary evidence sought to be introduced is therefore in direct answer to the questions raised by the Court of Appeal in its impugned judgment. Parties cannot use the window provided for by Section 20 and Rule 26 aforesaid to fill the lacuna or patch up parts of the evidence of the unsuccessful party. The rule of thumb is that additional evidence will be required to do justice between the parties
. ix) It is on record that the only file that could not be traced at the Mombasa Land Registry during the proceedings before the trial court, was the Deed File in respect of the original parcel. Nothing has been said about the status of that file. There is, however, no evidence of any attempts by the applicant, prior to the delivery of the Court of Appeal judgment, to procure the multiple documents in the Correspondence File that it now wishes to produce.
x) Further, the applicant has averred that the Correspondence File and Survey Report, “were not necessary documents that needed to be submitted before the ELC because the applicant was not required to go to the root of the title of the suit property.” That, since the applicant was successful in the ELC, its title to the suit property was valid, and there was no necessity or requirement for it to introduce any document before the Court of Appeal as proof of the transactions that took place in the Original Parcel prior to the applicant acquiring it. 26 SC Petition (Applic) No. E009 of 2024 Page 9 of 10 xi) It is a requirement under Section 20, Rule 26 aforesaid and the ratio decidendi in Mohamed Abdi Mahamud (supra) that only evidence that is directly relevant to the matter before the Court would be considered for admission. The applicant has not illustrated how the new evidence will assist the Court in determining the authenticity of the root title of the suit property, over and above the material already on record and upon which the two superior courts below based their respective decisions.
xii) For the foregoing reasons, it is our considered opinion that the evidence sought to be adduced does not meet the established threshold as the documents in question will lead to the Court considering in a second appeal matters of fact; their relevance to this appeal is doubtful; their introduction will be tantamount to filling the gaps identified in the judgment of the Court of Appeal; the evidence has always been available and could have easily been obtained; and it has not been demowe doubt that it would be of any use to this Court in reaching a fair and final decision on the dispute between the parties. The two superior courts below based their respective decisions upon the evidence presented by the parties, the ELC finding in favour of the appellant and the Court of Appeal for the respondent. Based on this fact, we are being asked in this appeal to determine, on the basis of the material on record, whether or not the Court of Appeal erred in its determination as to the ownership of the suit property. We believe this question is capable of being answered without the introduction of further evidence.
ANALYSIS
48. I have reproduced the dicta of our apex court in detail as it helps us unlock the bottleneck. Clearly the document in issue and the evidence by the land registrar is what was i n issue in the two applications in the supreme court. The supreme court did detailed analysis in the two rulings as reproduced above.
49. The subordinate court was not made aware of that scenario. The sub ordinate court was also not made aware that there had been other criminal proceedings over the same documents. Worse still, was the withholding the correspondence in which the office of the DPP advised the investigators that the matter is res judicata .
50. That is why the Attorney General’s office and the chief registrar are seen to be the driving forces in this peculiar criminal proceedings. Why the loud silence by the DPP? The answer is their advice was ignored. The parties then moved to the supreme court and the applicants in the supreme court and in particular the and proposed having failed there, turned to the criminal justice system which appeared to be some safe fall back.
39. That is an abuse of the court. The criminal justice system must never be used to either settle a score or to get a head start or create a short cut or fill gaps in a civil claim. In any event, where a document is lost, the chief registrar would know what action to take. One must also , what their book copy is doing out there if that were to be the truth, who is culpable and what was their role as the custodian? In as much as it would be interesting to unravel that mystery, the circumstances and the route followed appear to be mischievous and an outright abuse of the court. Litigation cannot keep going round and round in circles.
DETERMINATION
40. For those reasons, I am satisfied that the Applicant in the motion dated 10/03/2025 met the threshold for review. There was no full disclosure and the matters are res judicata. Accordingly the orders granted were neither proper , nor regular .
41. Accordingly, this court dismisses the Application on joinder dated 18/03/2025 and prayers allows 2, 3 and 4 in the Application dated 10/03/2025.
42. Costs for the 2 applications to be borne by the respondents in the application dated 10/3/2025.
43.It is so ordered
Dated, signed and delivered in Open Court/online through MS TEAMS,
this …24th…… day of July 2025
H ON. LADY JUSTICE W. K. MICHENI
JUDGE
MR KIMEI HOLDING BRIEF FOR MR LANGAT PRESENT TOGETHER WITH MR SIRIMA FOR THE RESPONDENT AND THE PROPOSED INTERESTED PARTY
MS KINUVA FOR THE APPLICANTS
BEBORA COURT ASSISTANT
HON. LADY JUSTICE W. K. MICHENI
JUDGE
1. The history of this matter is colorful, protracted, complex and convoluted. The parties have traversed all the tiers on our Judicial hierarchy. Prior to the current detour back to the Criminal Division, the dispute had been, and is still being adjudicated all the way in the Supreme Court. I have noted some meanders to the Kadhi’s court, the family court, the ELC then the vertical moment through the Appellate courts.
