Kenyariri v Double Win Company Limited & 2 others (Environment and Land Case E288 of 2022) [2026] KEELC 3361 (KLR) (4 June 2026) (Ruling)

Kenyariri v Double Win Company Limited & 2 others (Environment and Land Case E288 of 2022) [2026] KEELC 3361 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3361 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E288 of 2022 CG Mbogo, J June 4, 2026 Between Christopher O. Kenyariri Plaintiff and Double Win Company Limited 1st Defendant Miao Yunfei 2nd Defendant Liu Yuping 3rd Defendant Ruling 1.Before this court for determination is the notice of motion dated 14th January, 2025 (sic) filed by the defendants/applicants and it is expressed to be brought under Sections 1 and 1A of the Civil Procedure Act and Order 45 of the Civil Procedure Rules seeking the following orders:-1.That the judgment delivered herein on 11th December, 2025 be and is hereby reviewed specifically in respect to the award of costs against the 1st, 2nd and 3rd defendants/applicants.2.That the order condemning the 1st, 2nd and 3rd defendants/applicants to pay costs of the suit to the plaintiff/respondent be set aside.3.Alternatively, the plaintiff/respondent be condemned to pay the costs of the suit to the 1st, 2nd and 3rd defendants/applicants in accordance with the general rule under Order 25 Rule 2 of the Civil Procedure Rules.4.That costs of this application be provided for.5.That this honourable court be pleased to grant such other or further orders as it may deem just and expedient in the circumstances. 2.The application is premised on the grounds on its face. It is further supported by the affidavit of 2nd defendant/applicant sworn on even date. He deposed that on February 2020, the plaintiff/respondent entered into contracts with the 1st to 3rd defendants/applicants for the purchase of apartments A102 and A105 at Sandalwood Garden, Nairobi, and that the agreed completion date was 31st December 2020, which time they were obligated to avail completion documents. The 2nd defendant/applicant deposed that they were unable to provide the completion documents by the agreed date of 31st December 2020, due to administrative bottlenecks and bureaucratic delays with approvals from government agencies, specifically the Ministry of Lands and Physical Planning and the County Government of Nairobi, which led to the plaintiff/respondent filing the instant suit in 2022. 3.He deposed that in August 2025, they finally obtained all the necessary approvals from the government agencies and were able to deliver duly executed transfers of title to the plaintiff/respondent, who then executed the transfer documents, thereby resolving the substantive dispute that had given rise to the suit. Being satisfied with the completion documents, the plaintiff/respondent chose to withdraw the suit by filing a notice of withdrawal dated 5th September, 2025. 4.It was further deposed that on 11th December 2025, this court delivered a ruling granting the plaintiff/respondent’s application for withdrawal and condemning the defendants/applicants to pay the costs of the suit. Further, the court awarded costs against them without any evidence being presented to establish that the delay in completion was attributable to their fault, negligence, or breach of contract, which they state was not caused by any inadvertence on their part. 5.He also deposed that the court failed to apply the general principle under Order 25 Rule 2 of the Civil Procedure Rules that a plaintiff who withdraws a suit is generally liable to pay the defendants’ costs up to the date of withdrawal, stating that the rationale for this principle is that withdrawal is treated as losing for purposes of costs, as they have been put to unnecessary expense in defending the claim. They argued that they will suffer substantial financial prejudice if the costs order is allowed to stand, as they will be required to pay costs for delays, which they did not cause. 6.Thus, their argument is that there is an error apparent on the face of the record in that the court awarded costs based on the mere fact of delay without evidence of fault, and without considering the reasons for the delay and that the interest of justice demands that this error be corrected through review of the ruling. 7.The plaintiff/respondent raised a notice of preliminary objection against the instant application dated 27th January, 2026 on the grounds that:-1.The applicants lack locus standi to institute or maintain the present application following the registration of the sectional plan and the automatic establishment of a management corporation under the Sectional Properties Act, 2020.2.Upon the establishment of the management corporation, all rights, obligations, duties and liabilities relating to the management and administration of the sectional property vested in the said corporation by operation of law thereby rendering the applicants functus officio.3.The present application is res judicata and/or constructively res judicata pursuant to Section 7 of the Civil Procedure Act, the issues raised herein have been matters which were either directly determined or which ought to have been raised in opposition to the respondent’s earlier application.4.The application is incompetent, bad in law, and an abuse of the court process, and this honourable court lacks jurisdiction to entertain it. 8.In further response to the application, the plaintiff/respondent filed his replying affidavit sworn on 27th January, 2026. He deposed that the application does not meet the threshold for review under Order 45, since this suit was instituted due to the defendants/applicants’ failure to furnish completion documents, including valid titles, by the agreed contractual completion date. He noted that the defendants/applicants only furnished the said completion documents after the commencement of this suit, thereby acknowledging, by conduct, that the cause of action was valid at the time of filing. Despite filing and serving his application to withdraw the suit, the defendants/applicants did not file any response, grounds of opposition, or submissions, and did not contest the prayer on costs. 