1. The 3rd respondent/applicant moved this Court by way of a Notice of Motion Application dated October 21, 2022, pursuant to leave granted on November 10, 2025. The 3rd respondent filed its Amended Notice of Motion Application on November 26, 2025, praying for the following orders, among others:
a) This Court be pleased to certify this application as urgent and to dispense with service thereof in the first instance.
b) This Court be pleased to stay the execution of the judgment delivered by Olola J. on March 17, 2022, at Nyeri, pending the hearing and determination of this application.
c) The Court be pleased to set aside the proceedings conducted in this matter on January 18, 2021, and the resultant judgment of Olola J., delivered on March 17, 2022, and for the matter to be heard on the merits.
d) The costs of this application should be provided for.
2. This Court issued a directive that proceedings on the application could not continue while an appeal was pending before the Court of Appeal. Consequently, the matter was stayed pending the hearing and determination of Malindi Civil Appeal No. E001 of 2022. The judgment on that appeal was delivered by the Superior Court on 24th October 2025. It is reported as Dido (Suing on Her Own Behalf and on Behalf of 17 others) v Stima Investment Co-operative Society Ltd & 2 others (Civil Appeal E001 of 2022) [2025] KECA 1709 (KLR) (24 October 2025) (Judgment). Subsequently, on 10th November 2025, the matter was scheduled for mention, during which the parties were instructed to file written submissions in relation to the application.
3. I appreciate receipt of submissions from the 3rd respondent/applicant and the petitioner/respondent, as they went a long way toward assisting the Court in reaching its verdict on the issues raised in the application.
4. Arising from the materials and submissions placed before me, I frame the following issues for the Court's determination, namely the setting aside of the judgment issued by this Court (Olola J.) dated March 17, 2022; the hearing of the matter de novo; and who should bear costs.
5. The applicant asserts that the supporting affidavit, sworn by the 3rd respondent’s legal representative on record on 24th November 2025, substantiates the motion. Furthermore, the proceedings in this matter were held on 18th January 2021 in the absence of the 3rd respondent’s legal representative, with judgment subsequently delivered on 17th March 2022. The applicant additionally contends that the 3rd respondent’s legal representative on record was not served and did not receive a hearing notice informing her of the 18th January 2021 hearing date.
6. Applicant contends that upon review of the court file by the advocate representing the 3rd respondent on October 3, 2022, no affidavit of service was on record showing that the hearing notice for January 18, 2021, was duly served on the advocate representing the 3rd respondent, as claimed. The failure to serve the 3rd respondent’s advocate has resulted in the 3rd respondent being condemned unheard, thereby depriving it of its constitutional right to a fair trial. The 3rd respondent has submitted all necessary pleadings and has a defensible, meritorious case.
7. Without proper service, the 3rd respondent asserts that the current judgment is invalid and irregular, and that the Court should exercise its discretion to set it aside ex debito justiciae. This assertion is supported by citations of decisions in Roy Parcel Services Limited v Boniface Shibutse Shibunyanga [2020] eKLR, Wachira Karani v Bildad Wachira [2016] eKLR, Patel v East Africa Cargo Handling Services [1974] EA 75, David Bundi v Timothy Mwenda Muthee [2022] eKLR, and Philip Chemowolo & Another v Augustine Kubende [1986] eKLR.
8. On the other hand, the petitioner/respondent asserts that this petition was consolidated with Malindi ELC No. 109 of 2016 and Malindi ELC Case No. 110 of 2016.
9. Petitioner/respondent avers that, after a hearing, the Court delivered the impugned verdict, prompting an appeal. The Superior Court rendered its decision on the appeal from the Judgment and Decree of the Environment and Land Court of Kenya at Malindi (Olola, J.), delivered on March 17, 2022, in Petition No. 13 of 2016, consolidated with E.L.C. No. 109 of 2016 and E.L.C. No. 110 of 2016.
