https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3083

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELC SUIT NO. 259 OF 2015** **THOMAS OCHIENG OMER (Suing in his capacity** **as the administrator of the estate of** **ONYANDO OMER)……………………………………………1ST PLAINTIFF** **DR. OBURU ODINGA....……………………………………2ND PLAINTIFF** **VERSUS** **THE LAND REGISTRAR KISUMU..........................1ST DEFENDANT** **COROMANDELE INVESTMENT LIMITED..………..2ND DEFENDANT** **AND** **MICHAEL OKELLO AREDO………………………………….APPLICANT** **RULING** The applicant brought an application by way of Notice of Motion dated 28th July 2025 seeking the following main orders: 1. An order of interlocutory injunction preventing the 1st Plaintiff by himself or through his co-beneficiaries and/or current owners, namely, Evans Owino Omer and Andrew Agol Omer, from selling, disposing, subdividing, fencing, charging or in any other manner whatsoever dealing with all that parcel of land known as Title No. Kisumu/Dago/990, which is a resultant subdivision of land parcel Title No. Kisumu/Dago/509, pending the hearing and determination of the issues relating to the ownership of the said parcel of land raised in this suit. 2. An order of inhibition preventing further dealings in the land parcel Title No. Kisumu/Dago/990, which is a resultant subdivision of land parcel Title No. Kisumu/Dago/509, pending the resolution of the ownership issues brought forth in the present application and in the main suit and the said inhibition be noted on the land register by the 1st Defendant. 3. An order setting aside a portion of the judgment of the court delivered in this suit on 19th November 2021, compelling the 1st Defendant to nullify the register of the land parcel Title No. Kisumu/Dago/990, which is a resultant subdivision of land parcel Title No. Kisumu/Dago/509. 4. An order setting aside the proceedings, orders and directions relating to the determination of the issue of the ownership of land parcel Title No. Kisumu/Dago/990, which is a resultant subdivision of land parcel Title No. Kisumu/Dago/509. 5. An order granting leave for the applicant to be joined in the suit as a defendant to defend his ownership rights as regards land parcel Title No. Kisumu/Dago/990, which is a resultant subdivision of land parcel Title No. Kisumu/Dago/509. 6. An order granting leave to the applicant to join to the suit one Thomas Nyakundi Manwa who sold him land parcel Title No. Kisumu/Dago/990, which is a resultant subdivision of land parcel Title No. Kisumu/Dago/509, and any other third parties who have invaded the said property and are in current occupation of the same. 7. An order granting leave to the applicant to file his defence and counterclaim to enable him to ventilate his case on the issue of the ownership of land parcel Title No. Kisumu/Dago/990, which is a resultant subdivision of land parcel Title No. Kisumu/Dago/509. The application was brought on the grounds set out on the face thereof and on the affidavit of the applicant, sworn on 28th July 2025. The applicant averred that he became the registered owner of Land Parcel No. Kisumu/ Dago/990 (the suit property), which is a resultant subdivision of land parcel No. Kisumu/Dago/509 on 5th June 2013, before the institution of this suit by the 1st Plaintiff in 2015. The applicant averred that, despite the said registration, he was never joined as a co-defendant in this suit, even though he was the registered owner of the suit property prior to its institution. The applicant averred that he was never accorded a right to be heard as required by the law and was not aware of the suit until after the delivery of the judgment in the matter and the enforcement thereof through the 1st Defendant. The applicant averred that through the said judgment, he was condemned unheard, as it purported to cancel and/or nullify his title without giving him a chance to ventilate his case. The applicant averred that he acquired the suit property from one Thomas Nyakundi Manwa through purchase after conducting due diligence on the property and was preparing to develop it when he realised that the said judgment had been enforced and that he was no longer the registered owner of the property. The applicant averred that he acquired the suit property legally and procedurally, and that he should have been accorded an opportunity to ventilate his case for the court’s determination. The applicant averred that he had also learnt that the suit property was in the process of being subdivided into further portions and that certain persons were in occupation of the same and carrying out several activities thereon to the detriment of the applicant. The applicant averred that no prejudice would be suffered by the various affected parties if the orders sought were granted, as the judgment violated his right to a fair trial, a right that is non-derogable. In his affidavit in support of the application, the applicant annexed, among others, a copy of the extract of the register for the suit property, a copy of the sale agreement between the applicant and Thomas Nyakundi Manwa dated 3rd May 2013, and a copy of the transfer of land dated 6th May 2013 between the applicant and Thomas Nyakundi Manwa. The application was opposed by the 1st