https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9462

Kitonye & another v Munyao & 7 others (Civil Case 493 of 1999) [2026] KEHC 9462 (KLR) (Civ) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9462 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case 493 of 1999 JN Mulwa, J June 25, 2026 Between Kasiku Kitonye 1st Plaintiff Kavemba Kitonye Alias Kalemba 2nd Plaintiff and Raphael Maweu Munyao 1st Defendant Pauline Mutuku 2nd Defendant Alice Ndethya Kimolo 3rd Defendant Samuel Mbindyo Nzioka 4th Defendant Eliakim Kimeu Wambua 5th Defendant Robert Musyoki Yenye 6th Defendant David Muteti Kisilu 7th Defendant Mutanteeu Youth Polytechnic 8th Defendant Ruling 1.This suit was dismissed twice, by a court Order dated 23/02/2015 and 30/10/2025. Upon application by the Plaintiff, the order of 23/2/2025 was set aside and the suit was reinstated for hearing. That did not happen. 2.By a motion dated 14/02/2025, the Defendants sought dismissal of the suit for want of prosecution after 16 years of inactivity to prosecute the suit. The court, upon consideration of the parties arguments and pleadings, dismissed the suit, for the second time by an order dated 30/10/2025. By the instant application before court dated 19/11/2025 the Plaintiff/Applicant seeks an order of review of the dismissal order dated 23/2/2015 with a view to set it aside, and reinstate the suit for hearing on merit. Notice of Motion dated 19/11/2025 3.The motion is predicated upon provisions of Order 45 and 51 of the Civil Procedure Rules (CPR) and Section 1A, 1B and 3A of the Civil Procedure Act (CPA). It is filed by the Plaintiff/ Augustine Mule Kitonyi (in person), who describes himself as the Legal Representative of the Estate of the Late Kasiku Kitonyi under a Grant of letters of Administration Ad Litem. 4.The Applicant seeks four (4) orders thus:-1.Spent2.An order to set aside, vary and or review the dismissal orders issued on 23/02/2015 for want of prosecution, reinstate the suit for hearing on merits and issue consequential directions to protect the subject matter and prevent further prejudice to the Applicants.3.An order of Temporary Injunction to restrain the Respondents and their agents , beneficiaries, and relatives from trespassing and interfering with the suit portion beyond the 18 acres currently occupied by them, pending hearing and determination of this application.4.A preservation order directing the land registrar Makueni County to place a restriction and/or inhibition upon the land pending hearing and determination of the suit. 5.The supporting affidavit is jointly sworn by the Applicant and Kavemba Kitonyi describing themselves as the joint legal administrators of the Estate of the Late Kasiku Kitonye.They annexed documents in support as “AMK” to “AMK6” in support of their case, being the mutation form, subdivision plan, complaint letter addressed to the Ministry of Lands, District Land Registrar and others including to the President in respect to the suit property. 6.The Applicants by their depositions state the genesis of the suit property, the dispute, the peaceful negotiations and concessions, that even after the above, the Respondents around the year 2022, they encroached onto the suit property which they had developed, put boundaries on the land, build up permanent buildings and well developed shambas, and illegally occupied the said suit property. 7.With the above at fore, they brought the instant motion under certificate of urgency to protect the authority of the court, safeguard interests and rights of the Applicants and beneficiaries, and to protect further encroachment on the suit property. 8.The Respondent opposed the application. They filed grounds of opposition to the application dated 9/03/2026, summarily stating that the application is misconceived, fatally defective and an abuse of court process for reasons stated as hereunder; that it is Resjudicata, as similar applications dated 14/02/2025 having been filed and ruling rendered on 30/10/2025 dismissing the application, that the Applicants attempt to revive the suit offends the principles stated at Sections 1A, 1B of the Civil Procedure Act, that they have failed to demonstrate sufficient cause of warrant review and or setting aside of the dismissal order. 9.Further, it is stated that the Applicants are attempting to introduce new affidavit material that is not within provisions of Order 45 CPR; being injunctive orders, irreparable loss and harm, and that all the facts were known to the Applicants before the suit was dismissed, that the Applicants are attempting to circumvent the lawful dismissal and to attempt to re-open the case which if allowed would occasion prejudice to the Respondents. 