https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5279

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KWALE** **ELC CASE NO. E121 OF 2025** **MASUDI ALI MBARUKU *(Suing as an Administrator of*** ***the Estate of ALI MASUDI KAROYO*** ***alias ALI MASUDI MBARUKU ………...*………………………. PLAINTIFF** * **VERSUS -** **COUNTY LAND REGISTRAR – KWALE……..….1ST DEFENDANT** **HONOURABLE ATTORNEY – GENERAL…..….2ND DEFENDANT** **KEZIAH NYOKАВІ…………………………………. 3RD DEFENDANT** **NELSON NOROGE GITHIMA…………..…………..4TH DEFENDANT** **ISMAIL OMAR MBAURO …………………………….5TH DEFENDANT** **ANTHONY NGUGI MBAGE……………………….. ..6TH DEFENDANT** **JOSHUA KIPKOSKEI KORIR……………..……...7TH DEFENDANT** **BENSON MOSINIK JUMА………………...…………8TH DEFENDANT** **JUMA OMAR NYERE…………………………… ....9TH DEFENDANT** **RULING** 1. **Introduction** 2. The Honourable Court was tasked with the hearing and determining two [2] separate Notice of Motion applications dated 19th January, 2026 by MASUDI ALI MBARUKU *(Suing as an Administrator of the Estate of ALI MASUDI KAROYO alias ALI MASUDI MBARUKU* – the Plaintiff/Applicant herein and the application dated 3rd March, 2026 by JOSHUA KIPKOSKEI KORIR, the 7th Defendant herein; a Preliminary Objection dated 3rd March, 2026 and Grounds of Opposition by BENSON MOSINIK JUMА and JUMA OMAR NYERE, the 8th and 9th Defendants respectively. 3. Upon service of the applications, they were all opposed. The 8th and 9th Respondents opposed the application dated 19th January 2026 by a notice of preliminary objection and grounds of opposition dated 3rd March 2026. 4. **The Notice of Motion application dated 19th January, 2026 by the Plaintiff/Applicant** 5. The application was filed pursuant to the provisions of Sections 1A (1) and (2) and 3A of the Civil Procedure Act, Cap. 21, Section 68 (1) of the Land Registration Act, no. 3 of 2012, Section 128 of the Land Act no. 6 of 2012, Order 51 Rule 10 (2) of the Civil Procedure Rules, 2010, Article 159 (2) of the Constitution of Kenya, 2010 and all other enabling provisions of the law. 6. The Applicants sought for the following orders:- 7. ***Spent.*** 8. ***That pending the hearing and determination of this suit, this Honourable Court be pleased to issue an order of Inhibition to protect and preserve the parcels of land Kwale/Galu Kinondo/5059 and Kwale/Galu Kinondo/5060 which are the sub - division of the parcel of land, Kwale/Galu Kinondo/616.*** 9. ***That this Honourable court be pleased to order the County Land-Registrar Kwale to register the order of Inhibition on the Plot no. Kwale/Galu Kinondo/5059 and Kwale/Galu Kinondo/5060 and or any other sub-plots arising from these two plots.*** 10. ***Cost of this application.*** 11. The application was premised upon grounds, testimonial facts and the averment made under 20 Paragraphs supporting affidavit sworn by MASUDI ALI MBARUKU the Plaintiff herein together with annextures marked as “MAM” annexed hereto. He averred as follows that:- 12. He was an adult of sound mind and the Plaintiff/Applicant herein and thus well versed with the facts and competent to swear this affidavit. 13. He was the beneficial owner and an administrator of the Estate of Ali Masudi Karoyo alias Ali Mbaruku as per copies of the Ad Litem Grant issued on 12th November, 2025. 14. His father was the initial allottee and the first registered owner of the parcel of land Kwale/Galu Kinondo/616 (Hereinafter referred to as “The Suit Property”). 15. The gist of the Applicant's case was that the 6th and the 7th Defendants/Respondents procured the suit property unlawfully and through fraud. Further, the 8th and 9th Defendants/Applicants filed an adverse possession claim whereupon filing, they entered a consent dated 23rd July, 2025 where they agreed to share the suit property where the 8th and 9th Defendants/Respondents would get five, while the 6th and 7th Respondents would get two, (2) acres of the suit property as per the annexed consent dated 23rd July, 2025. 16. The consent dated 23rd July, 2025, was adopted as an order of the court. 17. The land adverse possession claim against the suit property would not crystalize for the reason that suit property never existed as at the time the 8th and 9th Defendants/Respondents filed the adverse possession claim because the parcel, Kwale/Galu Kinondo/616 had been sub - divided into twelve ( 12 ) portions as at 24th March, 2025 as shown on entry no. 12 of the green card certified on 14th October, 2025. The adverse claim was filed on 30th May, 2025. 18. The Applicant made an application to the County Land Registrar to confirm the status of the parcel of land before the adverse possession claim. Indeed, the Applicant was issued with a copy of the mutation form dated 26th February, 2025, the mutation form confirms that the parcel of land Kwale/Galu Kinondo/616 was sub - divided into 12 portions. 19. Pursuant to the Order of the court dated 30th July, 2025, the 6th, 7th, 8th and 9th Defendants excised the suit property into two plots, plot no. Kwale Galu Kinondo/5059 and Kwale Galu Kinondo/5060. 20. The current Mutation form shows that the parcel of land Kwale/Galu Kinondo/616 was excised into two portions, Kwale/Galu Kinondo 5059 and 5060. 21. It was averred that the 6th, 7th, 8th and the 9th Defendants/Respondent had obtained Land Control Board Letter of Consent and was using every hook and nook to dispose off the two ( 2 ) sub - divisions to a third party in toto disregard to the case that was filed by the Applicant. 22. In further disregard to the case in court, the 6th ,7th , 8th and the 9th Defendants/Respondent had secured a real estate Company who were the purchasers of the said suit property. This Real Estate Company are subdividing the two plots into several sub - plots for the purpose of further re - sale. 23. The process of sale of the suit property to the Real Estate Company commenced sometime in the year 2025. 24. He was apprehensive that the toto disregard of his interest in the suit property continue to be decimated by the 6th, 7th, 8th and 9th Defendants/Respondents who were aided by the 1st and 2nd Defendants/Respondent. 25. Initially before sub - dividing the suit property, the Applicant filed a restriction as against the suit property in order to protect it. 26. However, the County Land Registry - Kwale, failed to register it in order to assist the 6th, 7th, 8th and 9th Respondent in the sale of the suit property to the third parties. 27. The 1st Respondent having received the application for restriction on the suit property, he issued a receipt dated 15th September, 2025 on the same. The Applicant prayed for an order of Inhibition to be issued as against the Respondents to protect and preserve the suit property pending the hearing and determination of this suit. 28. The refusal to grant the order of Inhibition would render the Applicant's case nugatory to the advantage of the Respondents who are disposing of and or alienating/ transferring the suit two plots Kwale/Galu Kinondo/5059 and 5060 to the third party as shown in the Scheme Plan/ Sketch. 