Mosonik & another v Korir & 2 others (Enviromental and Land Originating Summons E002 of 2025) [2026] KEELC 5284 (KLR) (28 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT KENYA** **AT KWALE** **ELCPOS NO. E002 OF 2025** **BENSON MOSONIK** **JUMA OMAR NYERE …………………………………………….…PLAINTIFFS** * **VERSUS -** **JOSHUA KIPKOSGEI KORIR……………...................….1ST DEFENDANT** **ANTHONY NGUGI MBAGE ………………….…………….…2ND DEFENDANT** **MASUDI ALI MBARUKU (Suing as an Administrator of the Estate of ALI MASUDI KAROYO alias ALI MASUDI MBARUKU)……………………………………….INTENDED 3RD DEFENDANT** **RULING** 1. **Introduction** 2. This Honourable Court is called upon to determine the Amended Notice of Motion application dated 6th March, 2026 filed by *Masudi Ali Mbaruku,* suing as a duly appointed Legal Administrator of the Estate of the late Ali Masudi Karoyo alias Ali Masudi Mbaruku, the Applicant/Intended 3rd Defendant herein. Equally, before the Court was the Preliminary Objection and Grounds of Opposition both dated 12th March, 2026 filed by *Benson Mosonik and Juma Omar Nyere*, the 1st and 2nd Plaintiffs/Respondents herein, through the Law firm of Messrs. Marende Necheza & Company Advocates, challenging the competence of the Applicant’s motion, his locus standi, and the jurisdiction of this Court on account of the Consent Judgment recorded on 24th July, 2025. 3. In addition, the Court was seized of the Notice of Motion application dated 6th May, 2026 by *Joshua Kipkosgei Korir,* the 1st Defendant/Respondent herein, reiterating that the suit herein was compromised by a valid Consent Judgment, that the Court was “***functus officio”***, and that the Applicant’s claim is misconceived, “***the Doctrine of Res Judicata”***, and an abuse of the court process. The 1st Defendant further averred that the estate of the deceased was neither a party nor en-suited in the present proceedings, and that issues of ownership are already subject to active litigation in the civil suit – “***ECLC No. 121 of 2025 – Kwale, Masudi Ali Mbaruku – Versus - State Law Office & Others”.*** 4. Upon service of the application by the Applicant, the Plaintiffs/Respondents it through Grounds of Opposition dated 12th March, 2026, affidavits, and written submissions, asserting that the application offends the provision of Section 26 of the Land Registration Act, No. 3 of 2012 violates the principles governing setting aside of Consent Judgments, and was devoid of merit. 5. This ruling therefore addresses the merits of the Applicant’s Amended Notice of Motion application dated 6th March, 2026, the Notice of Preliminary Objection and Grounds of Opposition dated 12th March, 2026, and the Notice of Motion application dated 6th May, 2026 filed by the 1st Defendant, guided by the applicable constitutional provisions, statutory framework, and judicial precedents. 6. **The Amended Notice of Motion application dated 6th March, 2026** 7. The Application was brought under the provisions of Article 50 and 159 of the Constitution of Kenya of 2010, Sections 1A, IB, 3, 3A, 23 and 24 of the Civil Procedure Act, Cap. 21 and Order 1 Rule 10(2), Order 10 Rule 11, Order 16 Rule 1, Order 38 of Civil Procedure Rules, 2010 and all other enabling provisions of the law. 8. The Applicant sought the following orders:- 9. ***That this Honourable Court be pleased to grant leave to the law firm of Messrs. Wonanio & Kabiaro Advocates to come on record on behalf of the Applicant/ intended 3rd Defendant herein.*** 10. ***That pending the hearing and determination of this application this Honourable Court be pleased to enjoin the Applicant as the 3rd Defendant in this suit.*** 11. ***Spent.*** 12. ***That pending Inter - Partes hearing of this application this Honourable Court be pleased to set aside the Consent Judgment and decree delivered on 30th July, 2025, ex debito justitiae and or suo moto for having been procured through fraud, collusion, misrepresentation and non-disclosure of material facts.*** 13. ***That pending the hearing and determination of this application and suit this Honourable Court be pleased to issue preservatory, Inhibition and or orders of status quo restraining subdivision, transfer, sale or alienation on all that parcel of land formerly registered as KWALE/ GALU KINONDO/ 616 which was later subdivided and registered as KWALE/GALU KINONDO/ 5069 and 5060 and any resultant sub - divisions emanating from KWALE/GALU KINONDO/ 5069 and 5060.*** 14. ***That pending hearing and determination of this application and suit this Honourable Court be pleased to set aside the Consent Judgment and decree delivered on 30th July, 2025, ex debito justitiae and or suo moto for having been procured through fraud, collusion, misrepresentation and non-disclosure of material facts.*** 15. ***That pending the hearing and determination of this application and suit this Honourable Court be pleased to declare that the said Consent Judgment as null and void ab initio for purporting to compromise and or distribute all that parcel of land formerly known as L.R. No. KWALE/GALU KINONDO/616 which at the time of recording the consent judgment it was non-existent, having been closed and subdivided into 12 portions on 24th March 2025 and registered as KWALE/ GALU KINONDO 4757 to 4768.*** 16. ***That pending the hearing and determination of this application and suit the court be pleased to declare that all the subsequent entries on the land register of consolidation, transfer and subdivisions and dealings emanating from the illegal consent judgment recorded on the land register for KWALE/ GALU KINONDO/ 616 be declared to be irregular, null and void for having been obtained through fraud, collusion, misrepresentation and non - disclosure of material facts between the Plaintiffs and the 1st and 2nd Defendant.*** 17. ***That during hearing of this application this Honourable Court do summon the 3rd Respondent through their advocate on record i.e. the law firm of Marende Necheza &Company Advocates to personally appear before this Honourable Court for purposes of being cross examined on oath as to:*** 18. ***His participation in and/or knowledge of this suit and the alleged Consent Judgment entered on his behalf by the firm of Marende Necheza & Company Advocates;*** 19. ***Whether he instructed the law firm of Marende Necheza & Company Advocates to act for him in this matter.*** 20. ***To adduce material evidence of how they purchased the suit property by producing agreement for sale, evidence of payment of the purchase price, letter of consent to transfer, evidence of payment of stamp duty and evidence of booking forms and executed transfer forms by all the parties to the sale and by the land registrar.*** 21. ***That after the issuance of the orders above the proceedings of this suit herein be stayed pending hearing and determination of ECLC No. 121 of 2025- KWALE, MASUDI ALI MBARUKU VS STATE LAW OFFICE, BENSON MOSONIK & OTHERS which suit is actively pending hearing in this court.*** 22. ***That this Honourable Court be pleased to grant any other orders that it may seem fit and just to ensure the ends of Justice are met.*** 23. ***Costs of this application be borne personally by the parties found culpable for the fraud, collusion, misrepresentation and non-disclosure of material facts.*** 24. The application was premised on the grounds, testimonial facts and averments made out from the face of the application and the 26 Paragraphed annexed supporting affidavit of MASUDI ALI MBARUKU, the Applicant herein. The Affiant averred as follows that:- 25. He had authority to claim the suit on behalf of the late Masudi Mbaruku, who was the first registered owner of all that parcel of land registered as Kwale/Galu Kinondo/616 before it was sub - divided by the respondents. Annexed and marked as “MAM - 1 and 2” were copies of the Certificate of Death and Limited Grant Ad Litem dated 12th November, 2025). 26. The late Masudi Mbaruku had acquired registration of the suit property as the first registered owner allottee on 15th November, 1974 and was awaiting issuance of the title deed, but he died before it was issued. Annexed and marked as “MAM - 3 and 4” were copies of the Adjudication Record and Certified copy of the Green Card for the suit property confirming the deceased was the first allottee. 27. The Land Register had been fraudulently interfered with by the 3rd Respondent in collusion with the 1st and 2nd Respondents, and illegal entries were made purporting that the deceased had transferred the suit property to third parties who were non - existing persons, with the intention of concealing the illegalities and fraud as to how the 3rd Respondent acquired registration of the suit property. 28. The deceased had not transferred the suit property to any person during his lifetime since he had not been issued with a title deed that would have enabled him to validly enter into a transaction to transfer his interest in the suit property, where the family had been living since childhood. 29. The deceased had never confided to him or any member of the family that he had transferred their ancestral land, and they only came to learn of the illegal and fraudulent dealings on the land register in the year 2025. 30. After realizing the illegal and fraudulent dealings on the land register, he had instructed his advocates to institute a civil suit against all the alleged previous owners of the suit property seeking cancellation of the illegal entries on the land register. Annexed and marked as “MAM - 5” were copies of the pleadings in the civil suit ***“ECLC No. 121 of 2025 – Kwale, Masudi Ali Mbaruku – Versus - State Law Office, Benson Mosonik & Others”.*** 31. He had opted to file that suit so that the Court would have the benefit of evidence from all the previous owners before making an informed decision, and later filed the present application seeking the orders herein, since the suit herein was initiated through Originating Summons and could not adequately address the issues in dispute without the benefit of all the parties involved, as opposed to a suit instituted by way of a Plaint. 32. It would have been in the interest of justice to have the orders sought granted and the proceedings herein stayed pending hearing and determination of the main suit, since issues of fraud could not be adequately addressed in an originating summons and in the absence of all the parties involved in the fraud adducing their evidence. 33. On the 23rd July, 2025, a Consent Judgment had been recorded in the matter to the effect that the 1st to 3rd Respondents were to share all that parcel of land known as Kwale/Galu Kinondo/616 as per the terms of the said consent. Annexed and marked as “MAM – 6 (a) and 6 (b)” was a copy of the order dated 24th July, 2025 and the Respondents’ consent that was adopted. 34. At the time of recording the said consent, the parcel of land registered as Kwale/Galu Kinondo/616 had already been sub - divided and therefore did not exist as a registrable interest, and was incapable of being allocated to the 1st to 3rd Respondents. Annexed and marked as “MAM - 7” was a copy of the Land Register/Green Card confirming the suit property had been sub - divided into 12 portions on 24th March, 2025 and registered as Kwale/Galu Kinondo/4757 to 4768). 35. Annexed and marked “MAM - 8” was a bundle of title deeds evidencing the subdivisions, and that the subject property was not available for alienation by the Court as at the date of recording the Consent Judgment. 36. The 1st to 3rd Respondents had been aware of the sub - division prior to recording the consent judgment but intentionally withheld this information from the Court, with the intent and purpose of sanitizing and legalizing the allocation and sub - division of the property between themselves. 37. The non - disclosure of material facts to this Honourable court the departure subject of the consent was nonexistent and the effect of the state consent was to mislead the Honourable court into endorsing an illegality of a property that had already been extinguished in the land register. 38. The Consent Judgment was therefore entered into fraudulently and in collusion with the intent to sanitize how the 1st to 3rd Respondents acquired ownership of the suit property and defraud the Applicant of the suit property. 39. It was a fraudulent fundamental principle in law that fraud vitiates a Constant Judgment recorded between the parties and also effects third parties acting on an illegal consent judgment that including any dealings arising out of a fraudulent and illegal Consent Judgment. 40. It was in the interest of justice that the 4th Respondent be someone through the advocates on record and be cross examined on oath to establish his knowledge and participation in the fraudulent recording of the consent Judgment which would also establish to this court that the Consent Judgment entered herein was illegal and fraudulent. 41. As a result of the corrupt scheme and the unprocedural Consent Judgment, an order was issued and the Land Registrar in collusion with the 1st and 3rd Respondents proceeded to register the order and issue a Certificate of Title to the 1st and 3rd Respondents in total disregard of the terms of the order by issuing the 1st and 3rd Respondents with a Certificate of Title measuring 7.9 acres(i.e. 3.2 Ha) as opposed to 7 acres as directed by the Court. Annexed and marked as “MAM – 9” was a copy of the Certificate of Title and a Certificate of Official search in joint names of the 1st to 3rd Respondents. 42. After acquiring registration the 1st to 3rd Respondents later sub - divided the suit property and it into two ( 2 ) portions which were registered as KWALE/GALU KINONDO/5059 that was registered in the names of the 3rd Respondent and KWALE/GALU KINONDO/5060 that was registered in the joint names of the 1st and 2nd Respondents. 43. According to the Affiant after acquiring registration the 1st and 2nd Respondents hurriedly started the process of sub - diving all that parcel of land registered as KWALE/GALU KINONDO/5060 into 48 portions and transferred it to MVUTO REAL ESTATE LIMITED a company dealing in real estate and it had started advertising and selling the sub - divided properties to third parties without making full disclosure that there was a pending civil suit in ***“the Environment and Land Court in Kwale being ECLC No. 121 of 2025 - KWALE, MASUDI ALI MBARUKU – Versus - STATE LAW OFFICE, BENSON MOSONIK & OTHERS*** in which all the Respondents herein are parties to that suit. Annexed and marked as “MAM - 10,11,12 and 13 were copies of the certificate of proposed sub - division plan by Mvuto real Estate Limited dated 24th November, 2025, Certificate of Title and Certificate of Official search both dated 23rd January, 2026 and advertisement for sale of the sub - divided portions in the social media). 44. Unless the Court issued the orders sought, the pending suit referred to above would have been rendered nugatory, and if successful, enforcement of the orders granted would have been an uphill task since the substratum of the suit would have been altered significantly and would have involved many third parties. 45. He had been informed, which information he verily believed to be true, that on or around 11th February, 2026, the said company had obtained consent from the Msambweni Land Control Board to subdivide all that parcel of land registered as Kwale/Galu Kinondo/5060, and that the company was in the process of transferring the same to third parties who were not aware of the multiple pending suits in respect of the suit property. 46. It would be in the interest of justice if the orders sought herein were granted and the court to give directions on whether this suit would be heard stayed pending hearing the main suit instituted by way of Plaint since they related to the same subject matter. 47. This application according to the Affiant was made in good faith and to prevent abuse of the Court process and avoid multiplicity of potential suits by third parties on the subject matter. 48. **The Notice of Preliminary Objection** 49. The Plaintiffs/Respondents opposed the Applicant/Intended 3rd Defendant amended application dated 6th March, 2026 through a Notice of Preliminary objection dated 12th March, 2026 on the following grounds:- 50. The Application was misconceived, bad in law and an abuse of court process. 51. The Honourable Court was “***functus officio***” therefore bound by the decision entered on the 24th July, 2025. 