Mainoya (Suing as the Legal Representatives of the Estate of Nasumpati Mainoya Shakua – Deceased) v Nairobi Pacific Hotel Limited & 2 others (Environment and Land Case E072 of 2024) [2025] KEELC 7147 (KLR)

1st Defendant/Respondent Case 3. The Application is opposed by the 1st Defendant through grounds of opposition dated 30th october,2024.The 1st Defendant asserts that; a. The Application lacks merit, is intended to circumvent a hearing and shift the statutory burden of proof. b. The Statement of Defence filed by the 1st Defendant suficiently controverts the allegation contained in the Plaint and is compliant with the provisions of Order 2 Rule 3 of the Civil Procedure Rules, 2010. c. It is up to the Plaintifi to prove his allegations as provided in Sections 107, 108, 109, and 112 of the Evidence Act. d. The Plaintifi’s own documents contradict his case. e. The Application does not meet the required threshold. 4. The 1st Defendant also contests the Application through the Replying Afidavit of its Director Cornelius Muthuri sworn on 14th February, 2024. It is averred that the Plaintifi himself has availed a green card that demonstrates that his mother Nasumpati Moinoya Shakua has never been registered as the proprietor of Kajiado/Kaputei-North/11611. 5. It is alleged that the suit property originally owned by Kunaiyo Mainaya Shakua has never been transferred and was closed after subdivisions into Kajiado/Kaputei-North/14997 and 14998. Upon subdivisions, the parcels were transferred to Farhana Mohamed Hassan Ali, thereafter to Kennedy Tsosy Getange and later on to the 1st Defendant. 6. It is contended that the 1st Defendant averments in its Defence that the Plaintifi’s suit is incompetent are well founded because they have not demonstrated nor disclosed fraud against it or that they have the capacity to litigate on behalf of the estate of Mainaya Shakua. According to the Deponent, the 1st Defendant has never dealt with Nasumpati Moinoya Shakua because she has never been a registered proprietor of the suit property. Plaintifi ’s further Afidavit to 1st Defendant Case 7. The Plaintifi responded to the 1st Defendant’s case through his further afidavit sworn on 24th June, 2025. The Plaintifi depones that his mother was the rightful owner of the suit property and that he has a Limited Grant Ad Litem for his mother’s estate authorizing him to file and prosecute this suit. Courts Directions 8. The directions of the court were that the Application be dispensed with by way of written submissions. Both sides complied and the court has considered them in the writing of this ruling. Issues for determination 9. The only issue for determination in the court’s opinion is whether the Notice of Motion 29th October, 2024 is merited. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7147/eng@2025-10-16 2

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Determination 10. The Plaintifi has pleaded that on 9th November, 2023, they were shocked to discover that the parcel of land known as Kajiado/Kaputei-North/11611 belonging to his late mother, Nasumpati Mainoya Shakua had been subdivided into Kajiado/Kaputei-North/14997 and 14998, registered in the name of the 1st Defendant the titles charged in favor of Interested Party as a security for a loan of Kshs. 40 Million advanced to the 1st Defendant. According to the Plaintifi, the subdivision, transfer and charge were illegally and fraudulently undertaken because his mother never executed any transfer documents efiecting the transfer. Further, upon her demise, she was buried on the property wherein the Plaintifi and siblings were born and raised. 11. The Plaintifi seeks to have the transfer and charge declared null and void and an order issued cancelling the titles issued to the 1st Defendant. The Plaintifi also prays for an injunction restraining the 1st Defendant from interfering with Kajiado/Kaputei-North/14997 and 14998 in addition to an order reversing the illegal transfer. 12. The 1st Defendant through its Defence has denied all allegations levelled against it by the Plaintifi and avowed that it lawfully and regularly acquired the suit properties. 13. Similarly, the Interested Party denies the Plaintifi’s assertions against it through its undated Defence and prays for dismissal of the Plaintifi’s suit with. It asserts that no cause of action has been raised against it. 14. According to Order 2 Rule 15(1) of the Civil Procedure Rules, a pleading should only be struck out, if;- 15. a. it discloses no reasonable cause of action or defence in law; or b. it is scandalous, frivolous or vexatious; or c. it may prejudice, embarrass or delay the fair trial of the action; or d. it is otherwise an abuse of the process of the court, The courts’ discretion to strike out pleadings was deliberated upon in the case of where the Court of Appeal made the following pronouncement; Blue Shield Insurance Company Ltd V Joseph Mboya Oguttu [2009] KECA 221 (KLR) “The principles guiding the Court when considering such an application which seeks striking out of a pleading is now well settled. Madan J.A. (as he then was) in his judgment in the case of D.T. Dobie and Company (Kenya) Ltd vs Muchina (1982) KLR 1 discussed the issue at length and although what was before him was an application under Order 6 rule 13 (1) (a) which was seeking striking out a plaint on grounds that it did not disclose a reasonable cause of action against the defendant, he nonetheless dealt with broad principles which in efiect covered all other aspects where striking out a pleading or part of a pleading is sought. It was held in that case inter alia as follows:“The power to strike out should be exercised after the Court has considered all facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial Judge. On an application to strike out pleadings, no opinion should be expressed as this would https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7147/eng@2025-10-16 3