29. **The responses by the 7th Respondent.** 30. While opposing the application, the 7th Respondent filed a 70 Paragraphed document coined as Replying Affidavit dated 11th June, 2026. I have opted to use the term coined for the reason that the “affidavit” as it is contains hearsay information and arguments which do not sum up to what an affidavit should entail and which is facts within a deponent’s personal knowledge. Be it as it may, it should be noted that the court perused the entire 132 pages of the said document and acquainted myself with the contents thereof. 31. In summary the deponent averred as follows that:- 32. The limited grant ad litem issued to the Applicant did not clothe him with “***the Locus Standi”*** to institute the suit before court. 33. The Applicant had failed to plead fraud to the required standard in law. 34. Further that the Applicant was not a party leading to the Consent Judgement and stated that the green card vailed before court indicating the late Masudi Mbaruku as the first allotted owner of the suit property was of questionable authenticity. 35. There was no necessity in having him cross examined over the contents of his pleadings and asked the court to disregard the said prayer. 36. **The Preliminary objection by the 8th & 9th Defendants/Respondents** 37. The 8th and 9th Defendants/Respondents opposed Plaintiffs/Applicants application dated 19th January, 2026 on the following grounds that:- 38. The Application was misconceived, bad in law and an abuse of court process. 39. The Honourable Court was ***“Functus Officio”*** therefore bound by the decision entered on the 24th July, 2025. 40. The Application offended the mandatory provisions of Section 26 of the Land Registration Act, No. 3 of 2012. 41. The Applicants had no ***“Locus Standi”*** to sue as MASUDI KAROYO (deceased) and ALI MASUDI MBARUKU (deceased) were two ( 2 ) different persons. 42. The application offended the Principles of Setting Aside a Consent Judgment as the Consent could only be set aside and/or varied by the parties to the consent. 43. The Applicants Application lacked merit and should be dismissed with costs to the Respondents. 44. The suit offended the provision of Section 7 of the Civil Procedure Act Cap 21 – “***Doctrine of Res Judicata”.*** 45. **Grounds of opposition** 46. The 8th and 9th Defendants/Respondents further opposed Plaintiffs/Applicants application dated 19th January, 2026 through filing of Grounds of Opposition raising the following grounds that:- 47. The Application was misconceived, bad in law and an abuse of court process. 48. The Honourable Court was “***Functus officio”*** therefore bound by the decision entered on the 24th July,2025. 49. The Application offended the mandatory provisions of Section 26 of the Land Registration Act, No. 3 of 2012. 50. The Applicants had “***no locus standi”*** to sue as Masudi Karoyo (deceased) and Ali Masudi Mbaruku (deceased) are two different persons. 51. The application offended the Principles of setting aside a Consent Judgment as the consent could only be set aside and/or varied by the parties to the consent. 52. The Applicants Application lacked merit and should be dismissed with costs to the Respondents. 53. The suit offends the provision of Section 7 of the Civil Procedure Act Cap. 21 being a breach of the doctrine of Res judicata. 54. **The Notice of Motion application dated 3rd March, 2026 by the 7th Defendant.** 55. The 7th Defendant through the Law firm of Messrs. George Egunza & Associates Advocates filed the Notice of Motion application dated 3rd March, 2026. The application was brought pursuant to the provisions of Order 24 Rules 1, 1A, 3A Civil Procedure Act, Cap. 21, Sections 4 & 13 of the Environment & Land Court Act, No. 19 of 2011, Articles of the Constitution of the Republic of Kenya Inherent Power and Jurisdiction of the Honourable Court and all other enabling provisions of the law. 56. The 7th Defendant/Applicant sought for the following orders: 57. ***Spent.*** 58. ***That this application be heard in priority to the application dated 19th January, 2026 and/or any further directions by the Honourable Court.*** 59. ***That the Honourable Court be pleased to strike out and proceed to dismiss the suit filed herein the same having been filed in contravention of mandatory provisions of Order 24.*** 60. ***That in tandem with prayer 3 hereinbefore stated the application dated the 19th January, 2026 offends the mandatory provisions of Section 26 of the Land Registration Act Laws of Kenya consequently the Honourable Court ought to strike out the application and consequent suit.*** 61. ***That the Honourable Court be pleased to issue such further orders it deems just and expedient in their circumstances.*** 62. ***That the cost of this application and consequent dismissal of suit be borne by the Plaintiff/Respondent.*** 63. The application was based on the grounds, testimonial facts and averments made out under an 11 Paragraphed Supporting Affidavit sworn by JOSHUA KIPKOSKEI KORIR, together with the annexuture marked as “JKK” annexed hereto. He averred as follows that:- 64. He was an adult male of sound mind and disposition resident and working for gain. He was the 7th Defendant well conversant with facts herein and hence competent to swear the affidavit. 65. The application dated the 19th January, 2026, and more pertinently the suit herewith is otherwise vexatious and an abuse of the Honourable Court process, a candidate for striking out Suo motto. 66. The suit herein suffered the demise of “***the doctrine of Res Judicata”***, the issue of ownership, proprietorship and any consequent deliberations and as admitted by the Plaintiff/Respondent were concisely concluded by the Honourable Court vide the Civil suit “***Environment & Land Case No. E002 (0.S) OF 2025”.*** 67. The Plaintiff/Respondent had proceeded to file a suit obtain orders before the Honourable Court through fraud, misrepresentation of facts, more pertinently the property Kwale/Galu Kinondo/616 and its consequent sub - divisions were not in any way connected to the Plaintiff/Respondent and/or the estate of Ali Masudi Karoyo [Deceased] and/or Ali Masudi Mbaruku (Deceased). 68. The 7th Defendant/Applicant had material that depicts evidence that Ali Masudi Karoyo (Deceased) and Ali Masudi Mbaruku (Deceased) was two different persons with absolutely no nexus to all that parcel of land known as Kwale/Galu Kinondo/616 and its consequent sub-divisions De Novo the entire suit is a nullity from inception, thus dead-on arrival. 