https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4590

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC NO 414 OF 2010** **AS CONSOLIDATED WITH ELC 415 OF 2010** **AGNES WAMBUI KIRITU…………………….....1st DECREE HOLDER** **ALICE WANGUI MWANIKI……….……………2nd DECREE HOLDER** **VERSUS** **MILELE VENTURES LIMITED.…….............JUDGMENT DEBTOR** **RULING** **Background** 1. Before this court for determination are two applications, being the 1st Decree Holder’s application dated 20th March, 2023, and the 2nd Decree Holder’s application dated 26th April, 2023. The application dated **20th March, 2023** is brought pursuant to the provisions of **Section 1A, 1B, 3A, 63(c)** and **(e)** of the **Civil Procedure Act**, **Section 26(1) (a)** and **(b)** of the **Land Registration Act 2012**, and **Order 51** of the **Civil Procedure Rules 2010** seeking the following reliefs: 2. **That upon the substantive hearing of this application, this Honourable court be pleased to Order for the revocation and annulment of Titles for Land Registration numbers: IR’-189858 28318/2128; 189859 28318/2129; 189860 28318/2130 189861 28318/2131; 189862 28318/2132; 189882 28318/2152; 189883 28318/2153 ;189884 28318/2154; 189885 28318/2155 10. 189886 28318/2156; 189887 28318/2157; 189888 28318/2158 ;189889 28318/2159; 189890 28318/2160; 189891 28318/2161 189892 28318/2162 ; 189893 28318/2163 ; 189894 28318/2164 ; 189895 28318/2165; 189896 28318/2166; 189897 28318/2167; 189898 28318/2168 23. 189899 28318/2169; 189900 28318/2170 189901 28318/2171; 189902 28318/2172; 189903 28318/2173; 189904 28318/2174 ; 189905 28318/2175 ; 189906 28318/2176 ;189907 28318/2177 ;189908 28318/2178 ; 189909 28318/2179; 189910 28318/2180; 189911 28318/2181; 189912 28318/2182 189913 28318/2183; 189914 28318/2184; 189915 28318/2185 ; 189916 28318/2186; 189917 28318/2187 ; 189918 28318/2188 ; 189919 28318/2189; 189920 28318/2190 ; 189921 28318/2191 46. 189922 28318/2192 47. 189923 28318/2193 48. 189924 28318/2194 49. 189925 28318/2195 50. 189926 28318/2196 51. 189927 28318/2197 52. 189928 28318/2198 53. 189929 28318/2199 54. 189930 28318/2200 55. 189931 28318/2201 56. 189932 28318/2202 57. 189933 28318/2203 58. 189934 28318/2204 59. 189935 28318/2205 60. 189936 28318/2206 61. 189937 28318/2207 62. 189938 28318/2208 63. 189939 28318/2209 64. 189940 28318/2210 65. 189941 28318/2211 66. 189942 28318/2212 67. 189943 28318/2213 68. 189944 28318/2214 69. 189945 28318/2215 70. 189946 28318/2216 71. 189947 28318/2217 72. 189948 28318/2218 73. 189949 28318/2219 74. 189950 28318/2220 75. 189951 28318/2221 76. 189952 28318/2222 77. 189953 28318/2223 5|Pagе 78. 189954 28318/2224 79. 189955 28318/2225 80. 189956 28318/2226 81. 189957 28318/2227 82. 189958 28318/2228 83. 189959 28318/2229 84. 189960 28318/2230 85. 189961 28318/2231 86. 189962 28318/2232 87. 189963 28318/2233 88. 189964 28318/2234 89. 189965 28318/2235 90. 189966 28318/2236 91. 189967 28318/2237 92. 189968 28318/2238 93. 189969 28318/2239 94. 189970 28318/2240 95. 189971 28318/2241 96. 189972 28318/2242 97. 189852 28318/2122 98. 189853 28318/2123 99. 189854 28318/2124 100. 189855 28318/2125 101. 189856 28318/2126 102. 189857 28318/2127 103. 189863 28318/2133 104. 189880 28318/2150 105 189881 28318/2151 106. 189973 28318/2243 and any other subsequent Titles irregularly obtained therein for reasons that the said sub titles were obtained by the judgement debtor through fraud, misrepresentation, illegally, un procedurally and through a corrupt scheme in contravention of this Honourable court orders dated 3rd February 2011 and 8th September 2010 and duly registered against Title number I.R. 123907, L.R. No. 28318/15 prohibiting any sale, transfer, disposing off or offering for sale any part of the said Title number and registered as Entry number 2 and 3 against the said title, which said inhibitions had not been vacated as at the time the above various sub titles were taken out.** 3. **This Honourable court be pleased to grant eviction orders against the Judgment Debtor, encroachers and the demolition of the illegal structures erected on the Decree Holder's Title number IR 233619, L.R No. 28318/2307.** 4. **This Honourable court upon granting prayer number 3 above do grant orders directing the Chief Lands Registrar to proceed and revoke and annul all the above itemized illegally and fraudulently obtained title documents.** 5. **This Honourable court be pleased to grant orders empowering OCS RUIRU Police Station to supervise the execution of the orders Sought herein/ eviction.** 6. **This Honourable Court to issue any other orders as it may deem fit and just.** 7. **Costs of this Application be borne by the Judgement Debtor.** 8. The application is premised on the grounds set out on the face of the motion and is supported by the affidavit of the 1st Decree Holder, Agnes Wambui Kiritu of an even date. She deponed that in the year 2010, she instituted the present suit after the Judgment Debtor herein, as the Defendant, failed and/or neglected to transfer to her the portion of land she had purchased, which was to be excised from IR 123907, L.R. No. 28318/15. 9. It is the 1st Decree Holder’s case that on 8th September 2010, and subsequently on 3rd February 2011, the court issued orders restraining the Judgment Debtor from selling, transferring, disposing of, or offering for sale any portion of the suit property pending the hearing and determination of the suit; that in order to give effect to and secure compliance with the said orders, she lodged both orders for registration against parcel number IR 123907, L.R. No. 28318/15(*hereinafter the suit property*) at the Central Lands Registry in Nairobi and that the same were duly registered. 10. She deponed that the main suit was heard and determined by this court, which delivered its judgment on 25th February 2014; that the said judgment was subsequently upheld by the Court of Appeal in Civil Appeal No. 139 of 2014, which affirmed that she was entitled to thirty-five (35) acres to be excised from the suit property. 11. She averred that, pursuant to the judgments of this court and the Court of Appeal, an amended decree dated 26th September 2017, and a consequential order issued on 1st February, 2018 in execution thereof were extracted and duly registered against the suit property. According to her, the registration of the said decree and order was undertaken to facilitate the implementation of the judgment and to protect her adjudicated interest in the suit property. 12. Nonetheless, she asserted, on 22nd September 2017, when entry number 2 registered against the suit property was still in force and had not been vacated by any court order, the Judgment Debtor fraudulently, illegally by misrepresentation, forgery and through corrupt means knowingly subdivided the suit parcel of land and obtained titles in respect of land registration numbers set out in the motion which it then sold to third parties on 14th September 2018. 13. It is her case that the Judgment Debtor also mischievously sought to have the aforesaid owners, as third parties enjoined in this matter as interested parties claiming interest under the fraudulently obtained title documents and that the motion was dismissed on 31st day of October 2019. 14. According to Ms. Kiritu, having been unable to secure execution and implementation of the amended decree and order by the Chief Land Registrar, she moved this court for further intervention. Consequently, the court granted orders authorizing the Deputy Registrar to execute the requisite transfer instruments in respect of the 35 acres awarded to her. As she had already obtained the necessary consents, upon the Deputy Registrar’s execution, she proceeded to lawfully process and obtain title I.R. No. 233619, being L.R. No. 28318/2307, measuring approximately 35 acres, in respect of the portion awarded to her by the court. 15. Despite having secured the aforesaid title, she explained, she has been unable to take possession of, or utilize the parcel of land, as the same was immediately invaded by third parties claiming ownership under titles fraudulently obtained through the Judgment Debtor. This prompted her to engage Geosurv Systems Limited, a land surveying firm, to conduct a survey of the property and that the firm prepared a report together with a survey map identifying and illustrating the alleged illegal titles said to have encroached onto her parcel of land. 16. As advised by counsel, she stated, a title document may only be challenged where it is shown to have been procured through fraud, forgery, misrepresentation, illegality, or corrupt schemes, particularly where the registered proprietor is proved to have participated in or benefited from such unlawful conduct. It was contended that the various title documents referred to herein were irregularly and illegally procured by the Judgment Debtor through unlawful means. 17. In partial opposition to the Motion, the 2nd Decree Holder swore a replying affidavit dated 19th October 2023. She deponed that she had instituted the present suit seeking specific performance after the Judgment Debtor failed to transfer to her the portion of land she had purchased despite having received the full purchase price. She recalled that, during the pendency of the suit, the court issued injunctive orders restraining the Judgment Debtor from selling, transferring, disposing of or offering for sale L.R. No. 10916 (I.R. No. 19200) or any subdivision thereof. 18. The 2nd Decree Holder deposed that subsequently, by a consent order adopted on 3rd February 2011, the parties agreed to amend the title reference by substituting L.R. No. 10916 with L.R. No. 28318/15. She further stated that the matter was later consolidated with ELC No. 415 of 2010 and culminated in a judgment delivered on 25th February 2014 in which the court found that she had proved entitlement to five acres only. 19. Dissatisfied with that decision, she lodged Civil Appeal No. 139 of 2014; that the Court of Appeal, in its judgment dated 13th May 2016, upheld the decision of the trial court while clarifying that their entitlements, 5 acres and 35 acres respectively were to be obtained from L.R. No. 28318/15, following which an amended decree was issued on 26th September 2017. 