52. The Application offended the mandatory provisions of Section 26 of the Land Registration Act, No. 3 of 2012. 53. The Applicants had “***no locus standi”*** to sue as MASUDI KAROYO (deceased) and ALI MASUDI MBARUKU (deceased) were two different persons. 54. The Application offended the principles of setting aside a Consent Judgment. A Consent Judgement could only be set aside and/ or varied by the parties to the consent. 55. The Applicants’ application lacked merit and should be dismissed with costs to the Respondents. 56. **The Grounds of Opposition** 57. The Plaintiffs/Respondents opposed the Intended 3rd Defendant’s amended application dated 6th March, 2026 by way of Grounds of Opposition dated 12th March, 2026 wherein the opposition was on the following grounds that:- * + - 1. The Application was misconceived, bad in law and an abuse of court process. 2. The Honourable Court was ***“functus officio”*** therefore bound by the decision entered on the 24th July, 2025. 3. The Application offended the mandatory provisions of Section 26 of the Land Registration Act, No. 3 of 2012. 4. The Applicants had “***no locus standi”*** to sue as MASUDI KAROYO (deceased) and ALI MASUDI MBARUKU (deceased) were two different persons. 5. The Application offended the principles of setting aside a Consent Judgment. The Consent Judgment could only be set aside and/ or varied by the parties to the consent. 6. The Applicants’ application lacked merit and should be dismissed with costs to the Respondents. 7. The Suit offended the provision of Section 7 of the Civil Procedure Act Cap. 21 was the doctrine of res judicata. 58. **The Notice of Motion application dated 6th May, 2026** 59. The Application was brought under the provisions of Order 6 of the Civil Procedure Rules, 2010; Sections 1, 1A, 3A, and 63 (c) & (e) of the Civil Procedure Act, Cap 21 Laws of Kenya; Section 13 of the Environment and Land Court Act, No. 19 of 2011; Article 40 of the Constitution of the Republic of Kenya; the inherent powers and jurisdiction of this Honourable Court; and all other enabling provisions of the law. 60. The Applicant sought the following orders:- 61. ***Spent.*** 62. ***That the Honourable Court be pleased to strike out and proceed to dismiss the undated Amended Notice of Motion; filed in accompaniment of Amended Certificate Of Urgency dated the 6th day of March, 2026 filed in further accompaniment of the Supporting Affidavit sworn on the 6th day of March, 2026 herein the same having been filed in contravention of mandatory provisions of the Civil Procedure Rules.*** 63. ***That in tandem with prayer 3 hereinbefore stated the undated Amended Notice of Motion; filed in accompaniment of Amended Certificate Of Urgency dated the 6th day of March, 2026 filed in further accompaniment of the Supporting Affidavit sworn on the 6th day of March, 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.*** 64. ***That the Honourable Court be pleased to make orders that there is nothing further to be considered and/or filed in the present suit the same having been compromised and file closed vide consent of the parties.*** 65. ***That the Honourable Court be pleased to issue such further orders it deems just and expedient in their circumstances.*** 66. ***That the cost of this application and consequent dismissal be borne by the Applicant/Intended 3rd Defendant.*** 67. The application was based on the grounds, testimonial facts and averments made out of the application by the 9 Paragraphed annexed supporting affidavit of KIPKOSGEI KORIR, the 1st Defendant herein. The Affiant averred as follows that:- 68. He had read, understood, and where in doubt had been explained the contents of the undated Amended Notice of Motion application filed in accompaniment of the Amended Certificate of Urgency dated the 6th day of March, 2026, filed in further accompaniment of the Supporting Affidavit sworn on the 6th day of March, 2026, which explanation he verily believed to be true, and he thereby proceeded to state as follows: 69. The suit offended the mandatory provisions and import of the provision Section 7 of the Civil Procedure Act, Cap. 21 of it having been filed after the Honourable Court had already delved into and rendered Judgment in the matter. 70. He had been further advised by his Advocates, which advice he verily believed to be true, that 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 have immediately declined. 71. From inception, the undated Amended Notice of Motion application filed in accompaniment of the Amended Certificate of Urgency dated the 6th day of March, 2026, filed in further accompaniment of the Supporting Affidavit sworn on the 6th day of March, 2026, was ab initio and dead on arrival, the same having been closed, and that there was nothing further that could accrue from the present suit, the consent having not been challenged in any way. 72. He had been advised by his Advocates, which advice he verily believed to be true, that the Civil Procedure Rules, 2010 and indeed the law as espoused and mandatory to the present proceedings depicted a scenario that an Amended Supporting Affidavit was not an immutable statement of oath and could not in any way support an application. In fact, apart from there being no leave granted to file such amendments, the parties before the Honourable Court did not have any locus to progress the suit any further, which was exactly the predicament the Honourable Court was confronted with, and there was no other recourse other than dismissal. 73. It was further imperative to progress the advice from Counsel, which advice he verily believed to be true, that the Estate of Masudi Mbaruku was neither a party nor en-suited in the present proceedings, and that the same parties were deeply engrossed in another case of:- “***Kwale Environment and Land Case No. E121 of 2025”***, by their own admission, thus rendering the present suit void. 74. He further deponed that a challenge to the consent, which the said Estate was not a party to, bespoke an attempt to engage the Honourable Court in a matter in which the Court was already functus officio. 75. The affidavit was made in support of the application filed, and that what was deponed therein above was true to the best of his knowledge and belief, save for matters of information in which case the source was disclosed where appropriate. 76. **The Supplementary Affidavit by the Applicant/Intended 3rd Defendant** 77. The Applicant/Intended 3rd Defendant filed a 20Paragraphed Supplementary Affidavit which he swore himself on 22nd May, 2026 wherein the Affiant averred as follows that:- 78. He had read, understood and been explained to the contents of the grounds of opposition and the Notice of the Preliminary objection filed by the 1st Respondent dated 12th March, 2026. He had also read to the Notice of Motion application by the 3rd and 4th Respondents dated 6th May, 2026 and wished to respond to it as follows: 79. The Preliminary Objection and the Grounds of Opposition dated 12th March, 2026 were incompetent as they raised contested matters rather that pure point of law, therefore, they did not qualify as proper Preliminary Objection and Grounds of Opposition. 80. This Honourable Court was clothed with residual and inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21 to set aside the fraudulent or illegal Judgment dated 24th July, 2025, therefore the doctrine of functus officio does not arise in the current circumstance for the reasons stated hereunder; 81. The Applicant was directly affected by the Consent Judgment and decree of the court thus setting it a side shall afford him the right to fair hearing as espoused in Article 50 of the Constitution of Kenya; 82. The Consent Judgment was procured through fraud and illegality due to material non – disclosure thus the Respondent misled this Honourable Court into adopting the illegal consent; 83. The Respondents failed to disclose to this Honourable Court the glaring error on the citation of the parties of the 2nd Respondent, (Antony Ngugi Mbage), according to the initial originating summons dated 30th May, 2025 was expunged as a party to this case therefore the order of the Court ought not to have borne his name. (Annexed and marked as “MAM – 1(a) and (b)” was a copy of the Originating Summon dated 30th May, 2025 and the Amended Originating Summons dated 11th July, 2025). 84. A Consent Judgment was vitiated just like any other contract by fraud, collusion if it affects the parties to that suit, the same rule applied if the Consent Judgment affects a non - party to the suit. 85. This Honourable Court had inherent jurisdiction to bypass the doctrine of functus in order to do substantive justice particularly in this case where the Applicant has pleaded fraud against the suit property which is his beneficial right. 86. The doctrine of functus officio could not be used to sanitize fraud, concealment of material fact and illegality. 87. The 1st and 2nd Respondents misled the Court that they lived on the suit property for more than 12 years and had invested on it which was untruth, the Applicant had been utilizing the suit property and had never seen the 1st and 2nd Respondents therefore the Affiant prayed for the opportunity to present the Affiant case thus unravel the fraudulent activities of the Respondents herein. 88. 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 did not exist as it had been sub - divided into 12 sub plots, the Respondents failed to disclose to court that the suit property did not exist, that the Respondent were untruth in that they failed to reveal that they did not live of the suit property. 89. The doctrine of functus officio could not be a defence to shield or sanitize Respondents who had un - procedurally, through fraud and illegality procured the suit property which was the inheritance of the Applicant and other family members. Further invite this Honourable Court to invoke the common law principle to wit fraud vitiate everything' to set aside its previous orders and had this matter meritoriously heard and determined. 90. This Honourable Court had unfettered jurisdiction to stay/ set aside its previous orders/judgment and Decrees in order to afford the Applicant substantive justice based on the merits of the case. 91. The title deeds issued to the Respondents could be impeached pursuant to the provisions of Section 26 (1) (a) and (b) of the Land registration Act, No. 3 of 2012 which were the very grounds the Applicant case was anchored upon. Further, the Applicant has elucidated the elements of fraud committed by the Respondents in his pleadings marked as “MAM – 5” of the Amended Notice of motion application dated 6th March, 2026. 92. Before filing of this suit, the Applicant secured the Grant Letters of Administration Ad Litem to sue on behalf of the estate of his father, Ali Masudi Karoyo, Ali Masudi Mbaruku deceased. The issue as to whether Ali Masudi Karoyo and Ali Masudi Mbaruku was one or two people was a factual issue that calls for evidence which could be fully canvassed at the hearing of the main suit. The Respondents were put to strict proof thereof that the above-mentioned person was not known by the name, Ali Masudi Karoyo also Ali Masudi Mbaruku 93. Further response to ground number 4 of the Grounds of Opposition, the Applicant averred that the Assistant Chief and the Area Chief confirmed that the Affiant’s father was known as Ali Masudi Karoyo and Ali Masudi Mbaruku. Annexed and marked as “MAM - 2 (a) and (b)” was a letter by the Assistant Chief dated 11th September, 2025, the letter by the Area Chief dated 27th April, 2026. 94. The Applicant’s mother, Mishi Ali Mbaruku, who had been married for more than 50 years, knew that her husband, the Affiant’s father, was called Ali Masudi Karoyo, Ali Masudi Mbaruku, and Masudi Mbaruku, which were names of one and the same person. The Respondents were put to strict proof of their contention that the names Ali Masudi Karoyo and Ali Masudi Mbaruku referred to two different people. Annexed and marked as “MAM – 3” was a copy of the affidavit of marriage and names dated 8th March, 2026. 95. The Affiant had been informed by his advocate on record, which information he verily believed to be true, that locus standi as raised by the Respondents was misplaced for the reason that a deceased person had no legal personality to sue in his name. The question of locus standi only arose with respect to the Applicant, who acted on behalf of the Estate of Ali Masudi Karoyo also known as Ali Masudi Mbaruku and Masudi Mbaruku, subject to the letters of administration ad litem dated 12th November, 2025. ***(“Trouistik Union International & Another – Versus - Jane Mbeyu & Another [1993] eKLR”***). 96. The Applicant denied in toto the Respondents’ interpretation of the provision of Order 24 of the Civil Procedure Rules, 2010 which deals with abatement of suits. He had been advised by his advocate, which advice he verily believed to be true, that the Applicant was not a party to the suit filed by the Respondents, and therefore the principle of abatement did not bind him. 97. On the issue of multiplicity of suits, the Affiant deponed that the Applicant filed the present suit because his interest in the land had been defeated by the impropriety of the Respondents, who concealed the fact that parcel Kwale/Galu Kinondo/616 (the mother title) was non-existent at the time the Respondents filed ELC E002/2025 (OS), the property having already been subdivided into twelve portions as at 25th February, 2025. 98. To buttress particulars of fraud, it was a fact that parcel Kwale/Galu Kinondo/616 did not exist at the time the Respondents filed the civil case:- “***ELC No. E002/2025”*** on 30th May, 2025, for the property had already been sub - divided into twelve portions, namely Kwale/Galu Kinondo/4757 –4768. Annexed and marked as “MAM – 4 (a–l)” were copies of the title deeds all issued on 24th March, 2025 before the filing of the adverse possession claim). 99. The said twelve sub - divisions had been registered on 25th February, 2025 according to the certified copy of the mutation form, while the title deeds mentioned above were issued by the Land Registrar to the Respondents on 24th March, 2025. Therefore, any adverse claim (if at all it existed) would only have crystallized against either of the sub - divisions and not the mother parcel Kwale/Galu Kinondo/616, which was non-existent at the time of filing ELC E002 (OS) 2025. 100. In appreciating the non - existence of parcel Kwale/Galu Kinondo/616 at the date of filing the originating summons dated 30th May, 2025, the 1st and 2nd Respondents, through Order (4) of their consent dated 23rd July, 2025, sought to merge the twelve sub - plots to re - create parcel Kwale/Galu Kinondo/616. 101. He had been advised by his advocate, which advice he verily believed to be true, that the law and orders of the Court could not act retrospectively, and therefore the Court should frown upon such conduct. 102. He had been advised by his advocate, which advice he verily believed to be true, that the case did not fall within the scope of Res - Judicata, for the Applicant had never litigated any case with the Respondents. Further, res judicata was a factual issue that could only be proved by evidence, and the Respondents were put to strict proof that the Applicant was a party to any previous suit. 103. He had been informed by his advocate, which advice he verily believed to be true, that the best way of proving factual issues such as res judicata or whether the deceased, Ali Masudi Karoyo alias Ali Masudi Mbaruku, was the same person, was through an application as espoused in the provision of Order 51 of the Civil Procedure Rules, 2010 where the Respondents could annex their evidence, and not through a Notice of Preliminary Objection or Grounds of Opposition. 104. The Notice of Motion application together with the supporting affidavit of Joshua Kipkosgei Korir dated 6th May, 2026 did not contain evidence in support of its averments. He had been advised by his advocate, which advice he verily believed to be true, that the Amended Notice of Motion application dated 6th March, 2026 together with the supplementary affidavit had ably responded to all the issues raised in the application by the 3rd and 4th Respondents. 105. This Honourable Court to dismiss in wholesomeness the Grounds of Opposition and the Notice of Preliminary Objection both dated 12th March, 2026, together with the application dated 6th May, 2026, with costs. 