2. The last jab at the Apex court before they issue took a turn back to the Magistrates Criminal Division was the Application dated 28/08/2024 by Freedom Ltd, to adduce additional evidence, and in particular the letter dated 26/03/2025 and other documents by The Chief Land Registrar in respect to parcel MN- No. 287/V/MN the original parcel an subsequent divisions therein.
3. That Application was dismissed on 13/12/2024. That dismissal appears to be genesis of the current set of Applications as there was then filed the Application being MSA CM’S CR MISC APP .NO E174/2025. It was seeking orders to search and seize an original title to the land for plot no. 287/Section V South East of Mazeras CR. 632.
4. The order was granted on 7/3/2025 and it is those orders which led to the Application dated 10/03/2025. The Applicant was seeking that the court reviews and sets aside the orders granted by the sub ordinate court and that the documents seized be returned to them.
5. The respondents filled some grounds of opposition to the said Application then quickly added their own application dated 18/3/2025. It has two prayers: That leave be granted to enjoin the proposed interested party, being the chief land registrar, to the review application and that the said proposed 3rd party responds to the review application.
6. The Applicants/now respondents to second Application filed their response to the two Applications, submissions were filled and both sides made some brief highlights.
7. The following are the key issues for determination.
i. Whether the proposed 3rd party has meet the threshold for joinder.
ii. Whether the Applicant/in the original Application met the criteria for the review of the subordinate court’s orders.
8. The ruling is in respect to the two Applications .
SUBMISSIONS
9. Mr. Kemei for the proposed interested party argued that the Chief Land Registrar is the custodian of the government property and the title deed has been missing. That the document in issue is a closed office copy and it ought to be investigated.
10. That the proposed interested party being the Principal Land Registrar Mombasa, who is a public servant under Section 14(2) of the Lands Registration Act, 2012 whose office is the custodian of all records regarding registration of land transactions and other legal documents:
11. It was submitted that the title in question, which was recovered from the Applicants by the Respondent, is not a valid ownership title but rather a closed office copy meant to be retained by the Chief Land Registrar for record keeping purposes which is property of the state.
12. The applicants in the latter application relied on the Supreme Court decision in Harcharan Singh Sehmi & another vs Tarabana Company Ltd and others ; Petition (Application) no. E033 of 2023 eklr while citing the Muratetu case with approval set out the following principles when it comes to joinder:
i. The party must demonstrate a personal interest or stake in the matter.
ii. The party must show the prejudice they will suffer if they are not joined in the case.
iii. The party must present their case to the court and demonstrate its relevance.
13. It was argued that the proposed interested party’s stake is the property of the state being official land record, which is missing or may have been unlawfully taken. If the respondent’s investigation is impeded, the integrity of the land registry will be compromised. Therefore, the proposed interested party meets the criteria for joinder.
14. The proposed 3rd party also argued that the Supreme Court in John Florence Martime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & others eKLR (2015) held that the principle of res-judicata should be applied cautiously, especially in cases constitutional rights, to avoid potential injustice.
15. For res judicata to apply, the following conditions must be met:
i. A final judgment or order must have been issued.
ii. The Judgment or order must have been on merit.
iii. The judgment or order must have been made by a court with proper jurisdiction.
iv. The parties, subject matter, cause of action must be identical in both cases.
16. That this case, the matter before this court relates to criminal investigations about a missing official land record. Previous civil suits dealt only with land ownership disputes and did not involve criminal culpability for missing records. Additionally, the proposed interested party was not involved in those cases. Therefore, the principle of res judicata does not apply here.
17. That moreover, pursuant to Section 193A of the Criminal Procedure Code, ongoing civil proceedings do not prevent criminal investigation and prosecutions from proceeding. The Applicants claim that the criminal aspect was already determined in Mombasa Criminal Case No. 1278 of 2017 is misleading. The respondent is now investigating the applicants and their client with other numerous offence, including but not limited to concealing a register with intent to defraud, concealing a deed with intent to defraud, concealing a deed with intent to defraud, and conspiracy to defraud.