20. She explained that she subsequently filed an application dated 30th November 2017, seeking to compel the Judgment Debtor to execute the completion documents necessary to effect the decree; that this led to the issuance of orders on 1st February 2018, granting, *inter alia,* immediate physical possession of the decreed property and that following various exchanges and discussions, she and the 1st Decree Holder agreed on a subdivision arrangement that would guide their respective occupation of the property. 21. Acting on that understanding, she took possession of a five-acre portion of L.R. No. 28318/15 in 2018, erected a perimeter wall and made substantial developments thereon. She averred that the 1st Decree Holder was at all material times aware of her occupation and developments and never raised any objection nor intimated any intention of claiming the portion she occupied. She therefore viewed it as an act of bad faith for the 1st Decree Holder, to some five years later, procure a title whose boundaries encompassed the very portion she had occupied and developed. 22. The 2nd Decree Holder explained that she actively pursued the administrative processes necessary to secure title pursuant to the decree; that this respect, on 23rd March 2018, she wrote to the Director of Surveys requesting the preparation of new deed plans to facilitate issuance of separate titles; that on 16th April 2018, her advocates wrote to the Chief Land Registrar seeking issuance of titles in compliance with the orders of 1st February 2018 and that on 24th April 2018, the Chief Land Registrar forwarded to her advocates a subdivision plan prepared pursuant to the court orders. 23. She deposed that thereafter, on 22nd May 2018, her advocates sought a waiver of rates clearance from the County Government of Kiambu in relation to the proposed subdivision. However, by a letter dated 30th May, 2018, the County Government declined the request, indicating that only the Judgment Debtor could settle the outstanding rates. 24. She further deponed that on 4th July 2018, Vastlands Surveyors Limited informed her advocates that it was unable to proceed with the survey because another survey had already been registered over the same property. Subsequently, on 4th September 2018, her advocates wrote to the Officer Commanding Ruiru Police Station seeking assistance in enforcing the orders granting her physical possession of the five-acre portion excised from L.R. No. 28318/15. 25. She averred that, unbeknownst to her, the 1st Decree Holder had independently pursued and obtained a certificate of title founded on a subdivision scheme materially different from the subdivision plan they had mutually adopted. As a consequence, the title issued to the 1st Decree Holder overlapped and effectively covered the entire five-acre portion that she had occupied and developed since 2018. 26. She asserted that while she supported the cancellation of the 106 titles procured in disregard of the court's orders, the title issued to the 1st Decree Holder ought to meet the same fate. In her view, the 1st Decree Holder had acted unfairly and in betrayal of their understanding by obtaining a title that encompassed land already occupied and developed by her. 27. The 2nd Decree Holder further stated that she had expended considerable resources defending her occupation of the five-acre portion against claims by third parties. In particular, she referred to Kiambu CMELC No. 549 of 2018, Paul Wambugu Gatere & Another v Milele Ventures Limited, in which ownership of five acres within L.R. No. 28318/15 was disputed, and Kiambu CMELC No. 1 of 2023, Alice Wangui Mwaniki vs Paul Wambugu Gatere & Another, concerning alleged destruction of developments on the property. 28. She complained that although the 1st Decree Holder had not participated in those proceedings, she later relied on documents emanating therefrom in reconstructing the land records and obtaining the impugned title, which, according to the deponent, was inconsistent with the actual state of occupation on the ground. 29. She averred that the 1st Decree Holder was barred by the doctrine of estoppel from resiling from their agreed subdivision arrangement. She contended that, acting on the 1st Decree Holders Applicant's representations, she formed the belief that the portion she occupied would ultimately be delineated and reflected in her title and, in reliance on that belief, took possession, erected a perimeter wall and undertook substantial developments on the property. 30. The 2nd Decree Holder further invoked the doctrine of legitimate expectation, asserting that the 1st Decree Holder’s conduct had created a reasonable expectation that the decreed property would be subdivided in accordance with the agreed subdivision plan. Consequently, she opposed the prayer seeking implementation of Order 4 to the extent that it would result in the demolition of her perimeter wall and destruction of the developments she had erected on the five-acre portion she has occupied since 2018. 31. The Judgement Debtor filed grounds of opposition dated 26th April, 2024. It asserted vide the grounds that the firm of Jaleny & Co. Advocates is not properly on record as it is yet to comply with the requirement of **Order 9 Rule 9** of the **Civil Procedure Rules** mandating service of the order granting leave to come on record for the 1st Decree Holder after judgment and the notice of change of advocates upon the Judgment Debtor. 32. It was further contended that the application seeks orders that will directly affect the rights and interests of the 106 persons alleged to have invaded the 1st Decree Holder’s parcel, yet none of those individuals has been joined as a party to the proceedings. According to the Judgment Debtor, granting the orders sought will amount to condemning those persons unheard and offend the rules of natural justice and the constitutional guarantee of a fair hearing and that it will also be inimical to due process and contrary to the principles of fairness and procedural justice enshrined in the Constitution of Kenya. 33. It was further contended in the grounds of opposition that any challenge to titles issued to third parties can only be pursued through a substantive suit commenced by way of a Plaint against the affected proprietors and that the court, having already determined the dispute and issued a decree, is *functus officio* save for matters relating to execution and ancillary proceedings. 34. Further, it was deposed that the prayer for eviction is incompetent as it does not comply with the provisions of the Land Act governing eviction proceedings. It was urged vide the grounds that such relief ought to be pursued through separate proceedings specifically instituted for that purpose. Similarly, that where a party alleges disobedience of a court order or decree, the appropriate remedy is to institute contempt of court proceedings rather than seek the cancellation of titles on the basis of the alleged breach. 35. The 1st Decree Holder’s claim, it was noted, is founded upon ownership of L.R. No. 28318/2307, a parcel which neither formed part of the subject matter of the suit nor features in the decree sought to be executed. Consequently, any dispute concerning that property ought to be litigated independently. The Judgment Debtor further maintained that there is no evidence demonstrating breach of any order issued by this court or by the Court of Appeal. 36. The Judgment Debtor, through Reverend Francis Njoroge, also swore a replying affidavit dated 17th November 2025. He deponed that, as advised by counsel, the firm of Jaleny & Co. Advocates is not properly on record, having failed to comply with the requirements of **Order 9 Rule 9** of the **Civil Procedure Rules.** 37. He averred that since judgment had already been entered, the said firm was required to first obtain leave of the court and thereafter serve both the order granting leave and the notice of change of advocates upon the other parties before coming on record. Consequently, until service of the order and notice of change of advocates is affected upon them, the firm of Jaleny & Co. Advocates remains a stranger to the proceedings with no audience to file or prosecute any application hence the present application ought to be struck out *in limine*. 38. Nonetheless, he contended, the present application is frivolous, vexatious, mischievous, and amounts to an abuse of the court process. He pointed out that the 1st Decree Holder acknowledges that there are approximately 106 persons, whom she derogatorily refers to as “illegal trespassers,” allegedly occupying or having invaded the parcel of land known as L.R. No. 28318/2307. 39. None of the said 106 persons, he asserted, had been joined as parties to the present application, nor were they aware of the orders being sought against them. In his view, the 1st Decree Holder is improperly inviting the court to issue orders that will adversely affect and condemn those persons without affording them an opportunity to be heard. 40. He deponed, on the advice of counsel, that all persons are entitled to the fundamental right to a fair hearing, which includes adequate notice of proceedings and an opportunity to be heard before adverse orders can be made against them. Consequently, he argued that allowing the present application will offend the principles of due process and the constitutional guarantees enshrined in the Constitution of Kenya. 41. He further deponed that the necessity of joining the said third parties to the proceedings is even more compelling given that the persons occupying the respective portions already hold proprietary interests therein, having been issued with title documents in their own names. 42. The 1st Decree Holder, he explained, is improperly attempting to impeach titles issued to third parties through the present application, instead of instituting a substantive suit against the affected parties; that the Land Act provides an elaborate and mandatory procedure to be followed before eviction orders can be sought and granted by the court and that where a court order is alleged to have been violated, the proper recourse is commencement of contempt of court proceedings and not the cancellation of titles. 