Wilfred Nganga Ngaruiya v Registered Trustees of Faith Mission Church & 11 Others

ISAAC MASILA MUTUA ................................................. 6TH DEFENDANT FABIAN CHIMAKATI ..................................................... 7TH DEFENDANT MOSICA PROPERTIES LIMITED ...................................... 8TH DEFENDANT MWANGANGI MUTULA MUTUA (Deceased) ............... 9TH DEFENDANT JOSEPH WAWERU CHEGE ........................................... 10TH DEFENDANT JOSPHAT MUTINDA MUTUKU .................................... 11TH DEFENDANT CHIEF LAND REGISTRAR ............................................. 12TH DEFENDANT RULING Introduction 1. Justice shall not be delayed. That command, embedded in Article 159(2)(b) of the Constitution, is not merely ELC. NO. 226/2016-RULING 2

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aspirational. It imposes a duty on the Court as much as on the parties. When a suit has remained pending for a decade, the delay itself becomes a denial of justice, irrespective of the eventual outcome. Yet the Court is also asked, in the same breath, to ensure that its process is not abused and that its judgments are not rendered in vain. This application requires the Court to hold both duties in view: the duty to conclude and the duty to conclude rightly. 2. I have before me for determination a Notice of Motion Application dated 7th September 2026, brought by the 1 st, 3rd, 5th, 6th, 7th and 11th Defendants (hereinafter “the Applicants”), seeking orders to arrest the delivery of judgment in this suit pending the hearing and determination of Machakos ELC Case No. E001 of 2021. The Applicants also seek an order that both suits be determined by the same judicial officer. The Application is supported by a Supporting Affidavit sworn by Josphat Mutinda Mutuku, the 11th Defendant, on 7th September 2026. ELC. NO. 226/2016-RULING 3

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3. The Application is brought under Sections 1A, 1B, and 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law. It is opposed by the Plaintiff through a Replying Affidavit sworn by Wilfred Ng’ang’a Ngaruiya on 15 th September 2026. No responses were filed by the other parties. The Applicants’ Case 4. The Applicants contend that this suit, Machakos ELC No. 226 of 2016, is scheduled for judgment on 17th September 2026. They aver that there is another pending suit, Machakos ELC No. E001 of 2021, which concerns the same parcel of land, L.R. No. 12715/155, located in Syokimau, Machakos County. The central issue in both suits is the ownership and validity of title to this land. 5. The Applicants assert that delivering judgment in this suit before ELC No. E001 of 2021 is heard and determined creates a real and imminent risk of inconsistent and contradictory findings on the question of ownership. They ELC. NO. 226/2016-RULING 4

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rely on the doctrine of lis pendens and argue that adjudicating the matter piecemeal would waste judicial time and resources. They further submit that the judgment in this suit could effectively determine the rights of parties in ELC No. E001 of 2021 who are not parties to this suit, causing them substantial prejudice. The Applicants invoke the inherent jurisdiction of the Court under Sections 1A, 1B, and 3A of the Civil Procedure Act to make orders for the ends of justice and to prevent an abuse of the court process. The Plaintiff’s Case 6. The Plaintiff opposes the Application and describes it as frivolous, vexatious, and an abuse of the process of this Honourable Court. He states that this suit was instituted in 2016 and has been pending for approximately a decade, largely due to numerous applications filed by the Defendants. He avers that he closed his case on 5th November 2019 and that the Defendants have since employed delay tactics. ELC. NO. 226/2016-RULING 5

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7. The Plaintiff submits that the Ruling of 20 th May 2024, delivered by Lady Justice Christine Ochieng, dismissed the Applicants’ application for consolidation of this suit with ELC No. E001 of 2021. He contends that the said Ruling directed that the two matters be heard concurrently, not that either be stayed. He argues that the Applicants took no steps to seek directions following that Ruling and that the present Application, filed only days before judgment, is a clear afterthought and the latest in a series of attempts to delay the matter. 8. The Plaintiff further submits that the equitable maxims of “equity aids the vigilant and not the indolent” and “he who comes to equity must come with clean hands” apply with particular force. He argues that the Applicants have acquiesced in the proceedings and cannot now approbate and reprobate by seeking to halt the very process in which they have actively participated. ELC. NO. 226/2016-RULING 6

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9. The Plaintiff also contends that the Application is a disguised appeal against previous rulings on joinder, stay, and consolidation applications. He submits that the prayer for the arrest of judgment has no express basis under the Civil Procedure Act or the Civil Procedure Rules and that the Applicants have demonstrated no exceptional or compelling circumstances to justify withholding judgment. He urges the Court to dismiss the Application with costs. Issues for Determination 10. I have considered the Application, the affidavit in support, the Replying Affidavit, the submissions made by the parties and the record of the proceedings. I have also considered the previous rulings relevant to the present Application. 11. The principal question before me is whether the Applicants have demonstrated exceptional or compelling circumstances to warrant the arrest of the delivery of judgment in this suit. ELC. NO. 226/2016-RULING 7

