https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8070

SK v NSK (Miscellaneous Civil Application E027 of 2024) [2026] KEHC 8070 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KEHC 8070 (KLR) Republic of Kenya In the High Court at Eldoret Miscellaneous Civil Application E027 of 2024 JRA Wananda, J June 5, 2026 Between SK Appellant and NSK Respondent Ruling 1.This is one of those matters, now becoming increasingly common, that due to their litigation history, a Judicial Officer is unlikely to find any joy in handling. I say so because the more Judicial Officers try to do to move this case forward, the more it keeps getting re-invented into renewed litigation and finding its way back for fresh arguments. The stalemate has been worsened by the innuendos of impropriety and integrity questions raised against the Judicial Officers who have handled this matter, and pushing for their recusal basically on allegations of bias. The reason the matter has now been placed before me is in fact because of recusal by my sister, Ominde J. I may never know whether the parties themselves enjoy being in such constant stalemate with no end in sight. I however hope this brief preamble will contribute in persuading the Counsels involved in this matter to circumspect and reconsider, going forward, the manner in which they want to continue prosecuting this matter going forward. 2.The Applicant, who has described himself as a University Professor, is represented by the eminent Dr. Kamau Kuria, SC, instructed by Messrs Kamau Kuria & Co. Advocates, while the Respondent is represented by Messrs Reese Mwani & Co. Advocates, on whose behalf Mr. Mukhabane has been appearing. 3.Back into the issue at hand, it is not in dispute that the parties are an estranged couple with 3 children. When the marital bliss dissipated, and with the parties professing the Islamic religious faith, the Respondent instituted Eldoret Kadhi’s Court Matrimonial Case No. E001 of 2023 seeking to divorce the Applicant. In the course of the case, the Hon. Kadhi issued interlocutory orders pending hearing and determination of the case, including an order that the Applicant do allow the Applicant to return to the matrimonial home, and for the Applicant to share rental income at 50:50 proportion with the Respondent. 4.Aggrieved by the interlocutory orders, the Applicant filed Eldoret High Court Family Civil Appeal No. E071 of 2023. Together with the Memorandum of Appeal, the Applicant also filed an Application seeking stay of execution of the Kadhi’s orders pending hearing and determination of Appeal. The Application came before me and I determined it by way of my Ruling dated 9/02/2024 whereof I declined to grant blanket stay, and only stayed the interlocutory order requiring the Applicant to allow the Respondent access back to the matrimonial home. 5.I gather that subsequently, on 25/10/2024, the Hon. Kadhi, summoned the Applicant to appear before him on 1/11/2024, to show cause why he should not be found to be in contempt of Court for disobeying the rest of the orders issued by the Hon. Kadhi. Apprehensive of the threat of imprisonment for contempt of Court, the Applicant returned to this Court but this time by filing the instant fresh proceedings, namely, Eldoret High Court Miscellaneous Family Case No. E027 of 2024, by way of the Originating Notice of Motion dated 28/10/2024, asking this Court to invoke its supervisory jurisdiction or powers of revision under Article 156(6) and (7) of the Constitution, and call for the Hon. Kadhi’s Court file, review the manner in which the Hon. Kadhi has handled the case, and the legality of the proceedings. He then asked this Court to order the Kadhi’s Court to first hear the Applicant’s pending Applications before him dealing with the issue of contempt and recusal, and that this Court proceeds to quash the Hon. Kadhi’s directions requiring the Applicant to appear before him on the issue of contempt of Court. The Applicant also asked the Court to re-assign the case to a different Kadhi for disposal. 6.Together with the Originating Notice of Motion, the Applicant also filed the Notice of Motion of the same date seeking, in the meantime, an order of temporary stay of the Kadhi’s Court proceedings pending determination of the Originating Notice of Motion. 7.That Application, dated 28/10/2024, was placed before my sister. E. Ominde J, who at the ex parte stage, issued a temporary order of stay of the Kadhi’s Court proceedings pending hearing of the Notice of Motion. The Respondent, upon being served, filed her own separate counter-Application dated 8/11/2014 seeking discharge of the temporary orders of stay of proceedings issued by Ominde J, urging that the Applicant obtained the same by material non-disclosure of the fact that he had earlier filed Eldoret High Court Family Civil Appeal No. E071 of 2023, which was pending for determination before myself, and in which, as aforesaid, save for granting a temporary stay of the order for reinstatement of the Respondent back to the matrimonial home, I had declined to grant the prayer for stay of execution of the rest of the orders issued by the Hon. Kadhi. 