https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10505

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAIROBI** **TAX AND COMMERCIAL DIVISION** **MISCELLANEOUS APPLICATION NO. E632 OF 2025(OS)** **BETWEEN** **MARY WAMBUI GITAU ..................................... 1ST APPLICANT** **SAMUEL NGIGI GITAU……………………………….…2ND APPLICANT** **-VERSUS-** **HARRISON NGUGI NJENGA...........................1ST RESPONDENT** **ABSA BANK……………………………………………2ND RESPONDENT** **RULING** 1. Before the court is the Applicant’s Notice of Motion dated 2nd June 2025 brought under Sec 1A,B, 3A of the Civil Procedure Act, O.51 R 15, Art 48,50 and159 of the Constitution of Kenya, seeking an order to set aside, vary and/or discharge the highlighting of submissions given of 6/10/2026 and issue an urgent early hearing date over applications dated 20/06/2025 and 9/10/2025 to be listed for hearing and determination on a priority basis or in the alternative, an order directing that the highlighting of submissions be dispensed with and a ruling date be issued on the two applications as the 1st Applicant is ailing. 2. The Applicants are also seeking leave to file formally and/or the court to take cognizance of a ruling made in THIKA ELC E189/2025 between Hanah Kungu vs. Mary W. Gitau & Samuel N. Gitau on a claim for land over the suit property which is subject to this suit before making a ruling on the two applications. 3. The application is supported by the grounds on the face of it, and the 1st applicant’s affidavit sworn on 2nd June 2026 on her behalf and that of the 2nd Appellant in support of the application where deposes *inter alia* that; she is 85 years old, ailing with psychological stress, depression and a heart condition; she filed an application on the 20th June, 2025 over release of a title deed with the hope that the same would be fast tracked and determined expeditiously; that the matter was listed for highlighting of submissions on 18/05/2026 which did not materialize as the trial court was on transfer; that the matter has been listed for highlighting of submissions on 6/10/2026 five moths away noting the state of her health; that the matter has greatly affected her wellbeing; that the interested party instituted a suit at Thika against her being the same parties over the same suit property; that the same was dismissed through a ruling dated 29/04/2026; that with the dismissal of the suit, the land belongs to her as vested through succession cause no. 388 of 2004 at Milimani High Court; that with outcome of the ELC matter, the court should expediate justice, that expediating the matter will not prejudice the 1st Defendant and the Interested Party who are out to unnecessarily punish and frustrate her; and that the court has the power to grant an early ruling date over the two applications since the parties have complied. 4. The 1st Respondent filed a replying Affidavit in response to the application where he disposes *inter alia* that; that the application dated 2/06/2026 does not raise any substantive issues which would require determination against him; that the application is predicated on the ruling delivered in Thika ELC No. E189 of 2025 and therefore the findings therein cannot be binding upon him; that the outcome of the ELC case is only applicable to the parties to the proceedings and cannot be invoked against a stranger in the proceedings; that the Applicants have failed to disclose that the decisions rendered in Thika ELC matter was not a substantive determination of the ownership rights over the suit property but it was on a determination on a Preliminary Objection founded upon the Limitations of Actions Act; that the said ruling did not affirm the Appellants exclusive ownership of the suit property nor extinguished any equitable, beneficial or trust interests that may subsist over the said property; that the existence of trust obligations and beneficial interest in favour of the late John Kamau Njenga remain alive, unresolved and not affected by the ELC ruling; that there is no new evidence nor new legal developments capable of altering the substantive questions in this matter; that apart from dissatisfaction with the hearing date issued, there is no lawful basis of invoking the Court’s jurisdiction in the manner sought; that the application is devoid of merit and an abuse to court process; that court should be slow to permit litigants to introduce extraneous proceedings for the purposes of creating a false impression that the contested rights have been adjudicated; and that the court should disregard the ELC proceedings and determine the matter before it strictly on the pleadings properly on record. 5. The Appellant filed a further affidavit date 19th June 2026 where she disposes *inter alia*; that the outcome of the Thika ELC suit indeed affects the 1st Respondent as he opposed the release of the title of the suit property; that the ELC outcome clearly manifests that the Interested Party and the 1st Respondent do not have any claim to the suit therein; that in absence of a claim nor appeal on the ELC matter, the suit property belongs to her as confirmed in the grant; that issues of Trust in land are matters to be determined by ELC as this court lacks jurisdiction; that the Ruling in ELC matter is a complete new development warranting court’s consideration; and that the 1st Respondent’s intent is to delay the matter in a perspective to punish and frustrate her. 6. The 2nd Respondent did not file any response/submissions. 