106. What was deponed herein was true to the best of his knowledge, belief, and information, the sources whereof had been disclosed. 107. **Submissions** 108. On 8th May, 2026 while all the parties were present in Court, they were directed to have the Notices of Motion application dated 6th March, 2026 and 6th May, 2026 and the Notice of Preliminary Objection dated 12th March, 2026, be disposed of by way of written submissions. 109. Pursuant to that, by the time of penning the Ruling, the Court was only able to access the Submissions duly complied with the Court’s directions. Thereto, the Honourable Court shall proceed to deliver the Ruling on its merit accordingly. A ruling date was accordingly reserved for the 28th July, 2026 by the Honourable Court. 110. **The Written Submissions of the Applicant** 111. The Applicant through the Law firm of Messrs. Wonanio & Rabiaro Advocates filed their written submissions dated 2nd July, 2026. Mr. kabiaro Advocate commenced his submissions by providing a brief background of the matter. He stated that the Applicant had filed an Amended Notice of Motion application dated 6th March, 2026. It was upon that application that the 1st and 2nd Respondents filed the Notice of Preliminary Objection and Grounds of Opposition dated 12th March, 2026, raising several grounds. 112. The Learned Counsel for the Respondents averred that the application was misconceived, bad in law, and an abuse of the court process. According to the Learned Counsel, the Honourable Court was functus officio, being bound by the decision entered on 24th July, 2025. Further, the Learned Counsel contended that the application offended the mandatory provisions of Section 26 of the Land Registration Act, No. 3 of 2012. The Learned Counsel argued that the Applicant had no locus standi to sue, since *Masudi Karoyo (deceased)* and *Ali Masudi Mbaruku* were two ( 2 ) different persons. The Learned Counsel averred that the application offended the principles of setting aside a Consent Judgment, as such consent could only be set aside or varied by the parties thereto. The Learned Counsel contended that the application lacked merit and ought to have been dismissed with costs. The Learned Counsel further argued that the suit offended the provision of Section 7 of the Civil Procedure Act, Cap. 21, as it invoked the doctrine of Res Judicata. 113. The Respondents also prayed that the Honourable Court strike out and dismiss the suit filed herein, it having been filed in contravention of the provisions of Order 24 of the Civil Procedure Rules, 2010. The Respondents further urged the Court to issue such orders as it deemed just and expedient in the circumstances, and that the costs of the application and consequent dismissal of the suit be borne by the Plaintiff/Respondent. 114. On the other hand, the Learned Counsel for the Applicant opposed the Preliminary Objection and the Grounds of Opposition dated 12th March, 2026. The Learned Counsel submitted that the Preliminary Objection and Grounds of Opposition were bad in law, lacked merit, and were intended to unseat the Applicant from the seat of justice. According to the Learned Counsel, this Honourable Court had unfettered residual and inherent discretion not to uphold a Consent Judgment procured through material concealment and non-disclosure. The Learned Counsel contended that the Preliminary Objection and Grounds of Opposition raised factual issues that could only be tested during hearing by way of cross-examination. The Learned Counsel argued that the Applicant was clothed with locus standi to sue on behalf of the estate of his deceased father, as exhibited by the letters of administration ad litem dated 12th November, 2025. Annexure marked as “MAM – 1”. 115. The Learned Counsel submitted that the question of res judicata was a factual issue requiring evidentiary proof. Further, the Learned Counsel contended that the intrinsic and inherent jurisdiction of this Honourable Court had been properly invoked to protect the Applicant from fraudulent activities that unlawfully procured the property of his father, Kwale/Galu Kinondo/616, by the Respondents. 116. The Learned Counsel for the Applicant further argued that the right to a fair hearing was unlimited and unfettered. The Respondents had not annexed any judgment demonstrating that there existed a dispute between them and the Applicant, nor that any court had rendered judgment between the parties herein. The Learned Counsel asserted that it would be fair and in the interest of justice for this matter to be consolidated with civil case of:- “***ELC No. 121 of 2025***” which was scheduled for a ruling on 28th July, 2026 where the Applicant has sued Nine Defendants including the 1st, 2nd, 3rd and 4th Defendants for unprocedlurally and fraudulently procuring the estate of Ali Masudi Karoyo alias Ali Masudi Mbaruku, so that the issues of fraud pleaded by the Applicant in the pleadings dated 13th November, 2025 could be canvassed. The Applicant had laid before the Court all material facts that had been concealed by the Respondents, thereby enabling the Court to render a meritorious judgment. The Learned Counsel contended that the Respondents had not substantiated the Notice of Preliminary Objection and the Grounds of Opposition, and urged the Court to dismiss them in their entirety. 117. The Learned Counsel relied on the following seven ( 7 ) issues for determination by the Honourable Court:- 118. Whether the Estate of Ali Masudi Karoyo alias Ali Masudi Mbaruku were condemned unheard; 119. Whether the court could determine the question of fraud at the interlocutory stage; 120. Whether the preliminary objection and the ground of opposition had merit; 121. Whether this Court was functus officio; 122. Whether the Applicant had the locus standi in this suit; 123. Whether this matter was barred through the doctrine of res judicata; 124. Whether the Preliminary Notice and the Grounds of Opposition should be dismissed with cost; 125. On whether the Estate of Ali Masudi Karoyo alias Ali Masudi Mbaruku were condemned unheard. The Learned Counsel submitted that the Estate of the Applicant's father was not a party to the proceedings in the adverse possession claim although the estate had a proprietary right in it. The Respondents did not dispute this fact also. They submitted that the provision of Article 50 of the Constitution of Kenya 2010 was direct and unequivocal that:- **“50 (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”** 1. They submitted that the principle of natural justice *audi alterum partem* is not limited and efforts to limit this right had always been pronounced unconstitutional. Further, since the Respondents colluded to defraud of the estate, their fraudulent activity would only be actualized without the involvement of the estate of Masudi Ali Mbaruku. 2. They prayed that this court be guided by what the court stated in ***“Kimani alias Samuel Maina Gichuhi & 2 others – Versus - Gichuhi (Civil Appeal 34 of 2020) [2025] KECA 991 (KLR) (23May 2025) (Judgment)”*** at Paragraphs 13,14 and 20 as follows:- ***13. Smail and Another – Versus -- Njati, EALR 2008 EA 2EA 155. In Smail and Another – Versus - Njati (Supra), the Court of Appeal of Tanzania observed as follows:*** ***“In line with “Audi alteram partem” rule of natural justice, the court is required to adjudicate over a matter by according the parties a full hearing before deciding the matter in dispute or issue on merit. The omission to give the parties a hearing on the issue of jurisdiction occasioned a miscarriage of justice”*** 1. The court proceeded to state; Lastly, learned counsel, while referring to ***“Onyango Oloo -Versus - Attorney General [1986-1989] EA 456”***, submitted that, even Where a decision may be justified on merits, once it is found to violate the rules of natural justice it cannot be permitted to stand. It was reiterated in the cited case that: ***“It was deemed improper and unfair for a decision maker, legally obligated to consider all relevant factors before making a decision affecting substantial liberty, to leave the affected parties guessing about the considerations that influenced the decision.”*** ***14. Learned counsel Mr. Karweru for the Respondent acknowledged that the courts have been consistent on the importance of observing the rules of natural justice, and in particular hearing a person who is likely to be adversely affected by a decision before the decision is made. He referred us to Onyango Oloo – Versus - Attorney General (supra) in which, at page 460, Nyarangi, JAA. held that:-*** ***“A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right. If the principle of natural justice is violated, it matters not that the same decision would have been arrived at.”*** ***20. The appellants’ counsel may have been absent, but they were entitled to participate in the trial in a matter that affected their rights. In Mbaki & Others - Versus - Macharia & Another [2005] 2 E.A. 206, it was reiterated that:*** ***“The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.”*** 1. On whether the question of fraud is determined at the interlocutory stage. The Learned Counsel submitted that the Respondents asserted in their submissions that the Applicant had not pleaded fraud and its particulars at this stage. They had quoted several authorities on the same. It is our submissions that the Applicant sought to be joined as a party to these proceedings, setting aside the Consent Judgment and decree delivered on 30th July, 2025 *ex debito justitiae* for having procured the suit property through fraud, collusion, misrepresentation and non-disclosure of material facts amongst other prayers. As such, at this interlocutory stage, the court is called upon to engage itself with the Applicant’s application, the notice of preliminary objections and the ground of oppositions and weighing their merits on the balance of probability and issue its orders on the application. Therefore, it was unfair, non-judicious for the issue like fraud to be determined at the interlocutory stage. Still on the issue of particularizing fraud, the Applicant has annexed the plaint dated 13th November, 2025 marked as “MAM – 5” at Paragraphs 18 and 19 where fraud has been pleaded and particularized. 2. They prayed that this Honourable court be guided by the holding in ***“ABSA Kenya Limited – Versus - Barclays Bank of Kenya [2018] KEHC 10083 (KLR)”*** which stated the following at Paragraph 6:- ***“When a party approaches the court seeking interim interlocutory orders, the court is always required to exercise a delicate balance in the consideration of the evidence presented by the parties in such an application. The court cannot make final*** ***determination on issues of facts which facts are presented in disputed affidavit evidence. This indeed was the holding in the case of MBUTHIA – VERSUS - JIMBA CREDIT FINANCE CORPORATION & ANOR [1988] KLR1. In that case the Court of Appeal stated as follows: “The correct approach in dealing with an application for an interlocutory injunction is not to decide the issues of fact, but rather to weigh up the relevant strength of each side’s propositions. The lower Court Judge in this case had gone far beyond his proper duties and made final findings of disputed affidavits.”*** 1. On whether the Consent Judgment dated 30th July, 2025 could be vitiated, the Learned Counsel submitted that the 1st and the 2nd Respondents filed the originating summons dated 30th May, 2025 which was amended on 11th July, 2025, “MAM - 1 (a) and (b)” of the Applicant’s supplementary list of documents dated 22nd May, 2026. The 1st and the 2nd Respondents responded to it by filing a replying affidavit dated 22nd July, 2025 thereafter, they compromised the case vide consent dated 23rd July, 2025 which was adopted as the order of the court on 30th July, 2025. 2. The truth of the matter is that the 1st and the 2nd Defendants/Respondents had never constructed, lived or put up any structure on the suit property. The Consent Judgment at order number one, states that the 1st and the 2nd Respondents had acquired 5 acres out of the 7 acres by way of adverse possession. The second order vests on the 1st and the 2nd Respondents with the said 5 acres out of the parcel of land Kwale/Galu Kinondo/616, the other 2 acres is vested on the 3rd Respondent herein. It was their case that the said parcel of land Kwale/Galu Kinondo/616 did not exist as at the time of filing the adverse possession claim for the suit property had been sub - divided into 12 portions as at 5th February, 2025 as shown by document number 10 on the list of documents dated 13th November, 2025. 3. To buttress the fact that the suit property, Kwale/Galu Kinondo/616 did not exist, the Applicant has annexed a bundle of copies of the title deed stated in annexture as “MAM - 4(a, b, c, d, e, f, g, h, i, j, k and l”, showing the title deeds for the land, Kwale/Galu Kinondo/4757to 4768. The face of this title deeds indicate that they were issued by the land registrar on 24th March, 2025. Therefore, we submit as at the time the amended originating summons filed on 11th July, 2025, the parcel of land, Kwale/Galu Kinondo/616 did not exist. 4. They submitted that aware of the fact that the suit property did not exist, the Respondents introduced order 3 of the Consent Judgment which directs the land registrar to cancel all the previous Title Deeds in this case the title deeds stated at paragraph 13 of the supplementary list of documents dated 22nd May, 2026. It was their case that the 3rd and 4th Respondents in their Replying Affidavit would have raised the fact that the suit property was sub - divided into twelve (12) portions therefore, the Land adverse possession claim would not had crystallized since the suit property was subdivided into 12 portions as at 5th February, 2025. They submitted that had the 3rd and 4th Respondents pleaded that fact, this Honourable Court would had been furnished with the necessary and relevant documents/ exhibits to prove that averment. 5. On whether the court has power to recall, impeach, revoke its Consent Judgment procured through fraud and material non-disclosure. The Learned Counsel averred that courts had never shied away from pronouncing themselves whenever litigants use spurious means to sanitize fraud or illegality. They prayed in this case for the court to adopt what was said in ***“Too 3 others – Versus - Ali (Environmental and Land Originating Summons E002 of 2024) 2026 KEELC 3534 (KLR) (10th June, 2026) (Ruling)”*** at Paragraph 12 that; It was submitted that the circumstances herein clearly meet the threshold of “any other sufficient evidence” That it was trite law that Fraud vitiates all transactions and proceedings as held on:- ***“Lazarus Estates Limited – Versus - Beasley (1956) QB 702”***, Reliance is also placed on the case of:- ***“Benjoh Amalgamated Limited & Another – Versus - Kenya Commercial Bank Ltd (2014) eKLR”***. 6. Paragraph 26 of the Too case (supra) had this to say, in the case of:- ***“Benjoh Amalgamated Limited (Supra)”*** the court stated thus:- ***“......notwithstanding that the Court had not explicitly been statutorily conferred with the jurisdiction to reopen a decided matter, it has residual jurisdiction to do so in cases of fraud, bias or other injustice with a view to correct the same....”*** 1. They further prayed that this court be guided by what the court held in ***“Sukari Sugar Industries Ltd – Versus - Ochola Peter Ariyo [2021] KEHC 8357 (KLR)”*** Which cited the case of ***“Richard K. Bunei & 8 others t/a Geo- Estate Development Services – Versus - Lorien Ranching Co Ltd & 199 others (2017)eKLR”*** where the court held:- ***“This Court after expressing its opprobrium against fraud when proved to have been used to deceive the court, as an 'insidious disease' that spreads and infects the whole body of the judgment, dismissed the appeal and authoritatively endorsed the holding of the Privy Council in the above-cited HIP GOONG HONG case (supra) quoting with approval the judgment of the committee as delivered by Lord Buck master at p 894;*** ***“A Judgment that is tainted and affected by fraudulent conduct is tainted throughout, and the whole must fail, .... Where a new trial is sought upon the ground of fraud, procedure by motion and affidavit is not the most satisfactory and convenient method of determining the dispute. The fraud must be both alleged and proved; and the better course in such a case is to take independent proceedings to set aside the judgment upon the ground of fraud, when the whole issue can be properly defined, fought out, and determined, though a motion for a new trial is also an available weapon and, in some cases, may be more convenient.:”*** 1. It was undisputed that the Applicant has filed another case, ELCLC 121 OF 2025 where he has sued all the defendants/Respondents herein as parties. The proceedings in this case ELCPOS NO. E002 OF 2025 forms part of the Applicant's list of documents. The Applicant filed the plaint dated 13th November, 2025. Annexture marked as “MAM – 5” of the application dated 6th March, 2026 where he has particularized fraud at Paragraphs 18 and 19. 