8.The two rival Applications were then canvassed together before my sister. E. Ominde J, who by her Ruling dated 19/02/2025, upheld the Respondent’s submissions by agreeing that the filing of this Miscellaneous Case was mischievous and an abuse of the Court process having been filed while the Appeal was pending before this same Court, and without disclosure of that fact, and also that I had determined the Applicant’s Application for stay of execution. The Judge therefore dismissed the Application in its entirety, and instead, allowed the Respondent’s counter-Application, thus discharging and/or vacating the interlocutory order of stay of proceedings before the Hon. Kadhi which she had granted. The Judge also consolidated this Miscellaneous Cause file with the Appeal, and directed that both files be placed before me for disposal since I had already interacted with the matter while handling the Appeal. 9.About a month after delivery of this Ruling, the Applicant was back before Ominde J with a fresh Application dated 22/03/2025 asking the Judge to review a portion of her said Ruling. The ground alleged was basically that the Judge had acted in excess of her mandate by purporting to determine matters beyond the issues placed before her because she had purported to determine the two Applications, a premature action since that stage had not been reached. He also faulted Ominde J for making what the Applicant considered to amount to contradictory findings. According to the Applicant therefore, the two Applications that Ominde J had purported to determine were still alive for determination, which Applications he prayed to be placed before myself for disposal. Allegations were also raised that the Court had issued multiple versions of the Ruling and that for this reason, the Ruling released was null and void. It however transpired that the “suspicion” of existence of multiple versions of the Ruling was simply a product of the digital teething challenges then bedevilling introduction and implementation of the Judiciary Case Tracking System (CTS) online platform, which digital challenges had simply ended up inadvertently reformatting the uploaded version of the Ruling by re-numbering it. 10.Ominde J, in her Ruling dated 2/07/2025, obviously offended by what she must have deemed as constituting impropriety and integrity innuendos against her, after setting the record straight regarding the reformatting experienced under the CTS platform, proceeded to recuse herself from the case. The Judge went further. She discharged and vacated her earlier impugned Ruling dated 19/02/2025 in its entirety, and directed that the file be placed before me for disposal. This then is the background under which this matter finds itself before me for determination. 11.When the file was placed before me on 19/11/2025, the parties could not agree on the directions to be taken. The Respondent, through Mr. Mukhabane, his Counsel, contended that this Miscellaneous Cause had been fully determined by way of the Ruling of Ominde J and her recusal, and, as such, there was nothing remaining for determination. The Applicant, on his part, through Dr. Kamau Kuria, SC, insisted that the two Applications were both still alive and are to be heard by myself afresh in accordance with Ominde J’s directions. After reading through Ominde J ’s Ruling, and satisfying myself that she had entirely vacated and discharged her said Ruling dated 19/02/2025 in its entirety, the position ante became restored and, as such, it meant that the two Applications dated 28/10/2024 and 8/11/2024, were to be heard and determined afresh. In view thereof, I ordered that I would determine the two afresh and invited the parties to again file brief Submissions if necessary but avoid repeating matters already captured in their already filed Submissions. This Ruling is therefore in fresh determination of the two Applications. I accordingly confirm that it is not in any way influenced by the now vacated and/or discharged Ruling of Ominde J dated 19/02/2025, or by any finding made therein. 12.Although unnecessarily very lengthy, verbose and voluminous pleadings and Affidavits have been filed in this matter, particularly by the Applicant, the matters in issue are quite straightforward. I do not therefore find it of any use to recount and recite the contents of the Affidavits filed herein, since, apart from merely being repetitions, the basic structure thereof is what I have already set out in my narrative above. 13.Basically however, the Applicant’s case, as prosecuted by way of his Application dated 28/10/2024, is that he is dissatisfied by the conduct of the Hon. Kadhi in his handling of the ongoing Eldoret Matrimonial Cause No. E001 of 2023, and it is by reason thereof that he has moved this Court asking it to invoke its supervisory powers of revision under Article 165(6) and (7) of the Constitution and stay the proceedings of the Hon. Kadhi’s Court. He referred to the interlocutory orders made by the Hon. Kadhi on 12/04/2023 pending determination of the case, whereof the Hon. Kadhi ordered the Applicant to share rental income proceeds at 50:50 with the Respondent and to also allow the Respondent return to the matrimonial home. He alleges that despite there being two Applications filed by