43. According to him, L.R. No. 28318/2307 is neither the subject of the proceedings herein nor referenced anywhere in the decree issued by the court. As such, any dispute relating to the said parcel ought to be litigated separately, particularly in light of the fact that the court has already become functus officio in respect of the substantive dispute. 44. Further, he urged, the Judgement Debtor has not breached any order or decree issued either by this court or by the Court of Appeal. It was averred that upon issuance of the conservatory orders and the directions of the court on 12th October 2011, the Judgement Debtor halted any further transactions over L.R. No. 28318/15. 45. Rev Njoroge deponed that following issuance of the decree on 25th February 2014, and the subsequent order of the Court of Appeal dated 13th May 2016, the Judgement Debtor became at liberty to transact with the remainder of the suit land after setting aside 35 acres and 5 acres respectively for the Decree Holders. Indeed, he asserted, the original parcel L.R. No. 28318/15 measured approximately 23.91 hectares or 59.083 acres and the 1st Decree Holder has herself disposed of 19 acres to third parties. 46. The Judgment Debtor, he deponed, has gone out of its way to relocate other purchasers in order to create room for, and generate titles accommodating the 35 acres and 5 acres due to the Decree Holders and that it has fully complied with the amended decree by setting aside the requisite acreage for each decree holder and duly communicated that fact to them. 47. However, instead of taking up the designated portions, the 1st Decree Holder has sought to “cherry pick” other sections of the original land already occupied by third-party purchasers and that the only obligation imposed by both this court and the Court of Appeal is for it to avail 35 acres and 5 acres respectively to the Decree Holders, which obligation has already been fulfilled. 48. It was urged that if the 1st Decree Holder is not content with the portions set aside, the proper course will be to seek directions from the court regarding the manner in which the excision of the 35 acres and 5 acres was to be undertaken rather than unilaterally proceeding onto the land and carving out portions of her own choosing, thereby causing the present complications on the ground. 49. It was deponed that in the circumstances, the court should convene a compliance conference regarding implementation of the amended decree so as to issue appropriate directions capable of conclusively resolving the outstanding issues and that in the interest of all parties and innocent third parties, the title acquired by the 1st Decree Holder, namely L.R. No. 28318/2307, ought to be cancelled and the excision exercise undertaken afresh in order to avoid overlap and infringement of the proprietary rights of other persons. 50. The 1st Decree holder filed two further affidavits dated the 8th March, 2024 and 17th February, 2026. She averred that although ELC No. 415 of 2010 and ELC No. 414 of 2010 were consolidated for purposes of hearing and determination, the amended decree dated 26th September 2017, dealt with the issues arising in each matter separately. According to her, the decree expressly awarded her thirty-five (35) acres to be excised from L.R. No. 28318/15 and made no reference whatsoever to joint decree holders. 51. She explained that following the issuance of the amended decree, the court, upon application, issued execution orders which set out a clear roadmap to guide the decree holders in obtaining titles to their respective decreed portions. It is her position that the execution order contained no provision requiring the decree holders to execute the decree jointly. 52. She dismissed the allegations of joint decree holdership and betrayal as illusory and without basis. She contended that the 2nd Decree Holder declined to contribute towards the survey fees required for implementation of the execution order dated 1st February 2018, insisting instead that such expenses ought to have been borne by the Judgment Debtor. She maintained that the 2nd Decree Holder could not now seek refuge under the doctrine of equity when she had failed to take the necessary steps to facilitate execution of the decree, emphasizing that equity does not aid the indolent. 53. She further stated that the 2nd Decree Holder declined to participate in the engagement of a surveyor for purposes of implementing the court’s orders, although she subsequently forwarded to her a proposed subdivision plan. She explained that the proposed plan had been prepared without the requisite approvals and was therefore promptly rejected. 54. According to her, the 2nd Decree Holder failed, vide her affidavit to identify where exactly her alleged five-acre portion is situated. She pointed out that the 2nd Decree Holder’s entitlement is to be excised from L.R. No. 28318/15, measuring approximately 23.91 hectares or 59.083 acres, a parcel whose entire frontage abuts a road. Consequently, several portions resulting from subdivision would enjoy road frontage and not merely the five acres claimed. 55. She reiterated that implementation of the execution order dated 1st February 2018, required a surveyor to prepare a proposed subdivision scheme, which would then be subjected to approval by the Kiambu County Government through the Lands, Housing and Physical Planning Department, followed by the placement of beacons on the ground and that it is only after completion of those processes that could lawful development be undertaken. 56. She asserted that the 2nd Decree Holder has not produced any approvals authorizing the developments she alleged to have carried out and therefore the structures in question are illegal. By contrast, she maintained that she had followed the lawful process, implemented the execution order and obtained the requisite approvals. 57. She argued that the 2nd Decree Holder’s own conduct demonstrated that she had independently pursued issuance of her title without involving her. In her view, the 2nd Decree Holder only resorted to the phrase “joint decree holder” after her efforts to secure title proved unsuccessful. She further asserted that the 2nd Decree Holder’s application for waiver of rates, allegedly made without any valid basis, contributed to her inability to obtain title. Accordingly, she maintained that the 2nd Decree Holder’s predicament stemmed from her own actions and not from any requirement for joint execution of the decree. 58. She denied the existence of any subdivision agreement between herself and the 2nd Decree Holder, noting that immediately after obtaining the execution order dated 1st February 2018 and realizing that the Judgment Debtor had failed to comply with the court’s directives, she embarked on the reconstruction of the correspondence and deed file at the office of the Chief Land Registrar. Those efforts, she explained, enabled her to secure all the approvals necessary for issuance of a title, ultimately resulting in registration of L.R. No. 28318/2307 in her favour. 59. She added that if the 2nd Decree Holder truly believed that her title ought to be revoked on account of alleged joint decree holdership, then it was incumbent upon her to demonstrate that the title had been procured through fraud or forgery, the principal grounds upon which a title may be impeached. 60. She also maintained that the procedure for execution of the amended decree dated 26th September, 2017, was clearly set out in the execution orders issued on 1st February 2018. In her view, the doctrine of estoppel has no application to the circumstances of the case. She asserted that title to L.R. No. 28318/2307 was issued only after all statutory and administrative approvals had been obtained and that any challenge to its legality would have to be founded on proven allegations of fraud or forgery. 61. The 1st Decree Holder further described the 2nd Decree Holder’s claims of having erected buildings and undertaken developments on the alleged five-acre portion as false and unsupported by evidence. She questioned how such developments could lawfully have been approved in the absence of a completed subdivision process, physical planning clearance and building approvals. According to her, the 2nd Decree Holder hurriedly fenced off portions of the land only after realizing that she had secured most of the documentation necessary to obtain title and was merely attempting to frustrate her efforts. 62. It was further her case that as advised by counsel, any person seeking building approvals must first produce a title document, a beacon certificate, approvals from the National Environment Management Authority (NEMA), and the relevant approvals from the local authority’s housing and physical planning departments and that since none of those documents had been exhibited by the 2nd Decree Holder, any structures erected on the land would, in any event, be illegal. 63. She acknowledged having testified during the hearing that a borehole existed within her thirty-five-acre parcel. However, she clarified that the borehole was not a survey beacon and could not be relied upon to identify or define the boundaries of her land. 64. She further asserted that the beacons allegedly erected by the 2nd Decree Holder had been placed without any survey having been conducted and were not aligned to the original survey plan for L.R. No. 28318/15. In her view, the 2nd Decree Holder was laying claim to an un-surveyed portion of land over which she held no title. 65. Finally, she maintained that, contrary to the allegations made against her, she lawfully executed the decree through the court process, obtained all the necessary approvals and successfully secured title to L.R. No. 28318/2307. Following issuance of the title, she obtained the requisite building and physical planning approvals and undertook substantial development on the property, establishing residential homes known as “Hermosa Homes.” 