9.It is his contention that the defendants/applicants have not demonstrated discovery of any new and important matter or evidence that was not within their knowledge at the time the ruling was delivered and that no mistake or error apparent on the face of the record has been disclosed, the award of costs having been a proper exercise of judicial discretion. He deposed that the alleged delay occasioned by government agencies was a matter exclusively within their knowledge and could, and ought to have been raised in opposition to the withdrawal application. 10.The defendants/applicants filed grounds of opposition dated 20th February, 2026 against the plaintiff/respondent’s preliminary objection. They argued that they have locus standi to institute the present application as the ruling delivered on 11th December, 2025 specifically directing them to pay costs. As parties against whom the costs order was made, they are “persons aggrieved” within the meaning of Section 80 of the Civil Procedure Act and have a direct, personal, and sufficient interest in the proceedings to challenge the said order. 11.Further, the management corporation established under Section 17 of the Sectional Properties Act is a new and distinct legal entity whose mandate under Section 20 of the Sectional Properties Act is limited to the management of common property and is not a universal transfer of the developer’s pre-existing litigation obligations. They further denied the allegations on res judicata as the application has never been canvassed, heard, or determined by this court or any other court. 12.The application was canvassed through written submissions. The plaintiff/respondent filed his written submissions dated 3rd March, 2026. By the time of writing this ruling, the defendants/applicants had not filed their written submissions. Be that as it may, I have considered the application, the preliminary objection and the replies thereof. The issue for determination is whether the application has merit. 13.The defendants/applicants seek a review of this court’s decision to award costs of the suit to the plaintiff/respondent and the same to be set aside. The plaintiff/respondent raised a preliminary objection, that the defendants/applicants lack locus standi to institute or maintain the present application following the registration of the sectional plan and the automatic establishment of a management corporation under the Sectional Properties Act, and that this application offends the rules of res judicata. 14.According to the Black’s Law Dictionary a preliminary objection is defined as being:-“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…” 15.The above legal preposition has been cemented in the now famous case of Mukisa Biscuit Manufacturing Co. Ltd –VS- West End Distributors Ltd. [1969] E.A. 696. The court held that:-“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurrer as it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. This improper practice should stop” 16.The matters of locus standi and res judicata in the circumstance of this case are points of law, as a suit cannot stand against a person without the capacity to sue or be sued, and neither can the court entertain a suit that offends the doctrine of res judicata. 17.On locus standi, the plaintiff/respondent contends that following the registration of the sectional plan and the automatic establishment of a management corporation under the Sectional Properties Act, all rights, obligations, duties, and liabilities relating to the management and administration of the sectional property vested in the said corporation by operation of the law, thereby rendering the defendants/applicants functus officio. 18.Section 17(6) of the Sectional Properties Act Cap 286 provides that:“The provisions of the Companies Act (Cap. 486) shall not apply to the Corporation” 19.Therefore, while the corporation has the ability to sue, it is not a company in the sense of the Companies Act and its duties as listed in Section 20 are aimed at managing the property. Further, Section 80 of the Civil Procedure Act give a wider room as to who may approach the court if aggrieved by the decision thereof; “Any person who considers himself aggrieved by a decree or order”. Being aggrieved by the ruling of the court, the defendants/applicants are rightfully before this court as they fit the description of an aggrieved party. The lack of locus standi therefore does not arise. 20.On whether the instant application is res judicata, in Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR, the Supreme Court while considering Section 7 of the Civil Procedure Act held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is:-“(a)The suit or issue was directly and substantially in issue in the former suit.