Pwani Maoni Limited v Mwachandze & 3 others; Mwandekwa

the Republic of Kenya, 2010; Inherent Power and jurisdiction of the Honourable Court and all other enabling provisions of the Laws. 2. Additionally, the Honourable Court was tasked to determine the Notice of Motion application dated 8th July, 2025 by Kim Jin Woo, the 2nd Defendant herein which was brought under the dint of the provision of Sections 1A, 1B and3A of the Civil Procedure Act, Cap. 21; Order 2 Rule 15 and Order 51 of the Civil Procedure Rules 2010; and all other enabling provisions of the Law. 3. Upon service of the applications to the Respondents led their responses accordingly. II. The Notice of Motion application dated 3rd February, 2025 by the Intended Interested Party’s case 4. 5. The Intended Interested Parties/Applicant sought for the following orders: a. Spent. b. That the Honourable Court be pleased to grant Orders in the realm and nature of enjoining Omar Hamad Mwandekwa(for And Behalf Of The Estate Of Hamad Mwachanze Athuman A.k.a Hamad Athuman Mwachanze(deceased) in the these proceedings as an Interested Party pending the hearing of the application inter-parties. c. That upon grant of prayer (2) herein above the Honorable Court be pleased to grant Orders in the realm and nature of referring the entire proceedings herewith to the Directorate Of Criminal Investigations-Kwale for purposes of investigation as to the individual impersonating, drawing, issuing instructions, and deponing to legal pleadings, committing Criminal Acts Of perjury, Forgery, Uttering false documents and otherwise misleading the Honourable Court since Hamad Mwachanze Athuman A.k.a Hamad Athuman Mwachanze has been Deceased since the 5th day Of September 1994 pending any other step and/or further Orders by the Honorable Court. d. That in co-relation to the prayers sought herewith the Honourable Court be pleased to issue an Order unconditionally restraining the Plainti/Respondent their servants, agents, workers, employees, representatives, proxies and/or any other person(s) howsoever from gaining possession, occupation, enjoyment, and derivative use of the suit property to wit: Kwale/ramisi Kinondo S.S/101 in the names of Hamad Athuman Mwachanze. e. That the Honourable Court be pleased to review the Orders issued herewith premised on non-disclosure of material facts, and the clear death prior to ling suit of Hamad Athuman Mwachanze. f. That the Honourable Court be pleased to issue such further Orders in the interest of justice and pertinent to the suit herewith. g. That the costs of this application be provided for. The application by the Applicant herein was premised on the grounds, testimonial facts and averments made out under the 21 paragraphed Supporting Adavit of –Omar Hamad Mwandekwa, the Intended Interested Party/ Applicant herein, sworn and dated the same day with the application. The Applicant averred that: a. The Aant was aware of the Proceedings, Orders and consequent Ruling from inception delivered by the Honourable Court, which has had the cause and eect of an eviction Order as against The Estate Of Hamad Mwachanze Athuman A.k.a Hamad Athuman https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18293/eng@2025-11-27 2

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Mwachanze(deceased) in respect of all that premises known asKwale/ramisi Kinondo SS/102. (Annexed in the adavit and marked as “SOS – 1” was a copy of the said documentation). b. The Aant could honestly say that he only got to know of these proceedings by chance, at no time had Hamad Mwachanze Athuman a.k.a Hamad Athuman Mwachanze (Deceased) been served with any Court pleading inclusive of the summons to enter appearance, Plaint and any other Court processes, his father Hamad Mwachanze Athuman a.k.a Hamad Athuman Mwachanze (Deceased) died on the 5th September, 1994. (Annexed in the adavit and marked SOS 2 a copy of the death Certicate). c. Eectively, the Defendant/ Applicant had immediately and without due regard to legitimate expectation and the Rule of Law eectively issued eviction notices, obliterated the protection of individual property of the premises Kwale/ramisi Kinondo SS/102. d. To add insult to injury, there was a conveyance that has been misrepresented before the Honourable Court that was said to occur as between the Plainti/Respondent and my late father, this is no other than a criminal enterprise, the Honourable Court ought to immediate refer the matter to the Police since the Honourable Court has been seriously misled. e. The aant was aware of it was imperative, due to the demise of my father on the 5th day of September 1994, it was impossible to have conveyance the premises Kwale/ramisi Kinondo SS/102, any such averments was fraud, a criminal enterprise which was unsustainable before the Honourable Court.(Annexed herewith and marked as “SOS – 3” were copies of the Kadhi Succession Cause). f. It was his belief, that the Plainti/Respondents were hiding behind the curtail of corporate veil, had managed to commit acts of fraud even at a public oce such as is the 3rd Defendant/ Respondent and managed to lodged questionable documents bespeaks of the extent the Plainti/Respondent was able to proceed to disenfranchise the entire ESTATE. g. It followed that the process server who alleged to have served the Aant’s father and placed before the Honourable Court falsied adavits of service was part of the illegal enterprise, it was imperative that cross-examination of the process server was important. h. All these pleadings were perjury, ought to be expunged from the record, the entire debacle borders on jurisdictional issue which was criminal in nature, the Honourable Court ought to down its tools so as not to abet a crime with all due respect. i. Essentially as per his reading and understanding of the proceedings, rulings and orders herewith, which was only made available to his person had absolutely disenfranchised the entire ESTATE of any proprietary interest herewith and essentially all his divestment herewith shall be lost. j. The requisite parameters as to grant of Orders of in the nature and realm of review have met the said threshold hence the Court ought to grant the said Orders. k. There had been a misrepresentation of facts with the sole intent of disenfranchisement of all the divestment subject to herewith through a sacrosanct process as that of the Honourable Court through distortion of facts is wholesomely illegal. l. To put matters into perspective, he needed to be enjoined and further the applications that bring these issues into perspective and the same was yet to be heard and/or considered by the Honourable Court which has now proceeded to issue a hearing dates and further directives. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18293/eng@2025-11-27 3

