Deshpal Omprakash Wadhwa v Habib Abu Mohamed & 4 others

1" defendant and further or alternatively be enjoined as codefendant to take care of the interests of the 1 st defendant in this suit as his duly appointed General Attorney, and that the said Attorney be allowed/mandated to defend and carry out other actions related to this suit. 3. THAT the court be pleased to issue summons for the attendance before court of one MOHAMMED JEMBE retired Land Registrar- Kilifi to Testify on the validity, authenticity inter alia, and to shed light on the plaintiff's certificate of lease, lease document, the presentation book dated 22" July 1992 as produced by the plaintiff and allegedly undertaken under his tenure. 4. THAT costs of this application be in the cause. 3. The application is premised on the grounds that the Plaintiff has closed his case and the matter has therefore proceeded to the stage of hearing of the defence case. It is stated that the 1 st Defendant has suffered a stroke and has been under prolonged medication and treatment within and outside the country and is, despite the optimism for recovery, unable to attend to or continue defending the suit properly and effectively. The Applicant states that his appointed attorney, being his biological son, is reasonably conversant with the issues concerning the suit property and has been a key assistant to the 1st Defendant. 4. It is further stated that allowing the application would enable the 1 st Defendant to properly and effectively defend the suit through his lawfully appointed attorney and avoid prejudice that may arise from his inability to testify and participate in the proceedings. The Applicant maintains that the 1st Defendant cannot, by reason of his ill health, MLDELCLC 51/12/RLG/DF13.05.25/FH-13.10.25/LH-25.05.26/DR-06.10.26 of 18 Page 2

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competently defend the suit and that it is therefore necessary that he be permitted to act through the proposed mode. 5. With respect to the proposed summons to Mohamed Jembe, the Applicant states that the 1st Defendant has placed before the court a certificate of lease and a lease application, among other documents, indicating that he is the registered proprietor of the land. It is contended that Mohamed Jembe, being the alleged maker of the documents, has disputed their veracity and authenticity and that it is therefore necessary that he be summoned to testify and shed light on the documents which form the foundation of the dispute. The Applicant further states that the proposed changes will not occasion prejudice to the Respondents. 6. The application is supported by the affidavit of Mohamed Habib Abu. He depones that he is the 1st Defendant's duly appointed attorney, with authority to plead and defend the action on his behalf, and annexes a copy of the General Power of Attorney. He further states that the 1 st Defendant is the registered owner of Plot No. KILIFI/JIMBA/441 and that, as his biological and eldest son, he is conversant with the issues and facts relating to the suit property. 7. The supporting affidavit further explains the 1st Defendant's medical condition and states that the Plaintiff has closed his case and that the matter is now at the stage of the defence hearing. The deponent therefore seeks leave to file a statement and testify on behalf of the 1 st Defendant or, in the alternative, to act alongside him as his duly appointed attorney. He also refers to the affidavit of Mohamed Jembe in which the latter allegedly disputes the authenticity of documents relating to the suit property and relies on the same in support of the prayer for his attendance before court. MLDELCLC 51/12/RLG/DF13.05.25/FH-13.10.25/LH-25.05.26/DR-06.10.26 of 18 Page 3

