https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3321

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC. CASE NO. 119 OF 2011** **LOISE NDETO KIMWELI ……………………………………………...PLAINTIFF** **VERSUS** **PETER KIMONYI KIMWELI ……………………………………….DEFENDANT** **RULING** 1. This is a ruling on the unopposed notice of motion dated 24 June 2026, filed by the plaintiff, which is said to have been brought under **Sections 1A, 1B** and **3A** of the **Civil Procedure Act (Cap. 21) Laws of Kenya; Order 51 Rule 1** of the **Civil Procedure Rules-2010;** and any other enabling provisions of the law. She prays for the following orders: 2. ***Spent.*** 3. ***THAT in implementation of this honourable court's judgment dated 20th September 2019, this honourable court be pleased to issue an order directing the Machakos County Land Registrar to cancel the defendant's name from the relevant register for land parcel No. Konza North/Konza North Block 2/1462 (Formerly Plot No. 1274) situated at Malili Ranch Limited, measuring 7.8 acres or thereabouts, and replace it with the plaintiff's name.*** 4. ***THAT a fresh certificate of title for all that land known as land parcel No. Konza North/Konza North Block 2/1462 (Formerly Plot No. 1274) situated at Malili Ranch Limited, measuring 7.8 acres or thereabouts, be issued forthwith in the plaintiff's name.*** 5. ***THAT the costs of this application be provided for.*** 6. The motion is based on the grounds listed on the face thereof and the supporting affidavit of the plaintiff, sworn on the instant date. In summary, she avers that the court, in a judgment dated 20th September 2019, ordered that two parcels of land, plot No. 1274 in Malili Ranch Limited and a commercial plot **(now Konza North/Konza North Block 2/1462)**, were held in trust for the plaintiff by the defendant, and they were to be transferred to her. 7. The defendant’s attempts to overturn the judgment were dismissed in December 2022 by the Court of Appeal. Despite the court’s orders, the defendant has failed to provide the necessary documents for transferring ownership to the plaintiff. Efforts to facilitate the transfer via the deputy registrar have been hindered by the land office, which insists that transfer documents are transactional. 8. When this matter came before this court on 19 February 2026, **Mr. Nzei** argued the application orally and urged this court to allow the unopposed application. Thus, having given careful thought to the court record, motion, its grounds, and the affidavit, the distilled issues for determination are **whether the motion is an abuse of the court process and whether it is merited.** These two issues shall be handled concomitantly. We proceed. 9. Concerning this matter, it is a well-established legal principle that the court possesses inherent jurisdiction to protect itself against abuse or to prevent its processes from being misused. An abuse of court process is any departure from established good order that significantly deviates from the reasonable use of court process; such abuse occurs when an individual makes excessive, improper, or contradictory use of court procedures, thereby contravening the natural legal principles. The persuasive decision in **Satya Bhama Gandhi v. Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR)** outlined several examples of such instances of abuse of court process, thus: - ***“(a) Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action.*** ***(b) Instituting different actions between the same parties simultaneously in different court even though on different grounds.*** ***(c) Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and respondent notice.*** ***(d) Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below.*** ***(e) Where there no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.*** ***(f) Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.*** ***(g) Where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal.*** ***(h) Where two actions are commenced, the second asking for a relief which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the irritation or annoyance of an opponent.”*** 1. As to the definition of the term “abuse of the court process,” reference is made to the decision in the Court of Appeal case of **Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 others [2009] KECA 453 (KLR),** which reaffirmed the definition as set forth in two foreign court decisions in the following manner: - ***“In BEINOSI v WIYLEY 1973 SA 721 [SCA] at page 734F-G a South African case heard by the Appeal Court of South Africa, Mohomad CJ, set out the applicable legal principle as follows: -*** ***“What does constitute an abuse of process of the court is a matter which needs to be determined by the circumstances of each case. There can be no all-encompassing definition of the concept of “abuse of process.” It can be said in general terms, however, that an abuse of process takes place where the proceedings permitted by the rules of court to facilitate the pursuit of the truth are used for purposes extraneous, to that objective.”