https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3508

Mwachambi (Deceased) Suing Through Administrators Hamisi Mashobo Nyaki) & another v Pijay Investmens Limited & 4 others (Environment and Land Case 17 of 2021) [2026] KEELC 3508 (KLR) (13 May 2026) (Ruling) Neutral citation: [2026] KEELC 3508 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Case 17 of 2021 EK Makori, J May 13, 2026 Between Mashobo Nyaki Mwachambi (Deceased) Suing Through Administrators Hamisi Mashobo Nyaki) 1st Plaintiff Shida Kahindi Karisa 2nd Plaintiff and Pijay Investmens Limited 1st Defendant Attorney General Malindi 2nd Defendant Land Registrar Kilifi County 3rd Defendant Jacaranda Hotels 4th Defendant National Land Commission 5th Defendant Ruling 1.The motion dated January 19, 2026, sought, among other reliefs, that:a.Arrest/halt of judgment scheduled for the 4th day of February 2026.b.Striking out of the Plaintiffs' suit for want of locus standi.c.In the alternative, leave to amend the defense and adduce new evidence. Setting aside proceedings and hearing de novo.d.Such other further orderse.Costs. 2.The application is supported by the annexed affidavit of the applicant, deposed on the 19th day of January 2026, and a further affidavit deposed on the 3rd of February 2026. 3.The application is opposed. The 2nd respondent deposes a reply affidavit on January 29, 2026. The 5th respondent filed grounds in opposition dated February 3, 2026. 4.The application was canvassed through written submissions. I acknowledge the submissions from counsel for the parties, which were quite extensive, both for and against the motion, with citations to relevant judicial authorities. 5.The issues I frame for this Court's decision are whether, at this point, the Court should halt the delivery of judgment and issue the orders sought by the applicant, and who should bear costs. 6.Having carefully considered the materials before me, I will be succinct in my decision for the reasons set forth below. 7.This matter went through the normal trial process, and counsel represented the parties. They all closed their respective cases. Judgment was slated for 4th February 2026; all counsel for the parties were expected to have filed their submissions by then. 8.Before the delivery of judgment, the applicant appointed his current advocate and dropped the former advocate, who immediately brought the current application. 9.Counsel for the applicant contend that among the grounds for halting the judgment, including striking out the plaintiff's suit and/or a hearing de novo, is that the plaintiff lacks locus standi to prosecute this suit, having relied on an incompetent grant from a court without jurisdiction, given the value of the suit property as disclosed in other pending criminal proceedings, which places the suit property well beyond the monetary jurisdiction of the Magistrates Court. 10.Counsel further asserts that the current suit is res judicata of Malindi ELC No. 62 of 2017. 11.Further, the former counsel for the applicant had participated in the earlier matter, was conflicted, and failed to effectively prosecute the applicant's case, leaving scant evidence and gaps that, if unchecked, will prejudice the applicant's case and lead to injustice, given that this is a land matter. 12.On the other hand, counsel for the respondents opposes the application, contending that there is nothing extraordinary to warrant the orders sought, given that the matter was heard and is pending judgment. The orders sought can only be granted in the rarest of cases. 13.Looking at the entirety of the application, the responses, and the orders sought, the applicant essentially seeks a retrial of the matter based on gaps that may have emerged from a full trial, seeking a second bite at the trial on a matter pending judgment. 14.I will refrain from discussing the detailed reasons for a retrial, as they are issues that should be addressed in the pending judgment, which is yet to be written. 15.For instance, issues of capacity to sue apparently arise out of a criminal matter that was brought well after the closure of the parties' respective cases. The current application cannot cure it; at best, it can be reserved for the applicant's final submissions. The same applies to res judicata, as the parties addressed this issue extensively at the trial, and the court is yet to render its opinion on it. 16.On the former advocate being conflicted and offering half-baked representation, this is speculative, as the Court has not synthesized what case was presented by the former advocate. It is the opinion of the incoming counsel for the applicant, filtered through his own perspective, not the overall state of the record. It cannot serve as grounds for halting a judgment or ordering a de novo hearing. 