18. That these are new charges that warrant independent investigation and prosecution in line with the precedent set in the Nicholas Kipsigei Ngetich Case. Moreover, the complainant in this fresh matter is the state, while the proposed interested party in Mombasa Criminal Case no. 1278 of 2017 was just a witness.
19. The Applicants have opposed the Application for joinder vide their Replying Affidavit sworn by NAOMI H. KINUVA on 20th March 2025 on grounds that the Proposed Interested Party will offer no legal or factual information to assist this Court’s determination on the Notice of Motion Application dated 10th March 2025 filed by the Applicants.
20. The Applicants in the Application for Review maintain that the Application filed by the Proposed Interested Party is merely an attempt by the Respondent to muddy the waters, delay the determination of the substantive Application.
21. They added that the Proposed Interested Party has offered nothing that would be worthy of this Court’s consideration in the Substantive Application.
22. They grounded their position in the decision by the Supreme Court in Everton Coal Enterprises Limited V Rose Wakanyi Karanja & 5 Others [2023] eKLR: That
“…An interested party may not frame its own fresh issues or introduce new issues for determination by the Court.”
23. They submitted that it is indubitable that the Substantive Application seeks a revision of the order issued by Honourable G.A. Ollimo (SRM) in MOMBASA MISCELLANEOUS CRIMINAL NO. E174 OF 2025 on grounds that she did not have the jurisdiction to interfere in the subject matter of a petition pending before the Supreme Court (SUPREME COURT PETITION NO. E009 OF 2024).
24. It is also undisputed that the Proposed Interested Party was not a party in MOMBASA MISCELLANEOUS CRIMINAL NO. E174 OF 2025 and neither are they a party to SUPREME COURT PETITION NO. E009 OF 2024.
25. The prayers sought and the grounds predicated thereupon pertain to matters not pending before this Honorable Court for determination.
26. That, all the issues raised by the Proposed Interested Party were determined in finality in MOMBASA CIVIL APPEAL NO. E028 OF 2022; and were excluded in SUPREME COURT PETITION NO. E009 OF 2024 through the Ruling of the Supreme Court dated 13th December 2024 (provided as Annexure “NHK-2” in the Applicants Supplementary Affidavit sworn on 17th March 2025) where it was held:
“ For the foregoing reasons, it is our considered opinion that the evidence sought to be adduced does not meet the established threshold as the documents in question will lead to the Court considering in a 2 second appeal matters of fact; their relevance to this appeal is doubtful; their introduction will be tantamount to filling the gaps identified in the judgment of the Court of Appeal; the evidence has always been available and could have easily been obtained; and it has not been demonstrated in what way it will impact on the decision of this Court.
xiii) Looking at the nature of the additional evidence, we doubt that it would be of any use to this Court in reaching a fair and final decision on the dispute between the parties. The two superior courts below based their respective decisions upon the evidence presented by the parties, the ELC finding in favour of the appellant and the Court of Appeal for the respondent. Based on this fact, we are being asked in this appeal to determine, on the basis of the material on record, whether or not the Court of Appeal erred in its determination as to the ownership of the suit property. We believe this question is capable of being answered without the introduction of further evidence”.
27. It remains that since this Court is constitutionally subordinate to the Court of Appeal and the Supreme Court due to Articles 163, 164 and 165 of the constitution, it lacks the jurisdiction to entertain the issues decisively handle by the Court of appeal, and those pending before the Supreme Court.
28. Lastly, any allegations of criminality were also determined on 21st November 2021 (over three (3) years ago) in MOMBASA CRIMINAL CASE NO. 1278 of 2017 in which the Proposed Interested Party gave evidence. That judgment has never been varied nor set aside despite the Proposed Interested Party’s involvement.
ANALYSIS
29. I have noted that the proposed interested party, featured prominently in the Supreme Court as it was their evidence that the Applicant therein sought to introduce. The Apex dismissed the 2 Applications . I also note that all the cases in this series revolve around the ownership of this parcel and the documents in issue touch. In particular there was the criminal case that handled the elements of fraud relating to the issuance of the title deed.
30. Further even if we were to go by the proposed third parties position that these are new criminal matters, this is not the forum to raise them. This was just an application for review and as stated above a third party can not get into the proceedings and introduce their own issues.
31. Further even by going by the second prayer that the chief registrar would then respond to the application, that is not the correct procedure. The Attorney General BEING THE GOVERNMENT’S Chief Legal adviser and counsel is competent could have filed the relevant replying affidavit sworn by the Officers of the relevant Government Agency.