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8. The Plaintiff opposed the application through Grounds of Opposition dated 26th May 2025 and a Replying Affidavit sworn on the same date by Mohamed Amani Karega, Advocate. The Plaintiff's Grounds of Opposition principally contend that prayer 3 is res judicata. It is stated that the 1st Defendant had previously filed an application dated 15th March 2023 seeking production of original documents for forensic examination and the summoning of their makers for cross- examination. The Plaintiff contends that the earlier application specifically raised the authenticity of the certificate of lease for Kilifi/Jimba/441 and the necessity of summoning the makers of the documents. 9. The Plaintiff further contends that the earlier application was dismissed by Odeny, J. on 16th October 2023 after the court considered whether the documents should be subjected to forensic examination and whether their authors should be summoned. It is stated that no Notice of Appeal was filed against that ruling. The Plaintiff therefore maintains that the present attempt to summon Mohamed Jembe concerning the certificate of lease for Kilifi/Jimba/441 raises the same matter that was previously determined. 10. The Plaintiff's replying affidavit was filed principally to place before the court documents referred to in the Grounds of Opposition. The affidavit identifies the annexures as: the certified proceedings of 9th October 2018; the 1st Defendant's Notice of Motion dated 15th March 2023; the 1st Defendant's Attorney's Further Affidavit sworn on 20th June 2023; and the ruling by Hon. Lady Justice Dr. M. A. Odeny delivered on 16th October 2023. These documents were marked as exhibit MARC. The record therefore contains the earlier application and the ruling disposing of it, which are material to the plea of res judicata. 11. The Plaintiff's further contention is that prayer 3 is an abuse of the process of the court, having been brought after the Plaintiff had MLDELCLC 51/12/RLG/DF13.05.25/FH-13.10.25/LH-25.05.26/DR-06.10.26 Page 4 of 18

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closed his case. The Plaintiff points out that the certificate of lease for Kilifi/Jimba/441 had been produced on 9th October 2018 as Plaintiff's Exhibit A3 without objection from the 1 st Defendant. It is therefore contended that the present application comes too late and would prejudice the Plaintiff, who would have no opportunity to respond to the evidence sought to be introduced through Mohamed Jembe. 12. Mohamed Habib Abu thereafter filed a Further Affidavit sworn on 17th June 2025. The substance being that the present application was prompted by the evidence of PW2 on 6th May 2025, when PW2 stated that the Plaintiff's certificate of lease was signed by Mohamed Jembe. The 1st Defendant sought to distinguish the present application from the earlier application on the basis that the present summons concerns Mohamed Jembe as a defence witness who is to testify on the authenticity of documents, rather than merely as an author to be summoned for purposes of cross-examination. 13. The 1st Defendant also sought to demonstrate the necessity of calling Mohamed Jembe and the absence of prejudice to the Plaintiff. The Applicant relied on the fact that the evidence concerning the authenticity of the certificate of lease had become material during the hearing of the defence case. The Applicant further invoked Article 159(2)(d) of the Constitution in urging the court to determine the application substantively and to avoid shutting out relevant evidence on account of procedural considerations. 14. The parties filed written submissions. The Plaintiff's submissions were dated 9th July 2025. The Plaintiff submitted that the application essentially seeks two orders, namely substitution of a witness and issuance of summons to Mohamed Jembe, the retired Land Registrar, to testify concerning the validity and authenticity of the certificate of lease for Kilifi/Jimba/441. The Plaintiff expressly stated that he did MLDELCLC 51/12/RLG/DF13.05.25/FH-13.10.25/LH-25.05.26/DR-06.10.26 Page 5 of 18

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not oppose the substitution of the 1 st Defendant's witness and the filing of a witness statement by the new witness, provided that no new matters not contained in the original witness statement were introduced. 15. On prayer 3, the Plaintiff submitted that the same is res judicata. Reliance was placed on Section 7 of the Civil Procedure Act and, inter alia, Mbiyu v Mbiyu & 15 others [2018] KESC 29 (KLR), Kenya Commercial Bank Limited v Benjoh Amalgamated Limited [2017] KECA 98 (KLR), Housing Finance Company of Kenya v J. N. Wafubwa [2014] KECA 695 (KLR), Maumbwa & 3 others v Kisemei [2022] KEHC 10416 (KLR) and Daphine Balinda Keter v ECO Bank Kenya Limited [2017] eKLR. The Plaintiff's submission was that res judicata applies equally to applications and bars a party from re-litigating an issue that has already been determined. 16. The Plaintiff invited the court to compare prayer 3 of the present application with the prayers in the application dated 15th March 2023. It was submitted that, although differently worded, both applications ultimately seek the attendance before court of the maker of the relevant land documents so that the authenticity of those documents may be interrogated. The Plaintiff particularly identified the certificate of lease for Kilifi/Jimba/441 and the presentation book for July 1992. 17. The Plaintiff further submitted that the issue had already been directly and substantially in issue in the earlier application and that the same was dismissed by Odeny, J. on 16th October 2023. It was pointed out that Mohamed Jembe's affidavit allegedly denying his signature on the certificate of lease had itself been sworn on 16th March 2023 and had been annexed to the 1 st Defendant's Further Affidavit filed on 20th June 2023. The Plaintiff therefore disputed the MLDELCLC 51/12/RLG/DF13.05.25/FH-13.10.25/LH-25.05.26/DR-06.10.26 of 18 Page 6