69. The 4th Defendant/Respondent sued herewith as Nelson Njoroge Githima was in fact deceased having died on the 30th November, 2024 by operation of Mandatory Provisions of Order 24 of the Civil Procedure Rules, 2010 the suit abated/non-starter, could only suffer consequences of being struck out ab initio. 70. The suit and all consequent applications/proceedings offends the mandatory provisions and import of Section 26 of the Land Registration Act, No. 3 of 2012, the Plaintiff /Respondent was NOT in any way the title holder had NOT presented before the Honourable Court any title documents to warrant a hearing and/or any orders before the Honourable Court. 71. Th Plaintiff/Respondents documents, pleadings and applications were premised on mere speculations, apprehension which the misrepresentation of facts devoid the Honourable Court of jurisdiction to make a step further. 72. The Plaintiff/Respondent and the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th & 9th Defendants/Respondents would not suffer any prejudice in the event the Orders sought herein are granted as prayed. 73. The suit in its entirety was an invitation to the Honourable Court to sit on its own Appeal a position frowned upon by Constitutionalism, which invitation the Honourable Court ought to immediately decline. 74. From inception the suit filed herein was ab initio a dead on - arrival suit that the Honourable Court ought to lead to dismissal, the 4th Defendant/Respondent was deceased, on the 30th November, 2024, a fact clearly within the knowledge of the Plaintiff/Respondent. 75. The Civil Procedure Rules, 2010 in Order 24 preclude the filing of multiplicity of suits over the same cause of action especially in matters involving Land which was an abuse of the Honourable Court processes more aptly it was a ploy to re -open parallel litigation. 76. Even more shocking and pertinent to these proceeding the Plaintiff/Respondent is not in any way associated, related to the estate of Ali Masudi Karoyo (Deceased) and/or Ali Masudi Mbaruku (Deceased) which query was subject to Police investigations and inquiry. 77. The representation of deceased estate the proprietary or otherwise of the Plaintiff/Respondent was subject to Police enquiry, the said Plaintiff/Respondent was attempting a sanctification exercise through the Honourable Court. 78. Lastly, he averred that the requisite threshold for striking out premised on Res Judicata principles and the grounding in Order 24 of the Civil Procedure Rules, 2010 had been achieved. 79. **The Supplementary Affidavit by Plaintiffs** 80. As already indicated above, in response to the averments in the application dated 3rd March, 2026, the 8th and 9th filed Grounds of Opposition and the Notice of Preliminary Objection dated 3rd March, 2026 the Plaintiff filed the Supplementary Affidavit dated 22nd May, 2026 and stated as follows that:- 81. The Respondents never jointly own the parcel of land Kwale/GaluKinondo/616, therefore, it was an intentional and deliberate act of the Respondents to mislead the court into believing that the Respondent jointly owned the property, Kael/Galu Kinondo/616. 82. This was because according to the Certified copy of the Green Card dated 14th October, 2025, the 5th Defendant, [Ismail Omar Mbauro] owned the property on 2nd March, 2007, the 6th Defendant, [Antony Ngugi Mbage] was the owner of the property as at 6th August, 2008, the 7th Defendant, [Joshua Kipkoskei Korir owned the property on 2nd February, 2009, 83. As such, it was ab initio unlawful to allege that the property was jointly owned by the 5th, 6th and 7th Defendants. 84. Further that the Applicant had never litigated any matter in the court of law between him and the Respondents. 85. The consent dated 23rd July, 2025 that was adopted by the court on 24th July, 2025 was illegal and unenforceable for it was the vehicle used by the 5th 7th, 8th and 9th Respondents to advance their fraudulent activities. 86. Further, the Applicant invited the court to exercise its inherent jurisdiction in order to lift the veil of fraud and non-disclosure of the material facts which caused the court adopt the illegal/fraudulent consent as its order. 87. The court was asked to indulge the Plaintiff on the issue of the death of the 4th Defendant. According to the Plaintiff, he was not aware of it. 88. On the issue of abatement of suit as per the provision of Section 24 of the civil procedure rules, it was stated that the Applicant was not a party to the suit filed by the Respondents, therefore, the principle on abatement of suit never bound him. 89. On the issue of multiplicity of suit, the Applicant filed this suit because his interest in the land was defeated by the impropriety of the Respondents who concealed the fact that the parcel of land Kwale/Galu Kinondo/616 herein the mother title was non-existence as at the time the Respondent filed ELC E002/2025 [OS] for the suit property had been sub-divided into twelve [12] portions as at February, 25th 2025. 90. It was deposed that the twelve [12] sub - divisions were registered on 25th February, 2025 according to the certified copy of the mutation form while the title deed mentioned above were issued by the land registrar to the 7th Respondents on 24th March, 2025, therefore, an adverse claim [if at all it existed] would only crystalize as against either of the sub - divisions mentioned in Paragraph 8 of this supplementary affidavit and not the mother parcel, Kwale/Galu Kinondo 616 which was non-existence at the time of filing the suit [ELC Е E002[OS] 2025. 91. In appreciating the non-existence of the parcel of land Kwale/Galu Kinondo/616 at the date of filing the originating summons dated 30th May, 2025, the 1st and the 2nd Respondents through Order [4] of their consent dated 23rd July, 2025, sought to merge the 12 sub-plots stated in Paragraph 8 of this supplementary affidavit to now re-create the parcel Kwale/Galu Kinondo/616. 92. The said twelve (12) sub - divisions were registered on 25th February, 2025 while the title deed mentioned above were issued to the 7th Respondents on 24th March, 2025 by the 1st Respondent, therefore, an adverse claim (if at all it existed) would only crystalize as against either of the sub-divisions and not the mother parcel, Kwale/Galu Kinondo616 then. 93. It was stated that the Applicant was the son of Ali Masudi Mbaruku Karoyo alias Ali Masudi Mbaruku. The applicant also denied that he is under any investigations and stated that in the event that the same existed then it was a ploy by the Respondents to frustrate him. 94. The applicant in opposing the preliminary objection stated that the best/correct way of proving factual issues like res judicata or whether the deceased, Ali Masudi Mbaruku Karoyo alias Ali Masudi Mbaruku was the same person is through an application as espoused in the provision of Order 51 of the Civil Procedure Rule, 2010 where the Respondents could annex their evidence and not through the Notice of Preliminary Objection and the grounds of opposition. 