Issue Number 1 Whether the prayer seeking to compel the 4th Defendant/Respondent to issue a certificate of lease in respect of LR No Nairobi/Block 136/8529 is Res-judicata.
20.It is common ground that the plaintiffs/applicants herein hitherto filed and lodged the current suit as against the named defendants/respondents.
21.It is also common ground that the subject suit was thereafter compromised vide a consent entered into and executed by and on behalf of the various Parties. For clarity, the consent is contained at the foot of the documents/ Letter duly executed and signed on the September 17, 2020.
22.Suffice it to point out that the consent under reference was thereafter adopted and endorsed by theHonourable court in terms of the orders made on November 12, 2020.
23.Given the relevance of the terms of the decree, it is appropriate and imperative to reproduce the said terms. In this regard, the terms of the decree of the court issued on the November 12, 2020 are reproduced as hereunder:i.That it is hereby declared that the parcels of land known as Plot No V 3677, V 3678, V 3679, V 3680, V 3681, V 3682, V 3683, V 3684, V 3685, V 3686, V 4019 and V 4023 are now known as Parcel No 8529,8512, 8513, 8514, on Block/36 Block/136 (Embakasi Ranching) on Folio Register 399/60.ii.That the 1st plaintiff is hereby declared as the legal owner of all that parcel of land known as parcel No 8529,8512,8513 and 8514 on Nairobi/Block 136(Embakasi Ranching) located in Ruai.iii.That the 4th defendant is hereby ordered to issue certificates of titles in the names of the 1st plaintiff in regards to Parcel No 8529, 8512,8513 and 8514 on Nairobi/Block 136(Embakasi Ranching) and on Folio Register 399/60.iv.That each party bears its own costs.
24.From the decree, whose terms/clauses have been reproduced in the preceding paragraph, it is evident and apparent that the 4th defendant was ordered and directed to issue a certificate of title to and in favor of the 1st plaintiff/applicant herein relating to inter-alia LR No Nairobi/Block 136/8529.
25.My understanding of limb three of the decree issued on the November 12, 2020, is that the 1st plaintiff already has a standing and existing order against the 4th defendant/respondent.
26.To the extent that the Plaintiffs already have standing and existing orders directing the 4th defendant to issue a certificate of title/lease, over and in respect of the named property, no further order is required to fortify an order that is already existing.
27.Conversely, once a court has previously issued a binding and effective order in respect of a particular dispute/property, the court cannot be re-invited to come back on the same matter and seek or make similar orders.
28.In this respect, the limb of the application where the plaintiffs are inviting the court to order and direct the 4th defendant/respondent to issue a certificate of title in respect of the named property, is bad for duplicity.
29.Additionally, to the extent that there is already an existing and standing order speaking to the issues, the court cannot be invited to have a second bite on the same issue.
30.In this respect, I am of the humble and considered view that the limb of the Application that is seeking for issuance of an order which is already in existence, is similarly, barred and prohibited by the doctrine of Res-judicata as well as functus officio.
32.Additionally, it is also important to state and underscore that to the extent that this very court had pronounced itself on the issue of the issuance of a certificate of title in favor of the 1st plaintiff/applicant, then the said issue cannot be reagitated once again.
33.To this end, the doctrine of functus officio bars and prohibit the court from entertaining and adjudicating upon a similar issue that the honourable court has already pronounced itself upon.
35.In a nutshell, it is my finding and holding that what is sought for vide prayer two of the instant application dated the October 25, 2022, is barred by the twin doctrines of Res-judicata and functus officio.
Issue Number 2 Whether this Honourable court is seized of the requisite Jurisdiction to revoke the certificate of lease issued on the August 14, 2020 to Benjamin Kamau Gitegi without same being a Party to the subject Application and without being heard in respect of the instant Application.
36.The second limb of the instant application seeks to have a certificate of title which was issued in favor of one Benjamin Kamau Gitegi, be revoked and cancelled.
37.Suffice it to state that the said Benjamin Kamau Gitegi, whose Title over and in respect of LR No Nairobi/Block 136/8529 is sought to be cancelled, was never a party to the instant suit.
38.Additionally, it is also important to state that the certificate of lease, which was issued to and in favor of the said Benjamin Kamau Gitegi, is stated to have been issued on the August 14, 2020.