Plaintiff through grounds of opposition dated 23rd October 2025. The 1st Plaintiff averred that the court was *functus officio* and had no jurisdiction to set aside a judgment that had already been executed. The 1st Plaintiff averred that the applicant’s remedy lay in instituting a fresh suit. The 1st Plaintiff further averred that the application had been brought after an inordinate and inexcusable delay. The 1st Plaintiff averred that the applicant was guilty of laches and could not seek the aid of equity, which aids only the vigilant. The 1st Plaintiff averred further that the applicant had laid no basis for the grant of the orders sought. The 1st Plaintiff further averred that the applicant’s application was brought contrary to the principle of finality of litigation. The 1st Plaintiff averred that he was not to blame for the applicant's non-joinder in the suit. The 1st Plaintiff averred that the applicant would have been made a party to the suit had he been vigilant. The 1st Plaintiff averred that he stood to suffer great prejudice if the applicant’s application was allowed, as he had relied on the said judgment, and incurred costs in the execution thereof and in developing the suit property. The application was heard on 11th November 2025, when Mr. Odhiambo appeared for the applicant, while Ms. Nyambeki, appeared for the 1st Plaintiff. The applicant’s advocate in his submissions relied entirely on the grounds on the face of the application and the supporting affidavit. Regarding the 1st Plaintiff’s grounds of opposition to the application, the applicant’s advocate submitted that the same had no merit and that they raised non-issues. The applicant’s advocate submitted that the court has inherent jurisdiction to set aside its judgment and that the execution of a judgment does not oust the said jurisdiction. The applicant’s advocate urged the court to allow the application. In her rejoinder, the 1st Plaintiff’s advocate submitted that the applicant had admitted that the judgment sought to be set aside had been executed. Counsel submitted that the execution of a judgment renders the court *functus officio*. Counsel submitted that the applicant’s remedy lay in pursuing the person who sold the suit property to him for the recovery of his loss, as the title held by that person was tainted by fraud. **Analysis and Determination** I have considered the applicant’s application together with the affidavit filed in support thereof. I have also considered the grounds of opposition filed by the 1st Plaintiff in opposition to the application. Finally, I have considered the oral submissions by the advocates for the parties. The applicant’s application was brought under, among others, Articles 40(2)(a) and (b), 48, 50 and 25(c) of the Constitution of Kenya 2010, and Order 1 rule 10 (2), Order 9 rule 9, Order 40 rule 1, and Order 51 rule 1 of the Civil Procedure Rules. The principal order sought by the applicant is the setting aside of the part of the judgment entered herein on 19th November 2021, as it relates to land parcel No. Kisumu/Dago/990, which is a resultant subdivision of land parcel No. Kisumu/Dago/509, and consequential orders, and the joinder of the applicant to the suit as a defendant. The applicant’s application is brought on the ground that, although he was not a party to the suit, the suit concerned a parcel of land registered in his name at the time the suit was filed, and the impugned judgment had the effect of cancelling his title to the said property and transferring the property to the 1st Plaintiff without affording him a hearing. The applicant has sought an order setting aside the said judgment, and the consequential orders, and his joinder to the suit so that he can defend himself against the 1st Plaintiff’s claim. The 1st Plaintiff did not file a replying affidavit to the application. He instead filed grounds of opposition. All the factual averments in the applicant’s affidavit in support of the application were not controverted. There is no dispute that this suit concerned, among others, land parcel No. Kisumu/Dago/509. It is not disputed that land parcel No. Kisumu/Dago/509 was subdivided, and one of its subdivisions was land parcel No. Kisumu/Dago/990. It is not disputed that land parcel No. Kisumu/Dago/990 was registered in the name of Thomas Nyakundi Manwa on 23rd January 2000, and was sold and transferred to the applicant on 5th June 2013. The applicant was the fifth registered owner of the land parcel No. Kisumu/Dago/990 (the suit property), which was registered in the name of Onyango Omer as the first registered owner on 31st July 1982. It is not disputed that when this suit was filed in 2015, the applicant was the registered owner of the suit property. It is not disputed that the Plaintiff did not join the applicant as a party to the suit, although he was challenging the applicant's title to the suit property. It is not disputed that in its judgment of 19th November 2021, the court cancelled, among others, the title for land parcel No. Kisumu/Dago/990 and ordered that the land reverts to the name of the 1st Plaintiff’s father, Onyango Omer. In his grounds of opposition, the 1st Plaintiff has not disputed the fact that the applicant was condemned unheard. Article 50(1) of the Constitution, on which the applicant has grounded his application, provides as follows: **“(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”** In Evans Odhiambo Kidero & 4 Others *v*. Ferdinand Ndungu Waititu & 4 Others [2014] eKLR, the Supreme Court stated as follows: **“Fair hearing, in principle incorporates the rules of natural justice, which includes the concept of audi alteram partem (hear the other side or no one is to be condemned unheard) and nemo judex in causa sua (no man shall judge his own case) otherwise referred to as the rule against bias.”