95. Also that “***the doctrine of functus officio”*** was not a shield against fraud, particulars of fraud as follows amongst them, the suit property, Kwale/Galu Kinondo/616 never existed as it had been sub - divided into 12 sub plots, the Respondents failed to disclose to court that the suit property never existed, that the Respondent were untruth in that they failed to reveal that they did not live of the suit property. 96. The court was urged to dismiss the Preliminary Objection and the 7th Respondent’s application dated 3rd March, 2026. 1. **Submissions** 2. On 10th March, 2026 in the presence of Counsels for the respective parties herein who had participated in the applications being the Plaintiff/Applicant, the 7th , 8th and 9th Respondents, the court issued directions for the applications and the Preliminary Objection to be dispensed by way of written submissions. 3. Pursuant to that, the said parities complied accordingly. y as summarised here below. 4. **The Written Submissions by the Plaintiffs/Applicants** 5. The Law firm of Messrs. Wonanio & Kabiaro Advocates filed submissions on behalf of the Applicant in support of their application for inhibition and in opposition of the preliminary objection raised against the suit. 6. Mr. Kabiaro Advocate commenced the submissions by identifying the following issues for determination:- 7. Whether the preliminary objection and the ground of opposition hade merit. 8. Whether this Court was functus officio; 9. Whether the Applicant had the locus standi in this suit; 10. Whether this matter was barred through the doctrine of res judicata. 11. Whether the Preliminary notice and the grounds of opposition should be dismissed with costs. 12. On whether the preliminary objection and grounds of opposition was merited. The Learned Counsel submitted that the doctrine of functus officio could not stand in the face of fraud. The transfer of the land to its subsequent registered owners as at the time of filing suit was marred with fraud and the applicant’s case was meant to unravel the fraud. 13. On whether the Applicant had locus standi to institute this suit. The Learned Counsel maintained that the Applicant was a son to the late Ali Masudi Karoyo alias Ali Masudi Mbaruku and an administrator to the estate of the deceased as per the Grant Ad Litem taken out to enable him file the suit. The letters from the area chief and assistant chief and the affidavit sworn by his mother confirmed that he was indeed a son to the deceased. On the issue of Res Judicata. The Learned Counsel maintained one thing, that for the doctrine to the pleaded and proved there was the need to confirm from pleadings which was evidence, whether the issues alleged to have been heard and determined were indeed previously dealt with by the court. This simple issue already disqualified the legality of the preliminary objection. 14. The Learned Counsel maintained that the court was obliged to re - look at Judgement earlier rendered with regards to the suit property as it was obtained by fraud. On the death of the 4th Respondent. It was submitted that the Applicant is a stranger to the 4th Respondent, therefore could not be knowledgeable about his death. As such, the Applicant invited the court to invoke its inherent power in order to render substantive justice to the Applicant. 15. The court was asked to dismiss the preliminary objection and grounds of opposition. 16. **The Written Submissions by the 8th and 9th Defendants** 17. The Law firm of Messrs. Marende Necheza & Co Advocates filed written submissions on behalf of the 8th and 9th Defendants/Respondents. Mr. Lisanza Advocate submitted that it was all about the preliminary objection dated 3rd March, 2026 and the application dated 19th January, 2026. 18. It was submitted that when a Court had already pronounced itself on a matter, it is deemed to have performed all its duties in the case and it becomes functus officio. In the matter at hand, the consent judgment was delivered on 30th July, 2025. That once the matter was heard and determined and a final decision rendered, this court became functus officio. 19. From the foregoing, it was clear that the Court had performed its duties as pertains the dispute between the Plaintiff and the Defendant and is therefore functus officio. The Learned Counsel averred that, it was a well settled principle that a consent order or decree had to be upheld unless it was violated by reason that would enable court to set aside an agreement such as fraud, mistake, misapprehension or contravention of court policy. This principle was on the premise of a Consent Judgement. 20. The Consent Judgement once endorsed by court became a Judgement of the court and it was binding on all the parties. Therefore, parties was estopped from asserting different position. 21. The Learned Counsel opined that a Consent Judgement should not be treated as an ordinary “Ex – Parte” Judgement. In this case a consent was entered into with the full knowledge and willingness of both parties reference was made to the holding in the case of:- *“****Samuel Kangogo – Versus - Bhayani Nursery and Primary School |2020| eKLR”*** where the court held that a consent could only be set aside upon the applicant satisfying the court that it was entered into pursuant fraudulent misrepresentation by the other party or there was mutual mistake on the part of the parties or that the consent violates the law. According to the to the 8th and 9th Respondents there was no grounds laid by the Applicant to warrant setting aside the Consent Judgement and the consequential decree issued. The Applicant must accept that judicial decisions once made from a consent must be accepted as final and was not open to challenge and at some point, litigation must come to an end. The application should be dismissed with costs. 22. **Analysis and Determination** 23. This court has keenly considered the pleadings in form of the Notice of Motion applications dated 19th January, 2026 and 3rd March, 2026 and the Preliminary Objection all raised by the parties herein, the written submissions, the cited myriad of authorities, the relevant provisions of the Constitution of Kenya, 2010 and the Statutes. 24. In order to arrive at an informed, reasonable and just decision, I have framed the following six (6) salient issues for determination:- 25. ***Whether the Notice of Preliminary Objection meets the threshold of an objection as founded under the Law and the Precedents.