10.Both parties have filed written submissions, which I have carefully considered. Analysis and determination 11.I have considered the history of the case as filed in 1999, dismissed for want of prosecution on 23/02/2015 and once again, the dismissal re affirmed for the second time, by an order issued on 30/10/2025. 12.The court notes that what the Applicant seeks are orders to set aside the dismissal order dated 23/2/2025 by way of review under Order 45 of the Civil Procedure Rules. 13.This order is specific on Jurisdiction of the Court to review its own orders. It provides Order 45 (1) -Application for review of decree or order1. (i)Any person considering himself aggrieved;a.By a decree or order from which an appeal is hereby allowed, but from which no appeal has been preferred; orb.By a decree or order from which no appeal is hereby allowed,And who from discovery of new and important matter or evidence, which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed, or the order made, on account of some mistake or error apparent on the face record or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for review of judgment to the court which passed the decree or made the order without delay. 14.The court orders subject for review by this motion dated 19/11/2025 were issued by the Hon. Ongeri J on 23/02/2015 wherein the suit was dismissed for want of prosecution for inordinate delay of 16 years by a motion dated 14/02/2025; 15.I agree with the Respondents’ grounds of opposition to the instant motion that this application is Resjudicata as the issues therein were duly considered and determined in its application dated 14/02/2025. A careful perusal and consideration of the court’s ruling will demonstrate that all issues raised by the Applicant were determined by the ruling thereof. 16.As to review of the impugned ruling dated 15/02/2025, a reading of the Order 45 of the CPR shows what a party seeking review orders have to demonstrate; firstly, discovery of a new and important matter and evidence that was not within its knowledge; or an apparent error or mistake at the face of the record. 17.I have considered the material facts raised by the Applicants in their affidavit. There is nothing new that was not in the Applicants knowledge when the orders on 15/02/2025 were made. After 10 years, the Applicant returned and filed the motion dated 14/02/2025. Again there was nothing new raised in the motion which once more was dismissed. To that extent also, I find this motion to be res judicata having been heard and determined by a competent court and a ruling rendered. 18.It is interesting that the Applicant wants the court to review orders of 15/02/2025, when in my view, the same issues were raised in its application dated 14/02/2025, and determined in orders of 30/10/2025. By the above, there is nothing new or important provided to the court to persuade it to rule in their favour. A perusal of court record shows that the orders sought to be reviewed dated 23/2/2025 dismissed the suit for want of prosecution after a lullaby of 16 years. The plaintiff then brought the application dated 14/2/2025 seeking orders to set aside the orders dismissing the suit on 23/2/2025. By a court order issued on 30/10/2025, the application was dismissed, and the suit remains as dismissed. 19.Essentially, the instant application was spent by the dismissal orders of 30/10/2025. In my estimation, what the Applicant is seeking was already dealt with in its application dated 14/2/2025 which was dismissed and remains dismissed. Here, what I think and sense is an attempt by the Applicant to urge the court to sit on appeal on its own orders by setting aside its dismissal orders after which it would introduce new and fresh causes in the pretext of a review under Order 45 CPR. 20.Even if the orders of 23/02/2025 were to be set aside, what would be the outcome? The suit would still remain dismissed as orders of 30/10/2025 are still in force and in place. It is therefore my finding that the instant application is nothing but a clear abuse of court process, misplaced, fatally defective and misadvised. It is against the objectives and duty of the court; to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes as provided under Section 1A, 1B and 3A of the Civil Procedure Act (CPA). It is an attempt to re-open this 16 year old case which cannot be sustained in the circumstances. 21.Having rendered myself on the main issues in the application, I find no need, and it is not necessary to delve into interrogation of the rest of reliefs sought. This is so because there is no suit upon which the said reliefs could be anchored upon. A court cannot act in a vacuum. 22.For the foregoing, I find and hold that the Application dated 19/11/2025 is resjudicata, an abuse of court process, misadvised and misdirected. It is unmerited. It is dismissed with costs to the Respondents.Orders accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 25TH DAY OF JUNE 2026.……………………….JANET MULWA.JUDGE