2. The Court of Appeal further rendered itself thus:- ***“This Court also referred to and accepted the earlier decision of the Queens Bench Division in COLE – Versus - LANGFORD [1898]2qb 36 which, after considering the decisions of Jessel M. R. in FLOWER – Versus - LLOYD 6 Ch.D 297and Lord Justice Baggallay in BAKER vs. WADSWORTH [1898] 67 L.J.Q.B 301held that;*** ***‘Where a judgment has been obtained by fraud, the Court has jurisdiction, in a subsequent action brought for that purpose, to set the judgment aside.”*** 1. It was their case that this Honourable court is not sittings on appeal against its judgment as asserted by the Respondents, the Applicant seeks that the court do afford the estate of his father an opportunity to defend the said estate. The court in ***“the Sukari case”*** ***(“Supra”***) continued to state that:- ***“In Jones co – Versus - Beard [1930] AC the Court said:-*** ***“It is the settled practice of the Court that the proper method of impeaching a completed judgment on the ground of fraud is by action, in which the particulars of the fraud must be exactly given and the allegation must be established by strict proof. Although there is jurisdiction in special cases to set aside a judgment for fraud on a motion for a new trial, if for any special reason departure from the established practice is permitted; the necessity for stating the particular of fraud and the burden of proof are in no way abated and all the strict rules of evidence apply.”*** 1. They argued that the special circumstance was that the Respondents have sold a portion of the suit property, Kwale/Galu Kinondo/5060 to a company referred as MVUTO REAL ESTATE LIMITED. Annexture marked as “MAM - 11 and 12”, which has subdivided it into 48 portions, (Annexture 10) and is selling the forty-eight portions as shown by the annexture marked as “MAM -13”. The court had this to state about a consent judgment in the case of ***“Hexekiah W. Gichohi – Versus -Uhuru High Way Development Ltd & 2 others [2019] KEHC 6888 (KLR)”*** which cited ***“Civil Appeal No. 276 of 1997 Kenya Commercial Bank Limited – Versus - Benjoh Amalgamated Limited & Another”***. The Court of Appeal citing the case of ***“Brook Bond Liebig (T) Limited – Versus - Mallya [1975]EA 266”*** stated:- ***“Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them .... and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court..... or if consent was given without sufficient material facts, or in misapprehension or in ignorance of material fact, or in general for a reason which would enable the court to set aside an agreement.”*** 1. In the same judgment the Court of Appeal cited the judgment of Hancox JA (as he then was) in the case of ***“Flora Wasike – Versus - Destimo Wamboko (1988) 1 KAR 625”*** at page 626 as follows:- ***“it is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out.”*** 1. Be that as it may, they proceeded to address the notice of preliminary objection and the grounds of apposition dated 12th May, 2026. 2. On whether the notice of the preliminary objection and the grounds of opposition dated 3rd March, 2026 has merit, the Learned Counsel submitted that the court had pronounced itself on the question of preliminary objection, we invite the court to be persuaded by the ***“Mukisa Biscuit Manufacturing Co. Ltd – Versus - West End Distributors Ltd [1969)EA 696”***. At page 700 Pr. D-F Law JA as he then was had this to say: as cited in the case of ***“John Florence Maritime Services Limited & another – Versus - Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6th August, 2021) (Judgment)”*** that:- ***“....A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”*** ***Sir Charles Newbold, P.; on the other hand at pg.701 paragraph B-C added the following: “A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually 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 is the exercise of Judicial discretion....”*** 1. This begs the question? whether the Respondents have satisfied the threshold in ***“Mukhisa Biscuits”*** in other words, have the Respondents raised a pure point of law? According to the notice of the preliminary objection, the Respondents raised two points of law namely, that the matter falls within the prism of res judicata and that the matter is functus officio. They would analyse these two issues as hereunder; 2. On the issue of functus officio. The Learned Counsel averred that the doctrine of functus officio provides finality to litigation. The court in the case of:- ***“Telkom Kenya Limited – Versus - John Ochanda (2014) eKLR”*** as follows on functus officio:- ***“functus officio is an enduring principle of law that prevents there-opening of a matter before a court that rendered the final decision thereon.”*** 1. The Applicant vide the supporting affidavit dated 19th January, 2026 at Paragraphs 2,3,4 deponed that he is the son of Ali Masudi Karoyo alias Ali Masudi Mbaruku, (deceased),he obtained letters of administration ad litem, (Annexture marked as “MAM – 1” which was also a document number 2 on the list of documents dated 13th November, 2025) to sue on behalf of the Estate of his father. He deponed that his father was the proprietor of the parcel of land, Kwale/Galu Kinondo/616. Annexture as “MAM - 2 and 3”. He had averred in the Plaint dated 13th November, 2025, that they had been cultivating the suit property until when his mother fell ill sometime in the year 2023. To his shock, he found some people putting up a perimeter wall around the property where he later went to the land registry to find out on the status of the land. He was surprised that the suit property had been transferred to the Respondents. 2. He also learnt that the 1st and the 2nd Respondents had filed an adverse possession claim against the property, the averments in the originating summons were untruth for the 1st and 2nd Respondents had never been on the land, have not built any house on the land and more importantly, the suit property was unavailable as at the time they filed the adverse claim case, the 7th Respondent had sub - divided the suit property into twelve, (12) portions, as shown in the certified copy of the green card certified on 14th October, 2025 and annexed as “MAM – 6”. The mutations form produced as Annexture marked as “MAM – 7” confirmed that the suit property had been subdivided into 12 portions as at 25th February, 2025 therefore, the adverse claim could not crystalize as against the suit property but as against a particular sub-division. It is our submissions that at paragraph 8 of his supplementary affidavit dated 22nd May, 2026, the Applicant has produced all the twelve copies of title deed namely, Kwale/Galu Kinondo/4757, 4758,4759, 4760, 4761, 4762,4763,4764,4765,4766,4767,4768 as “MAM – 2 (a),(b),(c),(d),(e),(f),(g),(h),(i),(j),(k),(1)”. 3. The 3rd and the 4th Respondents did not disclose to court that the parcel of land Kwale/Galu Kinondo/616 had been sub-divided into 12 portions. Further, the proceedings in the adverse possession case shall be used to support the assertion of fraud. The Applicant further laid down the particulars of fraud at Paragraphs 18 and 19 of the Plaint dated 13th November, 2025. Be it as it may, the Respondents aver in their submissions that the particular of fraud have not been pleaded. It was their case that the said issue will be fully looked into during the hearing of the main suit and not during an interlocutory stage where a notice of preliminary objection is what we are delving into at this point. In the circumstance the doctrine of functus officio cannot stand in the face of fraud, the court has intrinsic and inherent jurisdiction to re-look at the alleged fraudulent activity for the doctrine of functus officio does not bar the court from revisiting its orders obtained through misrepresentation, non-disclosure of material facts leading to the court making a finding that will directly affect a party. cannot be utilized by a litigant as a shield to sanitize the fraudulent acts. For fraud vitiates everything and the court is duty bound to deem its judgement, decree or orders and even execution emanating from a judgement procured on fraud as a void ab initio. 4. The third issue on the Notice of Preliminary Objection was that the application offended the mandatory provision of Section 26 of the Land Registration Act, Laws of Kenya. 5. It was their case and prayer that after hearing of this case, the court do make a favourable finding in favour of the estate of Ali Masudi Karoyo by invoking this section as the protection of the title deed is removed on grounds of fraud and misrepresentation. 6. The third issue in the Notice of Preliminary Objection was that the Applicant has no locus standi to sue as Masudi Karoyo and Ali Masudi Mbaruku are two different persons. The Applicant obtained the grant of letters of administration ad litem dated, (Annexture marked as “MAM – 1” which was also a document number 2 on the list of documents dated 13th November, 2025) to sue on behalf of the estate of his father. Ground 3 of the notice of preliminary objection is a matter that calls for evidence, it can only be proved through a notice of motion under order 51 where the Respondents would annex their evidence. They submitted that this issue does not fall within the scope of preliminary objection. Be it as it may, the Respondents seems to have an issue with the fact Ali Masudi Karoyo alias Ali Masudi Mbaruku are two persons. It was their submissions that the Applicant has ably adduced sufficient evidence confirming that his father was known by those names. Paragraphs 12 and 13 of the supplementary affidavits produces annexture marked as “MAM - 3 (a) and (b)” were letters from the area assistant chief and the chief's letter respectively confirming the identity of the application's father. They further submitted that the Applicant has proved vide his mother’s affidavit that Ali Masudi Karoyo and Ali Masudi Mbaruku were the name of one and the same person. (Annexture 4). Importantly, they submitted that the deceased had no legal personality as that was what the Respondents alludes at Paragraph 3 of the Preliminary Objection. Ground 5 of the Notice of Preliminary Objection was that this case was barred vide “***the doctrine of Res Judicata”.*** 7. On whether this case was barred vide the doctrine of res judicata. The Learned Counsel submitted that the plea of res judicata was a factual matter, before it becomes a matter of law it must become a fact as such the issue of res judicata does not arise in this case for the Applicant and or the Estate of the Deceased was not a party to the adverse possession proceedings. The property of the deceased however, was what the Respondents acquired through fraud and concealment of material fact in order to get a favourable order so that they disenfranchise them of its property. 8. It was their humble submission that the Respondents had failed to lead evidence to substantiate this averments of res judicata. They prayed that this Honourable Court be guided by the decision in ***“John Florence Maritime Services Ltd & another – Versus - Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR)(Civ) (6 August 2021) (Judgment)”*** at Paragraphs 56, 57 and 58 where the court relied on The learned authors of Mulla, Code of Civil Procedure, 18th Ed 2012 had observed that the principle of Res Judicata, as a judicial device on the finality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293): ***“The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.”*** 1. The essence of the Res Judicata doctrine is further explicated by Wigram, V-C in ***“Henderson – Versus - Henderson (1843) 67 ER 313”***, as follows: ***“... where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole*** ***the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable*** ***diligence, might have brought forward at the time”*** ***58. Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa – Versus - James Nderitu Githae & 2 others, [2010] eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v)finality of the previous decision.”*** 1. It was their submission that there existed no other suit between the Respondents and the Applicant neither have they ever litigated over the suit property before any court with the competent jurisdiction. There is no judgment annexed and or produced by the Respondents demonstrating a suit between the Applicant and the Respondents. The Applicant case was hinged on the fact that the Respondents procured the estate of the deceased through fraud without his knowledge. Further, that the 1st and the 2nd Respondents had never lived neither did they have any house on the suit land. Therefore, itis injurious to the Estate of the deceased that his estate be unprocedurally procured yet they are on the land as heirs. 2. It was their case also from the writings of Mulla (supra) that the plea of res judicata could not stand in the face of fraud or misrepresentation as such, they submitted that this ground of the plea of res judicata also fail. 3. On whether the court has jurisdiction to nullify the judgment and decree obtained through fraud, misrepresentation and material non – disclosure. The Learned Counsel contended that the Applicant had placed before the court materials that his father was the proprietor of the suit property, Kwale/Glu Kinondo/616. He had demonstrated how the Respondents procured their suit property without the knowledge of the family of the Deceased. Moreover, he had demonstrated that the suit property did not exist as at the time the originating summons was filed 4. On whether the fraud/ misrepresentation and illegal acts nullify the proceedings of the Court. The Learned Counsel contended that the courts uphold the dignity and the niceties of the proceeds by frowning against any acts/orders/judgments/decrees issued by it when the parties deliberately refuse/fails/ignored and abandon to furnish it with the sufficient materials to make an informed decision. They further submitted that the one of the main duties of the courts was to issue substantive justice as espoused in the provision of Article 159 of the Constitution. It was their case that this substantive justice could not be served upon the Applicant for the Respondents in their bid to defraud them of the land, they deployed a well-orchestrated ploy to illegally acquire their land, such acts, is what the Applicant will demonstrate in this case in order to protect the suit property. 5. They invited the court to adopt the holding ***“In re Estate of Paul Maingi Wamae (Deceased)(Succession Cause 160 of 2017) [2025] KEHC 4187 (KLR) (Family) (3rd April, 2025)(Ruling)”*** at Paragraph 33 which quoted ***“Lazarus Estate Limited – Versus - Beasley (1956) QB 702”*** where it was stated as follows:- ***“No court in this land will allow a person to keep an advantage he has obtained through fraud. No Judgment of the court, no order of minister can be allowed to stand if it has been obtained by fraud. For this unravels it, vitiates Judgment, contracts and all other transactions.”*** 1. They implored the ***“Too 3 others – Versus - Ali (Environmental and Land Originating Summons E002 of 2024) 2026 KEELC 3534 (KLR)”***, (Ruling) at Paragraph 26 which cited the case of ***“Benjoh Amalgamated Ltd & Another – Versus - Kenya Commercial Bank Limited (2014) eKLR”***, the court stated thus:- ***“......notwithstanding that the Court had not explicitly been statutorily conferred with the jurisdiction to reopen a decided matter, it has residual jurisdiction to do so in cases of fraud, bias or other injustice with a view to correct the same....”