https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4606

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MOMBASA** **ELC CIVIL SUIT NO. 30 OF 2014** **SAMUEL KAMAU MACHARIA ...................................... PLAINTIFF** **-VERSUS-** **ALI KHAN ALI MUSES ......................................... 1ST DEFENDANT** **ESTATE SONRISA LIMITED ............................... 2ND DEFENDANT** **CHIEF LAND REGISTRAR, KWALE ................... 3RD DEFENDANT** **RULING** **1.** Twelve years. Two parcels of land. Three courts. And still, no peace. *Interest reipublicae ut sit finis litium* — it is in the interest of the State that there be an end to litigation. Rarely has a case cried out for that maxim more loudly than this one. For twelve years now, and through every tier of our judicial hierarchy, these parties have contested two neighbouring parcels of land on the Diani coastline — *Kwale/Galu/Kinondo/50* and *Kwale/Galu/Kinondo/48*. Judgments have been given. Appeals have been heard. Orders have been varied. Directions have been issued. And yet the file, refusing to close, returns once more to this Court. **2.** It returns, this time, in a wholly different posture. It returns because the Court of Appeal at Mombasa (Murgor, Laibuta & Ngenye-Macharia, JJ.A.), by its Judgment of **30th January 2026** in ***Civil Appeal No. E076 of 2023***, has spoken. That Court set aside the Ruling of this Court otherwise constituted (Matheka, J.) delivered **on 21st March 2023**, and remitted the 2nd Defendant’s **Case Stated dated 5th September 2022** to this Court for hearing and determination on the merits. When a superior court speaks, this Court must listen; and when a superior court directs, this Court must act. **The Application** **3.** Before me is a Notice of Motion dated **11th February 2026**, brought under a Certificate of Urgency by **Mr. Nelson Havi, SC**, on behalf of the 2nd Defendant/Applicant, Estate Sonrisa Limited. It is expressed to be brought under *Order 11 rule 3(2)(i) of the Civil Procedure Rules*, and is supported by the affidavit of Iwona Strzelecka, a director of the 2nd Defendant, sworn on the same date. Annexed to the affidavit as exhibit *“IS-1”* is the Judgment of the Court of Appeal aforesaid. **4.** The Applicant seeks, in substance, three orders: that the application be certified urgent; that a hearing date be convened for the Case Stated dated 5th September 2022; that the hearing be conducted by *viva voce* evidence in open Court; and that costs be provided for. **5.** The application came up for hearing before me yesterday, the 15th of July, 2026. Mr. Havi, SC, appeared for the 2nd Defendant/Applicant. Ms. Achieng holding the brief of Mr. Orenge appeared for the Plaintiff. There was no appearance for the 1st and 3rd Defendant. All parties, having been served as evidenced by an Affidavit of service dated 29th May, 2026, and having conferred, informed the Court that **the application is not opposed** and that they are agreed that the orders sought (save as to the mode of hearing) may be granted. That agreement is recorded. **Analysis and Determination** **6.** Although the application is unopposed, this Court does not act as a mere rubber stamp. A consent, even a full one, cannot confer jurisdiction the Court does not possess, nor legitimize an order the law would not otherwise permit. I must therefore satisfy myself, briefly, that the orders sought are lawful and proper. I am so satisfied, for four reasons. **7.** *First,* this Court is under a positive duty to give effect to the directions of the Court of Appeal. The hierarchy of our Courts is not ornamental. It is the very architecture by which the rule of law is maintained. The Supreme Court reminded us as much in ***Jasbir Singh Rai & 3 Others v. Tarlochan Singh Rai & 4 Others [2013] eKLR***, where the Court, speaking of the doctrine of finality, held that once a competent superior court has pronounced itself on a matter, the courts below are bound to give that pronouncement effect. To ignore or to delay compliance with an appellate direction would be, in the language of the Court of Appeal in ***Kenya Broadcasting Corporation v. Geoffrey Wakio [2019] eKLR***, to treat as unperfected that which the superior court has ordered be perfected. **8.** *Second,* the remittal itself carries with it, by necessary implication, a duty of expedition. Where an appellate court sets aside a ruling and remits a matter for hearing on the merits, the trial court is enjoined to take up the matter without avoidable delay. That is the plain effect of *Section 78 of the Civil Procedure Act* and *Order 42 Rule 32 of the Civil Procedure Rules*, which vest in the appellate court the power to remand a cause, and, correlatively, oblige the receiving court to hear it. The Court of Appeal in ***Abok James Odera T/A A.J. Odera & Associates v. John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR*** spoke of the mandate of a first appellate court to “re-evaluate, re-assess and re-analyse”; where such a court, having done so, refers a matter back, the trial court’s task is not to reargue that mandate but to fulfil it. **9.** *Third,* the very maxim with which this Ruling opened, cuts in the peculiar circumstances of this case, both ways. Ordinarily, it counsels closure. But closure cannot be achieved by shutting the door on a party whose right to be heard has been affirmed by the Court of Appeal; it can only be achieved by opening the door, hearing the Case Stated on its merits, and bringing the dispute to a lawful and final rest. As the Supreme Court observed in ***John Florence Maritime Services Limited & Another v. Cabinet Secretary, Transport and Infrastructure & 3 Others [2015] eKLR*,** the doctrine of finality is founded on public policy, but public policy is served by proper determination, not by procedural refusal. To decline this application would be to prolong, not to end, the litigation. **10.** *Fourth,* and finally, the Court of Appeal has now placed the question of jurisdiction beyond argument. It has held, in terms, that this Court **was not functus officio** in relation to the **Case Stated of 5th September 2022**, and that it had jurisdiction under *Section 86 of the Land Registration Act* to entertain and determine it. That holding binds this Court. It is not open to me to revisit it, and no party invites me to do so. **11.** There remains only the question of the mode of hearing. Counsel for the Applicant urges that the Case Stated be heard by *viva voce* evidence in open Court. A case stated is, by its nature, a proceeding on agreed or ascertained facts calling for the opinion of the Court on a point of law arising from the exercise of the Land Registrar’s statutory function under *Sections 79(3A), 80, 86 and 91(9) of the Land Registration Act*. In this instance, guided by the agreement of the parties, oral evidence has been allowed by the court. **Disposition** **12.** In the result, and by consent of all parties, the application dated 11th February 2026 is **allowed** in the following terms: 1. The *viva voce* hearing for the Case Stated dated 5th September 2022 filed by the 2nd Defendant in Environment and Land Court Civil Suit No. 30 of 2014 is hereby scheduled for the **5th of November, 2026.** 2. The parties shall, file and exchange written submissions confined to the issues remitted by the Court of Appeal in *Civil Appeal No. E076 of 2023*, and to no other, as follows; 3. *The Applicant shall file their skeleton written submissions not exceeding 5 pages within 14 days of this Ruling, and file an Affidavit of service;* 4. *The Respondents shall upon service file and serve their skeleton written submissions not exceeding 5 pages within 14 days* 5. For the avoidance of doubt, the hearing of the Case Stated shall proceed strictly within the four corners of the remittal by the Court of Appeal. ***It is so ordered.*** Ruling dated, signed and delivered virtually vide Microsoft Teams at Mombasa this 16th day of July, 2026. ....................................................... **B. AKELLO, OGW** **JUDGE** **In the presence of:** Gillian - Court assistant Orenge for the plaintiff N/A for the defendants