10. It is the respondent’s view that bringing the current application will derail the enjoyment of the judgment and decree arising from the decision of Olola J., which was confirmed on appeal.
11. In its view, there was proper service on the 3rd respondent/applicant, and the Court cannot exercise discretion in favor of the 3rd respondent (see Kulevih v Kemboi [2026] KEHC 4415 (KLR), Shanzu Investments Ltd v Commissioner of Lands [1993] eKLR). That judgment having been rendered, this Court is factus officio (see Kabansora Millers Ltd v Nyangena [2025] KEHC 4754 (KLR) - Civil Appeal E665 of 2022).
12. Before I delve into the merits of the application, let me recite what the Superior Court found in its October 24, 2025 judgment, which I find relevant and, to me, will dispose of the application at once.
13. In paragraphs 36 to 43 of its judgment, the Court of Appeal made the following findings regarding the impugned judgment:
“As for Malindi ELC No. 110 of 2016 to which the respondents were named as defendants, we find nothing on record to suggest that any of them filed their defence to the appellants and claimants’ claim. If they did, such pleadings are not on record. Be that as it may, an extract of the proceedings of 15th February 2017 is instructive and settles the matter. As the learned Judge directed upon consolidation of the 1st respondent’s petition and Malindi ELC Case No. 110 of 2016:
“Court: There are a number of Parties involved in the consolidated suits. A number of documents have not been exchanged either. The Parties have however agreed to maintain Status Quo and proceed to hearing. Accordingly, I direct that the Parties do exchange documents afresh. The Petitioner should serve all parties with the Petition and every party should serve whatever documents filed in any of the files upon the other parties within 30 days of today’s date.”
37. To our mind, the record is clear that the parties were in agreement to proceed with the two consolidated causes (the petition and ELC Case No. 110 of 2016) on the basis of the pleadings as filed and the evidential documents as exchanged in obedience to the directions aforesaid. To turn around this late in the day and allege that the respondents did not file defences to the suit in ELC Case No. 110 of 2016 would be in disregard of the directions and the procedure agreed upon by the parties. In any event, nothing stood in the appellants’ or any other party’s way to apply for default judgment or other orders. Moreover, the effect of consolidation was to constitute the 1st respondent’s petition effectively a defence to the appellants’ and other claimants’ suit in ELC Case No. 110 of 2016. Likewise, the appellants’ reply to the 1st respondent’s petition constituted their defence to his petition. Accordingly, nothing turns on this issue as parties were bound by their pleadings as filed.
38. Pleadings are the bedrock upon which all the proceedings derive from. This settled position was reaffirmed by this Court in Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 others [2014] eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) v Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings:
“…. it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded……
…In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”
39. In the same vein, the Supreme Court of Kenya in Raila Amolo Odinga & Another v IEBC & 2 others [2017] eKLR found and held as follows with regard to the essence of pleadings:
“ In the absence of pleadings, evidence, if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings, and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings ….”
40. Turning to the closely linked 4th and 5th issues as to whether the learned Judge misapprehended the appellants’ defences and counterclaims against the respondents; and whether the learned Judge was at fault in dismissing the appellants’ claims. We think not. A cursory look at the impugned judgment discloses a meticulous analysis of the evidence adduced at the trial of the two consolidated suits. We need not overemphasise the fact that the learned Judge was not obligated to provide a detailed transcript of every element of the evidence considered in reaching his decision (see: Effort Mutanda v S [2015] ZAFSHC 13).
41. However, we take to mind the submissions by counsel for the appellants that the Judge was at fault in “incorrectly categorising them as reliant on the County Government of Lamu”, whose import was not substantiated in the submissions for our scrutiny and pronouncement, save to observe that the 3rd respondent could have lent clarity to the issues raised by stating whether they were indeed trustees for the appellants in respect of the suit property as alleged. However, nothing turns on this submission since the suit property was public and not trust or community land.
