https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4999

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELC CIVIL NO. 32 OF 2012** **DOUGLAS MUNGAI NJOROGE …………………..……PLAINTIFF** **VERSUS** **PETER KAMAU KIMONDO** *(legal representative of the Estate of the late***STEPHEN KIMONDO KAMAU (Deceased).……DEFENDANT** **RULING** 1. By the Notice of Motion dated 28th November 2025, Douglas Mungai Njoroge (the Plaintiff) prays for orders: 2. **Spent;** 3. **That this Honourable Court be pleased to issue an order of prohibition prohibiting any sale, alienation or any other transaction by the proprietor representative pending the sale in execution;** 4. **That this Honourable Court be pleased to order that the property aforesaid be sold in execution of a decree in this matter; and** 5. **That the costs of the application be provided for.** 6. The application is supported by an Affidavit sworn by the Plaintiff and is premised on the grounds: 7. **That the Respondent had been ordered to refund the purchase price with interest from the date of its payment;** 8. **That the sum has not been paid leading to the application for execution; and** 9. **That the parcel of land is the only known attached property.** 10. Nahashon Njenga Kamau sued as the Legal Representative of Peter Kamau Nguatha (deceased) (the 2nd Respondent) is opposed to the application. By his Preliminary Objection dated 15th December 2025, the 2nd Respondent objects to the application on the grounds that: 11. **This Honourable Court does not have jurisdiction to entertain the present application;** 12. **The Court is now *functus officio*;** 13. **The application is *res judicata*; and** 14. **That the Applicant lacks *locus standi* to institute and/or prosecute the Notice of Motion dated 28th November 2025 and the said application is therefore fatally defective, incompetent and an abuse of the Court process.** 15. In addition to the Notice of Preliminary Objection, the 2nd Respondent has on the same 15th December 2025 sworn a Replying Affidavit wherein he avers that the application is a waste of the Court’s time as the Court has clearly pronounced itself on the issue. The 2nd Respondent asserts that the application is *res judicata* and that there does not exist any decree in favour of the Applicant. 16. The 2nd Respondent further avers that the rightful decree holder in respect to this case is the Estate of Peter Kamau Nguatha who was the vendor in the sale transaction and that the Court made an order that the balance of the purchase price be paid to the estate. 17. The 2nd Respondent further avers that the issue in question had already been canvassed through an application dated 2nd October 2024 and that the Court of Appeal having made a decision, this Court does not have the jurisdiction to vary the same. 18. I have carefully perused and considered the application as well as the response thereto. I have similarly perused and considered the submissions placed before the Court by the Learned Advocates representing the parties. 19. By his application before the Court, the Plaintiff prays for an order of prohibition restraining the sale, alienation or any other transaction involving an undisclosed parcel of land pending its sale in execution of a decree. In addition, the Plaintiff urges the Court to be pleased to order that the said property be sold in execution of a decree issued in this matter. 20. In support of that application, the Plaintiff has filed a brief Supporting Affidavit in which he deposes as follows in the relevant paragraphs 2 to 8: **“2. That in this matter, I had filed a suit and judgment was given;** **3. That as indicated in Paragraph 149 of the judgment my money was to be refunded by the vendor together with the interest;** **4. That this was also confirm (sic) by the Court of Appeal;** **5. That despite demand made, that have not been date which made me apply for execution (sic);** **6. That the only property available is the parcel namely Kiambu/Thimbigua/1340/2. I attach herewith a copy of the search certificate marked ‘DMN-1’;** **7. That I therefore apply to this Court for an order prohibiting transfer by proprietor or representative of the parcel of land known as Kiambu/Thimbigua/1340/2; and** **8. That I apply for direction that it may be sold to enable one to recover money.”** 1. In support of his application, the Plaintiff submits that this Court at paragraph 149 of the Judgment and the Court of Appeal at Page 29 of its Judgment ruled in his favour and that since there is no dispute with regard to payments made, what remains is execution. The position taken by the Plaintiff and his submissions on the matter were not only casual but utterly misleading. 2. From my perusal of the record, the Plaintiff instituted this suit against one Stephen Kimondo Kamau seeking vacant possession of LR. No. Mbsa/MS/Block III/462. Subsequently in his Statement of Defence and Counterclaim, Stephen Kimondo Kamau as the Plaintiff in the Counterclaim, sued Peter Kamau Nguatha who was the vendor of the said property as the 1st Defendant together with the Plaintiff herein as the 2nd Defendant. 3. In a Judgment delivered on 28th April 2022, the Honourable Justice L.L. Naikuni ordered inter alia that the said parcel of land be registered in the name of Stephen Kimondo Kamau (the Defendant in the main suit) and that the Plaintiff should bear the costs of the Counter-Claim. 4. Aggrieved by the Judgement, the Plaintiff instituted an appeal in the Court of Appeal in Mombasa Civil Appeal No. E069 of 2022. In its decision rendered on 24th May 2024, the Court of Appeal dismissed the Appeal but varied the orders that had required the Defendant to pay unto himself the balance of the purchase price thereby directing that the Defendant pays that balance of Kshs. 342,700.00 plus interest to Peter Kamau Nguatha (the Vendor). 5. The record herein further reveals that despite those decision having gone against him, the Plaintiff purported to initiate execution proceedings against the Defendant fraudulently claiming to be the decree holder herein to whom a sum of Kshs. 4,644,389.40 was owed. When warrants were issued against the Defendant for the said sum, the Defendant filed a Notice of Motion application dated 2nd October 2024 challenging the same. In a Ruling delivered on 7th February 2025, the Honourable Justice L.L. Naikuni allowed the Defendant’s application and set aside the warrants after finding that it was only the vendor who was owed the balance of the purchase price. 6. That being the case, it is extremely preposterous for the Plaintiff to again seek execution against the Estate of Peter Kamau Nguatha (the vendor) who in fact, is the actual decree holder herein. The Plaintiff has no decree against that estate or against anyone. The attempt to convert the judgment that he lost entirely into a weapon against the party that the judgment protects is a fraud of the most egregious character and this Court must say so in plain language. 7. The upshot is that the Motion dated 28th November 2025 is frivolous and an abuse of this Court’s process. It is dismissed with costs. **Ruling dated, signed and delivered in open court and virtually at Mombasa this 30th day of July, 2026.** **…………………………..** **J.O. OLOLA** **JUDGE** **In the presence of:** a) Ms. Firdaus Court Assistant. b) Mrs. Okumu holding brief for Mr. Magolo Advocate for the Plaintiff c) Mr. Amunyunzu Advocate for the 2nd Respondent