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assertion that the present application was occasioned by PW2's evidence on 6th May 2025. 18. The Plaintiff also submitted that the same parties were before the court in the earlier application, that the earlier ruling was rendered by a court of competent jurisdiction and that no appeal was preferred against it. It was consequently submitted that the earlier ruling finally determined the question of forensic examination and the summoning of the makers of the documents to challenge their authenticity. 19. The 1st Defendant, in response, maintained that prayer 3 was not barred by res judicata and sought to distinguish the present application from the earlier application. The Applicant relied on the fact that the present application arose in the course of the defence hearing and contended that the intended evidence of Mohamed Jembe was necessary to assist the court on the authenticity of the Plaintiff's documents. The Applicant also relied on Article 159(2)(d) of the Constitution and authorities including Atlantic Limited v Echken Agencies Ltd and Microsoft v Mitsumi Computer Garage Ltd 19409 KLR in support of the court's discretion to admit or permit evidence where the interests of justice so require. 20. The Plaintiff responded that the authorities relied upon by the 1 st Defendant did not permit the court to sit on appeal over the ruling of a judge of concurrent jurisdiction. It was further submitted that the distinction between summoning a witness and summoning a defence witness did not alter the fact that Mohamed Jembe had already been identified as a person whose evidence was sought concerning the authenticity of the Plaintiff's documents. 21. Three issues therefore lie for determination: i. Whether leave be granted to Mohamed Habib Abu to testify on behalf of Habib Abu Mohamed and file a statement and MLDELCLC 51/12/RLG/DF13.05.25/FH-13.10.25/LH-25.05.26/DR-06.10.26 of 18 Page 7

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testify on his behalf as a donee under a general power of attorney. ii. Whether Prayer 3 of the Application is res judicata. iii. Who shall bear the costs of the application? ANALYSIS 22. As to whether leave be granted to Mohamed Habib Abu to testify on behalf of Habib Abu Mohamed, Order 9 rule 1 of the Civil Procedure Rules provides: “Any application to or appearance or act in any court required or authorized by the law to be made or done by a party in such court may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by an advocate duly appointed to act on his behalf:” 23. Order 9 rule 2(a) further recognizes, subject to the approval of the court in any particular suit, persons holding powers of attorney authorizing them to make appearances and applications and to do such acts on behalf of parties. 24. The courts have recognized that a person holding a valid Power of Attorney may, subject to the approval of the court, act as a recognized agent. In Gatatha Farmers Company Limited v Chemtingei & 3 others; Kaitet Tea Estates (1977) Limited & another (Interested Parties) [2024] KEELC 3299 (KLR), the court considered the operation of Order 9 rules 1 and 2 and held that a person acting as an agent under a Power of Attorney requires the approval of the court. 25. The court, citing Jack J. Khanjira and Another v Safaricom Ltd [2012] eKLR, stated: MLDELCLC 51/12/RLG/DF13.05.25/FH-13.10.25/LH-25.05.26/DR-06.10.26 of 18 Page 8