42. Apart from the foregoing sweeping statements, including the alleged failure on the respondents’ part to defend the appellants’ counterclaim, it should be borne in mind that the only counterclaim raised by the appellants was in ELC No. 109 of 2016, which was struck out. The appellants are not contending that their counterclaim survived the striking out, or what stood in their way of pursuing any claim(s) (if any) in alternative proceedings against Omar. However, it is not lost on us that the suit in issue was filed in 2016 after Omar had ceased to be the registered proprietor of the suit property in 2015 and, therefore, the defendants in that suit had no cause of action by way of a counterclaim against him. Neither did he have the locus standi to maintain the 2016 suit against them, which explains the trial court’s decision to strike it out. And that settles the 4th and 5th issues before us.
43. Having carefully considered the record of appeal, the grounds on which it is anchored, the impugned judgment, the respective submissions, the cited authorities, and the law, we find that the appeal fails and is hereby dismissed in its entirety. Consequently, the judgment and decree of the ELC (J. O. Olola, J.) delivered on 17th March 2022 is hereby upheld.”
14. Based on the Superior Court's holding aforesaid, the appeal appears to have been decided on its merits. Although the 3rd respondent/applicant was faulted for failing to clarify whether it held the suit property in trust, the appeal was disposed of on its merits, and the judgment and decree of Olola J. dated 17th March 2022 were upheld. I cannot turn back the pendulum to reexamine issues already decided on appeal. I will be reviewing the decision of the Superior Court. I have no jurisdiction to do so. I will down tools.
15. Consequently, the Notice of Motion Application dated October 21, 2022, as amended by the Notice of Motion Application dated November 26, 2025, is hereby dismissed with costs.
Dated, signed, and delivered virtually in Nyeri on this 30th day of April, 2026.
E. K. MAKORI
JUDGE
In the Presence of:
Ms.Muthama for the Petitioner/ Respondent
Mr. Ole Kina for the 1st Respondent, and H/B for Ms. Swaleh for the 3rd Respondent/Applicant
Dennis: Court Assistant
In the Absence of:
Mr. Kiilu for the 2nd Respondent
a) This Court be pleased to certify this application as urgent and to dispense with service thereof in the first instance.
b) This Court be pleased to stay the execution of the judgment delivered by Olola J. on March 17, 2022, at Nyeri, pending the hearing and determination of this application.
c) The Court be pleased to set aside the proceedings conducted in this matter on January 18, 2021, and the resultant judgment of Olola J., delivered on March 17, 2022, and for the matter to be heard on the merits.
d) The costs of this application should be provided for.
2. This Court issued a directive that proceedings on the application could not continue while an appeal was pending before the Court of Appeal. Consequently, the matter was stayed pending the hearing and determination of Malindi Civil Appeal No. E001 of 2022. The judgment on that appeal was delivered by the Superior Court on 24th October 2025. It is reported as Dido (Suing on Her Own Behalf and on Behalf of 17 others) v Stima Investment Co-operative Society Ltd & 2 others (Civil Appeal E001 of 2022) [2025] KECA 1709 (KLR) (24 October 2025) (Judgment). Subsequently, on 10th November 2025, the matter was scheduled for mention, during which the parties were instructed to file written submissions in relation to the application.
3. I appreciate receipt of submissions from the 3rd respondent/applicant and the petitioner/respondent, as they went a long way toward assisting the Court in reaching its verdict on the issues raised in the application.
4. Arising from the materials and submissions placed before me, I frame the following issues for the Court's determination, namely the setting aside of the judgment issued by this Court (Olola J.) dated March 17, 2022; the hearing of the matter de novo; and who should bear costs.
5. The applicant asserts that the supporting affidavit, sworn by the 3rd respondent’s legal representative on record on 24th November 2025, substantiates the motion. Furthermore, the proceedings in this matter were held on 18th January 2021 in the absence of the 3rd respondent’s legal representative, with judgment subsequently delivered on 17th March 2022. The applicant additionally contends that the 3rd respondent’s legal representative on record was not served and did not receive a hearing notice informing her of the 18th January 2021 hearing date.