32. I am therefore inclined to agree with the applicants in the initial motion that the application for joinder was only a ruse to muddle the already convoluted proceedings.
39.That takes us back to the original Application dated 10/08/2025. I note that before it was filled and even before the parties moved to the Supreme Court, there was a flurry of correspondence between the Applicants and the Respondents over these documents.
The ODPP eventually advised the Respondents that the matter was res judicata. That is when it escalated to the Supreme Court and then plummeted down to the Magistrates court and hence the review application.
REVISIONARY POWERS
40.The applicable law Article 165 (6) & (7) of the Constitution which provides that ;
6. The High court has supervisory jurisdiction over the subordinate court and over any person body or authority exercising a judicial or quasi-judicial function but not over a superior court
7.For the purpose of clause 6 the high court may call for all the record of any proceeding before any subordinate court or person, body or authority referred in clause (6) and may make any order or give any direction it considers appropriate to ensure the fair administration ofactions.
41. Section 362 of the criminal procedure states as follows: “That the high court may call for and examine the record of any criminal proceedings before any subordinate court for purposes of satisfying itself as to the correctness, legality, or proprietress of any finding order, decision, recorded and as to the regularity of any proceedings of the other subordinate court”
42. In Article 20 (2) (3) (4) of the Constitution it says that: 2.Every person shall enjoy the right and fundamental freedom in the Bill of Rights to the greatest extent consistent with the nature of the right or fundamental freedom
3.In applying a provision of Bill of Rights a court shall:
a.Develop the law to the extent that it does not give effect to a right of fundamental freedom and
b.Adopt the interpretation that most favors the enforcement of a right or fundamental freedom
4.In the interpreting the Bill of Rights, a court tribunal or other authority shall promote
a.The values that underlie an open and democratic society based on human dignity, equality, equity and freedom
b.The spirit support and object of the Bill of Rights
43. The other fundamental principles embodied in the general supervisory powers of the High Court pursuant to Article 165 (6) and (7) of the Constitution is to prevent abuse of the process of the court, to make orders for expeditious trial to ensure that substantive justice shall be administered without undue regard to technicalities. Similarly, the consideration of illegality, impropriety, uncertainty, irregularity, illegality, irrationality, error of fact and law on the face of the record within the scope of discretion purportedly exercised by the session magistrate or chairman of a tribunal. In this respect the persuasive dicta in Hitila v Uganda (1969) E.A 219.
ANALYSIS
44. In considering matters involving the mandate of other constitutional bodies, this court has been careful not to be seen to shackle their hands. The court only steps in when the other body acts in breach of the rights enshrined in the constitution.
45.In this particular case, the applicant argues that there is an abuse of the criminal justice system because the respondents are re litigating issues which have been gone all the way to the supreme court. That the subordinate court was not made aware of the true position before issuing the orders in question.
46. The respondents position is that this is a fresh issue .
47. In dismissing the Application dated 28/08/2024, PETITION (APPLIC) NO. E009 OF 2024 this is what the Supreme court said:
A pplying these principles to the Motion, it is evident that the material sought to be introduced consists of documents, plans, and correspondence in relation to land parcel No. 287/V/MN (the Original Parcel) and the subsequent sub-divisions thereof. These documents are aimed at addressing certain questions raised by the Court of Appeal as to the authenticity of the applicant’s Certificate of Ownership; and the propriety of the process which was adopted by the Registrar of Titles to facilitate the reconstruction of file to the suit property, based on documents supplied solely by the applicant.
v) The applicant, having initiated the action, first before the High Court for the reconstruction of the file and subsequently before the ELC claiming ownership of the suit property as against the respondent’s rival claim was expected, indeed, required to bring the entire evidence at that initial stage to support that claim. vi) The applicant has not demonstrated that the additional evidence it seeks to adduce could not have been obtained with reasonable diligence for use at the trial or could not have otherwise been produced earlier. To the contrary, within a short time of the applicant writing to the relevant government departments, the documents were supplied, confirming that they were always available.
vii) By its admission, the applicant pleads that the additional evidence it wishes to present could not have been obtained and introduced before the trial court “because its necessity has only been brought about by the skewed decision of the Court of Appeal which has decided to disregard documents of title and instead determine a matter concerning property on a medieval doctrine of seisin… that the applicant had no way of predicting that the Court of Appeal would render such a skewed decision and veer away from the title documents which had been produced and analysed by the ELC”.