*** 26. ***Whether the Notice of Preliminary Objection as taken is well founded, valid and merited;*** 27. ***Has suit abated against the Defendants/Respondents herein*** 28. ***Is the suit Res Judicata? And more so is the court functus officio?*** 29. ***Whether or not a case has been made for grant of the inhibition orders sought*** 30. ***Who will bear the costs of both applications and the preliminary objection?*** ***ISSUE No. a). Whether the Notice of Preliminary Objection meets the threshold of an objection as founded under the Law and the Precedents.*** 1. Under this Sub – heading, the Honourable Court shall be critically examining the meaning, nature and the scope of the concept of **“Preliminary Objection”.** According to the Black Law Dictionary a Preliminary Objection is defined as being:- **"In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”** 1. The above legal preposition has been made in the now “*Classicus Locus”* case of:- ***“Mukisa Biscuits Manufacturing Co. Limited – Versus - West End Distributors Limited (1969) E.A. 696”*** where the court held that:- ***"The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurer it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought in the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop***” 1. Sir Charles Newbold, JA in the same case stated that: - ***'A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.'*** 1. A **“demurrer*”*** according to the Black’s Law Dictionary has its roots in French law *‘*demorer’ and Latin *‘*demorari*’* and is defined as follows: ***“A pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the Plaintiff to state a claim for relief and for the Defendant.”*** 1. I have further relied on the decision of “***Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR****:* - as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection “*inter alia”:* - 2. ***A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.*** 3. ***A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and*** 4. ***The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.*** 5. Similarly, I am guided by the decisions from the Tanzanian Court of Appeal sitting in Dar es Salaam, in “[***Karata Ernest & others – Versus - Attorney General***](https://tanzlii.org/akn/tz/judgment/tzca/2010/30/eng%402010-12-29)***(Civil Revision No 10 of 2020) [2010] TZCA 30 (29 December 2010)”,*** (Luanda, JA, Ramadhani, CJ, Rutakangwa, JJA), put the issue of preliminary objections in a more exhaustive manner as follows: - ***“At the outset we showed that it is trite law that a point of preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it. It only "consists o f a point of law which has been pleaded, or which arises by dear implication out of the pleading obvious examples include: objection to the jurisdiction of the court; a plea of limitation; when the court has been wrongly moved either by non-citation or wrong citation of the enabling provisions of the law; where an appeal is lodged when there is no right of appeal; where an appeal is instituted without a valid notice of appeal or without leave or a certificate where one is statutorily required; where the appeal is supported by a patently incurably defective copy of the decree appealed from; etc. All these are clear pure points of law. All the same, where a taken point of objection is premised on issues of mixed facts and law that point does not deserve consideration at all as a preliminary point of objection. It ought to be argued in the "normal manner" when deliberating on the merits or otherwise of the concerned legal proceedings.*** 1. Additionally, I am guided by the Supreme Court case in “***Independent Electoral & Boundaries Commission – Versus - Jane Cheperenger & 2 Others [2015] eKLR”*** made the following observation as relates to Preliminary Objections: ***“…The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper fora party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”*** 1. Further, in the case of:- “***Dismas Wambola – Versus - Cabinet Secretary, Treasury & 5 others (2017) eKLR”****,* the court stated as follows:- ***“A preliminary objection must first, raise a point of law based on ascertained facts and not on evidence. Secondly, if the objection is sustained, that should dispose of the matter. A preliminary objection is in the nature of a legal objection not based on the merits or facts of the case, but must be on pure points of law. It may be noted that preliminary objections are narrow in scope and cannot raise substantive issues raised in the pleadings that may have to be determined by the court after perusal of evidence….”*** 1. Finally, the Court of Appeal in ***“Oraro – Versus – Mbaja (2005) 1KLR 141, Ojwang J*** ( as he then was) stated:***-*** ***“A Preliminary objection correctly understood is now identified as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event to be proved through the process of evidence”*** 1. In view of the above, it is clear that a preliminary objection should raise pure points of law and which are argued on the assumption that all facts are correct. It is trite law that a preliminary objection can be brought at any time at least before the final conclusion of the case. Ideally, all facts remaining constant, it should be filed at the earliest opportunity of the subsistence of a case, in order to pave way for the smooth management and determination of the main dispute in a matter. Also, a preliminary objection should possess the ability to dispose off the issue that is before court without going to trial and lastly, the same ought to stem from pleadings and not outside of that. 2. The objections raised herein pertain to the aspect of the breach of “***the Doctrine of Res Judicata***” under the provision of Section 7 of the Civil Procedure Rules, 2010, the Court having been ***“functus officio”*** having heard and made its pronouncement on the matter and the abatement of the suit upon the demise of party in a suit pursuant to the provision of Order 24 ( 1 ) ( 2 ) & ( 3 ) of the Rules. Hence, by and large, I hold that these are legal issues which are a mix of facts and pure law strictly speaking. ***ISSUE No. b). Whether the Notice of Preliminary Objection as taken is well founded, valid and merited;*** 1. Under this sub – heading, the Honourable Court will be assessing whether the Preliminary Objection by the 8th and 9th Defendants herein has any merit whatsoever. The preliminary objection in this matter is founded on the notion that the court is functus officio having already dealt with the issues raised in the suit, further that the suit offends the mandatory provisions of Section 26 of the Land Registration Act. It is also noted that it has been alleged that the applicant has no locus standi to sue as Masudi Karoyo and Ali Masudi Karoyo as these are two different persons. 