66. As regards the Judgment Debtor’s allegations, she deponed that the firm of Jaleny & Co. Advocates is properly on record, having filed a notice of motion under certificate of urgency on 13th April, 2021 seeking leave to come on record for her after judgment and decree had already been entered and that her application was heard on 5th May, 2021 by Justice Obaga, who granted leave for the said advocates to come on record on her behalf. 67. She further deponed that the said application was duly served upon the firm of Wambo & Muyela Advocates, who were then on record for the Judgment Debtor. She recalled that on 10th September 2010, the court issued temporary injunctive orders restraining the Judgment Debtor from selling, subdividing, offering for sale, or in any other manner dealing with the suit parcel of land. 68. According to her, the said interim orders were subsequently extended by consent of the parties on 3rd February, 2011 pending the hearing and determination of the suit. Pursuant thereto, she caused the said court order to be registered against title No. 123907, being L.R. No. 28318/15. 69. She deponed that the legal effect of registering the court order as a caveat against the title was to prohibit, by operation of law, any subdivision, sale, charge, or other dealings whatsoever in relation to the suit property. Consequently, she asserted that all title documents subsequently procured by the Judgment Debtor during the subsistence of the registered caveat were obtained fraudulently and through forgery. 70. She reiterated that the 106 sub-titles in question were illegally procured by the Judgment Debtor through fraud and forgery and were thereafter transferred to third parties. She further stated that the said third parties had previously sought to be joined in the proceedings as Interested Parties, but their application were dismissed by this court on 31st October 2019. 71. According to the deponent, the question concerning the cancellation and revocation of the illegal titles, procured through fraud and forgery in violation of subsisting court orders, can only properly be litigated within the present proceedings so as to facilitate effective execution of the decree issued by the court. 72. She further deponed that the decree in the instant matter was issued on 26th September 2017, while the execution order was issued on 1st February 2018. She contended that the 106 impugned titles were procured by the Judgment Debtor on 22nd September 2017, prior to the issuance of both the decree and the execution order. In that regard, she disputed the Judgment Debtor’s averment that the decree had been issued on 25th February 2014, terming the same false and misleading. 73. Finally, she averred that the terms and conditions contained in the amended decree and the subsequent execution orders were clear on the face of the said documents, and that the Judgment Debtor had never complied with the same. 74. The 2nd Decree Holder’s Motion dated **26th April, 2023** seeks the following reliefs: 75. ***Spent-This Honourable Court be pleased to review, rescind, vacate, vary or set aside its Orders made on 17th April, 2023 and issued on the 21st April 2023.*** 76. ***Spent- This Honourable Court be pleased to set aside the proceedings of the 17th April 2023 and subsequently find that the Affidavit of Service filed by the 1st Respondent's advocates dated 12th April 2023 as defective and improper to wit, that service of the Hearing Notice or the Notice of Motion Application dated 20th March 2023 was not effected on the Applicant as Joint Decree Holder or any other party formally on record in the matter contra to the directions of 27th March 2023.*** 77. ***Spent-The Honourable Court may be pleased to issue and order prior to the hearing of the instant application, inter-parties, an interim injunction restraining the Respondents (severally or jointly) hereof, whether by themselves or acting through agents, servants, employees, third parties or any other third person acting under any authority by restraining them from trespassing ingressing, alienating, constructing or destroying or otherwise interfering with the peaceful occupation and use of the Applicant/Decree Holder of property of area five (5) acres situate on Property Title Number I.R 123907 of L.R Number 28318/15 and/or the subsequent excised Property Title Number I.R 233619 of L.R Number 28318/2307 which property the Decree Holder has been in physical possession of pursuant this Honourable Court's Orders of the 25th January 2018.*** 78. ***Spent-The Honourable Court be pleased to issue orders staying further execution of the Execution Orders issued to the joint decree Holder-Agnes Wambui Kiritu by this Honourable Court on 17th April 2023, pending the hearing and Determination of the Instant Application.*** 79. ***Spent-The Honourable Court may be pleased to issue and order pending the hearing and Determination of the Instant Application an interim injunction restraining the Respondents (severally or jointly) hereof, whether by themselves or acting through agents, servants, employees, third parties or any other third person acting under their authority by restraining them from trespassing ingressing, alienating, constructing or destroying or otherwise interfering with the peaceful occupation and use of the Applicant/Decree Holder of property of area five (5) acres situate on Property Title Number 123907 of L.R Number 28318/15 and/or the subsequent excised Property Title Number 233619 of L.R Number 28318/2307 which property the Decree Holder has been in physical possession of pursuant this Honourable Court's Orders of the 25th January 2018.*** 80. ***The Honourable Court be pleased to order the Chief Land Registrar in consonance with the Director of Survey to furnish this Court with a chronological report in the shortest or most expedient time possible on dispositions or subdivisions occurring on the decree property that is Property Tile Number 28318/15.*** 81. ***The Honourable Court do order that all subdivisions or resultant titles excised from the decree property that is Property Title Number 28318/15 be revoked and/or nullified and the decree properties be reinstated pending settlement of the contention of subdivision of the property as between the parties to the suit, pursuant to the execution orders of the 25th January 2018.*** 82. ***This Honourable court be pleased to issue orders or direction in settlement of the contention between the Applicant, 1st Respondent and Judgement Debtor in respect to subdivision of the decree property, pursuant to the Amended Decree dated 26th September 2017.*** 83. ***This Honourable Court do order the 1st Respondent to compensate the Applicant for the demolition/destruction of the Applicant's perimeter wall on the decree property.*** 84. ***Spent-This Honourable Court be pleased to issue an order of inhibition directed to the Chief Land Registrar to forthwith cause on Property Title Number I.R 123907 of L.R Number 28318/15 and/or the subsequent excised Property Title Number 233619 of L.R Number 28318/2307 restraining the sale, transfer, alienation, subdivision or any disposition of the said properties pending determination of this Application.*** 85. ***The Officer Commanding Station, Ruiru Police Station, Kiambu County be directed and/or ordered to safeguard and enforce the Orders of this Honourable Court.*** 86. ***This Honourable Court grant any other order that it may deem fit.*** 87. ***The costs of this application be provided for.*** 88. The Motion is supported by the affidavit of Alice Wangui Mwaniki, the 2nd Decree Holder/Applicant. She deponed that the dispute was conclusively adjudicated by the Court of Appeal, culminating in the issuance of an amended decree dated 26th April 2017, as well as execution orders issued by this court on 25th January, 2018 and that the aforesaid execution orders were however never fully complied with, especially the direction on the issuance of the respective titles to the joint decree holders as directed by the court. 89. According to her, the court record demonstrates her consistent participation, either in person or through her advocates, in numerous applications filed by third parties who allegedly purchased portions of the decree property, namely L.R. No. 28318/15, from the Judgment Debtor during the pendency of the proceedings before both the High Court and the Court of Appeal. 90. She stated that she vigorously opposed those applications in order to safeguard the decree and the interests of the decree holders. These efforts, were without any meaningful participation or input from the 1st Decree Holder, notwithstanding her status as a co-decree holder. 91. Notwithstanding the foregoing, she urged, it came to her attention, and that of her advocates that the 1st Decree Holder surreptitiously, unlawfully and fraudulently procured the issuance of title no. I.R. 233619 relating to L.R. No. 28318/2307, purportedly excised from the decretal property known as title no. I.R. 123907, L.R. No. 28318/15. She averred that the said title was procured during the pendency of various applications filed by third parties before this court from the year 2019 onwards. 92. According to the 2nd Decree Holder, the 1st Decree Holder has consistently procured court orders irregularly and without due process, including obtaining orders without service upon her, her advocates, or any other legitimate party to the suit. In particular, she pointed to the applications dated 31st May, 2021 and a subsequent application dated 20th March 2023, which forms the subject of the present proceedings. She contended that, in both instances, the 1st Decree Holders misled the court by filing affidavits purporting to demonstrate service of hearing notices while deliberately excluding her and her advocates from the proceedings. 93. According to her, upon reviewing records available on the judiciary electronic platform, it is apparent that the 1st Decree Holder’s advocates purportedly effected service upon the firm of Wambo & Company Advocates for the Judgment Debtor instead of the firm of Guandaru Thuita & Company Advocates, which had properly come on record for the Judgment Debtor pursuant to leave granted by the court on 4th February, 2019. 