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m. The rule of law and the right to be heard prior to absolute condemnation, which was the main tenant of the justice system and jurisprudence. n. The Aant was aware that the Plainti/ Respondent herein had to be investigated, consequently the possible arraignment of all co – conspirators had yet to precipitate, resultant to which the Aant was apprehensive of delay in turning the wheels of justice so as to arm the process as by law provided. o. As alluded to hereinbefore and duly advised there were constitutional safeguards that mandate the Honourable court to grant the Orders as herein sought specic to review the Orders as duly depicted that was subject to a public process of trial as envisaged herein. p. He made the application in public interest, the interest of the administration of justice and the need to prevent and avoid abuse of the legal process, application of evidential aspect, which is the basic tenents of the justice system. q. There was immense prejudice to be suered herein in the event the orders herewith fail to be granted both in private regime and public interest so as to formally aid in the quest for justice. r. This application assisted in the propagation of proper factual foundation so as to remove any other ulterior issues that may bedevil the trial and/ or process as herewith anticipated. s. He made this adavit in support of the application led herein. III. The Notice of Motion application dated 8th July, 2025 by the 2nd Defendant 6. 7. The 2nd Defendant/Applicant sought for the following orders: a. That the Plainti’s Verifying Adavit herein dated 5th February, 2020 is incompetent and the same be and is hereby struck out. b. That consequently, the Plainti’s Plaint herein dated 5th February, 2020 is incompetent and the same be and is hereby struck out. c. That consequently, the entire suit herein is incompetent and the same be and is hereby dismissed. d. That costs of this application and the suit herein be provided for. The application by the Applicant herein was premised on the grounds, testimonial facts and averments made out under the 12 Paragraphed Supporting Adavit of –KIM JIN WOO, the 2nd Defendant/ Applicant herein, sworn and dated the same day with the application. The Applicant averred that:a. The Aant was the legal and benecial owner of the suit property herein. b. This Honourable Court lacks jurisdictionto hear and determine this suit by virtue of the fact that the Deponent to the Plainti's Verifying Adavit, Mr. PAUL VAN BEVEREN was not a Director of the Plainti. Annexed in the adavit and marked as“KJW1” a copy of the Plaintis CR12 dated 23rd June, 2025. c. Consequently the Plainti led its suit without due authority from the Plainti company. d. There is no company resolution, valid or otherwise, led by the Plainti company approving the institution of the suit herein. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18293/eng@2025-11-27 4