*** 1. On inherent discretion, they invited the court to be persuaded by the court in ***“Wachira Karani – Versus - Bildad Wachira 2016 KEHC 6334 (KLR) (2)”*** where the court quoted the provision of Section 3A of the Civil Procedure Act, Cap. 21 by stating:- ***Section 3A of the Civil Procedure Act provides that;*** ***Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.' The fundamental duty of the court is to do justice between the parties. It is, in turn, fundamental to that duty that parties should each be allowed a proper opportunity to put their cases upon the merits of the matter. It is fundamental principle of natural justice, applicable to all courts whether superior 18 or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justiciae, to have any determination which affects him set aside.”*** 1. The court in the case of:- ***“Wachira Karani (“Supra)”*** continued to state:- ***“Discussing the nature and objects of the inherent powers of the court, Sir Dinshah Mulla in The Code of Civil Procedure observes that:-*** ***“the Code of Civil procedure is not exhaustive, the simple reason being that the legislature is incapable of contemplating all the possible circumstances, which may arise, in future litigation, and consequently, for providing the procedure for them. The principle is well established that when the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debito justiciae for doing real and substantial justice between the parties. The court has, therefore, in many cases, where the circumstances so require, acted upon the assumption of the possession of an inherent power to act ex debito justiciae, and to do real and substantial justice for the administration, for which alone, it exists. However, the power, under this section, relates to matters of procedure. If ordinary rules of procedure result in injustice, and there is no other remedy, they can be broken in order to achieve the ends of justice.............”*** 1. It was their submission that this Honourable court was clothed with inherent power to re - look into its decision. The Applicant raises the issue of fraud and the court was called upon to examine and dissect such a grave issue and make the appropriate orders after hearing all the parties. 2. They implored that thus Court do look at what the court held in the case of:- ***“Outa – Versus - Okello 3 Others (Petition 6 of 2014) 2017 KESC25(KLR) (24th February, 2017) (Ruling)”*** (2) at paragraph 92, where the court provided for the various circumstance where the court can re - look, review its Judgment, decree and orders. Paragraph 92:- ***“...akin into account the edicts and values embodied in Chapter 10 of our Constitution, we hold that as a general rule, the Supreme Court has no jurisdiction to sit on appeal over its own decisions, nor to review its decisions, other than in the manner already stated in Paragraph (90) above. However, in exercise of its inherent powers, this Court may, upon application by a party, or on its own motion, review, any of its Judgments, Rulings or Orders, in exceptional circumstances, so as to meet the ends of justice. Such circumstances shall be limited to situations where:*** ***“(i) the Judgment, Ruling, or Order, is obtained, by fraud or deceit;*** ***(ii) the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;*** ***(iii) the Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had consented thereto;*** ***(iv) the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately concealed statutory provision.”*** 1. In response to the provision Section 24 of the Civil Procedure Code, it was their submission that Section 24 of the Civil Procedure Act concerns parties to a suit, the section was in respect to abatement of suit. They submitted that there had never been a suit between the Applicant and the Respondent. They also prayed that this Court be persuaded by the court in the case of:- ***“Kabita & 4 others – Versus - Kariuki (Civil Appeal (Application) 33 of 2015) [2023] KECA 1551 (KLR) (15th December, 2023) (Ruling)”*** at Paragraph 13 where the court stated:- ***“In the case of Taylor & another – Versus - Lawrence & Another [2002] 2 All ER 353, the lead judgment by the Chief Justice, Lord Woolf, dealt with both the justice principle and finality principle and held that the Court of Appeal:*** ***“Had a residual jurisdiction to reopen an appeal which it had already determined in order to avoid real injustice in exceptional circumstances.*** ***“The Court had implicit powers to do that which was necessary to achieve the due objectives of an appellate Court, namely to correct wrong decisions so as to ensure justice between the litigants involved, and to ensure public confidence in the administration of justice, not only by remedying wrong decisions, but also by clarifying and developing the law and setting precedents. A Court had to have such powers in order to enforce its rules of practice, suppress any abuses of its process and defeat any attempted thwarting of its processes. The jurisdiction to reopen appeals was linked to a discretion which enabled the Court of Appeal to confine its use to the cases in which it was appropriate for the jurisdiction to be exercised. There was tension between a court having such residual jurisdiction and the need to have finality in litigation, so that it was necessary to have a procedure which would ensure that proceedings would only be reopened when there was a real requirement for that to happen. The need to maintain confidence in the administration of justice made it imperative that there should be a remedy in a case where bias had been established and that might justify the Court of Appeal in taking the exceptional cause of reopening proceedings which it had already heard and determined. It should however, be clearly established that a significant injustice had probably occurred and that there was no alternative effective remedy...’”*** ***The court also stated that*** ***“The jurisprudence that emerges from the case- law from the aforementioned jurisdictions shows that where the Court is of final resort, and notwithstanding that it has not explicitly been statutorily conferred with the jurisdiction to reopen a decided matter, it has residual jurisdiction to do so in cases of fraud, bias, or other injustice with a view to correct the same and in doing so the principles to be had regard to are, on the one hand, the finality principle that hinges on public interest and the need to have conclusiveness to litigation and on the other hand, the justice principle that is pegged on the need to do justice to the parties and to boost the confidence of the public in the system of justice. As shown in the various authorities, this jurisdiction that should be involved with circumspection and only in cases whose decisions are not appealable (to the Supreme Court)”*** 1. On whether the Court had power to summon a Defendant/ Respondent in this case. The Learned Counsel stated that the person called Antony Ngugi Mbage did not instruct the advocate on record, the Applicant prayed by summoning Antony Ngugi Mbage shall put this matter to an end for Antony Mbage was not aware of any land he owns within the coastal region therefore, he could not have sold to the 3rd Respondents of the suit property. They further submitted that this Honourable court has inherent jurisdiction to summon a party before it as pleaded and confirm the whether he instructed the advocate on record to act for him. 2. On whether the Applicant had established a prima facie case. The Learned Counsel submitted that a prima facie case was defined in ***“Mrao Ltd – Versus - First American Bank of Kenya Ltd & 2 Others (2003) eKLR”***, at paragraph 16 states as follows;- ***“The principles which guide the Court in deciding whether or not to grant an interlocutory injunction are well settled. In Giella v Cassman Brown to refer to a case which shifts the evidential burden of proof, rather than as giving rise to a legal burden of proof in the manner he was considering, which was in relation to the pleadings that had been put forward in that case. I would certainly think that it would be in the appellant's interest to adopt a genuine and arguable case standard, rather than one of a prima facie case, the former being, in my opinion, the lesser standard of the two.”*** ***“So what is a prima facie case? I would say that in civil cases it is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”*** 1. The Applicant had established that his father was the allotee of the suit property, Kwale/Galu Kinondo/616, the father did not sale the property for he was not issued the title deed as shown by the certified copy of the green card “MAM – 4” at entry number, 1, the Applicant had adduced evidence that the suit property was sub divided into 12 portions on 25th February, 2025 according to the mutation form, listed as number 10 on the list of document filed together with the plaint dated 13th November, 2025, before instituting of the originating summons, the bundle of title deeds also confirms the same averment. 2. They further asserted that the Applicant had established a prima facie case that the Respondent procured the suit property vide fraud and that the Estate of Ali Masudi Karoyoa alias Ali Masudi Mbaruku was not heard in the amended originating summons dated 11th July, 2025. The Applicant had also adduced material demonstrating that the Respondent have sold the suit property to Mvuto Real Estate Limited, therefore, granting the sought prayer will enable the Applicant to amongst other thing enjoin Mvuto Real Estate limited as a party to this suit. 3. In conclusion, it was their submission that the Respondent had not substantiated their claim in the notice of the preliminary objection and the grounds of opposition dated 12th March, 2026. Neither was the Notice of Motion application by the 3rd Respondent substantiated. All they sought was that this Honourable Court do pronounce itself after looking into the merit of this case that it cannot be used to sanitize fraud. That the court had unfettered power to protect its processes from unscrupulous litigants who intend to cause injustice to other members of the society. The Applicant rather than defending the preliminary objection had cast the nets wide into other issues that can be tested through cross examination. The Applicant had annexed evidence certified by the land registrar, the County Land Surveyor, however, the Respondents have been attacking the document as not certified. 4. It was their case that the fraud was a serious issue that the court could not sweep under the carpet, this being a court of law was called upon to look into this issue afresh now that the Applicant has tabled material before it that was concealed by the Respondents. Last but not least, the litigants and or parties presenting their case before the court had a duty to present the truth to court, more so, the officers of this court, unfortunately, that was not what the parties to this case did. The Applicant had and shall unravel bit by bit through evidence how the Respondents had used this court to commit and sanitize fraud on land. 5. Finally, they prayed that this Court did find that the Applicant had proved merits of the case on a balance of probability and allowed the prayers sought inn the application dated 6th March, 2026. Therefore they prayed that the Notice of Preliminary Objection and the Grounds of Opposition be dismissed with costs. 6. **Analysis and Determination** 7. The Honourable Court carefully read and considered the Amended Notice of Motion application dated 6th March, 2026 filed by the Applicant/Intended 3rd Defendant, Masudi Ali Mbaruku, the Notice of Preliminary Objection and Grounds of Opposition both dated 12th March, 2026 filed by the 1st and 2nd Plaintiffs/Respondents, Benson Mosonik and Juma Omar Nyere, and the Notice of Motion application dated 6th May, 2026 filed by the 1st Defendant/Respondent, Joshua Kipkosgei Korir. The Court also considered the Supporting Affidavit sworn by Masudi Ali Mbaruku, the affidavit sworn by Joshua Kipkosgei Korir, together with the annexures thereto, the objections raised by the Respondents, and the relevant statutory provisions and authorities cited. In order to arrive at an informed decision, the Court framed the following issues seven (7) salient issues for its determination:- 8. ***Whether the Applicant/Intended 3rd Defendant has demonstrated sufficient proprietary interest and legal stake in parcel Kwale/Galu Kinondo/616 (and its sub - divisions Kwale/Galu Kinondo/4757–4768, 5069, and 5060) to warrant preservation of the suit properties pending trial.*** 9. ***Whether the Preliminary Objection dated 12th March, 2026 by the 1st and 2nd Plaintiffs/Respondents is merited, particularly on the basis of Section 26 of the Land Registration Act, res judicata under Section 7 of the Civil Procedure Act, Cap. 21, functus officio, and the principles governing setting aside of Consent Judgments.*** 10. ***Whether the Notice of Motion application dated 6th May, 2026 filed by the 1st Defendant establishes that the suit herein is incompetent, res judicata, or an invitation to the Court to sit on its own appeal, and whether the Applicant’s challenge is extinguished by prior litigation in ECLC No. 121 of 2025.*** 11. ***Whether this Honourable Court, in exercise of its jurisdiction under Article 162 (2) (b) of the Constitution and Section 13 of the Environment and Land Court Act, No. 19 of 2011 can properly entertain factual disputes relating to ownership of land allegedly acquired through fraud and consent, or whether such matters fall exclusively within the supervisory jurisdiction of another forum.*** 12. ***Whether the balance of convenience and the overriding objective under Sections 1A and 1B of the Civil Procedure Act, Cap. 21 favour preservation of the suit properties through injunctive and inhibitory orders, or whether such relief would amount to unlawful deprivation of rights of a registered proprietor under Section 26 (1) of the Land Registration Act, No. 3 of 2012.*** 13. ***Whether the Applicant has established sufficient grounds to impeach the Consent Judgment dated 24th July, 2025 on account of fraud, collusion, misrepresentation, or non-disclosure of material facts.*** 14. ***Who ought to bear the costs of the Amended Notice of Motion dated 6th March, 2026, the Preliminary Objection and Grounds of Opposition dated 12th March, 2026, and the Notice of Motion application dated 6th May, 2026.*** ***ISSUE No. a). Whether the Applicant/Intended 3rd Defendant has demonstrated sufficient proprietary interest and legal stake in parcel Kwale/Galu Kinondo/616 (and its subdivisions Kwale/Galu Kinondo/4757–4768, 5069, and 5060) to warrant preservation of the suit properties pending trial.*** 1. Under this sub ‑ title, the main issue here is whether the Applicant/Intended 3rd Defendant has demonstrated sufficient proprietary interest and legal stake in parcel Kwale/Galu Kinondo/616 (and its sub - divisions Kwale/Galu Kinondo/4757–4768, 5069, and 5060) to warrant preservation of the suit properties pending trial. 2. The Applicant asserts that he is the duly appointed Legal Administrator of the estate of the late Ali Masudi Karoyo alias Ali Masudi Mbaruku, who was the first registered allottee of parcel Kwale/Galu Kinondo/616. He relies on the adjudication record, green card, and Grant Letters of Administration Ad Litem annexed to his affidavit. He further contends that the consent judgment recorded on 24th July, 2025 was fraudulent, as the mother parcel had already been sub - divided into twelve portions on 24th March, 2025, making the consent incapable of conferring proprietary rights. The Applicant argues that subsequent subdivisions and transfers to Mvuto Real Estate Limited were undertaken in blatant disregard of the estate’s proprietary rights, and therefore his interest remains intact and deserving of preservation. 3. The Respondents, through their affidavits and objections, plead that they are the lawful registered proprietors, having acquired title through the consent judgment and subsequent registration. They rely on the provision of Section 26 (1) of the Land Registration Act, No. 3 of 2012 which provides that a certificate of title is prima facie evidence of ownership unless impeached for fraud, misrepresentation, or illegality. They further contend that the Applicant lacks locus standi, that the Court is functus officio, and that the matter is *res judicata* under the provision of Section 7 of the Civil Procedure Act, Cap. 21. 4. The application herein is premised under the provision of Order 40 Rule 1 of the Civil Procedure Rules 2010 amongst the provisions of the law. Which provides as follows:- **Order 40, Rule 1** **Where in any suit it is proved by affidavit or otherwise—** **a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or** **b) that the Defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the Defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.