6. Applicant contends that upon review of the court file by the advocate representing the 3rd respondent on October 3, 2022, no affidavit of service was on record showing that the hearing notice for January 18, 2021, was duly served on the advocate representing the 3rd respondent, as claimed. The failure to serve the 3rd respondent’s advocate has resulted in the 3rd respondent being condemned unheard, thereby depriving it of its constitutional right to a fair trial. The 3rd respondent has submitted all necessary pleadings and has a defensible, meritorious case.
7. Without proper service, the 3rd respondent asserts that the current judgment is invalid and irregular, and that the Court should exercise its discretion to set it aside ex debito justiciae. This assertion is supported by citations of decisions in Roy Parcel Services Limited v Boniface Shibutse Shibunyanga [2020] eKLR, Wachira Karani v Bildad Wachira [2016] eKLR, Patel v East Africa Cargo Handling Services [1974] EA 75, David Bundi v Timothy Mwenda Muthee [2022] eKLR, and Philip Chemowolo & Another v Augustine Kubende [1986] eKLR.
8. On the other hand, the petitioner/respondent asserts that this petition was consolidated with Malindi ELC No. 109 of 2016 and Malindi ELC Case No. 110 of 2016.
9. Petitioner/respondent avers that, after a hearing, the Court delivered the impugned verdict, prompting an appeal. The Superior Court rendered its decision on the appeal from the Judgment and Decree of the Environment and Land Court of Kenya at Malindi (Olola, J.), delivered on March 17, 2022, in Petition No. 13 of 2016, consolidated with E.L.C. No. 109 of 2016 and E.L.C. No. 110 of 2016.
10. It is the respondent’s view that bringing the current application will derail the enjoyment of the judgment and decree arising from the decision of Olola J., which was confirmed on appeal.
11. In its view, there was proper service on the 3rd respondent/applicant, and the Court cannot exercise discretion in favor of the 3rd respondent (see Kulevih v Kemboi [2026] KEHC 4415 (KLR), Shanzu Investments Ltd v Commissioner of Lands [1993] eKLR). That judgment having been rendered, this Court is factus officio (see Kabansora Millers Ltd v Nyangena [2025] KEHC 4754 (KLR) - Civil Appeal E665 of 2022).
12. Before I delve into the merits of the application, let me recite what the Superior Court found in its October 24, 2025 judgment, which I find relevant and, to me, will dispose of the application at once.
13. In paragraphs 36 to 43 of its judgment, the Court of Appeal made the following findings regarding the impugned judgment:
“As for Malindi ELC No. 110 of 2016 to which the respondents were named as defendants, we find nothing on record to suggest that any of them filed their defence to the appellants and claimants’ claim. If they did, such pleadings are not on record. Be that as it may, an extract of the proceedings of 15th February 2017 is instructive and settles the matter. As the learned Judge directed upon consolidation of the 1st respondent’s petition and Malindi ELC Case No. 110 of 2016:
“Court: There are a number of Parties involved in the consolidated suits. A number of documents have not been exchanged either. The Parties have however agreed to maintain Status Quo and proceed to hearing. Accordingly, I direct that the Parties do exchange documents afresh. The Petitioner should serve all parties with the Petition and every party should serve whatever documents filed in any of the files upon the other parties within 30 days of today’s date.”
37. To our mind, the record is clear that the parties were in agreement to proceed with the two consolidated causes (the petition and ELC Case No. 110 of 2016) on the basis of the pleadings as filed and the evidential documents as exchanged in obedience to the directions aforesaid. To turn around this late in the day and allege that the respondents did not file defences to the suit in ELC Case No. 110 of 2016 would be in disregard of the directions and the procedure agreed upon by the parties. In any event, nothing stood in the appellants’ or any other party’s way to apply for default judgment or other orders. Moreover, the effect of consolidation was to constitute the 1st respondent’s petition effectively a defence to the appellants’ and other claimants’ suit in ELC Case No. 110 of 2016. Likewise, the appellants’ reply to the 1st respondent’s petition constituted their defence to his petition. Accordingly, nothing turns on this issue as parties were bound by their pleadings as filed.