94. She maintained that neither she nor her advocates had ever been served with the relevant applications or hearing notices despite her status as a joint decree holder and a substantive party to the proceedings. 95. As a consequence of the foregoing, she urged, the 1st Decree Holder and her advocates, obtained court orders dated the 17th April 2023, without her participation or representation. She only became aware of the existence of those orders after her advocates inspected the court file on 25th April 2023. 96. She averred that, acting pursuant to those orders, the 1st Decree Holder, either personally or through her agents, caused the demolition of the perimeter wall surrounding her five-acre portion of the decretal property on the night of 22nd April 2023. She explained that the wall had been erected in September 2018 pursuant to, and with the sanction of, the execution orders issued by this court on 25th January 2018. 97. It is her contention that the 1st Decree Holder’s conduct amounts to a flagrant abuse of the court process and has resulted in the wanton destruction of her property. Despite reporting the incident at Ruiru Police Station, being the police station, the Officer Commanding Station informed her that the police were unable to intervene owing to the existence of court orders unless further directions were issued by the court. 98. As result of the foregoing events, she asserted that she has been unable to access the decretal property and her property has been damaged and destroyed. She expressed apprehension that any remaining property on the land is at risk of being plundered or carted away, thereby exposing her to substantial loss. She additionally averred that the 1st Decree Holder was aware that her actions were likely to precipitate further proceedings before the court and was consequently rushing to undertake further construction works on the property. 99. Finally, she maintained that her presence and occupation of the decretal property is lawful and sanctioned by the execution orders issued by the court on 25th January 2018, which orders have never been set aside, varied or vacated. She contended that unless restrained, the 1st Decree Holder and Ju would continue with the impugned actions unabated, thereby causing her irreparable loss and damage which could not adequately be compensated by an award of damages. She further stated that the application had been brought without unreasonable delay. 100. In response to the motion, the 1st Decree Holder, Alice Wambui Kiritu, filed grounds of opposition dated 15th May 2023. Vide the grounds, it was contended that the 2nd Decree Holders request to rescind, review and set aside the orders granted on 17th April 2023, and issued on 21st April 2023, which revoked the impugned titles, is in effect an invitation to the court to sanction and legitimize the Judgment Debtor's disobedience of court orders. 101. It was maintained that the decretal property, L.R. No. 28318/15, measures approximately 23.9 hectares or 59.0582 acres and that the 2nd Decree Holder had failed to comply with the roadmap for execution set out in Order No. 3 of the court's orders issued on 1st February 2018. The 2nd Decree Holder, it was noted had neither identified nor excised her decretal five-acre portion and had failed to pursue the requisite administrative approvals and consents necessary to facilitate the subdivision and transfer process. 102. In contrast, L.R. No. 28318/2307 measuring 35 acres, was lawfully processed and issued strictly in accordance with the court's orders all the requisite administrative procedures were followed and all necessary approvals obtained. Consequently, any prayer seeking the revocation of her title is itself unlawful and without basis. 103. It was also asserted that the 1st Decree Holders had not been served with any court process by the Judgment Debtor's new advocates. Further that the 1st Decree Holder is not responsible for the demolition of the 2nd Decree Holder’s perimeter wall, which arose from a separate land dispute involving third parties, namely Paul Wambugu Gatere and Beatrice Wanjiru Gatere. 104. The Judgment Debtor filed grounds of opposition dated 26th April, 2024 in which it was asserted that it is only opposed to a portion of prayer 9 which seeks to cancel all subdivisions of L.R. No. 28318/15 save for that in respect of L.R. 28318/2307 which was obtained by Agnes Wambui Kiritu, the 1st Decree Holder. 105. It was asserted that the firm of Professor Tom Ojienda & associates is not properly on record as it is yet to comply with the requirement of **Order 9 Rule 9** of the **Civil Procedure Rules** which requires that where there is a judgment, the said firm ought to have obtained an order before coming on record as well as served both the order and the notice of change of Advocates upon the other parties. 106. According to the Judgment Debtor, the prayer for cancellation of subdivisions as well as titles is an utter abuse of the court process, frivolous, vexing and mischievous; that the subject titles sought to be cancelled belong to various people who are not parties to the subject application and are unaware of the orders being sought against them and that the 2nd Decree Holder herein is inviting this court to commit an illegality by issuing orders that will condemn these persons unheard. 107. It was averred that allowing the present application would be inimical to the due process guaranteed under the Constitution of Kenya; that the proper course would be to institute a substantive suit by way of a Plaint against the affected third parties and that this court is *functus officio*, save for matters relating to execution and other ancillary proceedings, and therefore lacks jurisdiction to entertain the reliefs sought. 108. It was further argued that where a party alleges disobedience of a court order, the appropriate remedy is to institute contempt of court proceedings rather than seek cancellation of titles on the basis of the alleged breach and that there is no evidence demonstrating that the Judgment Debtor is in breach of any order or decree issued by either this Court or the Court of Appeal. 109. The Judgement Debtor, through its Director, Reverend Francis Njoroge, also swore a replying affidavit dated 23rd April, 2024. He deponed that, as advised by counsel, prayers (1 – 7) and (12) of the application are spent. Further, that the Judgement Debtor is not opposed to prayer (8) seeking to have the Chief Land Registrar give a report on the status of L.R. No. 28318/15 and its subdivisions. 110. Mr. Njoroge deponed that the Judgement Debtor equally supports, prayer (10) of the application seeking directions from the court regarding the settlement of the question of excision of 35 acres and 5 acres respectively for each of the Decree Holders and that it is also not opposed to prayer (11) seeking compensation. 111. He explained that the Judgment Debtor's opposition is limited to a portion of prayer (9) of the application, namely the prayer seeking the cancellation of all subdivisions arising from L.R. No. 28318/15. According to him, the Judgment Debtor has no objection to the cancellation of the subdivision known as L.R. No. 28318/2307, obtained by Agnes Wambui Kiritu. However, it opposes the cancellation of the remaining subdivisions carved out of the parent property. 112. He further deponed that, just as the firm of Jaleny & Company Advocates was not properly on record, the firm of Professor Tom Ojienda & Associates had likewise come on record irregularly having failed to comply with the provisions of **Order 9 Rule 9** of the **Civil Procedure Rules**. He asserted that judgment having already been entered in the matter, the said firm was required to first obtain leave of the court before coming on record and thereafter serve the order granting leave together with the notice of change of advocates upon all parties to the suit. 113. Nonetheless, he maintained that the application itself was properly before the court as it had been filed by the firm of Kigano & Associates Advocates, which was duly on record for the 2nd Decree Holder. 114. He further deponed that they had never been served with any application seeking leave for the firm of Professor Tom Ojienda & Associates to come on record for Alice Wangui Mwaniki. Neither were they served with any order granting such leave or with a notice of change of advocates notifying them of the said firm's appointment. 115. Rev. Njoroge deponed that, from the outset, the prayer seeking cancellation of the subdivisions and titles arising from L.R. No. 28318/15 constitute an abuse of the court process and is frivolous, vexatious and mischievous and that the subdivisions in question are already in the hands of third parties, not parties to the present application and who are unaware of the orders being sought against them. 116. All persons, he maintained are entitled to the fundamental right to a fair hearing, including notice of proceedings instituted against them and an opportunity to be heard; that allowing the present application would offend the requirements of due process as guaranteed under the Constitution of Kenya and that any challenge to the subdivisions or titles issued to third parties ought to be pursued through a substantive suit instituted against the affected parties. 117. Rev. Njoroge further averred that the necessity of joining the said third parties to the proceedings is even more apparent given that they already hold proprietary interests over the portions they occupy, having been issued with titles in their respective names and that following the issuance of the conservatory orders and directions of the court on 12th October 2011, the Judgement Debtor halted any further transactions concerning L.R. No. 28318/15. 118. According to him, upon issuance of the decree on 25th February 2014, the conservatory orders were automatically lifted and, pursuant to the orders of the Court of Appeal issued on 13th May 2016, the Judgment Debtor was at liberty to transact with the remainder of the suit land after setting aside 35 acres and 5 acres respectively for the two Plaintiffs. 