the Applicant pending for hearing before the Hon. Kadhi, seeking, inter alia, stay of execution of the orders of 12/04/2023 and for his recusal on grounds of bias, the Hon. Kadhi, on 25/10/2024, declined to hear them and proceeded to summon the Applicant for a hearing on why he should not be found to be in contempt of Court for disobeying the orders of 12/04/2023 and others made prior. He contended further that before Eldoret Matrimonial Cause No. E001 of 2023 was filed, the same Hon. Kadhi had presided over affairs of the same parties in the course of his duties of advising Muslims on matters affecting their lives, which according to the Applicant, was in breach of the Judicial Code of Conduct which prohibits a Judicial Officer from handling a matter which he had handled previously. He termed the Hon. Kadhi as biased, and accused the firm of Nyairo & Co. Advocates of allegedly “influencing” the Hon. Kadhi’s decision in light of an interest the law firm had in the matter. In the end, he asserted that the matters raised in this Miscellaneous Cause are different and separate from those arising in the Appeal. 14.On his part, the Respondent, in prosecuting his counter-Application dated 8/11/2024, takes issue with the manner in which the Applicant moved this Court by way of the instant Miscellaneous Application. According to him, the Applicant’s intention was to mislead the Court into issuing orders without disclosing the existence of Eldoret High Court Family Civil Appeal No. E071 of 2023, in which this Court had by its Ruling dated 9/02/2024, declined to stay the Hon. Kadhi’s orders. He accused the Applicant of rubbishing my orders of 9/02/2024 made in the Appeal, by disobeying the orders of the Hon. Kadhi. He also pointed out that in his Replying Affidavit, the Applicant has also accused me for failing to apply the law when declining to grant the blanket stay because I ignored binding precedents from the Court of Appeal. According to him therefore, the Applicant is asking this Court to sit on appeal on its own decision. He also pointed out that to date, the Applicant has never complied with the Hon. Kadhi’s orders and is thus in contempt of Court. He termed the Application an abuse of the Court process, which, if entertained, will result into this Court issuing conflicting decisions on a matter that has since been settled by this same Court. He also accuses the Applicant of forum shopping. Determination 15.The broad issues that arise for determination in this matter are evidently the following:a.Whether this Miscellaneous Cause filed to seek review of the proceedings undertaken before the Kadhi’s Court by invoking this Court’s supervisory powers of revision, is properly before this Court and can be entertained despite the Applicant having earlier filed an Appeal against the same Hon. Kadhi’s orders, which Appeal is still pending before this same Court.b.If so, whether this Court should, in the interim, stay the proceedings ongoing before the Hon. Kadhi, including the contempt of Court hearing, pending hearing and determination of the Originating Notice of Motion pending herein. 16.In respect to the first issue, it is clear that the Respondent’s contention is basically that the matters pending or those already determined in Eldoret High Court Family Civil Appeal No. E071 of 2023, are the same that are “directly” or “substantially” in issue in this instant Miscellaneous Cause. Although therefore neither of the parties has expressly mentioned it, it is clear that the first limb of the first issue arises from the principle of sub judice which is set out in the Civil Procedure Act at Section 6 as follows:“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” 17.In respect to the sub-judice rule, the Supreme Court of Kenya in the case of Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR), guided as follows:“(67)The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives. 18.The High Court of Uganda, in the case of Nyanza Garage v Attorney General, Kampala High Court Civil Suit No. 450 of 1993, further observed as follows:“In the interest of parties and the system of administration of justice, multiplicity of suits between the same parties and over the same subject matter is to be avoided. It is in the interest of the parties because the parties are kept at a minimum both in terms of time and money spent on a matter that could be resolved in one suit. Secondly, a multiplicity of suits clogs the wheels of justice, holding up resources that would be available to fresh matters, and creating and or adding to the backlog of cases courts have to deal with. Parties would be well advised to avoid a multiplicity of suits.” 19.The purpose of the sub judice rule is therefore to prevent the filing of multiple proceedings involving the same parties over the same subject matter. This safeguard is meant to cushion the possibility of Courts issuing conflicting decisions, and to also stop abuse of the judicial process. 