38. Pleadings are the bedrock upon which all the proceedings derive from. This settled position was reaffirmed by this Court in Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 others [2014] eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) v Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings:
“…. it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded……
…In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”
39. In the same vein, the Supreme Court of Kenya in Raila Amolo Odinga & Another v IEBC & 2 others [2017] eKLR found and held as follows with regard to the essence of pleadings:
“ In the absence of pleadings, evidence, if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings, and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings ….”
40. Turning to the closely linked 4th and 5th issues as to whether the learned Judge misapprehended the appellants’ defences and counterclaims against the respondents; and whether the learned Judge was at fault in dismissing the appellants’ claims. We think not. A cursory look at the impugned judgment discloses a meticulous analysis of the evidence adduced at the trial of the two consolidated suits. We need not overemphasise the fact that the learned Judge was not obligated to provide a detailed transcript of every element of the evidence considered in reaching his decision (see: Effort Mutanda v S [2015] ZAFSHC 13).
41. However, we take to mind the submissions by counsel for the appellants that the Judge was at fault in “incorrectly categorising them as reliant on the County Government of Lamu”, whose import was not substantiated in the submissions for our scrutiny and pronouncement, save to observe that the 3rd respondent could have lent clarity to the issues raised by stating whether they were indeed trustees for the appellants in respect of the suit property as alleged. However, nothing turns on this submission since the suit property was public and not trust or community land.
42. Apart from the foregoing sweeping statements, including the alleged failure on the respondents’ part to defend the appellants’ counterclaim, it should be borne in mind that the only counterclaim raised by the appellants was in ELC No. 109 of 2016, which was struck out. The appellants are not contending that their counterclaim survived the striking out, or what stood in their way of pursuing any claim(s) (if any) in alternative proceedings against Omar. However, it is not lost on us that the suit in issue was filed in 2016 after Omar had ceased to be the registered proprietor of the suit property in 2015 and, therefore, the defendants in that suit had no cause of action by way of a counterclaim against him. Neither did he have the locus standi to maintain the 2016 suit against them, which explains the trial court’s decision to strike it out. And that settles the 4th and 5th issues before us.
43. Having carefully considered the record of appeal, the grounds on which it is anchored, the impugned judgment, the respective submissions, the cited authorities, and the law, we find that the appeal fails and is hereby dismissed in its entirety. Consequently, the judgment and decree of the ELC (J. O. Olola, J.) delivered on 17th March 2022 is hereby upheld.”
14. Based on the Superior Court's holding aforesaid, the appeal appears to have been decided on its merits. Although the 3rd respondent/applicant was faulted for failing to clarify whether it held the suit property in trust, the appeal was disposed of on its merits, and the judgment and decree of Olola J. dated 17th March 2022 were upheld. I cannot turn back the pendulum to reexamine issues already decided on appeal. I will be reviewing the decision of the Superior Court. I have no jurisdiction to do so. I will down tools.
15. Consequently, the Notice of Motion Application dated October 21, 2022, as amended by the Notice of Motion Application dated November 26, 2025, is hereby dismissed with costs.
Dated, signed, and delivered virtually in Nyeri on this 30th day of April, 2026.
E. K. MAKORI
JUDGE
In the Presence of:
Ms.Muthama for the Petitioner/ Respondent
Mr. Ole Kina for the 1st Respondent, and H/B for Ms. Swaleh for the 3rd Respondent/Applicant
Dennis: Court Assistant
In the Absence of:
Mr. Kiilu for the 2nd Respondent