** 1. Fundamentally, the principles applicable in an application for an injunction were laid out in the celebrated case of ***“Giella – Versus - Cassman Brown & Co Limited (1973) EA 358”***, where it was stated: - ***“First an applicant must show a prima facie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”*** 1. The three conditions set out in ***“Giella (supra)”***, need all to be present in an application for court to be persuaded to exercise its discretion to grant an order of interlocutory injunction. This was set out by the Court of Appeal in the case of ***“Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others [2014] eKLR”***: - ***“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Limited - Versus - Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between”.*** 1. In dealing with the first condition of prima facie case, the Honorable Court guided by the definition melted down in the famous case “***MRAO Limited – Versus - First American Bank of Kenya Limited & 2 others (2003) KLR 125”*** of: - ***“So, what is a prima facie case, I would say that in civil cases it is a case in which on the material presented to the court a tribunal properly directing itself would conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter”*** 1. Applying these principles, the Applicant has demonstrated that his father was the first allottee of parcel Kwale/Galu Kinondo/616, that the parcel was subdivided prior to the consent judgment, and that subsequent transfers were undertaken notwithstanding the estate’s interest. These facts raise serious questions of legality and fraud. While the Respondents rely on the sanctity of title under the provision of Section 26 (1), that protection is expressly subject to challenge on grounds of fraud and misrepresentation. 2. The Court must determine whether the Plaintiff has shown a right apparently infringed. In line with ***“Mrao Ltd – Versus - First American Bank of Kenya Limited [Supra]”***, a prima facie case requires demonstration of infringement of a right. The Applicant has therefore established a prima facie case with a probability of success. 3. In the case of ***“Mbuthia – Versus - Jimba credit Corporation Ltd 988 KLR 1”***, the court held that:- ***“In an application for interlocutory injunctions, the court is not required to make final findings of contested facts and law and the court should only weigh the relative strength of the party’s cases.”*** 1. Similarly, in the case of ***“Edwin Kamau Muniu – Versus - Barclays Bank of Kenya Limited”***the court held that:- ***“In an interlocutory application to determine the very issues which will be canvassed at the trial with finality All the court is entitled at this stage is whether the applicant is entitled to an injunction sought on the usual criteria.”*** 1. Accordingly, I am persuaded that the Applicant has established a prima facie case with a probability of success. 2. The second principle in ***“Giella – Versus - Cassman Brown & Co. Ltd (Supra)”*** requires the applicant to demonstrate that they stand to suffer irreparable injury which cannot be adequately compensated by an award of damages if the injunction is withheld. With regards to the second limb of the Court of Appeal in ***“Nguruman Limited (supra)”*,** held that, ***“On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.”*** 1. Having established that the Applicant has demonstrated a prima facie case, the Court must now consider whether it stands to suffer irreparable injury if the injunction is not granted. The Applicant has shown that unless preservatory orders are granted, the substratum of the suit will be lost through further subdivisions and transfers to third parties.. 2. As held in ***“Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others [supra]”***, irreparable injury refers to harm that is substantial and cannot be adequately remedied by damages. The Plaintiff’s proprietary rights, once interfered with, cannot be restored by mere monetary compensation.. The judicial decision of ***“Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (2018) eKLR”*** provides an explanation for what is meant by irreparable injury and it states; ***“Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.”*** 1. Further in the case of ***“Kenya Breweries Ltd & Another – Versus - Washington Okeyo [2002] eKLR”***, the Court of Appeal held that where a party’s proprietary rights are threatened, damages are not always an adequate remedy. Proprietary rights under **Article 40 of the Constitution of Kenya, 2010** are fundamental, and their violation cannot be vindicated by monetary compensation alone. 2. In the case of:- ***“Olympic Sports House Ltd – Versus - School Equipment Centre Ltd [2012] eKLR”***, the Court held that interference with possession and business operations constitutes irreparable harm. The Applicant’s interest in ancestral land is unique and cannot be adequately compensated monetarily. Preservation of the Suit Properties is necessary to ensure that the substantive issues are determined at full trial without rendering the proceedings nugatory. The Applicant has therefore satisfied the second condition as laid down in ***“Giella’s case”***. 3. Thirdly, the Applicant has to demonstrate that the balance of convenience tilts in his favour. In the case of ***“Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (Supra)”*** which defined the concept of balance of convenience as: ***“The meaning of balance of convenience will favour of the Plaintiff' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintiffs, the inconvenience caused to the Plaintiff would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintiffs to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintiff who will suffer.*** ***In other words, the Plaintiff has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”.*** 1. In the case of ***“Paul Gitonga Wanjau – Versus - Gathuthis Tea Factor Company Ltd & 2 others (2016) eKLR”***, the court dealing with the issue of balance of convenience expressed itself thus:- ***“Where any doubt exists as to the Applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which the Applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If Applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance of convenience lies.”*** 1. In this case, maintaining the status quo by restraining further dealings with the suit properties ensures that the substantive issues are determined at trial without rendering the proceedings nugatory. 2. The balance of convenience therefore tilts in favour of the Applicant. Preserving the Applicant’s possession and restraining further interference ensures that the subject matter of the suit is not wasted or alienated before trial. The decision of ***“Amir Suleiman – Versus - Amboseli Resort Limited [2004] eKLR”*** where the learned judge offered further elaboration on what is meant by “balance of convenience” and stated; - ***“The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.”*** 1. The balance of convenience lies in favour of granting the injunction and maintaining the status quo pending the hearing and determination of the suit, I am convinced that there is a lower risk in granting orders of temporary injunction than not granting him, as I wait to hear the suit on its merits. This is especially so because I have not had the opportunity to interrogate all the documents that might be relevant in providing a history and/or chronology of events leading to the claim of the Applicant and it will be in the interest of both the Applicant and the Respondents that the suit property is preserved until the hearing and determination of the suit. 2. Similarly, in the case of:- ***“Robert Mugo wa Karanja – Versus - Ecobank (Kenya) Limited & Another [2019) eKLR”*** where the court in deciding on an injunction application stated; ***“circumstances for consideration before granting a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...”*** 1. I am convinced that if orders of temporary injunction are not granted in this suit, the property in dispute might be in danger of being dealt in the manner set out in the application and apprehended by the Applicant.Accordingly, I am persuaded that the Applicant has demonstrated sufficient proprietary interest and legal stake in parcel Kwale/Galu Kinondo/616 and its subdivisions to warrant preservation of the suit properties pending trial. ***ISSUE No. b). Whether the Preliminary Objection dated 12th March, 2026 by the 1st and 2nd Plaintiffs/Respondents was merited, particularly on the basis of Section 26 of the Land Registration Act, No. 3 of 2012 res judicata under Section 7 of the Civil Procedure Act, Cap. 21; functus officio, and the principles governing setting aside of consent judgments.*** 1. Under this sub‑heading, the Honourable Court will decipher whether the Preliminary Objection dated 12th March, 2026 by the 1st and 2nd Plaintiffs/Respondents is merited, particularly on the basis of the provision of Section 26 of the Land Registration Act, No. 3 of 2012 *res judicata* under the provision of Section 7 of the Civil Procedure Act, Cap. 21; *functus officio*, and the principles governing setting aside of consent judgments. 2. The 1st and 2nd Plaintiffs/Respondents, through their Preliminary Objection and submissions, contended that this Honourable Court lacked jurisdiction to entertain the Applicant’s motion. They argued that the Court was functus officio, having already entered a consent judgment on 24th July, 2025, and that the suit was res judicata under the provision of Section 7 of the Civil Procedure Act, cap. 21. They further submitted that the Applicant lacked locus standi, as Ali Masudi Karoyo and Ali Masudi Mbaruku were allegedly two different persons, and that under Section 26(1) of the Land Registration Act, their titles were indefeasible unless impeached for fraud. 3. The Applicant opposed the Preliminary Objection, submitting that the issues raised went beyond mere technical objections. He argued that the consent judgment was procured through fraud, collusion, and material non‑disclosure, and that the mother parcel Kwale/Galu Kinondo/616 had already been subdivided prior to the consent. He relied on the provision of Article 50 of the Constitution, Section 13 of the Environment and Land Court Act, and the principle that fraud vitiates all transactions. 4. In determining this instant Notice of Preliminary Objection, the Court will first consider what amounts to a Preliminary Objection and then Juxtapose the said description herein and come up with a finding on whether what has been raised herein fits the said description. 5. 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. According to Black’s Law Dictionary 11th Edition, a Preliminary Objection is an objection that if upheld would render further proceedings before the tribunal impossible or unnecessary. Courts have various defined Preliminary objection as one that consists of a point which has been pleaded or which arises by clear implication out of pleadings and which if argued as a Preliminary point my dispose of the suit. 2. The above legal preposition has been made graphically clear in the now famous case of ***“Mukisa Biscuits “Supra”)***, the court observed 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.”*** 1. This statement of the law has been echoed time and again by the courts: see for example, ***“Oraro – Versus - Mbaja [2007] KLR 141”***. The same position was held in the case of ***“Nitin Properties Ltd – Versus - Jagjit S. Kalsi & another Court of Appeal No. 132 of 1989[1995-1998] 2EA 257”*** where the Court held that:- ***“A preliminary Objection raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any facts has to be ascertained or if what is sought is the exercise of Judicial discretion.”*** 1. Additionally, in the case of ***“United Insurance Company Limited – Versus - Scholastica A Odera Kisumu HCC Appeal No. 6 of 2005(2005) LLR 7396”***, the Court held that:- ***“A preliminary Objection must be based on a point of law which is clear and beyond any doubt and Preliminary Objection which is based on facts which are disputed cannot be used to determine the whole matter as the facts must be precise and clear to enable the Court to say the facts are contested or disputed .”*** 1. Therefore from the above holdings of the Courts, it is clear that a preliminary Objection must be raised on a pure point of law and no fact should be ascertained from elsewhere. See also the case of ***“In the matter of Siaya Resident Magistrate Court Kisumu HCCMisc. App No. 247 of 2003”*** where the Court held that; ***“A Preliminary Objection cannot be raised if any facts has to be ascertained.”*** 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:*- ***(i) A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.*** ***(ii) 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*** ***(iii) The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.*** 1. The Preliminary Objection raises weighty jurisdictional questions. It is trite law that jurisdiction is everything, and without it, the Court cannot take one more step in the case. In the celebrated case of ***“Owners of Motor Vessel ‘Lillian S’ – Versus - Caltex Oil (Kenya) Limited (1989) eKLR”***, the Court held that: ***“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings…”*** 1. Similarly, the Supreme Court in the case of ***“Samuel Kamau Macharia & Another – Versus - Kenya Commercial Bank Limited & 2 Others [2012] eKLR”*** pronounced itself thus: ***“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. …. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation….”*** 1. It is also trite that jurisdiction is derived from the Constitution and statute. The jurisdiction of this Court is derived from **Article 162(2)(b) of the Constitution** and **Section 13 of the Environment and Land Court Act**. The jurisdiction of the ELC Court is set out in **Section 13 of the ELC Act** as follows: 2. **The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.** 3. **In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—** 4. **relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;** 5. **relating to compulsory acquisition of land;** 6. **relating to land administration and management;** 7. **relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and** 8. **any other dispute relating to the environment and land** 9. The provision of Article 162 (2) (b) of the Constitution provides that Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to the environment and the use and occupation of, and title to land, and shall determine the jurisdiction and functions of these courts. These courts are Employment and Labour Relations Court and the Environment and Land Court. 10. In the present case, the Preliminary Objection raises weighty jurisdictional questions, but also touches on contested facts—such as whether the deceased was one and the same person under different names, and whether fraud was committed in recording the consent judgment. These are factual issues requiring evidence and cannot be disposed of summarily by way of Preliminary Objection. 11. Under the provision of Section 26 of the Land Registration Act, No. 3 of 2012 provides that a certificate of title is prima facie evidence of ownership, but it may be impeached if obtained through fraud, misrepresentation, or illegality. The jurisprudence in the case of:- ***“Munyu Maina – Versus - Hiram Gathiha Maina [2013] eKLR”*** is clear that where title is challenged, the holder must demonstrate legality of acquisition. The Applicant has pleaded fraud and collusion, which are recognized grounds for impeaching title. Accordingly, the provision of Section 26 does not shield the Respondents absolutely. 12. Further, on the doctrine of res judicata, I dare state as follows that the substantive law on *Res Judicata* is found in the provision of Section 7 of the Civil Procedure Act Cap. 21 which provides that: **“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 or the suit in which such issue has been subsequently raised, 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. In the present matter, while the Applicant has filed related proceedings in Mombasa ELC and Kwale ELC, the substantive issues of fraud and illegality have not been conclusively adjudicated. As observed, cosmetic changes to pleadings cannot evade res judicata, but here the allegations of fraud constitute fresh and substantial issues that were not determined in prior suits. 