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12. I begin with the nature of the jurisdiction invoked by the Applicants. There is no general provision in the Civil Procedure Act or the Civil Procedure Rules which confers upon a party an entitlement to arrest the delivery of a judgment merely because another suit touching on the same subject matter is pending. The jurisdiction, where it exists, derives from the Court's inherent power to control its own process and to prevent injustice or abuse of that process. 13. Section 3A of the Civil Procedure Act preserves 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. That power is complemented by sections 1A and 1B of the Act, which require the Court to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes and to ensure, among other things, their efficient and timely disposal. 14. The power to arrest the delivery of a judgment is therefore a narrow jurisdiction that is exercised sparingly and only in the ELC. NO. 226/2016-RULING 8

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rarest of cases to prevent manifest injustice, typically involving fraud or gross error coming to light before pronouncement. 15. In Wambua Maithya v Pharmacy and Poisons Board; Pharmaceutical Society of Kenya & 2 others (Interested Parties) [2019] KEHC 4155 (KLR), the Court recognized that in an appropriate case the Court may arrest the delivery of a decision in exercise of its inherent jurisdiction. The Court, however, emphasized the caution with which that jurisdiction must be exercised. At paragraph 20, the Court stated: “Accordingly, it is my view that in appropriate cases, the Court is entitled to arrest the delivery of a decision in order to do justice if circumstances warrant it. However, that is a jurisdiction which superficial and cannot casual be exercised manner. in a Arresting a judgement and any judicial process for that matter ELC. NO. 226/2016-RULING is a power which ought not to be 9

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exercised lightly. It can only be properly exercised after a lot of circumspection and soul searching by the judge.” 16. The Court proceeded at paragraph 21 to state: “Therefore, whereas the powers to arrest the decision may be invoked, it is a power which ought to be invoked very sparingly and in exceptional circumstances and not to assist a person who is intent upon abusing the process of the Court. Being a discretionary power, as held in Shah vs. Mbogo [1967] EA 116 at 123B, the discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist the person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice.” ELC. NO. 226/2016-RULING 10

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17. The same caution is reflected 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), where the Court considered an application to arrest the delivery of judgment. The Court observed that the so called arrest of judgment in civil practice is a misnomer, and that 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. 18. The Court went on to hold: “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 ELC. NO. 226/2016-RULING 11

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and appeal challenging remain a the primary judgment. routes Jurisprudence for 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.9. At paragraph 21, the Court further held that the power to arrest a decision “ought to be invoked very sparingly and in exceptional circumstances and not to assist a person who is intent upon abusing the process of the Court.” I respectfully associate myself with that reasoning.” ELC. NO. 226/2016-RULING 12

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19. I therefore consider that the question is not simply whether the Applicants have identified a possibility of inconvenience or even inconsistent findings. The question is whether that possibility, considered against the history and present stage of these proceedings, discloses circumstances sufficiently exceptional to justify interrupting the delivery of judgment. 20. The reason advanced by the Applicants is the existence of ELC No. E001 of 2021 and the possibility that the two suits may result in findings concerning the same property. That circumstance is not new. It was known to the Applicants when the application for consolidation was made in 2023 and determined on 20th May 2024. 21. In that ruling, Ochieng J expressly considered the relationship between ELC No. 226 of 2016 and ELC No. E001 of 2021. The Court noted that the present suit had substantially progressed, whereas the latter suit had not been set down for hearing. The Court found that consolidation at that stage would require the reopening of ELC. NO. 226/2016-RULING 13

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pleadings and further pre-trial processes and would occasion delay. The Court consequently declined consolidation and held that, although the suits were related, they should be heard concurrently. 22. That decision is material to the present Application. It was not made in ignorance of the existence of ELC No. E001 of 2021. The possibility of overlapping findings was part of the circumstances placed before the Court. The Applicants have not demonstrated that the position has materially changed since that decision. 23. I have also considered the Applicants' reliance on the doctrine of lis pendens. The doctrine is concerned with preserving the subject matter of litigation against dealings which may prejudice the rights of parties under the eventual decree. It does not, in my view, establish a general rule that the mere pendency of another suit concerning the same property automatically prevents a court from hearing or determining a suit that is otherwise ready for judgment. I therefore do not find that the doctrine of lis pendens ELC. NO. 226/2016-RULING 14

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provides a basis for arresting the delivery of judgment in the present case. 24. The Applicants have also placed considerable reliance on the possibility of conflicting judgments. I accept that where two proceedings concern substantially the same subject matter, the Court should be alive to the possibility of inconsistent determinations. That concern is one of the reasons why the law permits, where appropriate, consolidation or a stay of proceedings. 16. That concern, however, has to be considered against the history of the matters before the Court. The present suit has been pending since 2016. The Plaintiff closed his case on 5th November 2019. The matter has since proceeded to judgment. ELC No. E001 of 2021, on the other hand, had not reached the same stage when the consolidation application was determined in 2024. ELC. NO. 226/2016-RULING 15