** In Harlsbury’s Laws of England, 4th Edition, at page 76, paragraph 64, the authors have stated as follows regarding the rules of natural justice: **“Implicit in the concept of fair adjudication lie two cardinal principles namely, that no man shall be a judge in his own cause (nemo judex in causa sua), and that no man shall be condemned unheard (audi alteram partem). These principles, the rules of natural justice, must be observed by courts, tribunals, arbitrators and all persons and bodies having a duty to act judicially, save where their application is excluded, expressly or by necessary implication.”** I have no doubt that the 1st Plaintiff had a dispute with the applicant over the suit property. The 1st Plaintiff had a right to take the dispute to court for determination. The dispute that concerned the ownership of the suit property had to be determined fairly. The dispute could only be fairly determined if the applicant, who was the registered owner of the suit property at the time the suit was filed, was made a party to the suit and heard on the dispute before a determination was made. The court made a determination that the subdivision of land parcel No. Kisumu/Dago/509 that gave rise to, among others, land parcel No. Kisumu/Dago/990 (the suit property) was illegal, and the court ordered that the title to the suit property be cancelled. Since the applicant, who was the registered owner of the suit property, was not heard on the matter, his right to a hearing was violated. I agree with the applicant that the court has an inherent power to set aside its orders and decrees for the ends of justice to be met. In this case, the applicant was condemned unheard. His title to the suit property was cancelled in a suit in which he was not a party. The court has jurisdiction to correct that wrong. The court exists to do justice. The fact that an unfair judgment has been executed cannot fetter the court's inherent power to undo an injustice. I find no merit in all the grounds put forward by the 1st Plaintiff in opposition to the application. The applicant is entitled to have the impugned judgment set aside *ex debito justitiae*. The court has no discretion in the matter. I am satisfied that the applicant has made out a case for the setting aside of the judgment delivered herein on 19th November 2021 as it relates to the suit property. The applicant has also made a case for his joinder as a party to the suit so that the dispute over the suit property can be heard and conclusively determined. I also find that no prejudice will be occasioned to either party if an order of inhibition granted by the court on 7th October 2025 is extended until the hearing and determination of the suit as between the applicant, the 1st Plaintiff and the 1st Defendant. I find that the prayer for the joinder of Thomas Nyakundi Manwa to the suit has been sought prematurely. The applicant is at liberty to seek such joinder after joining the suit and filing his pleadings. **Conclusion** In conclusion, I make the following orders in the applicant’s application dated 28th July 2025: 1. Part of the judgment delivered herein on 19th November 2021, in which the court made a finding that the land parcel, Title No. Kisumu/Dago/990, which is a resultant subdivision of land parcel Title No. Kisumu/Dago/509 was created and transferred to the applicant illegally, and compelled the 1st Defendant to nullify its register and revert the property to the name of the Plaintiff’s father, Onyango Omer, is set aside together with any actions or proceedings taken pursuant thereto. 2. The applicant is joined in this suit as the 2nd Defendant. 3. An order of inhibition is issued, inhibiting any other or further dealings with the land parcel Title No. Kisumu/Dago/990, which is a resultant subdivision of land parcel Title No. Kisumu/Dago/509, pending the hearing a fresh of the dispute over the ownership of the property. 4. The Plaintiff shall further amend the plaint, and strike out of the suit the names of the parties who had been struck out of the suit and add the applicant as the 2nd Defendant in the suit within 15 days from the date hereof. The applicant shall be at liberty to respond to the further amended plaint within 15 days from the date of service of the same upon him. 5. The costs of the application shall be in the course. **Written and signed at Nairobi by**  **S. OKONG’O** **JUDGE** **Delivered, countersigned and dated at Kisumu this 21st day of May 2026** **E.ASATI** **JUDGE** The ruling was read through the Microsoft Teams platform in the presence of; Ochuna for the 1st Plaintiff No appearance for the 1st Defendant Odhiambo D. for the Applicant Atika - Court Assistant