(b)That former suit was between the same parties or parties under whom they or any of them claim.(c)Those parties were litigating under the same title.(d)The issue was heard and finally determined in the former suit.(e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” 21.The plaintiff/respondent has not demonstrated that a similar application between the same parties and concerning the same issue has been heard by a court of competent jurisdiction. The fact that it did not arise previously does not mean that the same is res judicata. Thus, the preliminary objection fails. 22.Moving onto the application for review, the statutory provisions that govern orders of review are Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. Section 80 of the Act provides that:-“Any person who considers himself aggrieved—a.by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit” 23.Order 45 Rule 1 of the Civil Procedure Rules provides that:“Any person considering himself aggrieved—a.by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.” 24.The elements necessary for orders of review have been widely elaborated by the courts. In the case of Francis Njoroge v Stephen Maina Kamore [2018] eKLR the court held that:-“Therefore, Order 45 of the Civil Procedure Rules, 2010 is very explicit that a court can only review its orders if the following grounds exist:-a.There must be discovery of a new and important matter which after the exercise of due diligence, was not within the knowledge of the applicant at the time the decree was passed or the order was made; orb.There was a mistake or error apparent on the face of the record; orc.There were other sufficient reasons; andd.The application must have been made without undue delay.” 25.The requirements for review are therefore the discovery of a new and important matter that could not have been known at the time the decree or order was issued, a mistake or error apparent on the face of the record, or for any other sufficient reason and the application must be made without unreasonable delay. 26.The defendants/applicants raised issue with the court’s orders issued on 11th December 2025, after being ordered to pay the costs of the suit upon the plaintiff/respondent withdrawing the suit. Order 25 of the Civil Procedure Rules stipulates the rules on withdrawal of suits as follows:“At any time before the setting down of the suit for hearing the plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action.” 27.Order 25 Rule 2 stipulates that:-“1)Where a suit has been set down for hearing it may be discontinued, or any part of the claim withdrawn, upon the filing of a written consent signed by all the parties.(2)Where a suit has been set down for hearing the court may grant the plaintiff leave to discontinue his suit or to withdraw any part of his claim upon such terms as to costs, the filing of any other suit, and otherwise, as are just.(3)The provisions of this rule and rule 1 shall apply to counterclaims.” 28.Thus, the court has discretion to make orders as to costs as it deems just as provided above, and the costs do not automatically lie with the plaintiff/respondent as the defendants applicants contend. 29.Section 27 of the Civil Procedure Act provides that:-“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.” 30.The court has the discretion to make orders as to who shall bear the costs of and incidental to a suit. In the case of Party of Independent Candidate of Kenya & another vs Mutula Kilonzo & 2 others (2013) eKLR which cited with approval the words of Murray C J in Levben Products vs Alexander Films (SA) (PTY) Ltd 1957 (4) SA 225 (SR) at 227 stated thus:-“It is clear from authorities that the fundamental principle underlying the award of costs is two-fold. In the first place, the award of costs is a matter in which the trial judge is given the discretion ...But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at....In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.” 31.In this case, the plaintiff/respondent instituted the suit due to the defendants/applicants’ failure to furnish completion documents, including valid titles, by the agreed contractual completion date, contracts which were for the purchase of apartments A102 and A105 at Sandalwood Garden, Nairobi. It was evident to the court that the delay was caused by the defendants/applicants herein, and neither did they state or demonstrate the reason for the delay in delivering the completion documents by responding to the application for withdrawal of the suit. As a result, this court exercised its discretion and ordered the defendants/applicants to bear the costs of the suit. 32.The reasons stated above demonstrate that there was no mistake or error on the face of the record that the court was misguided in awarding costs to the plaintiff/respondent as the same was done in proper exercise of judicial discretion. 33.The upshot of the above is that the notice of motion dated 14th January, 2025 (sic) lacks merit and it is hereby dismissed. The notice of preliminary objection dated 27th January, 2026 is also dismissed. Each party to bear its own costs.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 4TH DAY OF JUNE, 2026.HON. MBOGO C.G.JUDGE04/06/2026.In the presence of:Ms. Vena Atieno - Court assistantDr. Kenyariri for the PlaintiffMs. Ochieng for the Defendants