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17. The Court was therefore confronted with the very concern now advanced by the Applicants when it declined consolidation. The Court made a considered choice that the two suits should proceed concurrently rather than interrupt the more advanced proceedings. I see no new circumstance in the material before me which would justify departing from that position at this late stage. 18. There is another consideration which, in my view, is important. The Applicants previously approached the Court of Appeal seeking a stay of proceedings in this very suit. In Registered Trustees of Faith Mission Church & 10 others v Ngaruiya, Civil Application E300 of 2020, the Court of Appeal dismissed the application on 4 th February 2022. The Court observed at paragraph 14: “In determining whether or not an appeal will be rendered nugatory, the Court has to consider the conflicting claims of both parties and each case has to be considered on its merits. In the circumstances of this case, the matter has been ELC. NO. 226/2016-RULING 16

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in Court for over five (5) years and delaying its finalization any further to await determination of an interlocutory appeal is not in the interest of justice. The ELC should be allowed to expeditiously hear and determine the suit so that if any party is aggrieved with the decision or any part thereof, they can file an appeal to this Court against the substantive decision. In any event, the ownership of the suit property is reversible, 19. depending on the circumstances applicable law. The intended therefore not be rendered and the appeal will nugatory.” I do not treat the present Application as an appeal from that decision. The Applicants are entitled to invoke the jurisdiction of this Court where a proper basis exists. I consider the decision relevant, however, because it demonstrates that the question whether further delay in these proceedings was justified has previously been considered at an appellate level. ELC. NO. 226/2016-RULING 17

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20. More importantly, the present Application does not identify a new event which occurred after the matter became ripe for judgment. The pendency of ELC No. E001 of 2021 was known to the Applicants. The relationship between the two suits was considered in the consolidation application. The Applicants have not explained why the issue could not have been raised at an earlier stage or why the Court should now interrupt the delivery of judgment after the hearing has been concluded. 21. I have also considered the length of time that this matter has remained before the Court. The suit was instituted in 2016. It has therefore been pending for approximately ten years. Section 1B of the Civil Procedure Act places upon the Court a duty to ensure the efficient and timely disposal of proceedings and the efficient use of judicial and administrative resources. That statutory duty applies to the Court as much as it does to the parties. ELC. NO. 226/2016-RULING 18

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22. Article 159(2)(b) of the Constitution further provides that justice shall not be delayed. This does not mean that a court should sacrifice a fair determination of a dispute merely because proceedings are old. Equally, the age of a matter cannot be disregarded where a party seeks, at the very end of the hearing, to interrupt its conclusion on grounds which were known much earlier. In my view, where a suit remains pending for a decade, the delay itself becomes a denial of justice, irrespective of the eventual outcome. 23. I am fortified by the finding of the Court of Appeal, in Registered Trustees of Faith Mission Church & 10 others v Ngaruiya, where the Court stated: “The ELC should be allowed to expeditiously hear and determine the suit so that if any party is aggrieved with the decision or any part thereof, they can file an appeal to this Court against the substantive decision.” ELC. NO. 226/2016-RULING 19

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24. I am also satisfied that the Applicants have had a full opportunity to participate in these proceedings. They have not demonstrated that the hearing was conducted in their absence, that they were denied an opportunity to be heard, or that a new matter has arisen which makes the delivery of judgment unsafe or unjust. 25. Having considered the entire record, I am not satisfied that the Applicants have demonstrated fraud, a patent error, a genuinely new matter, denial of a fair hearing or any other circumstance of such exceptional character as would justify the exercise of the Court's residual jurisdiction to arrest the delivery of judgment. 26. The Application has been brought at a very late stage of proceedings and rests substantially on circumstances which were known to the Applicants and had already been placed before the Court. In those circumstances, the overriding objective of the Civil ELC. NO. 226/2016-RULING 20

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Procedure Act and the constitutional command against delay weigh against interrupting the conclusion of this suit. 27. I therefore find that the Applicants have not established a sufficient basis for arresting the delivery of judgment in this suit. The prayer founded on lis pendens also fails because that doctrine does not operate as an automatic stay of the hearing or determination of the present suit. 28. For the reasons set out above, I make the following orders: a) The Plaintiff’s Notice of Motion dated 7th September 2026 is dismissed. b) The prayer seeking the arrest or withholding of the delivery of judgment in ELC Case No. 226 of 2016 is declined. ELC. NO. 226/2016-RULING 21

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c) The Applicants shall bear the costs of the Application payable to the Plaintiffs. Orders accordingly Delivered and Dated at Machakos this 24th day of September, 2026. HON. J. N. KUYIONI JUDGE 24.09.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Catherine Court Assistant. Mr. Jomba for 8th and 10th Defendants. Ms. Wanja for the Plaintiff. Mr. Mwangi for the 1st, 3rd, 5th, 6th, 7th, and 11th Defendants. ELC. NO. 226/2016-RULING 22

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