*** ***Again the Court of Appeal in Abuja, Nigeria in the case of ATTAHIRO v BAGUDO 1998 3 NWLL pt 545 page 656, stated that the term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. The term abuse of process has an element of malice in it.*** ***In the Nigerian Case of KARIBU-WHYTIE J Sc in SARAK v KOTOYE (1992) 9 NWLR 9pt 264) 156 at 188-189 (e) the concept of abuse of judicial process was defined:-*** ***“The concept of abuse of judicial process is imprecise, it implies circumstances and situations of infinite variety and conditions. Its one feature is the improper use of the judicial powers by a party in litigation to interfere with the administration of justice …”*** 1. A thorough examination of the record shows that an application dated 15 August 2022 was filed by the plaintiff, through her law firm on record, seeking two alternative substantive reliefs; the first one was word for word with prayer (b) of the instant motion, and in the alternative (2nd one), she sought for the deputy registrar of the court to be directed to execute the requisite documents that would facilitate such transfer of the suit property to her name, including a Land Control Board (LCB) consent and transfer forms. Upon hearing the plaintiff, the court granted the 2nd one, and the appropriate order was issued on 5 October 2022. 2. The orders of the court directing the deputy registrar to execute documents arise in cases such as the present one, where a party neglects or refuses to comply with a decree or order directing him to execute an instrument. The relevant provision is found in **Section 98** of the **Civil Procedure Act**, and it states: - ***“Where any person neglects or refuses to comply with a decree or order directing him to execute any conveyance, contract or other document, or to endorse any negotiable instrument, the court may, on such terms and conditions, if any, as it may determine, order that the conveyance, contract or other document shall be executed or that the negotiable instrument shall be endorsed by such person as the court may nominate for that purpose, and a conveyance, contract, document or instrument so executed or endorsed shall operate and be for all purposes available as if it had been executed or endorsed by the person originally directed to execute or endorse it.”*** 1. Having refused to grant prayer (b), which was similarly sought in the previous application and was denied on its merits by a court of competent jurisdiction, the plaintiff was not entitled to raise the same subject matter over the same parties again in the present motion, and her action contravened the doctrine of *res judicata* as established by **Section 7** of the **Civil Procedure Act.** This court finds that prayer (b) of the motion is *res judicata* and an abuse of the court process. 2. Moreover, there are no records whatsoever indicating that she complied with the court's orders by submitting documents to the deputy registrar for execution in accordance with the court’s directions. In the absence of such documentation, one questions what documents the land registrar is expected to register to facilitate the enforcement of the court's orders. It is the view of this court that the plaintiff cannot remain inactive, sit on her laurels and expect the transfer to be miraculously undertaken without taking the necessary initial steps to advance the process by submitting the requisite documents for execution by the deputy registrar. 3. Furthermore, by seeking prayer (c) in the instant motion, she is, by ingenious means and through the back door, attempting to circumvent the court orders issued on 5 October 2022, which have not been set aside, reviewed or appealed. All these actions by the plaintiff are found to be an abuse of the court process. This court need not say more. 1. Guided by the law and judicial precedent, and for the reasons and findings set out above, the notice of motion dated 25 June 2025 is found not to be merited. It is struck out. Another application dated 16 July 2025, filed by the plaintiff and seeking similar orders to those in the instant motion, which has never been prosecuted, is also found to be an abuse of the court process. It is also struck out. The plaintiff shall bear her own costs. Orders accordingly. **Delivered and Dated at Machakos this 2nd day of June, 2026.** **HON. A. Y. KOROSS** **JUDGE** **02.06.2026** **Ruling delivered virtually through Microsoft Teams Video Conferencing Platform** In the presence of; Ms. Kanja Court Assistant. Mr. Kilonzi for Mr. Nzei for plaintiff/applicant. No appearance for respondent.