20.The principle of sub-judice was also very well analyzed and explained by the indefatigable Mativo J (as he then was), in the case of Republic v Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya [2020] eKLR, as follows:“16.I now turn to the question of sub judice which Mr. Ochiel avoided to address. A useful starting point is section 5 of the Civil Procedure Act[4] which provides that any court shall, subject to the provisions herein contained, have jurisdiction to try all suits of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred. The operative words in this provision are “expressly” or “impliedly barred.”17.With a large number of pending cases, the judiciary is overburdened and faces a stark lack of resources. In a situation like this, when two suits arising out of the same issues between the same parties are brought before the courts, there is bound to be wastage of resources and frivolous litigation. In order to correct this redundancy, there exists the doctrine of sub judice which is captured in section 6 of the Civil Procedure Act.[5] In a humble attempt to understand the principle and reasoning behind this doctrine and its application, I will attempt to analyse some salient features of the rule of sub judice.18.Both suits challenge the same decision. The prayers sought in both suits are the same. Since both the suits cite similar issues, the decision of the first suit should be binding on those issues and it need not be tried again. If the plea in the first suit succeeds, then it will render the second case res judicata. In fact, a favourable decision would not only benefit the Nairobi Branch, but the entire bar in the country. This truth renders the second suit useless and of no utilitarian value. A second trial on the same issues would entail duplication of work as evidence required to prove those issues in the first suit would be similar to those in the second suit (read instant suit). Thus, it is desirable that such issues be resolved or adjudicated by one court only. It will avoid conflicting decisions or complications arising therefrom.19.In order to check this very problem, there exists the concept of sub judice which in Latin means “under Judgement.” It denotes that a matter is being considered by a court or judge. The concept of sub judice that where an issue is pending in a court of law for adjudication between the same parties, any other court is barred from trying that issue so long as the first suit goes on. In such a situation, order is passed by the subsequent court to stay the proceeding and such order can be made at any stage.20.In this regard, section 6 of the Civil Procedure Act[6] expressly provides that no court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.21.It is common ground that the instant suit was filed despite the existence of a pending Judicial Review application filed by the Law Society of Kenya, Nairobi Branch. The only addition as far as the parties are concerned is the inclusion of Fred Matiangi, Cabinet Secretary, Interior and Coordination of National Government and Mr. Joseph Kinyua, Secretary to the Cabinet. The facts and reliefs sought are wholly if not substantially similar to the earlier suit.22.The mere addition of a party or parties does not alter the pith and substance of the suit. The Black’s Law Dictionary[7] defines lis pendens, as a Latin expression which simply refers to a “pending suit or action.” The Oxford Dictionary of Law[8] defines the expression in similar terms. In the context of Section 6 of the Civil Procedure Act[9] which encapsulates the principles that underpin the rule, it simply means that no court ought to proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previous instituted suit or proceeding; and or the previously instituted suit or proceedings is between the same parties; and or the suit or proceeding is pending in the same or any other court having jurisdiction to grant the reliefs claimed.” 21.In this case, the Applicant never disclosed that he had earlier filed Eldoret High Court Family Civil Appeal No. E071 of 2023, in which this Court had by the Ruling dated 9/02/2024, already declined to issue a blanket order of stay of execution of the Hon. Kadhi’s orders. I am convinced that this Court cannot determine the issues raised in this Miscellaneous Cause and decide whether to allow or decline the prayers sought in these proceedings without delving into the issues pending in Eldoret High Court Family Civil Appeal No. E071 of 2023, which was already in existence between the same parties long before this Cuse was filed. I am also convinced that if the prayers sought in this Miscellaneous Cause are granted, they will have a direct impact on the Appeal. The two matters are therefore intertwined and joined at the hip. The mere fact that the Application filed in the Appeal was for stay of execution while the one filed in this Cause is for stay of proceedings does not change the consequent position. If stay of proceedings were to be granted, the net result will be exactly the same, as it shall mean that the Hon. Kadhi will not be able to convene any proceedings for him issue any orders to facilitate execution. 