https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3375

Mwadubo & Co Advocates & another v Soita t/a Soita & Associates Advocates & another (Enviromental and Land Originating Summons E072 of 2025) [2026] KEELC 3375 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3375 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Enviromental and Land Originating Summons E072 of 2025 MN Kullow, J June 4, 2026 Between Mwadubo & Co Advocates 1st Applicant Harvey Natanje 2nd Applicant and Willy Soita T/A Soita & Associates Advocates 1st Respondent Madhur Vedvrat Ramrakha 2nd Respondent Ruling Introduction 1.The Applicant has filed the notice of motion application dated 21st November 2025 seeking for the following orders;i.Spentii.That the temporary injunction dated 6th November 2025 issued by this Honourable Court in ELC Case No. ELCLOS/E072/2025 by Honourable Justice Mohamed N. Kullow ex-parte be hereby reviewed, varied, rescinded set aside, discharged and declared a nullity.iii.That pending the hearing and determination of this application inter partes, the 2nd Respondent do pay to the Applicant all outstanding rent arrears totalling United States Dollars Ten Thousand Two Hundred (USD 10,200) within seven (7) days of service, and do continue to pay monthly rent of USD Three Thousand Eight Hundred and Eighty Nine (USD 3,899) as it falls due on the 1st day of each month, failing which the Applicant be at liberty to levy distress and recover possession in line with the existing order of the Rent Restriction tribunal.iv.Costs be in the cause. 2.The applicant was premised on grounds that; 3.That the applicant and the 2nd respondent had entered into a sale agreement dated 10th September 2024 whereas the 2nd respondent had not fulfilled his contractual obligations in the said agreement after the completion period and was staying on the suit premises without having paid the full purchase price, neither had he paid any rents in the period he was staying as a periodic tenant 4.The applicant further avers that the 2nd respondent went to the rent restriction tribunal and obtained orders in Rent Restriction Tribunal (RCC Case No 1967/2025) to restrict the applicant from interfering with his occupation in the suit property and also ordered to clear the rent arrears. 5.On the basis of the orders, the applicant avers that the ex parte orders on the 6th November 2025 were obtained through non-disclosure and misrepresentation of facts, the 2nd respondent having failed to disclose to the court that there was a similar matter in the Rent Restriction Tribunal in which matter the respondents had obtained similar orders. That the matter was therefore res judicata and sub judice applicant argued 6.That the respondent had misrepresented to this court that she had no rental arrears which was contradictory to the statement of accounts that the applicant held. Reply 7.The 2nd respondent opposed the application vide a replying affidavit sworn on the 16th December 2025.She deponed that the application was defective on the fact that the annexures attached to the supporting affidavit had not been marked with serial letters for identification, making the application bare of evidence and hence the application should be struck out. 8.She further deponed that she had fulfilled her obligations under the sale agreement having paid the deposit of USD 85,136 equivalent Ksh 11,000,000/=and later the balance of USD 600,000 and that the frustration of the completion could not be attributed to her hence the applicant was not entitled to the 10% deposit. 9.She deponed that the matter was not sub judice as the parties in the Rent restriction tribunal were different from the matters herein and the orders sought after, were also different being that this matter was instituted by the 1st respondent seeking for production of completion document whereas the matter in the tribunal was for injunctive orders.She deponed that this application was a calculated attempt to unjustly enrich himself by seeking to forfeit the deposit despite the 2nd respondent’s compliance with the sale agreement.The application was canvassed by written submissions and only the 2nd respondent has complied filing submissions dated 11th February 2026 and further submissions dated 26th May 2026.On the submissions dated 11th February 2026 counsel reiterated the contents of the replying affidavit indicating the application was incompetent with annexures that had not been marked. He placed reliance on the case of Pharmacy and Poisons Board & Another Mwiti & 21 others (Respondent)civil appeal E144 of 2021) KECA 97 (KLR)22October 2021.On the issue of sub judice the 2nd respondent argued the grounds as in the replying affidavit that the applicant had not demonstrated sub judice since there parties were not the same, and that the reliefs being sought after were different. It was further deponed that the matter in the Rent tribunal had since been withdrawn so there were no proceedings to anchor the doctrine of sub judice.It was submitted that the interim order of injunction had been issued on the basis that the 2nd respondent faced eviction threats from the applicant despite having met the conditions in the sale agreement and the subsisting landlord tenant relationship. 10.On the submissions dated 26th May 2026 counsel submitted that the interim orders of 6th November 2025 were no longer in effect, the court having heard the application and granted injunctive orders on the 18th May 2026 relying on the case of Public Service Commission Vs Osoro [2023] KECA 1209 (KLR) Analysis and determination 11.Upon considering the Application, the replying affidavit and the submissions herein the following issues commend themselves for determination:i.Whether the application has been overtaken by events and if the answer to the above is in the negative,ii.Whether the application is merited as to the orders to review, vary, set aside and discharge the orders issued on the 21st November 2025. 12.The applicant avers that the orders being sought after are not tenable as the court already adjudicated on the application that brought about the interim orders allowing for the temporary injunctive orders.The court records indicate that is indeed a ruling dated 18th May 2026 where this court adjudicated on the application dated 31st October 2026.The application is the one that gave rise to the interim orders issued on the 6th November 2026 prompting this instant application. I would tend to agree with counsel for the applicant, being that the interim orders are no longer in place, the court already having adjudicated and determined the application on merit. The only available remedy for the applicant is to file a fresh application seeking for review and setting aside of the injunctive orders granted on the 18th May, 2026. Final disposition 13.The upshot of the matter is that I make the following orders;i.The Notice of motion application dated 21st November 2025 is not merited and is hereby dismissed.ii.Costs shall abide in the cause.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 4TH DAY OF JUNE, 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Ms. Munguti for the 2nd ApplicantMs. Lewinsky for the Applicant/2nd RespondentMr. Isinta for the 1st RespondentPhilomena W. Court Assistant