7. The Applicant’s learned counsel filed submissions dated 22nd June 2026. Counsel submitted primarily on whether the court should vary or review the date for highlighting to an earlier date and if the same can be dispensed with through written submissions. He also raised the developments in the outcome of ELC if the court should adopt/consider for a just and proper determination and also sought for costs of the application. 8. Counsel submitted that the matter had been listed for highlighting of submissions on two occasions, 9/3/2026 and 18/5/2026 which never materialized necessitated a further date of 6/10/2026 being given stating that the issue was actuated by the transfer of the trial court. 9. Counsel extensively submitted on the role of the court in expediating justice and contended that the Respondent will not suffer any prejudice if the date set for highlighting of submissions is reviewed to an earlier date. He relied in the case of ***Pandya Memorial Hospital vs Geeta Joshi*** (citation not given) where the court looked at whether adjusting the hearing schedule prejudices the other party or whether any such inconvenience can be sufficiently compensated through an award of costs. 10. He also urged the court to take into consideration the 1st Applicant’s medical condition and context of her heart medical condition. He cited the case of ***Nyango v, Mbito and 2 others (ELC 62 of 2019) [2023]*** where the court considered the advanced age of the litigant recognizing the prejudice the parties may suffer considering the incapacity of the party. 11. On the issue of adoption or consideration of the Thika ELC Ruling, the Applicants aver that the court ought to take into consideration new evidence or emerging developments which are critical in the decision of the court. He further submitted that the application date 20/06/2025 was for the release of the title held by the 2nd Respondent who has never opposed the application as the loan owed has been settled. He submitted that the intended Interested Party moved the court through application dated 9/10/2025 seeking to be admitted as an Interested Party claiming an interest in the suit property. 12. Counsel further submitted that the intended Interested Party sued the Appellants in Thika ELC 189/2025 which the Preliminary Objection was dismissed. He further contends that there is no claim on the suit property nor any appeal to the court of appeal challenging the ruling made. He also submitted that the grant made in favour of the 1st Applicant has not been challenged. 13. He avers that the ELC ruling is pertinent and critical to assist the court in making a well-informed decision due to the new developments and changing circumstances. He cited the case of ***Dorothy Nelima Wafula v. Hellen Wekesa & another (2017) eKLR.*** 14. He further submitted that Environment and Land Court would be the appropriate court with jurisdiction to determine the matter on the intended Interested Party’s interest in the suit property and not the High Court. He further submits that the intended Interested Party was not a party to the loan contract. 15. Counsel further submitted that the costs should be born by the Respondent and the intended Interested Party due to their delay, frustrations and unjustified punishment on the Applicants. 16. I have carefully considered the application, the supporting affidavit, and the submissions of the parties. I discern two issues for consideration to be; one, whether or not to fast- track the pending application by issuing a date on a priority basis and whether or not this court should consider the outcome of the ELC case and its bearing on this case. 17. As structured, this court is not seized of the court's diary. The registry, is charged with fixing dates. Additionally, once a matter has been placed before a Judge, it is the prerogative of that court to allocate the most convenient date considering the matters and workload before that court. That said, the court or the Deputy Registrar as the case may be, can fast-track a matter where there is sufficient reason to do so. 18. I have considered in totality, the issues surrounding this matter, and in the interest of justice, this court makes the following orders:- 19. **This matter be heard on a priority basis;** 20. **The applications dated 9/10/2025 and 20/06/2026 be listed for highlighting of submissions on 22/07/2026. Application dated 9/10/2025 will be heard before the Application dated 20/06/2026. The earlier given date of 06/10/2026 is hereby vacated.** 21. **Parties to file their submissions.** 22. **The consideration of the ruling made in Thika ELC E189/2025 between Hanah Kungu v. Mary W. Gitau and Samuel N. Gitau is premature at this stage. The Land and Environment Court is the appropriate court to determine the land ownership dispute between the parties.** 23. **No orders as to costs.** **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 08TH DAY OF JULY,2026** **……………………………….** **W.N. MOLONKO** **JUDGE**