17.Besides, there is no provision in law for the “arrest” of a judgment in civil matters, as held in Vishelectric Limited v Kithuku (Appeal E002 of 2026) [2026] KEELRC 491 (KLR) (25 February 2026) (Ruling):“The Court begins by observing that the concept of “arrest of judgment” is not a term of art in civil procedure. As correctly submitted by the Respondent and as held in Musa & 6 others (Suing on the own behalf and on behalf of Mwakirunge Residents upon the suit property/Plot No CR 345 numbering 366 Individuals) v Hassan & 4 others [2025] KEELC 7299 (KLR), the court observed thus:26.As stated, in civil matters, arrest of Judgment is not expressly provided for. Instead, litigants are to apply for review (Section 80 of Cap. 21 and Order 45) or to amend pleadings under Order 8, before judgment is delivered. If judgment has already been read, the proper recourse is through an appeal, not by attempting to arrest or stay the judgment at the trial court.” 18.However, in the cited case, the Court proceeded to set forth the applicable provision of the law as follows:“In the case of:- “Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others [2015] eKLR”, the Court of Appeal affirmed that a trial court has inherent jurisdiction under the provision of Section 3A of the Civil Procedure Act, Cap. 21, to arrest delivery of Judgment where justice so demands.28.Similarly, in the case of: - “Patel v EA Cargo Handling Services Limited [1974] EA 75”, the Court stressed that discretion exists to prevent injustice, but must be exercised judiciously.29.In the case of “Njihia v Mwangi (ELC Appeal E012 of 2021) [2024] KEELC 3303 (KLR)”, it was the opinion of the Court that:“The trial court found and held that the court lacked jurisdiction to adopt the said Award. Further, the trial court found and held that the subject Award was statutorily time-barred...The Appellant submitted that the instant Chamber Summons Application for adoption of the Award...was lodged before the Court timeously...relying on Practice Directions issued by the Hon. Chief Justice, Kenya Gazette Notice No.1617…”30.Further, in the case of “Omache v Republic (Misc. Crim. App. E059 of 2025) [2025] KEHC 5617 (KLR),” the Court held that: -“...the Criminal Procedure Code provides for motions in arrest of judgment in the High Court...it does not have a similar provision for trials in the lower courts...the High Court generally has the power to stay proceedings at any stage...however...the applicant must show that there exist exceptional and compelling reasons...”31.The Supreme Court in “Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR)” reaffirms the settled principle:“Jurisdiction is everything. Without it, a court has no power to make one more step...Jurisdiction must be acquired before judgment is given.”32.Therefore, I dare state and reiterate that research indicates that the so-called ‘arrest of judgment’ in civil practice is a misnomer; the court’s inherent jurisdiction allows it to control its own process, including recalling or staying its own judgment in rare, exceptional circumstances prior to delivery, where clear injustice would otherwise result. See also Order 21 Rule 4 of the Civil Procedure Rules on the format and timing of judgments.”33.This court has only limited, residual jurisdiction to stay its own hand and “arrest” the delivery of judgment prior to pronouncement, usually in the rarest of cases to prevent manifest injustice, typically involving fraud or gross error coming to light before pronouncement. Review and appeal remain the primary routes for challenging a judgment. Jurisprudence leans against the abuse of the process by ‘arresting’ judgment to defeat finality, except for strong and justifiable grounds shown by affidavit evidence.34.This Court is not vested with general jurisdiction to ‘arrest’ judgment in civil practice under the ELC Act or the Civil Procedure Act. Only in the rarest of circumstances—where manifest injustice or fraud arises before pronouncement—will the court stay its own judgment. Otherwise, the proper recourse is through review, appeal, or under expressly provided rules.” 19.Looking at the reasons proposed for halting the judgment and/or amending pleadings, or for starting the matter de novo or striking out the matter, the issues, as I have said, have already been ventilated in the trial awaiting a resolution on the merits – this is not one of those rare cases for granting the orders sought – the reasons proposed can be canvassed during the final submissions arising from the already concluded trial. 20.Application dated January 19, 2026, dismissed. The costs to abide by the outcome of the judgment. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN NYERI ON THIS 13TH DAY OF MAY, 2026.E. K. MAKORIJUDGEIn the presence of:Mr. Ndegwa h/b for Odunga for the PlaintiffMr. Sheth for the 1st Defendant.Mr. Munga for the 2nd and 3rd Defendants and H/B for Kiilu for the 5th DefendantKendi: Court Assistant