119. Rev. Njoroge further deponed that L.R. No. 28318/15 measured approximately 23.91 hectares or 59.083 acres and that the Decree Holders have already disposed of 19 acres to third parties. According to him, the Judgment Debtor went to great lengths to reorganize and move other purchasers in order to create sufficient room and generate whole titles capable of accommodating the 35-acre and 5-acre portions due to the Decree Holders and that the Judgment Debtor had since complied with the amended decree by setting aside the requisite acreage for each of the Decree Holders. 120. He further averred that although this position had been communicated to the Decree Holders, they had had declined to take up the portions allocated to them and instead sought to “cherry-pick” other portions of the original land that were already occupied by other purchasers. In his view, all that both this court and the Court of Appeal required was for the Judgment Debtor to avail 35 acres and 5 acres respectively to the Decree Holders which obligation had already been fulfilled. **Submissions** 1. The 1st Decree Holder/Applicant filed submissions dated 8th March 2024. Counsel submitted that there is no provision in law, nor any order of the court, requiring joint execution of the amended decree dated 26th September 2017 and that the decree clearly distinguished the claims in ELC No. 415 of 2010 and ELC No. 414 of 2010, expressly providing for their respective entitlements. 2. Counsel submitted that the execution orders issued on 1st February 2018 provided a clear framework for implementing the amended decree. It was argued that the Decree Holder in ELC No. 414 of 2010 had declined to facilitate execution on the ground that the Judgment Debtor should bear the costs and, having neither pursued contempt proceedings nor undertaken execution independently, could not later seek joint execution. Accordingly, the court was urged to reject the plea for estoppel and joint execution. 3. On the issue of the 106 subdivided titles being L.R. Nos. 28318/2128 to 28318/2243, counsel submitted that the same were illegally and fraudulently procured during the subsistence of injunctive orders issued on 7th September 2010, and extended by consent on 3rd February 2011 and that the said orders were duly registered against the title as caveat entry no. 2 and remained in force when the impugned titles were issued in 2019. 4. Counsel argued that the Judgment Debtor deliberately disobeyed the court orders and fraudulently procured the 106 titles through forgery with the intention of defeating execution of the decree. It was therefore submitted that all the titles ranging from L.R. No. 28318/2128 to L.R. No. 28318/2243 ought to be revoked and cancelled. 5. Regarding L.R. No. 28318/2307, counsel submitted that the 1st Decree Holder lawfully processed and obtained the 35-acre title after securing all requisite approvals from the County Government of Kiambu, Lands, Housing and Physical Planning Sector and obtained orders authorizing the Deputy Registrar to execute all transfer documents relating to L.R. No. 28318/2307, which orders were granted on 23rd June 2021. 6. According to counsel, where fraud or forgery in the acquisition process could be demonstrated, the validity of the title could not be challenged or subjected to cancellation. Reliance was placed on ***Nelius Muthoni Thegetha vs Ndungu Mwangi & Another (2020) eKLR*** for the proposition that under **Section 80(1)** of the **Land Registration Act, 2012**, the court is empowered to rectify the register where registration has been procured through fraud or mistake. 7. The 2nd Decree Holder filed submissions dated 2nd November 2023 in support of her application dated 26th April 2023 and in partial opposition to the application dated 20th March 2023. Counsel submitted that the 1st Decree Holder had procured titles fraudulently and irregularly with the assistance of the Judgment Debtor and in disobedience of existing court orders. 8. It was further submitted that although the court had initially allowed the application dated 20th March 2023 on 17th April 2023, the execution of those orders precipitated the filing of the 2nd Decree Holder’s application dated 26th April 2023 seeking the discharge of the execution orders. 9. Counsel further submitted that pursuant to the court’s orders issued on 1st February 2018 directing immediate physical possession of the decreed property, the parties had agreed on a proposed subdivision plan under which the 2nd Decree Holder took possession of a distinct 5-acre portion of the land. It was contended that the 1st Decree Holder subsequently procured a title whose boundaries overlapped and covered the entire portion occupied and developed by the 2nd Decree Holder, contrary to the agreed subdivision arrangement on the ground. 10. It was maintained that although the 2nd Decree Holder did not oppose the cancellation of titles obtained fraudulently or irregularly, she objected to any implementation of the orders that would result in her eviction or the demolition of the developments erected on the portion she occupied. 11. Counsel argued that the conduct of the 1st Decree Holder attracted the doctrines of proprietary estoppel and legitimate expectation. Reliance was placed on the decision in ***Thorner vs Major and Others [2009] UKHL 18; [2009] 1 WLR 776***, where the House of Lords outlined the essential elements of proprietary estoppel. Counsel also cited ***Carol Construction Engineers Limited & another vs. National Bank of Kenya [2020] eKLR***, in which the court set out the elements necessary to establish estoppel by representation or promissory estoppel, namely representation, reasonableness of reliance, actual reliance, detriment, and unconscionability. 12. According to counsel, vide correspondence, testimony before the court and the proposed subdivision sketch plan shared on 23rd April 2018, the 1st Decree Holder represented to the 2nd Decree Holder that the subdivision and eventual titling of the decreed property would accord with the parties agreed physical occupation; that in reliance thereto, the 2nd Decree Holder took possession of the 5-acre portion, erected a perimeter wall, constructed houses thereon and permitted a tenant to operate a garage on the property and that all these developments were undertaken with the knowledge of the 1st Decree Holder, who for several years raised no objection to the occupation or developments being undertaken. 13. The Judgment Debtor filed their submissions on 28th May 2026. Counsel submitted that the applications are incompetent and ought to fail at inception for non-compliance with **Order 9 Rule 9** of the **Civil Procedure Rules**, which governs change of advocates after judgment. Counsel argued that the provision is couched in mandatory terms and cannot be bypassed through **Article 159** of the **Constitutio**n. 14. Counsel further submitted that the court became *functus officio* upon delivery of judgment, save for lawful execution and ancillary implementation proceedings. It was argued that the present applications invite the court to reopen matters already determined and to grant fresh substantive orders touching on ownership rights, validity of titles, eviction and rights of additional persons, which matters fall outside the court’s execution jurisdiction. 15. It was further submitted that the applications seek orders affecting approximately 106 persons who are not parties to the proceedings, have not been served, and have not been afforded an opportunity to be heard. Counsel relied on ***Pashito Holdings Ltd & Another vs Paul Nderitu Ndungu & 2 Others [1997] eKLR, JMK vs MWM & Another [2015] eKLR*** and ***Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55*** for the principle that adverse orders should not issue against persons who are not before the Court. 16. On the issue of cancellation of titles, counsel submitted that the Decree Holders are improperly seeking to impeach registered titles through motion proceedings. It was contended that questions of fraud, legality of acquisition, indefeasibility of title and proprietary rights require pleadings, viva voce evidence, cross-examination and a full hearing. 17. Counsel further submitted that the eviction orders sought cannot issue without compliance with **Sections 152A** to **152G** of the **Land Act,** which prescribe mandatory safeguards before eviction. Reliance was placed on ***Mitu-Bell Welfare Society vs Kenya Airports Authority [2021] eKLR and Satrose Ayuma & 11 Others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 Others [2013] eKLR*** for the proposition that evictions must comply with constitutional and statutory due process safeguards. 18. Finally, counsel submitted that execution proceedings cannot be expanded into substantive litigation involving cancellation of titles, ownership disputes, third-party proprietary claims and eviction of non-parties. Any unresolved implementation issues should instead be dealt with through implementation directions and a compliance conference, strictly within the confines of the existing decree. 19. The 2nd Decree Holder filed further submissions on the 23rd June, 2026 which I have considered. **Analysis and Determination** 1. Having considered the motions, responses and submissions, the issues that arise for determination are: * 1. *Whether the firm of Jaleny & Co. Advocates and Tom Ojienda & Associates Advocates are properly on record for the Decree Holders?* 2. *Whether the 1st Decree Holder has established a basis for the cancellation of the titles arising from L.R. No. 28318/15 and for the eviction orders sought?* 3. *Whether the 2nd Decree Holder has established a basis for the reliefs sought in the application dated 26th April 2023?* **Whether the firms of Jaleny & Co. Advocates and Tom Ojienda & Associates Advocates and are properly on record** 1. Vide its responses, the Judgment Debtor has sought to impugn the competence of both applications on the ground that the firms of Jaleny & Co. Advocates and Professor Tom Ojienda & Associates Advocates are not properly on record. 