22.As further correctly pointed out by Mr. Mukhabane, the Applicant, in one of his Affidavits herein also faulted my said Ruling delivered in the Appeal by urging that it ignored binding precedents from the Court of Appeal. I therefore agree with Mr. Mukhababe that what that contention betrays or reveals is that the Applicant is aggrieved by the said Ruling and his real intention for filing this instant Miscellaneous Cause therefore appears to be to move this Court to sit on appeal on its own decision. I am persuaded that the Application, if entertained, may result into this Court issuing conflicting decisions on a matter that has is still, or has already been in issue before this same Court under the Appeal. The contention that the Application is forum shopping is equally theerefore not far-fetched considering the history of the case. 23.In the circumstances, I uphold the Respondent’s contention that the matters raised and/or in issue in this Miscellaneous Cause, even if not “directly” in issue, or not previously in issue in Eldoret High Court Family Civil Appeal No. E071 of 2023 are, for all intents and purposes, “substantially” the same as those in issue, or have previously been in issue therein. No persuasive reasons have been submitted to explain why the claims presented herein could not have been, or still be raised in the pending Appeal. 24.In finding as I have, I again cite statements made by Mativo J (as he then was), in the case of Republic v Paul Kihara Kariuki (supra) as follows:“24.The sub judice rule like other maxims of law has a salutary purpose. The basic purpose and the underlying object of sub judice is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the parties to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to prevent multiplicity of proceedings.[11]25.In a fairly recent decision of this court, namely JR No. 146 of 2020, which incidentally involved the Law Society of Kenya, I stated that the words "directly and substantially in issue" are used in contradistinction to the words "incidentally or collaterally in issue." Therefore, sub judice would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject- matter in both the proceedings is identical.26.Paraphrasing what I said in the above case, the key words in applying sub judice rule is that "the matter in issue is directly and substantially in issue in the previously instituted suit." The test for applicability of the sub judice rule is whether on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit. As concluded earlier, the answer to this question is a resounding yes. However, when the matter in controversy is the same, it is immaterial what further relief is claimed in the subsequent suit or suits.28.…………………………………………………………………………………..29.The uncompromising manner in which courts have consistently enforced the sub judice rule was best explained in Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga,[13] which held that it is not the form in which the suit is framed that determines whether it is sub judice, rather it is the substance of the suit, and that, there can be no justification in having the two cases being heard parallel to each other. I find no justification at to sustain the instant suit. This position extinguishes Mr. Ochiel’s argument that the instant suit is filed under Article 22 of the Constitution and that it raises constitutional issues. A simple test would be whether this court can determine the issues raised in this case and allow or decline the prayers sought in these proceedings without delving into the issues pending in HCJR 010 of 2020 and that if the prayers sought are granted in the said case, whether they will have an impact on the instant suit. …………………………...”37.Next, I will address the question whether this suit is an abuse of court process. As stated earlier, it is common ground that as at the time the instant suit was filed, the earlier suit was pending in this court. The earlier suit was filed by a branch of the applicant. There is no mention of the earlier suit at all in the pleadings. The question is whether this case which is strikingly similar to the earlier suit is an abuse of court process as Mr. Bitta submitted.38.The court has an inherent jurisdiction to protect itself from abuse or to see that its process is not abused. ………………………………………………..39.Abuse of court process creates a factual scenario where a party is pursuing the same matter by two-court process. In other words, a party by the two court process is involved in some gamble; a game of chance to get the best in the judicial process.[25]A litigant has no right to purse paripasua two processes, which will have the same effect in two courts at the same time with a view of obtaining victory in one of the process or in both. In several decisions of this court, I have stated that litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different position clearly, plainly and without tricks. Pursuing two processes at the same time constitutes and amounts to abuse of court/legal process.[26] ………………...40.Thus, the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse.[27] The abuse lies in the multiplicity and manner of the exercise of the right rather than exercise of right per se. The abuse consists in the intention, purpose and aim of person exercising the right, to harass, irritate, and annoy the adversary and interface with the administration of justice.