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e. There was no company resolution, valid or otherwise, led by the Plainti company approving the appointment of any of the Plainti's advocates of record to institute or prosecute this suit on behalf of the Plainti company. f. There was no company resolution, valid or otherwise, led by the Plainti company approving the institution of the suit herein. g. Consequently, the Plainti Company did not authorize PAUL VAN BEVEREN to swear the verifying adavit to the suit herein dated 5th February, 2020 and that the ling of this suit is invalid for want of authority by the Plainti company. h. Vide a judgment in Kwale High Court “HCCCOMM No. 2 of 2024 Pwani Maoni Limited & Another – Versus - Jane Mueni Musyoka” delivered on 26th September, 2024, the Court the Court issued several Orders, including that the names of ADRIANUS MARIA VERHOEF and WARD VERHOEF be struck out from the Plainti's company registration records and that the sole directors and shareholders of the Plainti are in fact JANE MUENI MUSYOKA and FESTUS KALII MUSYOKA. Annexed hereto and marked as “KJW2” a copy of the said judgment delivered on 26th September, 2024. i. The suit herein was incompetent and an egregious waste of the Honourable Court’s resources and the same ought to be dismissed with costs. IV. Submissions 8. On 23rd July, 2025 while all the parties were present in Court, they were directed to have the Notice of Motion applications dated 3rd February, 2025 and 8th July, 2025 be disposed of by way of written submissions and all the parties complied. Subsequently, on 17th November, 2025 a ruling date was reserved for 27th November, 2025 accordingly. V. Analysis & Determination. 9. The gravamen of both applications is whether the substratum of the suit had been compromised by the alleged fraudulent misrepresentation, whether the estate of a deceased person has been improperly sued and whether the suit properly before this court by virtue of the defective verifying adavit. 10. I have carefully read and considered the pleadings herein by the 1st Defendant/Applicant, the myriad of cases cited herein by parties, the relevant provisions of the Constitution of Kenya, 2010 and statures. 11. In order to arrive at an informed, just, equitable and reasonable decision, the Honorable Court has four (4) framed issues for its determination. These are:a. Whether the Intended Interested Party has met the threshold for enjoinment under the provision of Order 1 Rule 10 (2) of the Civil Procedure Rules? b. Whether sucient grounds exist for review of the Court’s orders under the provision of Section 80 of CPA & Order 45 Rule 1 of the Civil Procedure Rules. c. Whether the Plainti’s suit is incompetent for want of authority, and whether the verifying adavit is fatally defective. d. What orders should issue as to costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18293/eng@2025-11-27 5

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ISSUE No. a). Whether the Intended Interested Party has met the threshold for enjoinment under the provision of Order 1 Rule 10 (2) of the Civil Procedure Rules. 12. Under this Sub–title, the main gist of the matter is on whether the Intended Interested Party, namely Omar Hamad Mwandekwa (on behalf of the Estate of Hamad Mwachanze Athuman, Deceased), has satised the legal threshold for enjoinment under Order 1 Rule 10(2) of the Civil Procedure Rules, 2010. 13. Order 1 Rule 10(2) Civil Procedure Rules, 2010 provides that: “ The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, be struck out, and that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court eectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 14. The jurisprudence on joinder of interested parties has been settled by superior courts case in point being “Trusted Society of Human Rights Alliance – Versus - Mumo Matemu & 5 Others [2014] eKLR”, the Supreme Court held that an interested party must demonstrate a personal stake or legal interest in the matter, beyond mere academic curiosity. 15. In “Francis Karioki Muruatetu & Another – Versus - Republic & 5 Others [2016] eKLR”, the Court claried that an intended interested party must show: 1. The personal interest or stake in the matter, 2. The prejudice they would suer if not enjoined, and 3. The relevance of their participation to the issues before the Court. 16. Similarly, in “Skov Estate Limited & 5 Others – Versus - Agricultural Development Corporation & Another [2015] eKLR”, the Court emphasized that joinder is discretionary but must serve the ends of justice by ensuring all necessary parties are before the Court. 17. Applying these legal principles to the present case, the Applicant has exhibited a death certicate conrming that Hamad Mwachanze Athuman died in the year 1994. Yet, pleadings and conveyances have allegedly been led in the deceased’s name, raising serious allegations of fraud, perjury, and misrepresentation. The Applicant asserts that the estate risks being disenfranchised of its proprietary rights in KWALE/RAMISI KINONDO SS/102 if not heard. 18. Certainly, by all means, this is not a peripheral interest but a direct proprietary stake in the subject matter of the suit. His presence is necessary for the Court to eectually and completely adjudicate upon the dispute, particularly in light of allegations that documents were executed posthumously in the deceased’s name. 19. Accordingly, the Court nds that the Intended Interested Party has met the threshold under Order 1 Rule 10(2 CPR). He has demonstrated: a. A personal stake (proprietary interest of the estate), b. Prejudice if excluded (loss of property rights without hearing), and https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18293/eng@2025-11-27 6