2. From a careful reading and keen understanding of the grounds upon which the objection is premised, it is clear that the preliminary objection does not entirely raise a pure point of law. The question as to whether the issues raised in the suit have already been heard and determined need ascertainment of facts and so are the rest of the issues raised in the preliminary objection. 3. This court also holds the position that certain facts must be ascertained and therefore the issues at hand cannot be determined via a Preliminary Objection, as the Court will have to take evidence to determine the same. See the case of “***Wilmot Mwadilo, Edwin Mwakaya, Amos Nyatta & Patrick Mbinga – Versus - Eliud Timothy Mwamunga & Sagalla Ranchers Limited [2017] eKLR****,* where the Court held that: - ***“Upholding the said Preliminary Objection at this stage would be draconian as there appeared to be substantive issues that had emerged that needed to be heard and determined at the time of the hearing of the said Notice of Motion application. Indeed, the question of whether they have a cause of action against the Defendant and if they can sustain the same against him ought to be considered during the hearing of their Notice of Motion application when this court will consider whether or not leave should be granted for them to continue with the derivative action against him. The said question cannot be considered at this stage as there is potential of the court inadvertently delving into the merits or otherwise of their said application”.*** 1. Consequently, the Court finds and holds that at this juncture, it would be injudicious to dismiss the Plaintiffs’ suit and or application as the suit ought to be heard and facts ascertained to arrive at a just determination. ***ISSUE No b.] Has suit abated against the Defendants/Respondents herein*** 1. Under the sub – heading, the Honourable Court will be assessing whether the suit has abated or not. According to the Black Law Dictionary, it defines “**abatement**” as being:- **“the suspension or defeat of a pending action for a reason unrelated to the merits of the claim”.** 1. The provisions of Order 24 (1), ( 2 ) & ( 3 ) of the [Civil Procedure Rules](http://kenyalaw.org:8181/exist/kenyalex/sublegview.xql?subleg=CAP.%2021), 2010 set out what should transpire when any of the litigants die. Rule 3 provides for instances when a sole plaintiff dies. It provides that:- **3. (1) Where one of two or more Plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.** **(2) Where within one year no application is made under subrule (1), the suit shall abate so far as the deceased Plaintiff is concerned, and, on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased Plaintiff.** 1. The court was informed vide the 7th Respondent’s affidavit that the 4th Respondent had passed on. I have come across the death certificate of the said deceased which indicated that the deceased died on 30th November, 2024 but this fact has been disputed by the applicant who states that he was not aware of the said death. Be it as it may, from the attached death certificate indeed the 4th Respondent is dead, automatically the suit has abated as against him. I am guided by the Court of Appeal decision in the case of:- *“****Said Sweilem Gheithan Saanum – Versus - Commissioner of Lands [being sued through the Attorney-General] & 5 Others [2015] e-KLR”***, where the law on abatement of suits was elaborated as follows: - ***“Generally, the death of a party does not cause the suit to abate, if the cause of action survives. But within 1 year of the death of a party, or within such time as the Court may in its discretion, for good reason determine, an application must be made for the legal representative to be made a party.*** * 1. ***If no application is made within 1 year, or within the extended period allowed by the Court, the suit shall abate.*** 2. ***The legal representative of a deceased party may apply for revival of the suit, by satisfying the Court that he/she was prevented from continuing with the suit, by sufficient cause as held by the Court of Appeal in Gachuhi Muthanji v. Mary Wambui Njuguna [2014] e-KLR. Abatement takes place on its own force, once no steps have been made for substitution in accordance with Order 24 Rules 3 and 4, of the Civil Procedure Rules.*** 1. In the case of:- *“****Titus Kiragu – Versus - Jackson Mugo Mathai (2015) eKLR”*** it was held that:- ***“It is not the act of the court declaring the suit as having abated that abates the suit but by operation of law.”*** 1. Also, in the case of:- “***Rebecca Mijide Mungole & Another – Versus - Kenya Power & Lighting Company Limited & 2 others Civil Appeal No. 283 of 2015 [2017] eKLR”,*** the Court of Appeal sitting at Malindi stated that:- ***“The sequence of the application under this procedure of what should happen in case of the death of a plaintiff and the cause of action survives or continues, is plain. Speaking generally, by operation of the law, a suit will automatically abate where a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues if no application is made within one year following his death...”.*** 1. It is noted that the suit herein has several Respondents and who are still alive, for that reason, in the event that the 4th Respondent is indeed dead, it cannot be assumed that the cause of action against the rest of the Respondents is diminished. Therefore, in the given circumstances, the suit can not be declared having abated taking that the rest of the Respondents are still alive and/or surviving. Thus, the suit has not abated save for the claimed lodged against the 4th Respondent herein. ***ISSUE No. c). Is the suit Res Judicata? And more so is the court functus officio?*** 1. Under this sub – heading, the Court will be examining whether the doctrine of Res Judicata has been breached or not. The test for determining the application of ***“The doctrine of Res - Judicata”*** is spelt out under the provision of Section 7 of the Civil Procedure Act, Cap. 21. It provides as follows:- **“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit, and has been heard and finally decided by such court.”** 1. The Black’s law Dictionary 10th Edition defines **“Res Judicata”** as:- **“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…”** 1. A person may not commence more than one action in respect of the same or a substantially similar cause of action and the Court must attempt to resolve multiple actions involving a party and determine all matters in dispute in an action so as to avoid multiplicity of actions. In order therefore to decide as to whether an issue in a subsequent suit is res judicata, a court of law should always look at the Decision claimed to have settled the issues in question and the entire suit and the instant suit to ascertain; 2. what issues were really determined in the previous suit; 3. whether they are the same in the subsequent suit and were covered by the Decision. 