Kanyagia v Maningo (Environment and Land Case 177 of 2018) [2026] KEELC 4162 (KLR) (6 July 2026) (Ruling)

Kanyagia v Maningo (Environment and Land Case 177 of 2018) [2026] KEELC 4162 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KEELC 4162 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 177 of 2018 CG Mbogo, J July 6, 2026 Between Patrick JP Kanyagia Plaintiff and Violet Liananyi Maningo Defendant Ruling 1.Before me is the notice of motion dated 31st July, 2025 filed by the Plaintiff/Applicant, and it is expressed to be brought under Sections 1A, 1B, 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, seeking the following orders:-1.Spent.2.That the firm of J. Maingi Advocates be granted leave to come on record on behalf of the plaintiff in this matter.3.That this honorable court be pleased to set aside its orders as issued on 28th June, 2021 and direct that this matter be heard before it, as the issues in this matter relate to the joint ownership of parcel of land L.R No. Dagoretti/Riruta/2205 registered in the names of the plaintiff and the defendant as joint proprietors.4.That matters pertaining joint ownership of property are a preserve of this honorable court and not the family division of the high court.5.That upon this honorable court setting aside its orders as issued on 28th June 2021, the applicant be allowed to file an application for severance of joint interest of the property known as L.R No. Dagoretti/Riruta/2205.6.That this honorable court be pleased to issue any other order it deems fit.7.That cost of the application be in the cause together with interest accruing therefrom. 2.The application is premised on the grounds on its face. It is further supported by the affidavit of the plaintiff/applicant sworn on even date. He deposed that the subject property, L.R No. Dagoretti/Riruta/2205 was registered in his name and that of the defendant as joint proprietors. He added that he was previously married to the defendant/respondent but their marriage had irretrievably broken down. The plaintiff/applicant deposed that before the marriage broke down, they had jointly acquired the subject property in which they both lived. 3.The plaintiff/applicant further deposed that they acquired the property jointly, vide a mortgage with Housing Finance Bank of Kenya (HFC). He deposed that he cleared the mortgage but the title was still held by the bank due to the ongoing dispute between himself and the defendant/respondent. He further deposed that they owned equal shares to the property and that he was desirous of having the joint ownership severed in order to safeguard his interest in the property as they were no longer married. He went on to depose that it was necessary that the court sets aside its orders of 28th June, 2021 to allow his advocates on record file an appropriate application for severance of joint interest for the interest of both parties. In conclusion, the plaintiff/applicant deposed that no prejudice will be caused if the orders sought are granted. 4.The application was opposed vide the replying affidavit of the defendant/respondent sworn on 9th March, 2026. She deposed that the application was fatally defective as the court had correctly rendered itself when it held that it had no jurisdiction to handle the current matter. She further deposed that the suit property was matrimonial property having been acquired by the parties during the pendency of their marriage. She added that the correct forum to address the dispute was the family division of the high court as was rightly held by the court vide its ruling delivered on 28th June, 2021. 5.The defendant/respondent further deposed that the plaintiff/applicant had earlier filed originating summons dated 9th March, 2023 in the high court, seeking inter alia an order to sell the suit property and divide the proceeds therefrom equally between the parties which application was pending determination. She further deposed that the plaintiff/applicant had not filed any document or adduced any evidence to warrant this court set aside or review its ruling that it had no jurisdiction to hear a dispute on matrimonial property. 6.The defendant/respondent added that the right forum to ventilate whether the environment and land court had jurisdiction to determine disputes touching on matrimonial property was the court of appeal sitting on appeal against the ruling of this court. She gave a history of how they acquired the suit property together as husband and wife and deposed that she was willing to purchase the plaintiff/applicant’s share of the suit property less half the rent of the property from February 1999 to date together with the costs of fees for their children during the said period. The defendant/respondent also filed the supplementary affidavit sworn on 9th March, 2026 and reiterated the contents of her replying affidavit. 7.The application was canvassed through written submissions. The plaintiff/applicant filed his written submissions dated 28th April, 2026 while the defendant/respondent filed written submissions dated 9th March, 2026. I have considered the application, the replying affidavit thereof and the written submissions filed by the parties. The main issue for determination is whether application is merited. 8.To begin with, prayer 2 of the application is granted allowing the firm of J. Maingi Advocates to come on record for the plaintiff/applicant. 9.The jurisdiction of this court to review orders is provided for under Order 45 Rule 1 (1) of the Civil Procedure Rules which provides as follows:“1.Application for review of decree or order(1)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.” 10.From the above, it is clear that for an application for review to succeed, there has to be discovery of new and important matters or evidence which after due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the order was made. Further an application for review may also be made on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. 11.The plaintiff/applicant seeks the setting aside this court’s ruling delivered on 28th June, 2021 which was dismissed for want of jurisdiction. However, he did not adduce any evidence to prove that there was discovery of new evidence and or any mistake or error apparent on the face of record after the ruling had been delivered. In other words, the plaintiff/applicant has not met any of the requirements for review including that of sufficient reason. Therefore, there is absolutely no reason to review the orders of this court made on 28th June, 2021. 12.From the record, I note that the issues in this application were also canvassed in the notice of motion dated 8th March, 2020 culminating in the ruling that was delivered on 28th June, 2021. In the said application, the issue of joint ownership of the suit property between the parties was heard and determined by this court wherein the matters were directly and substantially in issue as those in the instant application. Notably, the court found that it lacked the requisite jurisdiction to hear and determine issues of matrimonial property. By bringing an application on the same issue at different times, I find that the plaintiff/applicant is hell bent not only to defeat the course of justice but also abuse the court process which this court shall not condone. 13.The actions by the plaintiff/applicant offend Section 7 of the Civil Procedure Act which provides that:-“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court” 14.It is trite law that a person shall not commence more than one action in respect of the same or a substantially similar causes of action and the court must attempt to resolve multiple actions involving a party and determine all matters in dispute in an action so as to avoid multiplicity of actions. 15.In the case of Uhuru Highway Development Limited V Central Bank of Kenya, Exchange Bank Ltd (in voluntary liquidation), Kamlesh Mansukhlal Pattni & Pansla Investments Lltd [1998] KEHC 177 (KLR) the court held as follows:-“That is to say, there must be an end to applications of similar nature, that is to further, under principles of res judicata apply to applications within the suit. If that was not the intention, we can imagine that the courts could and would be mandated by new applications filed after the original one was dismissed.” 16.The upshot of the foregoing is that the notice of motion dated 31st July, 2025 lacks merit and is res judicata. The same is dismissed with costs to the defendant/respondent.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 6TH DAY OF JULY, 2026.HON. MBOGO C.G.JUDGE06/07/2026.In the presence of:Ms. Benson Agunga - Court assistantMrs. Maina holding brief for Mr. Ogamba for the Defendant/RespondentMs. Maingi for the Plaintiff/Applicant