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“Clearly, the essential characteristic of a person acting as a recognized agent is that he or she acts, appears or makes any such applications, acts or appearances subject to the approval of the court. The above provision is important because by the very nature of the instrument of their appointment, it may donate to them powers which are, in law, untenable. So that, it appears to me that when exercising their functions in court, they must periodically obtain the approval of the court to do such acts. It is for the court to oversee the scope and extent of the functions of a recognized agent, and to assure itself that they are not overstepping the bounds of the law. In my view, it is not the fact of being an agent that renders a donee of a power as recognized; it is the extent or scope of their agency that is recognized. That is to say, a recognized agent can perform only that which he is recognized or authorized to do in law.” 26. The position is therefore that the court is empowered to permit a donee of a Power of Attorney to act for the donor within the scope of the authority donated and subject to the court's approval. The purpose of the requirement for approval is to enable the court to ascertain the existence and scope of the authority and to ensure that the recognized agent does not purport to exercise powers beyond those conferred by law or by the instrument of appointment. 27. In the present case, Mohamed Habib Abu has exhibited the General Power of Attorney under which he states that he is authorized to act for the 1st Defendant. He is also the 1st Defendant's son and has explained his familiarity with the subject matter of the suit. The application is supported by medical evidence concerning the 1 st MLDELCLC 51/12/RLG/DF13.05.25/FH-13.10.25/LH-25.05.26/DR-06.10.26 of 18 Page 9

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Defendant's inability to effectively participate in the proceedings. Prayer 2 is also unopposed. 28. However, I take note that the said Mohamed Habib Abu had previously moved this court through the notice of Motion application dated 11th March 2026. He indicated to this court that he had obtained a grant of letters of administration on 17 th February 2026 and sought for Habib Abu Mohamed’s name to be struck off the suit and he be substituted thereto. 29. On 26th May 2026, this court granted prayers 2,3, and 4 of the application. The Court directed that all future pleadings and documents reflect Mohamed Habib Abu as the 1 st Defendant in his representative capacity. 30. Having the foregoing in mind, the proper conclusion is that the Applicant is already clothed with requisite locus standi to file pleadings and participate in this suit in his capacity as the legal representative of the estate of the late Habib Abu Mohamed (deceased). 31. It is noteworthy that a power of attorney cannot survive the deceased. In this case, the deceased died on 4 th July 2025; the general power of attorney dated 29th October 2018 automatically extinguished the donee's rights. In Meru & 3 others v Meru [2023] KECA 1600 (KLR), the Court of Appeal sitting in Nyeri observed as follows: “14. On whether the power of attorney survives the death of the donor, there is consensus by both courts below that the power of attorney is extinguished upon death of the donor. We agree with that finding. In the present case, when the respondent’s mother died, the power of attorney that anchored him to file the suit on behalf of his mother was dislodged. The suit did not nonetheless sink and the respondent was able to take quick action to salvage MLDELCLC 51/12/RLG/DF13.05.25/FH-13.10.25/LH-25.05.26/DR-06.10.26 of 18 Page 10

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it and put it back on course. The expiry of the power of attorney did not “kill” the suit as intimated by the appellants.” 32. The summation of the foregoing is that prayer number 2 is overtaken by events by the clothing of the applicant as a legal representative of the deceased’s estate. Further, it is equally spent by dint of the death of the donor of the general power of attorney, which extinguished the said locus standi. 33. However, since the application dated 11th March 2026 was allowed in terms of prayers 2, 3, and 4, the Applicant, as the legal representative of the deceased, has the power to defend the suit and carry out other actions pertaining to this suit henceforth. 34. The Applicant is therefore at liberty to file the witness statement and participate in this suit, as the orders were already granted on 26 th May 2026 through the application dated 11th March 2026. However, this shall be on condition that he shall not introduce new facts or claims inconsistent with the deceased defendant’s pleadings on record, as this shall prejudice the Plaintiffs who have already testified and closed their case. 32. Regarding Prayer 3, the 1st Respondent is of the view that the Application is res judicata. The doctrine is provided for under Section 7 of the Civil Procedure Act as follows: “7. Res judicata No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which MLDELCLC 51/12/RLG/DF13.05.25/FH-13.10.25/LH-25.05.26/DR-06.10.26 of 18 Page 11