4. whether the parties are the same or are litigating under the same Title and that the previous suit was determined by a court of competent jurisdiction 5. Kuloba J., in the case of ***“Njangu – Versus - Wambugu and another Nairobi HCCC No.2340 of 1991 (unreported)”***, held that: ***‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…..”*** 1. In the Court of Appeal case of ***“Siri Ram Kaura – Versus – M.J.E. Morgan, CA 71/1960 (1961) EA 462”*** the then EACA stated that: - ***“The mere discovery of fresh evidence (as distinguished from the development of fresh circumstances) on matters which have been open for controversy in the earlier proceedings is no answer to a defence of res judicata...*** ***The law with regard to res judicata is that it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up the same relief which I asked for before, but it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. The only way in which that could possibly be admitted would be if the litigant were prepared to say, I will show that this is a fact which entirely changes, the aspect of the case, and I will show you further that it was not, and could not by reasonable diligence have ascertained by me before ...*** ***The point is not whether the respondent was badly advised in bringing the first application prematurely; but whether he has since discovered a fact which entirely changes the aspect of the case and which could not have been discovered with reasonable diligence when he made his first application.*** ***It is therefore not permissible for parties to evade the application of Res judicata by simply conjuring up parties or issues with a view to giving the case a different complexion from the one that was given in the former suit.*** 1. It holds that the principle of res – judicata to apply where the issues in the previous suit ought to have been ***“heard and finally decided”.*** Black’s Law Dictionary 10th Edition defines the terms **“heard”** and **“determined”** as follows: - **“of a case, having been presented to a Court that rendered Judgment.”.** 1. The term “hearing” is defined in the same dictionary as follows: **“A judicial session usually opens to the public held for the purpose of deciding issues of fact or of law sometimes with witnesses testifying.”** 1. The pre - requisites to a plea of res judicata as held by the court of appeal in Nigeria in the case of:- “**Abubakar – Versus - Federal Mortgage Bank Limited & Others. [2002] 4 NWLR [pt. 756) 29]”** are:- 2. **That the parties or the privies involved in both the previous and present proceedings are the same;** 3. **That the claim or issue in dispute in both proceedings are the same;** 4. **That the res or that the subject matter of the litigation in the two cases are the same;** 5. **That the decision relied upon to support the plea is valid, subsisting and final;** 6. **That the court that gave the previous decision relied upon to sustain the plea is a court of competent jurisdiction;** 7. Similarly, the South African High Court in the case of:- “***Outeniqua Skydivers CC - Versus - Stephanus Petrus Hartzner & Another Case No H264/2019”*** had the following to say on what amounts to the Doctrine of Res Judicata as follows:- ***“It is trite that the expression res judicata means that the dispute raised for adjudication has already been finally decided. In terms of the common law, the three requisites of res judicata are: that the dispute to be adjudicated relates to the same parties, for the same relief and in relation to the same cause”*** 1. It is the Respondents case that the instant suit and is res judicata as the issues raised therein are similar to those in ELC OS E002 of 2025. The court is now being called upon to seat on its own appeal. I have had the opportunity to peruse the pleadings annexed in the latter suit, from it I have deduced that the Applicant herein seeks to be enjoined in the said suit as a party as per an application determined by the court vide the order of 26th February, 2026. It is noted that the court is yet to make a determination in the said suit and whatever is being referred to by the Respondents was an application for joinder and inhibition which clearly has not be extensively ventilated by the parties. In the given circumstances, it is still pre – mature prior to the Court making further indepth interrogation on the matter, to make a determination that the suit has breached “***the Doctrine of Re Judicata”*** contrary to the provision of Section 7 of the Civil Procedure Act, Cap. 21. Thus, the objection must fail. 2. Additionally in a related issue, the Honourable Court will be examining whether it has become “***functus officio”*** as alleged particularly by the averments made by the 7th Respondent herein to wit the use of the ownership of the suit land has already been heard and determined. The doctrine of functus officio was considered by the Court of Appeal in the case of:- *“****Telkom Kenya limited – Versus - John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya limited) [2014] eKLR”****,* where the court held that: - ***“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.”*** 1. The Supreme Court of Kenya while addressing the doctrine of functus officio in the case of:- *“****Raila Odinga & 2 Others – Versus - Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR****,* cited with approval an excerpt from an article by **Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832** which reads: - ***“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”*** 1. According to 7th Respondent, issues surrounding ownership of the suit properties herein have already been determined by the court vide a consent order dated 23rd July, 2025. That for this reason, the court is functus officio and cannot further express itself over the issue. In rebuttal of this assertions, the Applicant stated that the Respondents filed an adverse possession claim that was apparently determined by a consent order by the Respondents. The Applicant stated that time had not crystallised for an adverse possession claim to succeed. That the consent was based on fraud and ought to be set aside and hence the suit before court. 2. This court is of the view that at this point, the issue of whether or not fraud was involved in the consent cannot be conclusively determined at this stage. All the parties herein ought to first ventilate their cases by way of adducing both oral and documentary evidence before a conclusion is made. If anything, indeed the Consent Judgement was obtained by fraud, then it cannot stand. I resonate with the pronouncement in the case of:- ***“Lazarus Estates Limited – Versus - Beasley, (1956) 1 All ER 341”***.where Denning LJ declared that:- ***“no judgment of a court…can be allowed to stand if it has been obtained by fraud; fraud unravels everything”.