2. It is contended that the said law firms came into the picture long after judgment had been entered in the matter and that any change of advocates thereafter could only be effected in strict compliance with **Order 9 Rule 9** of the **Civil Procedure Rules**. According to the Judgment Debtor, neither firm properly complied with the mandatory requirements of the law and, consequently, lacked audience before the court to file or prosecute the respective applications. 3. In response, the 1st Decree Holder maintains that the firm of Jaleny & Co. Advocates is properly on record. She deponed that upon instructing the said firm after judgment, an application seeking leave to come on record was duly filed and served upon the then advocates for the Judgment Debtor and that the application was subsequently heard and allowed by the court, whereupon leave was granted for the firm to act on her behalf. 4. The 2nd Decree Holder similarly contends that her current advocates are properly on record. She explained that following the entry of judgment, a consent between the firm of Kigano & Associates Advocates and the firm of Professor Tom Ojienda & Associates Advocates was duly recorded before the court on 18th May 2023. According to her, the said consent satisfied the requirements of **Order 9 Rule 9(b)** of the **Civil Procedure Rules,** thereby regularizing the change of advocates and entitling the firm of Professor Tom Ojienda & Associates to act on her behalf in these proceedings. 5. The law governing change of advocates after judgment is found in **Order 9 Rule 9** of the **Civil Procedure Rules**, which provides as follows: ***“When there is a change of Advocate, or when a party decides to act in person having previously engaged an Advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the Court—*** ***(a) upon an application with notice to all the parties; or*** ***(b) upon a consent filed between the outgoing Advocate and the proposed incoming Advocate or party intending to act in person as the case may be.”*** 1. **Order 9, rule 10** provides: ***“An application under rule 9 may be combined with other prayers provided the question of change of Advocate or party intending to act in person shall be determined first.”*** 1. A reading of the provisions of **Order 9 Rule 9** of the **Civil Procedure Rules** makes it mandatory that for any change of advocates after judgment has been entered to be affected, there must be an order of the court upon application with notice to all parties or upon a consent filed between the outgoing advocate and the proposed incoming advocate. 2. The reasoning behind the provision was well articulated in the case of **S*. K. Tarwadi vs Veronica Muehlmann [2019] eKLR*** where the judge observed as follows: ***“…In my view, the essence of the Order 9 Rule 9 of the CPR was to protect advocates from the mischievous clients who will wait until a judgment is delivered and then sack the advocate and either replace him….”*** 1. The court has considered the record. It is noted, beginning with the firm of Jaleny & Co Advocates that indeed, on 4th May, 2021, the application dated 13th April, 2021 seeking to have Jaleny & Co Advocates come on record was before the court. The court was satisfied that the same had been duly served and granted the change of counsel. 2. As to the complaint that the order granting leave and the notice of change of advocates were not subsequently served upon the Judgment Debtor, the court is not persuaded that the omission, if at all, is fatal in the circumstances of this case. As aforesaid, the rationale behind **Order 9 Rule 9** is to regulate changes of advocates after judgment and to protect advocates from being improperly removed from proceedings after rendering professional services. The provision is not intended to create technical traps capable of invalidating proceedings where the court has already sanctioned the change of advocates. 3. Indeed, the court cannot ignore the practical reality reflected on the record. Jaleny & Co. Advocates have been appearing in these proceedings since 2021. Over the intervening years, numerous applications, mentions and proceedings have been undertaken with the participation of the said firm. At no point was any substantive objection successfully pursued challenging their audience before the court. 4. More importantly, the Judgment Debtor has not demonstrated any prejudice occasioned by the alleged omission. Litigation must be conducted on the basis of substance rather than technicality. Where a party has had actual knowledge of the advocate acting, has participated in proceedings over an extended period and has responded to applications filed by that advocate, it would be contrary to the overriding objective of the Civil Procedure Act to invalidate years of proceedings on the basis of an alleged procedural omission that occasioned no prejudice. 5. The same reasoning applies to the appearance of the firm of Prof. Tom Ojienda & Associates Advocates for the 2nd Decree Holder. The record shows that there is a notice of change dated 17th May, 2023 and on 18th May 2023, a consent was entered into between the firm of Kigano & Associates Advocates and the firm of Prof. Tom Ojienda & Associates Advocates. That consent squarely falls within **Order 9 Rule 9(b)** of the **Civil Procedure Rules** and was sufficient to regularize the change of advocates after judgment. 6. From May 2023 to the present, the firm of Prof. Tom Ojienda & Associates Advocates has openly participated in these proceedings, filed documents and prosecuted the 2nd Decree Holder's position without any successful challenge to its status. As with Jaleny & Co. Advocates, the Judgment Debtor has not demonstrated any prejudice arising from the alleged procedural defects now complained of. 7. The court is therefore satisfied that both firms substantially complied with the requirements of **Order 9 Rule 9** of the **Civil Procedure Rules**. In any event, the record demonstrates that they have acted openly and continuously in these proceedings for a considerable period of time with the knowledge of all parties. The objection raised by the Judgment Debtor on that score is without merit and is hereby rejected. **Whether the 1st Decree Holder has established a basis for the cancellation of the titles arising from L.R. No. 28318/15** 1. Vide the motion dated 20th March 2023, the 1st Decree Holder seeks the cancellation and revocation of over one hundred titles said to have arisen from subdivisions of L.R. No. 28318/15. She further seeks eviction orders against the persons occupying the said parcels of land. 2. She contends that during the pendency of the suit, this court issued injunctive orders on 8th September 2010, which were subsequently extended on 3rd February 2011. According to her, those orders were duly registered against the title and prohibited any sale, subdivision, transfer or other dealings with L.R. No. 28318/15. It is her position that all subdivisions undertaken thereafter were unlawful and that the resultant titles were procured fraudulently, illegally, unprocedurally and through a corrupt scheme. 3. She further argues that the impugned subdivisions were undertaken in direct violation of subsisting court orders and with the sole purpose of defeating the decree subsequently issued in her favour. Consequently, she urges the court to cancel all the resultant titles and facilitate vacant possession of L.R. No. 28318/2307, which is also a sub division of L.R. No. 28318/15. The 2nd Decree Holder partially supports the motion. She too asserts that the 106 titles were procured fraudulently and are liable to be cancelled, including the 1st Decree Holder’s title for L.R. No. 28318/2307. 4. On its part, the Judgment Debtor asserts that the interim injunctive orders relied upon by the 1st Decree Holder were interlocutory in nature. According to the Judgment Debtor, once judgment was delivered on 25th February 2014, the interim orders lapsed by operation of law and could no longer constitute a basis for impeaching subsequent transactions relating to the remainder of the property. 5. There is no dispute that interim preservatory orders were issued during the pendency of the suit. Neither is there any dispute that the suit was eventually determined by this court on 25th February 2014. It is trite that once judgment was entered, the injunctive orders lapsed by operation of law. 6. The aforesaid judgment was subsequently affirmed by the Court of Appeal in Civil Appeal No. 139 of 2014, which clarified that the 1st and 2nd Decree Holders were entitled to thirty-five (35) acres and five (5) acres of land respectively to be excised from L.R. No. 28318/15. Following the Court of Appeal decision, an amended decree dated 26th September 2017 was extracted in those terms. 7. Thereafter, upon an application dated 30th November 2017, the court issued execution orders on 25th January 2018, prescribing the mechanism through which the decree was to be implemented. 8. The execution order is particularly significant because it defined the Judgment Debtor's obligations. The court ordered the Judgment Debtor to excise, carve out and subdivide L.R. No. 28318/15 in accordance with the amended decree. In default, the Chief Land Registrar was authorized to execute all requisite documents, cancel the parent title if necessary and re-issue titles in accordance with the respective shares decreed by the court. The order further granted the Decree Holders immediate physical possession of the decreed property. 9. It must be emphasized that the execution orders were concerned with the realization of the specific entitlements decreed in favour of the Decree Holders. They were not intended to operate as a blanket prohibition against all dealings with the entirety of L.R. No. 28318/15. 10. The 1st Decree Holder contends that the impugned titles were procured on 22nd September 2017, four days before the amended decree was issued on 26th September 2017 and several months before the execution orders were issued on 1st February 2018, and that this fact renders them invalid. 11. To begin with, as I have stated herein, once judgment was entered, any injunctive order that was subsisting lapsed by operation of law. Second, and more critically, the judgment of this court and the Court of Appeal referenced did not impose a wholesale prohibition on all future transactions relating to L.R. No. 28318/15. 