viii) The documentary evidence sought to be introduced is therefore in direct answer to the questions raised by the Court of Appeal in its impugned judgment. Parties cannot use the window provided for by Section 20 and Rule 26 aforesaid to fill the lacuna or patch up parts of the evidence of the unsuccessful party. The rule of thumb is that additional evidence will be required to do justice between the parties
. ix) It is on record that the only file that could not be traced at the Mombasa Land Registry during the proceedings before the trial court, was the Deed File in respect of the original parcel. Nothing has been said about the status of that file. There is, however, no evidence of any attempts by the applicant, prior to the delivery of the Court of Appeal judgment, to procure the multiple documents in the Correspondence File that it now wishes to produce.
x) Further, the applicant has averred that the Correspondence File and Survey Report, “were not necessary documents that needed to be submitted before the ELC because the applicant was not required to go to the root of the title of the suit property.” That, since the applicant was successful in the ELC, its title to the suit property was valid, and there was no necessity or requirement for it to introduce any document before the Court of Appeal as proof of the transactions that took place in the Original Parcel prior to the applicant acquiring it. 26 SC Petition (Applic) No. E009 of 2024 Page 9 of 10 xi) It is a requirement under Section 20, Rule 26 aforesaid and the ratio decidendi in Mohamed Abdi Mahamud (supra) that only evidence that is directly relevant to the matter before the Court would be considered for admission. The applicant has not illustrated how the new evidence will assist the Court in determining the authenticity of the root title of the suit property, over and above the material already on record and upon which the two superior courts below based their respective decisions.
xii) For the foregoing reasons, it is our considered opinion that the evidence sought to be adduced does not meet the established threshold as the documents in question will lead to the Court considering in a second appeal matters of fact; their relevance to this appeal is doubtful; their introduction will be tantamount to filling the gaps identified in the judgment of the Court of Appeal; the evidence has always been available and could have easily been obtained; and it has not been demowe doubt that it would be of any use to this Court in reaching a fair and final decision on the dispute between the parties. The two superior courts below based their respective decisions upon the evidence presented by the parties, the ELC finding in favour of the appellant and the Court of Appeal for the respondent. Based on this fact, we are being asked in this appeal to determine, on the basis of the material on record, whether or not the Court of Appeal erred in its determination as to the ownership of the suit property. We believe this question is capable of being answered without the introduction of further evidence.
ANALYSIS
48. I have reproduced the dicta of our apex court in detail as it helps us unlock the bottleneck. Clearly the document in issue and the evidence by the land registrar is what was i n issue in the two applications in the supreme court. The supreme court did detailed analysis in the two rulings as reproduced above.
49. The subordinate court was not made aware of that scenario. The sub ordinate court was also not made aware that there had been other criminal proceedings over the same documents. Worse still, was the withholding the correspondence in which the office of the DPP advised the investigators that the matter is res judicata .
50. That is why the Attorney General’s office and the chief registrar are seen to be the driving forces in this peculiar criminal proceedings. Why the loud silence by the DPP? The answer is their advice was ignored. The parties then moved to the supreme court and the applicants in the supreme court and in particular the and proposed having failed there, turned to the criminal justice system which appeared to be some safe fall back.
39. That is an abuse of the court. The criminal justice system must never be used to either settle a score or to get a head start or create a short cut or fill gaps in a civil claim. In any event, where a document is lost, the chief registrar would know what action to take. One must also , what their book copy is doing out there if that were to be the truth, who is culpable and what was their role as the custodian? In as much as it would be interesting to unravel that mystery, the circumstances and the route followed appear to be mischievous and an outright abuse of the court. Litigation cannot keep going round and round in circles.
DETERMINATION
40. For those reasons, I am satisfied that the Applicant in the motion dated 10/03/2025 met the threshold for review. There was no full disclosure and the matters are res judicata. Accordingly the orders granted were neither proper , nor regular .
41. Accordingly, this court dismisses the Application on joinder dated 18/03/2025 and prayers allows 2, 3 and 4 in the Application dated 10/03/2025.
42. Costs for the 2 applications to be borne by the respondents in the application dated 10/3/2025.
43.It is so ordered
Dated, signed and delivered in Open Court/online through MS TEAMS,
this …24th…… day of July 2025
H ON. LADY JUSTICE W. K. MICHENI
JUDGE
MR KIMEI HOLDING BRIEF FOR MR LANGAT PRESENT TOGETHER WITH MR SIRIMA FOR THE RESPONDENT AND THE PROPOSED INTERESTED PARTY
MS KINUVA FOR THE APPLICANTS
BEBORA COURT ASSISTANT
HON. LADY JUSTICE W. K. MICHENI
JUDGE