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prejudice fair trial and would restrict the freedom of the trial Judge in disposing the case.” We too would not express our opinion on certain aspects of the matter before us. In that judgment, the learned Judge quoted Dankwerts L.J in the case of Cail Zeiss Stiftung vs Ranjuer & Keeler Ltd and others (No.3) (1970) ChpD 506, where the Lord Justice said:“The power to strike out any pleading or any part of a pleading under this rule is not mandatory; but permissive and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the ofiending pleading.” We may add that like Madan J.A, said, the power to strike out a pleading which ends in driving a party from the judgment seat should be used very sparingly and only in cases where the pleading is shown to be clearly untenable.” The same sentiments were echoed by Danckwerts L.J when the House of Lords considered a similar matter in Wenlock V Moloney, [1965] 2 All E.R 871 at page 874, as follows: “There is no doubt that the inherent power of the court remains; but this summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintifi really has a cause of action. To do that, is to usurp the position of the trial judge, and to produce a trial of the case in chambers, on afidavits only, without discovery and without oral evidence tested by cross-examination in the ordinary way. This seems to me to be an abuse of the inherent power of the court and not a proper exercise of that power. The learned master stated the relevant principles and practice correctly enough, and then, I am afraid, failed to apply them to the case.” 16. Among the documents filed by the Plaintifi in support of his claim includes a green card for Kajiado/Kaputei-North/11611, 14997 and 14998, Certificate of Oficial Search for Kajiado/KaputeiNorth/14997 and 14998 as well as a letter from the Chief of Isinya location. 17. The pleadings and documents filed in this suit reveal that both the Plaintifi and 1st Defendant claim absolute proprietorship over Kajiado/Kaputei-North/14997 and 14998. Given this disagreement by both parties, the court can only make an informed decision as to who is the true owner of the disputed properties once this matter proceeds to full trial where the evidence of each party will be tested through cross-examination. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7147/eng@2025-10-16 4

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18. Besides, the nature of the prayers sought by the Plaintifi necessitates that the 1st Defendant must be accorded the right to fair hearing, to present its case and evidence, before a determination is made. I must as well add that the law is extremely protective of title and provides specific instances for challenge of title as provided for under Section 26 of the Land Registration Act. 19. Based on the foregoing , I decline the Plaintifi’s invitation to strike out the defence by the 1st Defendant and consequently disallow the Notice of Motion Application 29th October, 2024. To facilitate expeditious disposal of this matter, parties forthwith directed to ensure compliance with Order 11 of the Civil Procedure Rules. 20. The costs of this Application shall be in the cause. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 16TH DAY OF OCTOBER 2025. M.D. MWANGI JUDGE In the virtual presence of: Mr. Sifuna h/b for Mr. Kinisu for the Plaintifi/Applicant Ms. Wanjiku h/b for Mr. S.N Ng’ang’a for the 1st Defendant/Respondent Mr. Ontita for the Interested Party N/A by the 2nd Defendant Court Assistant: MPoye M.D. MWANGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7147/eng@2025-10-16 5

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