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such issue has been subsequently raised, and has been heard and finally decided by such court. Explanation. — (1) The expression "former suit" means a suit which has been decided before the suit in question whether or not it was instituted before that suit. Explanation. — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court. Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. Explanation. — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.” 33. The Court of Appeal in Mohamed v Adan & 3 others [2026] KECA 527 (KLR), at paragraph 61, observed: “61. The term res judicata, Latin for “a thing adjudicated [or decided]” captures the idea that once an issue has MLDELCLC 51/12/RLG/DF13.05.25/FH-13.10.25/LH-25.05.26/DR-06.10.26 of 18 Page 12

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been dealt with by a competent court, it is not open to any of the parties involved in the dispute or those claiming under or through them, to raise the same issue so decided in those proceedings by way of a subsequent case or reagitation of that same issue. It is grounded on finality of determination thus bringing an end to litigation while creating certainty on issues in dispute and assuring rest from vexation to the parties. It is the Law’s way of saying. “You had your day in court to ask all your questions and say your all on that subject, and you got your answer. Now live with that answer and forever keep your peace.” 34. The question therefore is whether the relief sought in prayer 3, the issue raised therein, the parties and the decision of the competent court satisfy the elements of Section 7 of the Civil Procedure Act. 35. I have considered the present application alongside the earlier application dated 15th March 2023. The earlier application sought, among other orders, production of original documents for forensic examination by a public document examiner and the summoning of the makers of the documents to appear before court for examination and cross-examination. The documents included the certificate of lease relating to Kilifi/Jimba/441. The 1st Defendant's Further Affidavit sworn on 20th June 2023 further annexed the affidavit of Mohamed Jembe sworn on 16th March 2023, in which he purportedly denied signing the certificate of lease. 36. The present application seeks, in prayer 3, the attendance of Mohamed Jembe, retired Land Registrar, to testify on the validity and authenticity of the Plaintiff's certificate of lease, lease document and the presentation book dated 22nd July 1992, allegedly undertaken during his tenure. MLDELCLC 51/12/RLG/DF13.05.25/FH-13.10.25/LH-25.05.26/DR-06.10.26 of 18 Page 13

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37. The Plaintiff's replying affidavit placed before the court the certified proceedings of 9th October 2018, the application dated 15 th March 2023, the Further Affidavit dated 20 th June 2023 and the ruling of Odeny, J. delivered on 16 th October 2023. Those documents are directly relevant to determining whether the issue now raised has previously been adjudicated. 38. In the earlier application, the 1st Defendant sought, among other things, examination of the original documents and the summoning of their makers. The stated purpose was to interrogate the authenticity of the documents. The certificate of lease for Kilifi/Jimba/441 was specifically among the documents in issue, and the affidavit of Mohamed Jembe denying his signature was already in the 1st Defendant's possession and had been annexed to the Further Affidavit filed in support of that application. 39. The earlier application was determined by Odeny, J. on 16th October 2023. The Plaintiff's record shows that the court framed the issue as whether the documents should be subjected to forensic examination and whether their authors should be summoned. The application was dismissed. The Plaintiff further states, and the record before this court does not disclose otherwise, that no appeal was preferred against that ruling. 40. The fact that the present prayer is differently worded does not, in my view, alter the substance of the relief sought. If the earlier application had been allowed, the makers of the documents, including the relevant land records relating to the certificate of lease and presentation book, would have been summoned to court to interrogate their authenticity. Prayer 3 of the present application seeks the attendance of Mohamed Jembe for substantially the same purpose. MLDELCLC 51/12/RLG/DF13.05.25/FH-13.10.25/LH-25.05.26/DR-06.10.26 of 18 Page 14