*** 1. Be that as it may, as it is until this issue is intensively and thoroughly canvassed and the allegations of fraud are proved, the court cannot dismiss the suit at an interlocutory stage. ***ISSUE No. d). Whether or not a case has been made for grant of the inhibition orders sought*** 1. The legal provision on inhibition is provided for under Section 68 of the [Land Registration Act](https://kenyalaw.org/akn/ke/act/2012/3) of 2012, which at Subsection (1), (2) and (3) provides as follows: **Power of the court to inhibit registered dealings** **(1) The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.** **(2) A copy of the inhibition under the seal of the court, with particulars of the land, lease or charge affected, shall be sent to the Registrar, who shall register it in the appropriate register.** **(3) An inhibition shall not bind or affect the land, lease or charge until it has been registered.** 1. Thus under Section 68, the court has power to grant orders of inhibition against a suit land restricting registration of any dealings thereon for a particular time, or until the occurrence of a particular even, or generally until further orders are made relating to the land. This is the essence of Section 69 of the said [Land Registration Act](https://kenyalaw.org/akn/ke/act/2012/3), which explains the effect of an inhibition in the following words:- **69.Effect of inhibition** **So long as an inhibition remains registered, any instrument that is inconsistent with the inhibition shall not be registered.** 1. Therefore, the purpose of an order for inhibition is to preserve the suit property to prevent alienation of the property pending determination of a particular action. In this case, it would serve to enable the parties ventilate their case. The conditions to be considered before grant of an order of inhibition were stated in the case of: “***Rosemary Wanjiku Njigi – Versus - Nancy Munjiru Ngige (2013) eKLR”,*** where L.N. Gacheru J cited with approval the decision in the case of:- *“****Japhet Kaimenyi M’ndatho – Versus - M’ndatho M’mbwiria (2012) eKLR”***where it was stated as follows: - 1. ***That the suit property is at the risk of being disposed of or alienated or transferred to the detriment of the applicant unless preservatory orders of inhibition are issued.*** 2. ***That the refusal to grant orders of inhibition would render the applicant’s suit nugatory.*** 3. ***That the applicant has arguable case.*** 2. The Applicant who made the application seeking the inhibition orders stated that the 6th, 7th, 8th and the 9th Defendants/Respondent have obtained land control board Consent and are using every hook and nook to dispose of the two subdivisions of the suit property to a third party in toto disregard to the case that was filed by the Applicant. From the pleadings many issues have been raised including the legality of the consent order leading to registration of some of the respondents as owners of the suit property. the gist of this suit is the legality of the titles held by the respective title holders of the suit properties and the process through which the said registration of titles was acquired. 3. It is my view that in the interest of justice, it would be prudent to preserve the suit properties pending hearing and determination of the suit. ***ISSUE No. e). Who will bear the costs of both applications and the Preliminary Objection?*** 1. It is well established that the issue of Costs is at the discretion of the Court. Costs mean the award that is granted onto a party upon the conclusion of the legal action and the proceedings in any litigation. The Proviso of Section 27 ( 1 ) of the [Civil Procedure Act](https://new.kenyalaw.org/akn/ke/act/1924/3), Cap. 21 stipulates that costs follow the event. By event, it means the result or outcome of the legal action. 2. In the case of: ***“Reids Heweet & Company – Versus – Joseph AIR 1918 cal. 717 & Myres – Versus – Defries (1880) 5 Ex. D. 180,*** the House of the Lords noted:- ***“The expression “Costs shall follow the events” means that the party who, on the whole succeeds in the action gets the general costs of the action, but where the action involves separate Issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular Issue should go to the party who succeeds upon it…..”*** 1. Having regard to the fact that both the Respondents application dated 3rd March, 2026 and the preliminary objection have failed while the Applicant’s application dated 19th January, 2026 succeeds, it is proper that the Plaintiff/Applicant’s is awarded costs of the applications and Preliminary Objection. 2. **Conclusion and Disposition** 3. Consequently, upon conducting an elaborate analysis of the issues set out herein, this Honourable Court is of the opinion that the following orders suffice; 4. **THAT an inhibition order be and is hereby issued pursuant to the provision of Section 68 ( 1 ) & ( 2 ) of the Land Registration Act, No. 3 of 2012 and Section 79 ( 1 ) & ( 2 ) of the Land Registration (General) Regulations 2017 restraining any disposition or dealings with the parcel of land known as Kwale/Galu Kinondo/5059 and Kwale/Galu Kinondo/5060 which are the sub - division of the parcel of land, LR. No. Kwale/Galu Kinondo/616 pending the hearing and determination of this suit.** 5. **THAT the Land Registrar Kwale Land Registry is hereby directed WITHIN THE NEXT THIRTY (30) DAYS from this date to register an Inhibition Order on the register in respect of Title Numbers Kwale/Galu Kinondo/5059 and Kwale/Galu Kinondo/5060 which are the sub-division of the parcel of land, Kwale/Galu Kinondo/616.** 6. **THAT for expediency sake there shall be a mention on 22nd October, 2026 for conducting a Pre – Trial Conference pursuant to the provision of Civil Procedure Rules, 2010. There shall be hearing on 15th February, 2027 before the ELC No. 2 preferably Physical means.** 7. **THAT the costs to be awarded to the Plaintiff/Applicant for both the applications and the Preliminary Objection to be borne by the 7th, 8th and 9th Respondents jointly and severally.** **IT IS ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS** **VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS ………27TH ……... DAY OF ……….JULY …….2026** **………………………………** **HON. MR. JUSTICE L.L NAIKUNI,** **ENVIRONMENT & LAND COURT** **AT** **KWALE.** **Ruling delivered in the presence of: -** 1. Mr. Daniel Disii, the Court Assistant. 2. Mr. Kabiaro Advocate for the Plaintiff. 3. Mr. Egunza Advocate for the 7th Defendant. 4. Mr. Lisanza Advocate for the 8th & 9th Defendants. 5. No appearance for the 1st , 2nd, 3rd , 4th, 5th & 6th Defendants.