1.Before this court for determination is a Notice of Preliminary Objection dated 27th June, 2022 filed by the 1st respondent and brought pursuant to Order 51 Rule 14 (1a & c) of the Civil Procedure Rules challenging the notice of motion application dated 10th May, 2022 on the following grounds: -1.That this application offends Section 7 of the Civil Procedure Act.2.That this honourable court is functus officio in respect to this matter.3.That the application is incurably defective, has no basis in law and is an abuse of the court process.4.That this honourable court had already pronounced itself clearly to the issue raised in the application by the applicant.
2.Parties agreed to dispose off the notice of preliminary objection by way of written submissions.
3.The 1st respondent filed undated written submissions on 15th July, 2022.The 1st respondent submitted that the notice of preliminary objection is informed on the need to prevent the interested parties from having a second bite at the cherry and more importantly from undermining the very facets that inscribe the rules of finality and conclusion on matters before court. The 1st respondent submitted that the application is bathed with scenarios articulated under Section 7 of the Civil Procedure Act as the issues raised therein are directly and substantially the same issues litigated between the parties before this court in Miscellaneous Application No. 2 of 2021 and the dismissed interested parties preliminary objection dated 6th July, 2021 where a ruling was delivered on 24th February, 2022 and as such the notice of motion application dated 10th May, 2022 is res judicata. The 1st respondent relied on the case of Garden Square Ltd versus Kogo & Another  eKLR and Electoral & Boundaries Commission versus Maina Kiai & 5 Others  eKLR.
4.The 1st respondent further submitted that the court is functus officio and that the present application is an attempt by the applicant to reopen the case and obtain orders that have already been decided by this court. While relying on the case of Telkom Kenya Limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Ltd)  eKLR and Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others  eKLR the 1st Respondent submitted that the applicant is zealous to engage the court in a circus of filing one application after another in the hope that the court will render a different decision and further, that the applicant has all along participated in this present case and cannot be seen to be hiding in the shadows of his current application.
5.The applicants filed written submissions dated 27th July, 2022.They submitted that this matter is not res-judicata as it is not a fresh suit that seeks to introduce new or fresh issues, but that the application seeks to correct a mistake on the face of the ruling and that the court having pronounced itself that it lacked jurisdiction failed to expressly state its position on the inhibition that had been placed over their parcel of land and that when they presented the District Land Registrar with the ruling of the court, the District Land Registrar stated that there was nothing directing/ordering him to have the said inhibition removed.
6.The applicants further submitted that the application does not offend the legal principle of functus officio as it is aimed at correcting an error made by the court to avoid adjudication of the parties and that the general rule is that the court becomes functus officio upon delivery of judgment. The applicants relied on the case of Republic versus Attorney General & 15 Others Ex-parte Kenya Seed Company Ltd & 5 Others  eKLR and Section 99 of the Civil Procedure Act. The applicants submitted that this court had power to correct judgment or ruling upon its own motion or on application by the parties in order to correct omissions apparent mistakes with the aim of achieving justice to the litigants. The applicants relied on the case of Jersey Evening Post Limited v Al Thani  JLR 542-550 and Lakhamshi Brothers Limited v R Raja & Sons  EA 313.
7.I have considered the notice of preliminary objection and the written submissions filed by both parties and the issue for determination is whether the application offends Section 7 of the Civil Procedure Act.
8.The threshold for preliminary objections is now well settled and there would be no reason to reinvent the wheel. Courts have held that a preliminary objection deals with purely points of law and where facts are not disputed. Where the court has to look outside the case for evidence to establish the facts presented, then this falls under a case where a full hearing has to be conducted to disprove certain facts. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors ltd  EA 696, the court stated as follows: -
9.In this case, this court delivered a ruling on 24th February, 2022 which ruling dismissed the notice of preliminary objection dated 6th July, 2021.In the said ruling the court noted that on 12th March, 2020 upon perusal of the pleadings, it lacked jurisdiction to hear and determine the dispute as it was a succession matter and proceeded to transfer the same to the high court. Thereafter, this court on 28th January, 2021 vide an application dated 27th January, 2021 granted an inhibition order against the property known as Cis-Mara/Oleleshwa/162.
10.It is the applicant’s submission that the ruling delivered by this court on 24th February, 2022 did not vacate the said orders which prompted the filing of the application dated 10th May, 2022. It should be noted that in granting the orders of inhibition, the court was aware of the two pending court cases i.e. ELC Appeal No. 10 of 2019 and Succession Appeal No. 1 of 2018 as is deponed in Supporting Affidavit of Simon kishanto Kudate sworn on 27th January, 2021.
11.I do recognise that whereas this court noted that it lacked jurisdiction to entertain the matter as the issue was on succession, it retained jurisdiction to grant orders of inhibition by virtue of Section 68 of the Land Registration Act of 2012.Really, there is no error apparent on the face of the ruling delivered 24th February, 2022 to warrant correction as submitted by interested parties.
12.Arising from the above, I find that the notice of preliminary objection partially succeeds in terms of grounds 1,3 and 4. The notice of motion application dated 10th May, 2022 is hereby dismissed with costs. It is so ordered.