[28]41.I find that the applicant has presented the same issues which were being litigated in the earlier case. This suit presents a sad scenario of not only having parallel proceedings on the same issues involving the same parties but also a great risk of coordinate courts granting conflicting orders. Similarly, this court is being invited to determine substantially similar issues pending before the court. The applicant did not disclose in its pleadings the existence of the earlier suit. This suit falls within the ambit of what constitutes abuse of court proceedings enumerated above. As stated earlier, the determination of the earlier suit will render the issues cited herein res judicata and decision will apply to the entire Law Society membership. This suit is struck off with no orders as to costs on grounds that it is an abuse of court process. 25.The second limb of the Respondent’s objection is that the Applicant obtained the interim orders of stay of proceedings as a result of non-disclosure by the Applicant of the material fact that she had already filed Eldoret High Court Family Civil Appeal No. E071 of 2023 and that his Application therein seeking a blanket order of stay of execution pending Appeal had been declined. Even therefore assuming that the sub-judice rule did not apply in this matter, what about the accusation of non-disclosure? I ask this because it is trite law that when an order is sought from a Court, the Applicant has a duty to disclose to that Court all material facts relevant thereto, including any previous or subsisting litigation between the same parties in any other forum. 26.My Ruling in Eldoret High Court Family Civil Appeal No. E071 of 2023 in respect to the Application for stay of execution was delivered on 9/02/2024. The instant Application was then filed on or about 28/10/2024, about 9 months after I had delivered my said Ruling in the Appeal. I have looked at the instant Notice of Motion and also the Originating Notice of Motion and note that nowhere therein did the Applicant bother to disclose the fact of the existence of the Appeal, or that I had already made a determination in respect to the Application for stay of execution filed therein. There being no dispute that the two matters arise from the same Kadhi’s Court case, can the Applicant really convincingly argue that he did not need to disclose that fact in the instant Applicant? I do not think so. 27.The issue of non-disclosure of material facts was discussed by the Court of Appeal in the case of Bahadurali Ebrahim Shamji v. Al Noor Jamal & 2 Others Civil Appeal No. 210 of 1997, in which the Court affirmed the following excerpt from the case of The King v. The General Commissioners for the Purposes of Income Tax Acts for the District of Kensington: Ex parte Princess Edmond De Polignac [1917] All E. R. 486.“It is perfectly well settled that a person who makes an ex parte application to the Court - that is to say, in the absence of the person who will be affected by that which the Court is asked to do - is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained by him. That is perfectly plain and requires no authority to justify it.”Scrutton L. J. at pages 513 - 514 said:“Now that rule giving a day to the Commissioners to show cause was obtained upon an ex parte application; and it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and f air disclosure of all the material facts - facts, not law. He must not misstate the law if he can help it - the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement.” 28.“Non-disclosure of material facts” constitutes a "sufficient reason" or "discovery of new and important matter," justifying review to prevent abuse of the Court process. In the circumstances, I find that the Applicant also failed in his strict duty to make "full and frank disclosure" of all material facts to the Court. He was obligated to disclose any previous or subsisting litigation, Court orders, or parallel proceedings between the same parties in any other forum to prevent conflicting judgments and abuse of the judicial process. The failure to do so therefore constitutes a fatal breach that must lead to setting aside of the orders obtained. Final Orders 29.In the end, I make orders as follows:i.The Applicant’s Notice of Motion dated 8/11/2024 seeking, inter alia, orders that this Court invokes its supervisory powers or jurisdiction of revision to call for and review, or set aside the Kadhi’s Court proceedings or orders is hereby struck out.ii.The Respondent’s Notice of Motion dated 28/10/2024 is hereby allowed with the result that any orders previously obtained by the Applicant in this matter on the basis of the now struck out Application, including the orders issued on 30/10/2024, now stand vacated, lifted and/or discharged.iii.In light of the adverse findings made above, the Applicant is now at liberty to determine how he wishes to proceed with his Originating Notice of Motion filed herein as this Court has not yet been moved to determine it.iv.The Respondent is awarded the costs of both Applications. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 5TH DAY OF JUNE 2026……………………WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:Mr. Brian Mwenda h/b for Dr. Kamau Kuria, SC, for the ApplicantMr. Mukhabane for the RespondentCourt Assistant: Rodgers Tshombe