12. Consequently, the mere fact that certain subdivisions or transfers may have occurred before the issuance of the amended decree or the execution orders does not, without more, render the resultant titles automatically void. 13. More fundamentally, however, the evidence before court demonstrates that the alleged subdivisions did not render execution of the decree impossible. The 1st Decree Holder herself depones that following further execution proceedings, the Deputy Registrar was authorized to execute the necessary instruments, whereafter subdivision approvals were obtained and she eventually procured Title I.R. No. 233619, being L.R. No. 28318/2307, measuring approximately thirty-five (35) acres. 14. That fact is of considerable significance. If the impugned subdivisions had wholly defeated the decree or exhausted the parent parcel, the 1st Decree Holder would not have obtained the very title contemplated by the judgment, decree and execution orders. The issuance of L.R. No. 28318/2307 demonstrates that notwithstanding the existence of the impugned subdivisions, the execution process proceeded and culminated in the registration of the 1st Decree Holder as proprietor of the thirty-five acres awarded to her. 15. The dispute presented to the court is therefore no longer about whether the 1st Decree Holder is entitled to thirty-five acres. Rather, the dispute concerns alleged encroachment, overlapping claims, occupation of portions of land and the validity of titles held by third parties who are said to occupy areas falling within or affecting L.R. No. 28318/2307. 16. Those questions cannot properly be resolved within the confines of the present execution proceedings. The titles sought to be cancelled are not held by the Judgment Debtor alone. By the 1st Decree Holder's own case, they were transferred to numerous third parties. Indeed, the motion seeks cancellation of over one hundred titles issued to persons who are not parties before this court. 17. The law governing cancellation of title is found in **Sections 26** and **80** of the **Land Registration Act.** While the court possesses jurisdiction to impeach a title obtained through fraud, misrepresentation, illegality, procedural impropriety or a corrupt scheme, such relief cannot issue in the abstract. Allegations of fraud and illegality are serious allegations which must be specifically pleaded and strictly proved against the persons whose titles are under challenge. 18. Equally important, the proprietors whose titles are sought to be cancelled are entitled to be heard. **Article 50** of the **Constitution** guarantees every person the right to a fair hearing, while **Article 40** protects the right to property. A court cannot revoke registered titles and extinguish proprietary interests of non-parties through affidavit evidence in execution proceedings without first affording those proprietors an opportunity to answer the allegations levelled against them. 19. The same difficulty confronts the prayer for eviction. The court cannot issue blanket eviction and demolition orders against unnamed persons, particularly where questions of ownership and occupation remain contested. The issue of whether the impugned titles were issued fraudulently or in contravention of the Judgment of the Court of Appeal can only be determined in a separate suit, where all the affected persons will be given an opportunity to explain their side of the story. 20. In the end, the court finds the 1st Decree Holder’s motion to be unmerited. **Whether the 2nd Decree Holder has established a basis for the reliefs sought in the application dated 26th April 2023?** 1. The 2nd Decree Holder's application proceeds on a different footing from that of the 1st Decree Holder. While she supports the cancellation of the 106 titles alleged to have arisen from unlawful subdivisions of L.R. No. 28318/15, her principal grievance concerns the manner in which the decree has been implemented and, in particular, the issuance of title L.R. No. 28318/2307 to the 1st Decree Holder. 2. She contends that she is a co-decree holder entitled to five acres out of the same parent parcel and that she was therefore a necessary participant in any process touching on implementation of the decree. According to her, following the execution orders issued on 1st February 2018, she took possession of a distinct five-acre portion on the ground, erected a perimeter wall and undertook substantial developments thereon. She maintains that the 1st Decree Holder was fully aware of her occupation and developments and never raised any objection. 3. It is her case that despite the existence of what she describes as an agreed subdivision arrangement between the decree holders, the 1st Decree Holder independently pursued title and ultimately obtained L.R. No. 28318/2307 through a subdivision scheme materially different from the one previously contemplated by the parties. 4. According to her, the resultant title overlaps and effectively encompasses the entire five-acre portion she has occupied and developed since 2018 and which she sought to acquire title for. She therefore urges the court to revoke not only the 106 titles arising from L.R. No. 28318/15 but also the title held by the 1st Decree Holder. 5. In response, the 1st Decree Holder maintains that L.R. No. 28318/2307 was lawfully obtained through the execution process sanctioned by the court. She contends that she obtained the requisite approvals, secured orders authorizing the Deputy Registrar to execute the necessary transfer documents and thereafter lawfully processed her title in implementation of the decree. 6. According to her, there was no requirement for co-implementation of the decree and the 2nd Decree Holder failed to pursue execution of her own entitlement and cannot now seek cancellation of a title validly issued pursuant to court orders. The Judgment Debtor supports the cancellation of L.R. No. 28318/2307 and proposes that the entire implementation process be revisited afresh through compliance directions from the court. 7. Turning to the question of whether the 1st Decree Holder’s title, namely L.R. No. 28318/2307, should be cancelled, the starting point must be the statutory framework governing registered titles. **Section 26(1)** of the **Land Registration Act** provides that a certificate of title issued by the Registrar shall be taken by all courts as prima facie evidence that the person named therein is the absolute and indefeasible owner of the land. 8. Such a title may only be challenged on the grounds that it was obtained through fraud or misrepresentation to which the proprietor was a party or where it was acquired illegally, unprocedurally or through a corrupt scheme. Similarly, **Section 80** of the **Land Registration Act** empowers the court to order rectification of the register only where it is satisfied that a registration has been obtained, made or omitted by fraud or mistake. 9. The court has carefully considered the affidavits, grounds of opposition and submissions advanced by the 2nd Decree Holder. Her complaint is that she took possession of a distinct five-acre portion following the execution orders issued in 2018, the parties agreed upon a subdivision arrangement and that the title subsequently obtained by the 1st Decree Holder overlaps the portion she occupies and has developed. 10. She further invokes the doctrines of proprietary estoppel and legitimate expectation, contending that she acted upon representations allegedly made by the 1st Decree Holder concerning the manner in which the decree property would ultimately be subdivided and titled. 11. The doctrine of proprietary estoppel was recently discussed by the Court of Appeal in ***Mwabwika vs Mohamed (Civil Appeal E100 of 2023) [2026] KECA 923 (KLR),*** where the court reiterated that the doctrine arises where a representation or assurance is made to a claimant, the claimant relies upon that assurance and consequently suffers detriment. In such circumstances, equity may intervene to prevent the representor from resiling from the assurance previously given. 12. However, the doctrine of proprietary estoppel operates as an equitable mechanism for protecting interests arising from assurances relating to property. It does not, without more, constitute a statutory ground for impeaching a registered title under **Sections 26** and **80** of the **Land Registration Act**. 13. In the present case, the alleged assurances were said to have arisen from discussions between the two Decree Holders regarding how the decreed portions would ultimately be subdivided and occupied. At the time, neither party held title to any specific portion of the land, nor has it been demonstrated that the alleged arrangement was binding upon the registered proprietor of the parent parcel or formed part of the court-sanctioned execution process. 14. Any understanding between the Decree Holders as to their preferred locations on the ground could not, by itself, create proprietary rights capable of overriding a title subsequently issued through the execution process. More importantly, no consideration is alleged to have passed between the parties. To the extent that this court and the Court of Appeal did not indicate the specific location of the 35 acres and 5 acres that was supposed to hived off from the suit property, this court is unable to find, at this juncture, that the 1st Decree Holder’s portion of land has encroached on the 2nd Decree Holder’s portion of land. 15. Indeed, this court has not been informed by the Decree Holders the process that was followed to identify the specific location of the 35 acres and 5 acres of the suit property to enable the court determine who has on encroached on whose land. 16. In the end the court finds the Motions dated 20th March, 2023 and 26th April, 2023 to be unmerited. The two applications are dismissed with costs. **Dated, signed and delivered in Nairobi virtually this 20th day of July, 2026.** **O. A. Angote** **Judge** **In the presence of;** Mr. Jaleny for 1st Decree Holder Mr. Odeyo for 2nd Decree Holder Mr. Wachira for Judgment debtor Court Assistant: Tracy