2. On the issue of functus officio, the doctrine was considered by the Court of Appeal in ***“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…*** ***The general rule that final decision of a court cannot be re - opened derives from the decision of the English Court of Appeal in re - St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division. The rule applied only after the formal Judgment had been drawn up, issued and entered, and was subject to two exceptions...”*** 1. The Supreme Court of Kenya 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. Thus, while functus officio safeguards the principle of finality, it cannot be invoked to shield fraudulent or illegal judgments. Fraud vitiates everything, including consent judgments. Where allegations of fraud and material non‑disclosure are raised, the Court retains jurisdiction to interrogate them notwithstanding the doctrine of functus officio. In the present matter, the Applicant has pleaded that the consent judgment of 24th July 2025 was recorded over a non‑existent parcel (Kwale/Galu Kinondo/616), which had already been subdivided, and that material facts were concealed from the Court. These allegations, if proved, fall within the recognized exceptions to functus officio. Accordingly, the Court is not barred from examining the validity of the consent judgment and ensuring that substantive justice is done. 2. The doctrine of functus officio does not apply to bar this Court from interrogating allegations of fraud, collusion, and misrepresentation in the consent judgment. The Court retains jurisdiction to set aside such judgment if vitiated. 3. On the issue of setting aside consent judgments, the law in Kenya is clear and well settled. A consent judgment or order has the effect of a contract between the parties, and once adopted by the Court, it carries the same force as a judgment delivered after a full hearing. However, like any contract, it may be set aside on grounds that would vitiate a contract. 4. The Court of Appeal in ***“Flora N. Wasike – Versus - Destimo Wamboko [1988] eKLR”*** held that: ***“It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract, for example fraud, mistake, misrepresentation, or collusion.”*** 1. Similarly, in the case of:- ***“Brooke Bond Liebig (T) Ltd – Versus - Mallya [1975] EA 266”***, the Court emphasized that a consent order may only be interfered with if obtained by fraud, collusion, or by an agreement contrary to the policy of the court. 2. The principle was restated in ***“Kenya Commercial Bank Ltd – Versus - Benjoh Amalgamated Ltd [2017] eKLR”***, where the Court of Appeal noted that while the doctrine of functus officio bars a court from reopening finalized matters, it does not prevent a court from interrogating allegations of fraud or illegality in the procurement of a consent. Fraud vitiates everything, including a consent judgment. These allegations, if proved, amount to fraud and misrepresentation, which are recognized grounds for setting aside a consent judgment. 3. The Court holds that while consent judgments are binding, they are not immune from challenge. Where allegations of fraud, collusion, or misrepresentation are raised, the Court retains jurisdiction to interrogate them. The consent judgment of 24th July, 2025 is therefore amenable to being set aside if the Applicant proves fraud and material non‑disclosure at full trial. 4. Applying these principles to the present matter, the Applicant has alleged that the consent judgment of 24th July, 2025 was recorded over a parcel of land (Kwale/Galu Kinondo/616) that had already been sub - divided into twelve portions, and therefore did not exist at the time of the consent. The Applicant further contends that material facts were concealed from the Court, and that the Respondents intentionally withheld information about the sub - divisions to sanitize their acquisition. 5. The Court finds that the Preliminary Objection dated 12th March, 2026 is not merited. While the provision of Section 26 of the Land Registration Act protects registered titles, it expressly allows impeachment for fraud. The doctrines of res judicata and functus officio do not apply, as the substantive issues of fraud and illegality have not been conclusively determined in prior proceedings. The principles governing consent judgments permit setting aside where fraud is alleged. 6. Accordingly, I hold that the Preliminary Objection must be dismissed forthwith. The suit shall proceed to full hearing on its merits, guided by the constitutional provisions, statutory framework, and judicial precedents cited above. ***ISSUE No. C). Whether the Notice of Motion application dated 6th May, 2026 filed by the 1st Defendant establishes that the suit herein is incompetent, res judicata, or an invitation to the Court to sit on its own appeal, and whether the Applicant’s challenge is extinguished by prior litigation in ECLC No. 121 of 2025.*** 1. Under this sub ‑ title, the Honourable Court has carefully considered the Notice of Motion application dated 6th May, 2026 filed by the 1st Defendant/Respondent, Joshua Kipkosgei Korir, together with the supporting affidavit, the Applicant’s response, and the relevant statutory provisions and authorities. The substratum of the application is whether the suit herein is incompetent, res judicata, or an invitation to the Court to sit on its own appeal, and whether the Applicant’s challenge is extinguished by prior litigation in the civil case “***ECLC No. 121 of 2025 – Kwale, Masudi Ali Mbaruku – Versus - State Law Office & Others”.*** 2. The 1st Defendant argued that the suit was incompetent, having been filed after the Court had already entered a consent judgment on 24th July, 2025. His contention was that the Court was functus officio and that the Amended Notice of Motion was “dead on arrival.” The Court reiterates the principle in ***“Owners of Motor Vessel “Lillian S” – Versus - Caltex Oil (Kenya) Ltd [1989] eKLR”***, that jurisdiction is everything. However, competence of a suit must be assessed against the pleadings. The Applicant has pleaded fraud, collusion, and material non‑disclosure in the recording of the consent judgment. These are recognized grounds for setting aside a consent judgment, as held in ***“Flora N. Wasike – Versus - Destimo Wamboko (Supra)”*** and ***“Brooke Bond Liebig (T) Ltd – Versus - Mallya (Supra)”***. Accordingly, the suit cannot be dismissed as incompetent at this interlocutory stage. 3. Further under the provision of Section 7 of the Civil Procedure Act, Cap. 21 provides that 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, and has been heard and finally determined. The Respondents argued that the Applicant’s claim was barred by res judicata, citing prior proceedings in the civil cases of:- “***Mombasa ELC No. E132 of 2025”*** and ***“ECLC No. 121 of 2025”.*** However, as observed, cosmetic changes to pleadings cannot evade res judicata, but where fresh allegations of fraud are raised, the doctrine does not apply. In the present case, the substantive issues of fraud, misrepresentation, and concealment of subdivisions of Kwale/Galu Kinondo/616 have not been conclusively adjudicated. Discovery of fresh evidence that entirely changes the aspect of the case may justify a fresh suit. The Applicant’s allegations of fraud and concealment fall within this exception. 4. On the invitation to sit on appeal. The 1st Defendant averred that the Applicant’s application was an invitation to the Court to sit on its own appeal. The Court agrees that ordinarily, a court cannot review its own final orders except under statutory provisions for review. However, where fraud and illegality are alleged, the Court is not sitting on appeal but exercising its inherent jurisdiction to prevent abuse of process. This distinction was emphasized in ***“Benjoh Amalgamated Ltd (supra)”***. 5. Further the Court notes that the effect of prior litigation in the Civil case of “***ECLC No. 121 of 2025”,*** the Respondents argued that the Applicant’s challenge was extinguished by prior litigation in “***ECLC No. 121 of 2025”.*** The Court notes that while the Applicant has filed related proceedings, the issues of fraud and concealment of subdivisions were not conclusively determined in those suits. 6. The Court finds that the Notice of Motion application dated 6th May, 2026 does not establish that the suit herein is incompetent, res judicata, or an invitation to sit on appeal. The Applicant’s challenge is not extinguished by prior litigation, as the substantive issues of fraud and illegality remain unresolved. 7. Accordingly, I discern that the Notice of Motion application dated 6th May, 2026 must be dismissed. Ideally, the suit shall proceed to full hearing on its merits. ***ISSUE No. d). Whether this Honourable Court, in exercise of its jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, No. 19 of 2011 can properly entertain factual disputes relating to ownership of land allegedly acquired through fraud and consent, or whether such matters fall exclusively within the supervisory jurisdiction of another forum.*** 1. Under this sub‑title, the Honourable Court is called upon to determine whether, in exercise of its jurisdiction under the provision of Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, No. 19 of 2011 it can properly entertain factual disputes relating to ownership of land allegedly acquired through fraud and consent, or whether such matters fall exclusively within the supervisory jurisdiction of another forum. 2. The provision of Article 162(2)(b) of the Constitution establishes the Environment and Land Court (ELC) as a superior court of record with the status of the High Court, mandated to hear and determine disputes relating to the environment and the use, occupation, and title to land. This provision was intended to create specialized courts to address complex land and environmental disputes, recognizing their unique nature in Kenya’s socio‑economic and constitutional framework. 3. The provision of Section 13 of the Environment and Land Court Act, No. 19 of 2011 further elaborates that the Court has original and appellate jurisdiction to hear disputes relating to title, tenure, boundaries, ownership, registration, fraud in land transactions, and constitutional questions touching on land rights. The Act specifically empowers the Court to interrogate allegations of fraud, illegality, and misrepresentation in land dealings. 4. The Applicant contended that the issues raised go beyond execution mechanics. He argued that the consent judgment was recorded over a non‑existent parcel, that subdivisions were concealed, and that transfers were undertaken in favour of entities lacking legal capacity. These allegations, he submitted, amount to fraud, illegality, and constitutional violations, which fall squarely within the jurisdiction of the ELC under Article 162 (2)(b) and Section 13 of the ELC Act. He emphasized that the ELC is the proper forum to interrogate questions of title, ownership, and fraud in land transactions. 5. In the case of:- ***“Owners of Motor Vessel “Lillian S” (Supra)”***, the Court held that jurisdiction is everything, and without it, a court must down its tools. However, jurisdiction must be distinguished between execution disputes and substantive disputes relating to title and ownership. Yet, in the case of:- ***“Arthi Highway Developers Limited – Versus - West End Butchery Limited [2015] eKLR”***, the Court held that fraudulent or illegal transfers cannot defeat proprietary rights, and the ELC retains jurisdiction to interrogate such claims. The ELC’s jurisdiction expressly covers disputes relating to title, ownership, and fraud in land transactions. 6. Further, the principle that fraud vitiates everything has been consistently upheld. Fraudulent dealings in land cannot be sanitized by invoking doctrines of finality or functus officio. The ELC, being the specialized court on land matters, is the proper forum to interrogate such allegations. 7. The Court finds that the Applicant’s claim is not confined to execution mechanics. It raises broader issues of fraud, illegality, and constitutional compliance in land transfers, which fall within the jurisdiction of the Environment and Land Court under the provision of Article 162(2)(b) and Section 13 of the ELC Act. Accordingly, this Honourable Court is properly seized of the matter. Those issues fall squarely within the mandate of the ELC. 8. In a nutshell, this Court holds that it has jurisdiction to entertain factual disputes relating to ownership of land allegedly acquired through fraud and consent. Therefore, on this front, the Preliminary Objection on jurisdiction must fail. The matter shall proceed to full trial on its merits. ***ISSUE No. e). Whether the balance of convenience and the overriding objective under Sections 1A and 1B of the Civil Procedure Act, Cap. 21 favour preservation of the suit properties through injunctive and inhibitory orders, or whether such relief would amount to unlawful deprivation of rights of a registered proprietor under Section 26 (1) of the Land Registration Act, No. 3 of 2012.*** 1. Under this sub ‑ title, the Honourable Court is now called upon to determine whether the balance of convenience and the overriding objective under the provision Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the Environment & Land Act, No. 19 of 2011 favours preservation of the suit properties through injunctive and inhibitory orders, or whether such relief would amount to unlawful deprivation of rights of a registered proprietor under the provision Section 26 (1) of the Land Registration Act, No. 3 of 2012. 2. The Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Section 3 of the Environment & Land Act, No. 19 of 2011 enshrine the overriding objective of the Court: to facilitate the just, expeditious, proportionate, and affordable resolution of disputes. The Court is mandated to ensure that justice is not defeated by technicalities, and that disputes are resolved in a manner that minimizes risk of injustice. 3. The provision of Section 26 (1) of the Land Registration Act, No. 3 of 2021 provides that a Certificate of Title is “***prima facie”*** evidence of ownership and is indefeasible unless obtained through fraud, misrepresentation, or illegality. Thus, while registered proprietors enjoy protection, such protection is not absolute. 4. The Applicant argued that unless preservatory orders are granted, the substratum of the suit will be lost through further subdivisions and transfers to third parties. He emphasized that the mother parcel Kwale/Galu Kinondo/616 had already been subdivided prior to the consent judgment, and that subsequent dealings were undertaken in disregard of the estate’s proprietary rights. He submitted that preservation is necessary to prevent irreparable harm and to ensure that the pending suit in ECLC No. 121 of 2025 is not rendered nugatory. 5. The Respondents contended that they are registered proprietors under the provision Section 26 (1) of the Land Registration Act, and that granting injunctive orders would amount to unlawful deprivation of their rights. They argued that the Applicant’s claim is misconceived, and that the sanctity of title must be upheld unless fraud is conclusively proved. 6. The Applicant, the Court observation has demonstrated a prima facie case by showing that the consent judgment was recorded over a non‑existent parcel, and that subsequent dealings were undertaken notwithstanding the estate’s interest. These allegations raise serious questions of fraud and misrepresentation, which are recognized grounds for impeaching title under the provision of Section 26 (1). On irreparable injury, the Applicant has shown that further subdivisions and transfers would permanently alter the substratum of the suit, involving third parties and rendering enforcement of any judgment impossible. Proprietary rights under the provision of Article 40 of the Constitution are fundamental, and their violation cannot always be vindicated by damages. 7. On the balance of convenience, preserving the status quo ensures that the subject matter of the suit is not wasted or alienated before trial. If the injunction is withheld, the Applicant risks permanent dispossession and multiplicity of suits. If the injunction is granted and the Respondents are later found to have valid claims, they will only have been delayed in exercising their rights, which can be compensated by damages. 