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41. The Plaintiff's submissions correctly invite the court to look beyond the wording of the two applications and consider the substance of the relief sought. The two applications concern the same suit property, the same certificate of lease for Kilifi/Jimba/441 and the same issue of the authenticity of the land documents. The Plaintiff's submissions specifically identify the certificate of lease and the presentation book for July 1992 and contend that the two applications, though differently worded, seek the same relief. 42. The parties are also the same. The earlier application was filed by the 1st Defendant against the Plaintiff, while the present application is similarly brought by the 1 st Defendant against the Plaintiff. The earlier matter was determined by a court of competent jurisdiction. The Plaintiff's submissions further confirm that no appeal was preferred against the ruling. 43. The fact that the Applicant now characterizes Mohamed Jembe as a defence witness, rather than simply as the maker of the documents sought to be examined, cannot remove the matter from the operation of section 7 of the Civil Procedure Act. The substance of the intended testimony remains the authenticity of the same documents whose examination and whose makers' attendance were previously sought. 44. I am fortified in this conclusion by the principle that res judicata applies equally to decisions on applications. The Supreme Court stated in Mbiyu v Mbiyu & 15 others [2018] KESC 29 (KLR) that the doctrine applies equally to decisions on applications as it does to final decisions on a matter. The Court stated as follows: “We also find no fault in the Court of Appeal’s application of the doctrine of res judicata. As was stated in Kanorero River Farm & Others ---Vs—National Bank of Kenya Ltd [1986] KLR, the MLDELCLC 51/12/RLG/DF13.05.25/FH-13.10.25/LH-25.05.26/DR-06.10.26 of 18 Page 15

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doctrine of res judicata applies equally to decisions on applications as it does to final decisions on a matter.” 45. The Plaintiff also relied on Housing Finance Company of Kenya v J. N. Wafubwa [2014] KECA 695 (KLR), where the Court of Appeal emphasized that a party is required to present its whole case rather than litigate by instalments. The principle is particularly applicable in the circumstances of this case because the alleged new basis for the application does not constitute a genuinely new matter. The affidavit of Mohamed Jembe denying his signature was sworn on 16 th March 2023, well before the present application. Further, the Plaintiff's proceedings indicate that the name of Mohamed Jembe had previously arisen in relation to the certificate of lease. The earlier application therefore allowed the 1st Defendant to pursue the very relief now sought. 46. The doctrine of res judicata is intended to bring finality to litigation. It would defeat that purpose if a party, after an application seeking examination of documents and their makers has been dismissed, could return to court under a differently worded application and seek the attendance of the same person to interrogate the authenticity of the same documents. 47. I therefore find that the requirements of Section 7 of the Civil Procedure Act have been satisfied. The issue concerning the summoning of Mohamed Jembe for purposes of examining the authenticity of the certificate of lease and related land documents had been directly and substantially in issue in the earlier application, between the same parties, and had been finally determined by a court of competent jurisdiction. 48. Prayer 3 is consequently res judicata and cannot be re-opened through the present application. The court cannot, in the guise of exercising its discretion under Article 159(2)(d) of the Constitution, MLDELCLC 51/12/RLG/DF13.05.25/FH-13.10.25/LH-25.05.26/DR-06.10.26 of 18 Page 16

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sit on appeal over the ruling of a judge of concurrent jurisdiction. The Plaintiff's submissions correctly point out that the earlier court had already exercised its discretion on the question of summoning the makers of the documents and that no appeal was preferred against that decision. 49. The prayer is therefore unavailable to the Applicant, not because the court lacks discretion to summon witnesses generally, but because the particular issue raised by the prayer has already been adjudicated upon. The doctrine of res judicata operates as a bar to that relitigation. 50. On Issue 3, I note that costs follow the event; since the application is superfluous, I find it proper that the Applicant bears the costs of the application. 51. In the result, the Notice of Motion dated 13th May 2025 is devoid of merit, and I make the following final orders: i. Prayer 2 is overtaken by events and is therefore dismissed; ii. Prayer 3 of the application is dismissed as res judicata. iii. Costs of the application shall be in the cause. Dated, Signed, And Delivered at Malindi on This 6th Day of October 2026 MLDELCLC 51/12/RLG/DF13.05.25/FH-13.10.25/LH-25.05.26/DR-06.10.26 of 18 Page 17

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MWANGI NJOROGE JUDGE ELC, MALINDI MLDELCLC 51/12/RLG/DF13.05.25/FH-13.10.25/LH-25.05.26/DR-06.10.26 of 18 Page 18

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