39.From the record and the totality of the evidence beforehand, it is apparent that the impugned certificate of lease was clearly issued prior to and before the decree of the court. For clarity, the decree of the court was issued on the November 12, 2020.
40.Based on the foregoing, what comes out clearly is that by the time the decree of the court was being issued, the title to and in respect of one of the properties in contest, had already been issued to a third party.
41.Despite the fact that the title in respect of the named property had already been issued to a third party, the plaintiffs/applicants herein did not find it appropriate to amend their pleadings and to implead the said third party.
42.In any event, even after discovery that the Title in respect of LR No Nairobi/Block 136/8529 was issued to a third party, the plaintiffs/applicants herein have neither impleaded nor served the named third party in the current application.
43.Evidently, the plaintiffs/applicants are keen to procure and obtain adverse orders against the said Benjamin Kamau Gitegi, albeit without notice to and involvement of the said party.
44.To my mind, no adverse order can issue and be granted against a third party, without the said 3rd party being notified of the intended adverse proceedings and being served with the requisite proceedings, to enable same participate therein.
45.Put differently, it is contrary to the rule of natural justice to make an order which will adversely affect a party who has neither been served with the proceedings nor afforded an opportunity to respond to the impugned proceedings.
46.On the other hand, I am also alive to the provisions of Articles 47 and 50(1) of the Constitution 2010. For convenience, the provisions of the said Articles are reproduced as hereunder:47.Fair administrative action(1)Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.(2)If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.(3)Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—(a)provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and(b)promote efficient administration.50.Fair hearing(1)Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.
47.Notwithstanding the foregoing, the importance and significance of the right to fair hearing and the tenets of natural justice, have also been underscored and amplified in various decisions of the court.
48.Without belaboring the point, it is appropriate to take cognizance of the holding of the Court of Appeal in the case of Misnak International (UK) Limited v 4MB Mining Limited C/O Ministry of Mining, Juba Republic of South Sudan & 3 others  eKLR, where the court stated as hereunder:27.It is trite that one of the tenents of the rules of natural justice is that a party should not be condemned unheard. In other words, no proceedings should be conducted to the detriment of any person in his absence. It is in line with actualization of this right that the provisions for summons to enter appearance and service thereof come into play. The essence of such summons is to give notice to the party sued of the existence of the suit and invite him/her to enter appearance and defend the suit if she/he so wishes. This requirement has been reinforced in a number of decisions of this court namely, Giro Commercial Bank Ltd v Ali Swaleh Mwangula  eKLR & Babs Security Services Ltd v Mwarua Yawa Nzao & 19 Others  eKLR.
49.Additionally, the significance of the right to be heard and the rule of natural justice was also emphasized by the Court of Appeal in the case of County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others  eKLR, where the court stated as hereunder:72.Due process is a fundamental aspect of the rule of law. Due process is the right to a fair hearing. The right to a fair hearing encapsulated in the audi alteram partem rule (no person should be condemned unheard) and founded on the well-established principles of natural justice, is not a privilege to be graciously accorded by courts or any quasi-judicial body to parties before them. As is clear from Articles 47 and 50 of our Constitution, it is a constitutional imperative.73.Whereas the right to a fair hearing varies from one case to another depending on the subject of the matter in issue, its irreducible minimum is now well settled. In granting that right, the court or the administrative body or person concerned should not make it a charade by taking perfunctory actions for the sake of running through the motions to be seen to have complied with it. The person charged is entitled to what, in legal parlance is referred to as the right to “notice and hearing.” That means he must be given written notice which must contain substantial information with sufficient details to enable him ascertain the nature of the allegations against him. The notice must also allow sufficient time to interrogate the allegations and seek legal counsel where necessary. In the epigram of the indomitable Lord Denning in Kanda v Government of Malaya:
50.Duly nourished and guided by the observation enunciated in the decisions alluded to, it is common ground that the Certificate of Title issued in favor of Benjamin Kamau Gitegi, over and in respect of LR No Nairobi/Block 136/8529, cannot be cancelled or revoked without due notice being served upon same.
51.To do so, this honourable court would be going against and acting contrary to the right to fair hearing and the rule of natural justice.
52.In a nutshell, I am afraid that the limb of the instant application that seeks to invite the honourable court to revoke the impugned certificate of lease, cannot be granted in the manner sought.