8. The Court finds that the balance of convenience and the overriding objective under the provision of Sections 1A and 1B of the Civil Procedure Act favour preservation of the suit properties. Granting injunctive and inhibitory orders minimizes the risk of injustice and ensures that the substantive issues of fraud and ownership are determined at full trial. 9. Accordingly, the Court holds that preservation orders are justified pending determination of the suit. ***ISSUE No. f). Whether the Applicant has established sufficient grounds to impeach the Consent Judgment dated 24th July, 2025 on account of fraud, collusion, misrepresentation, or non-disclosure of material facts*** 1. Under this sub‑title, the Honourable Court is now called upon to determine whether the Applicant has established sufficient grounds to impeach the consent judgment dated 24th July 2025 on account of fraud, collusion, misrepresentation, or non‑disclosure of material facts. 2. The issue for determination is whether the applicants have met the threshold for setting aside consent judgments. In the case of ***“SMN – Versus - ZMS & 3 others [2017] eKLR”***, the Court of Appeal when dealing with the issue of setting aside consent judgments held as follows: - ***“There is now a dearth of authorities on the law governing the setting aside of consent judgments, or orders, and we are grateful to counsel for citing some of them before us. Generally, a court of law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between parties. The factors touted for impeaching the consent in this matter were fraud and collusion. It is also alleged that counsel had no authority to enter into the consent. The onus of proving those assertions to the required standard was on the appellant. They are serious imputations bordering on crime and therefore the burden of proof is a necessity slightly higher than on balance of probability but perhaps not beyond reasonable doubt. An allegation made against an advocate of the High Court that he was involved in fraud or colluded with another advocate or person to subvert the cause of justice in a matter pending in court is certainly one of utmost gravity. It destroys the advocate’s honour and respect. It can undo his entire legal practice and attract censure from his professional body. It cannot merely be flashed or mentioned only to be believed. There must be cogent and truthful evidence of such charges…….”*** 1. Additionally, in the case of ***“Kenya Commercial Bank Limited -Versus - Specialized Engineering Co. Limited [1982] KLR 485”***, Harris J held that: - ***“A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without material facts or in misapprehension or ignorance of such facts in general or a reason which would enable the court to set aside an agreement.”*** ***A duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other side.”*** 1. In the case of:- ***“ARN Holdings Co. Ltd – Versus - Gestione Restoranti Affini Ltd [2011] eKLR”*** on the same issue Omondi, J had this to say: ***“……there are well set out conditions to be taken into account when setting aside or varying a consent, which is well discussed in the case of Flora Wasike – Versus - Desterio Wamboko to the extent that setting aside a consent meets the same conditions required in setting aside or vitiating a contract, ie,*** ***(1) Fraud*** ***(2) Mistake*** ***(3) Misrepresentation none of these has been demonstrated here. It would almost appear as though the applicant plaintiff suddenly realized that it ought to have pegged some conditions to the consent entered into rather late, I think it is not the exparte order, which failed to provide security, is the consent order.*** ***The upshot is that under the prevailing circumstances, I disallow the prayers sought.”*** 1. The circumstances under which a consent judgement can be set aside were well captured in the case of ***“Brookbond Liebig (T) Ltd (Supra”)*** where the Court of Appeal for East Africa stated as follows: - ***“The circumstances in which a consent judgment may be interfered with were considered by this court in Hirani v Kassam (1952) 19 EACA 131 where the following passage from ‘Seton’ on ‘Judgements and Orders’, 7th Edition Vol 1, P.124 was approved:*** ***“prima facie any order made in the presence and with the Consent of Counsel is binding on all parties to the proceedings or action and or those doing under them …. and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the Court, …. or if the consent was given without sufficient material facts or in general for a reason which would enable the Court to set aside an agreement.’*** ***“As Windham J said in the introduction to the passage quoted above from Hirani’s case, a court cannot interfere with a consent judgement except in such circumstances as would afford good ground for varying or rescinding a contract between the parties.”*** 1. I fully associate myself with the pronouncements of the decisions cited before me, which have addressed the complete consideration to consider in setting aside Consent Judgment/order, whether entered by a party acting in person or guided by the representation of counsel. The test has to be that the consent entered was tainted with either misrepresentation, fraud, or is against the law or public policy to allow it to stand will be aiding illegalities. 2. The Applicant contends that the consent judgment of 24th July, 2025 was recorded over parcel Kwale/Galu Kinondo/616, which had already been subdivided into twelve (12) portions on 24th March, 2025. He argues that the Respondents intentionally withheld this information from the Court, thereby misleading it into endorsing an illegality. The Applicant further alleges that the Respondents colluded to sanitize fraudulent dealings in the land register, and that material facts—including the non‑existence of the mother parcel—were concealed. He submits that these acts amount to fraud and misrepresentation, warranting the setting aside of the Consent Judgment. 3. The Respondents argue that they are registered proprietors under the provision Section 26(1) of the Land Registration Act, which protects title unless impeached for fraud or misrepresentation. They contend that the consent judgment was validly recorded and that the Applicant’s allegations are unsubstantiated. 4. The Court must therefore interrogate whether the Applicant has placed sufficient material before it to demonstrate fraud or misrepresentation. The Applicant has annexed evidence showing that the mother parcel Kwale/Galu Kinondo/616 was subdivided prior to the consent judgment. If proved, this would mean that the consent purported to distribute a non‑existent parcel, thereby misleading the Court. Such concealment of material facts falls squarely within the grounds for setting aside a consent judgment. 5. The Court in ***“Munyu Maina – Versus - Hiram Gathiha Maina [2013] eKLR”*** held that where title is challenged, the holder must demonstrate legality of acquisition. The Respondents, having relied on the consent judgment, bear the burden of proving that their titles were lawfully acquired. 6. The Court finds that the Applicant has established sufficient grounds to impeach the consent judgment dated 24th July, 2025. The allegations of fraud, collusion, misrepresentation, and non‑disclosure of material facts are not frivolous; they raise substantial issues that warrant full trial. Accordingly, the consent judgment is amenable to being set aside if the Applicant proves fraud and material non‑disclosure at the substantive hearing. The Court cannot allow its process to be used to perpetuate fraud or sanitize illegality. 7. The Applicant has demonstrated sufficient grounds to impeach the consent judgment dated 24th July, 2025. The matter shall proceed to full trial for determination of the allegations of fraud, collusion, misrepresentation, and non ‑ disclosure. ***ISSUE No. g).*** ***Who ought to bear the costs of the Amended Notice of Motion application dated 6th March, 2026, the Preliminary Objection and Grounds of Opposition dated 12th March ,2026 and the Notice of Motion application dated 6th May, 2026*** 1. It is now well established that the issue of Costs is at the discretion of the Court. Costs mean the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The governing provision is Section 27 (1) of the Civil Procedure Act, Cap. 21, which provides: **“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”** 1. Thus, while the general rule is that costs follow the event, the Court retains discretion to depart from this principle where justice so demands. By the event it means the result or outcome of the legal action. 2. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of ***“Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR”*** and ***“Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR”***, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of ***“Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR”***, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 3. In the present matter, on the Applicant’s Amended Notice of Motion application raised serious questions of fraud, collusion, and misrepresentation in the recording of the consent judgment. The Court has found that these issues are not frivolous and warrant full trial. Accordingly, the Applicant cannot be penalized in costs at this interlocutory stage. Further the Preliminary Objection and Grounds of Opposition dated 12th March, 2026 were dismissed for lacking merit, as they raised contested factual issues rather than pure points of law. In line with the provision of Section 27 Civil Procedure Act, Cap. 21 the Respondents who filed the objection should bear the costs of that objection. The Notice of Motion application dated 6th May, 2026 filed by the 1st Defendant was similarly dismissed, as the Court found that the suit was not incompetent, res judicata, or functus officio. The 1st Defendant therefore ought to bear the costs of that application. 4. In balancing the equities, the Court finds that the Applicant should not be burdened with costs at this stage, given that his application raised legitimate issues of fraud and ownership. The Respondents, having filed unsuccessful objections and motions, should bear the costs of their respective applications. 5. Accordingly, the Court orders as follows:- 6. **The costs of the Preliminary Objection and Grounds of Opposition dated 12th March, 2026 shall be borne by the 1st and 2nd Plaintiffs/Respondents.** 7. **The costs of the Notice of Motion application dated 6th May, 2026 shall be borne by the 1st Defendant/Respondent.** 8. **The costs of the Amended Notice of Motion application dated 6th March, 2026 shall abide the outcome of the main suit, to be determined at full trial.** 9. **Conclusion and Disposition.** 10. Upon considering the Amended Notice of Motion application dated 6th March, 2026, the Preliminary Objection and Grounds of Opposition dated 12th March, 2026, and the Notice of Motion application dated 6th May, 2026, together with the affidavits, submissions, and authorities cited, the Honourable Court makes the following findings and orders:- 11. **THAT the Amended Notice of Motion application dated 6th March, 2026 be and is hereby found to be meritorious. The Applicant/Intended 3rd Defendant has demonstrated a prima facie case, irreparable harm, and that the balance of convenience favours preservation of the suit properties. Accordingly, injunctive and inhibitory orders are hereby granted, save for the mandatory injunction which is a final order and cannot be granted at the interim stage.** 12. **THAT for avoidance of doubt, the Honourable Court issues the following preservatory orders that:-** 13. **a temporary injunction do and is hereby issued restraining the 1st and 2nd Plaintiffs/Respondents, their agents, servants, or any persons claiming under them from leasing, charging, selling, transferring to third parties, alienating, or otherwise dealing with the properties formerly known as Kwale/Galu Kinondo/616 and its subdivisions Kwale/Galu Kinondo/4757–4768, 5069, and 5060, pending the hearing and determination of this suit.** 14. **a temporary injunction do and is hereby issued restraining the Land Registrar, Kwale, from registering, endorsing, cancelling, or giving effect to any transfer, charge, lease, or other disposition in respect of the aforementioned parcels pending the hearing and determination of this suit.** 15. **the Officer Commanding Police Station (OCS) Tiwi Police Station and/or the Kwale County Police Commander be directed to enforce the orders of this Court and ensure compliance, and to prevent any breach of peace.** 16. **The Plaintiff granted Twenty One ( 21 ) days leave to amend, file and serve its Plaint accordingly joining the Intended 3rd Defendant as a 3rd Defendant in the matter.** 17. **THAT the Consent Judgment and any other consequential Decree recorded on 24th July, 2025 in respect of parcel Kwale/Galu Kinondo/616 be and is hereby set aside and impeached for having been procured through fraud, collusion, misrepresentation, and non‑disclosure of material facts.** 18. **THAT all subsequent entries, transfers, subdivisions, and dealings emanating from the said consent judgment on the land register relating to Kwale/Galu Kinondo/616 and its subdivisions (Kwale/Galu Kinondo/4757–4768, 5069, and 5060) are hereby declared null and void ab initio.** 19. **THAT the Land Registrar, Kwale, is directed to rectify the land register accordingly, by cancelling all entries and titles arising from the impugned consent judgment.** 20. **THAT the Preliminary Objection and Grounds of Opposition dated 12th March, 2026 be and are hereby found to be unmerited. While the provision of Section 26 of the Land Registration Act, No. 3 of 2012 protects registered titles, it expressly allows impeachment for fraud, misrepresentation, or illegality. “*The Doctrines of Res Judicata”* under the provision of Section 7 of the Civil Procedure Act, Cap. 21 and whether the Court is *“functus officio*” do not apply, as the substantive issues of fraud and illegality have not been conclusively determined in prior proceedings. Thus, the Preliminary Objection raised by the Respondents be and is hereby therefore dismissed.** 21. **THAT the Notice of Motion application dated 6th May, 2026 filed by the 1st Defendant/Respondent is similarly found to be unmerited. The suit is not incompetent, res judicata, nor an invitation to the Court to sit on its own appeal. The Applicant’s challenge is not extinguished by prior litigation in ECLC No. 121 of 2025, as the substantive issues of fraud and concealment remain unresolved. The application is therefore dismissed.** 22. **THAT the balance of convenience and the overriding objective under Sections 1A and 1B of the Civil Procedure Act favour preservation of the suit properties pending trial, to ensure that the substratum of the suit is not wasted or alienated.** 23. **THAT arising from this pronouncement, the 3rd Defendant herein and all other parties granted 21 days leave to fully comply with the provision of Orders 7 and 11 of the Rules, 2010.** 24. **THAT for expediency sake there be a mention on 28th October, 2010 for compliance of these directions, conducting a Pre – Trail Conference in accordance with the provision of Order 11 of the Civil Procedure Rules, 2010. There shall be a hearing on 16th February, 2027 by the consensus of all parties before ELC No. 1 Kwale preferably through Physical means.** 25. **THAT costs of the Preliminary Objection and Grounds of Opposition dated 12th March, 2026 shall be borne by the 1st and 2nd Plaintiffs/Respondents; costs of the Notice of Motion application dated 6th May, 2026 shall be borne by the 1st Defendant/Respondent; and costs of the Amended Notice of Motion application dated 6th March, 2026 shall abide the outcome of the main suit.** **IT IS SO ORDERED ACCORDINGLY.** **RULING DELIEVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS……28TH ……DAY OF ………JULY…..……..……..2026.** **…………..……………………..…………………….** **HON. MR. JUSTICE L. L. NAIKUNI,** **ENVIRONMENT AND LAND COURT** **AT** **KWALE** **Ruling delivered in the presence of:** 1. Mr. Daniel Disii, the Court Assistant. 2. Mr. Lisanza Advocate for the 1st & 2nd Plaintiffs. 3. Mr. Kabiaro Advocate for the Applicants. 4. Mr. Egunza Advocate for the 1st Defendant. 5. No appearance for the 2nd Defendant.