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c. 20. Relevance (his participation will assist the Court in resolving allegations of fraud and misrepresentation) The Court is thus satised that the Intended Interested Party has met the threshold under the provision of Order 1 Rule 10 (2) of the Civil Procedure Rules, 2010. He has demonstrated a personal stake, prejudice if excluded, and relevance to the issues before the Court. Accordingly, the application for joinder succeeds, and the Intended Interested Party is properly enjoined in these proceedings. ISSUE NO. b). Whether sucient grounds exist for review of the Court’s orders under Order 45 Rule 1 of the Civil Procedure Rules 21. Under this Sub–title, the main gist of the matter is on whether sucient grounds exist for review of the Court’s orders pursuant to Order 45 Rule 1 of the Civil Procedure Rules, 2010. The law provides that a party may apply for review where: (i) there is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced at the time the decree was passed; (ii) there is an error apparent on the face of the record; or (iii) there is any other sucient reason. 22. The Court of Appeal in “National Bank of Kenya Ltd – Versus - Ndungu Njau [1997] eKLR” emphasized that review is not an appeal in disguise but is available to correct glaring errors or injustices. Similarly, in “Muyodi – Versus - Industrial and Commercial Development Corporation & Another [2006] 1 EA 243”, the Court held that review is justied where the error is self-evident and does not require elaborate argument to establish. 23. Applying these principles to the present case, the Applicant has demonstrated that pleadings and conveyances were allegedly led in the name of Hamad Mwachanze Athuman, who, according to the exhibited death certicate, died in 1994. This is a fundamental misrepresentation of fact that goes to the root of the proceedings. The Court cannot shut its eyes to such glaring irregularity, for to do so would amount to abetting fraud. The allegation that the Court was misled by documents purportedly executed posthumously constitutes both discovery of new matter and sucient reason for review. 24. Accordingly, the Court is satised that the Applicant has met the threshold under Order 45 Rule 1 CPR. The orders previously issued are therefore liable to review, and the matter properly referred to the Directorate of Criminal Investigations – Kwale for inquiry into allegations of fraud, perjury, and forgery. ISSUE No. c). Whether the Plainti ’s suit is incompetent for want of authority, and whether the verifying adavit is fatally defective. 25. Under this Sub–title, the main gist of the matter is on whether the Plainti’s suit is competent in light of the challenge raised by the 2nd Defendant regarding the verifying adavit and authority to institute proceedings.The requirement of a Verifying Adavit is anchored in the provision of Order 4 Rule 1(2) of the Civil Procedure Rules, 2010, which provides that every Plaint shall be accompanied by an adavit sworn by the Plainti verifying the correctness of the averments contained therein. The rationale behind this legal assertion is to ensure accountability and authenticity of pleadings led before the Court. 26. The provision of Order 4 Rule 1(4) of the Civil Procedure Rules, 2010 which is couched in mandatory terms mandates that where a Plainti is a corporation, the verifying adavit shall be sworn by an ocer of the company duly authorized under the corporate seal.The purpose of this rule is to ensure that litigation is commenced with the full knowledge and authority of the company, thereby preventing https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18293/eng@2025-11-27 7

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frivolous and unauthorized suits. The deponent must have the legal capacity to represent the company at the time of swearing the adavit. 27. The jurisprudence is settled. In the famous case of:- “Microsoft Corporation – Versus - Mitsumi Computer Garage Ltd [2001] eKLR”, Justice A. Ringera (as he then was) held that a suit instituted without proper authority of the company is incompetent. Similarly, in the case of:- “Bugerere Coee Growers Ltd – Versus - Sebaduka & Another [1970] EA 147”, it was held that where proceedings are instituted without a company resolution, they are null and void ab initio. The Court of Appeal in “Assia Pharmaceuticals – Versus - Nairobi Veterinary Centre Ltd [2007] eKLR” reiterated that a company, being a separate legal entity, can only act through resolutions of its directors and shareholders. 28. In the present case, the verifying adavit was sworn by Paul Van Beveren, who, according to the CR - 12 Form annexed by the 2nd Defendant (annexed and marked as “KJW – 1”) dated 23rd June, 2025, shows the directors of PWANI MAONI LIMITED. Crucially, he has also exhibited a Judgment from Kwale High Court in the Civil case of “HCCCOMM No. 2 of 2024 (annexed and marked as “KJW – 2”) delivered on 26th September 2024. This judgment declared that the sole directors and shareholders of the Plainti company were JANE MUENI MUSYOKA and FESTUS KALII MUSYOKA, and specically ordered the removal of ADRIANUS MARIA VERHOEF and WARD VERHOEF from the company's records. 29. The deponent of the verifying adavit, PAUL VAN BEVEREN, is not listed as a director in the CR – 12 Form. Furthermore, there was no company resolution produced by the Plainti authorizing him to institute this suit or to swear the adavit. The logical inference, reinforced by the Judgment in HCCCOMM No. 2 of 2024, is that Mr. Van Beveren was never a duly authorized ocer of the Plainti company. Further, the High Court Judgment in the case of:- “Pwani Maoni Limited & Another – Versus - Jane Mueni Musyoka (HCCCOMM No. 2 of 2024)” reconstituted the Plainti’s directorship, conrming that the sole directors and shareholders are Jane Mueni Musyoka and Festus Kaliii Musyoka. It follows that the verifying adavit was sworn without authority, and no company resolution was exhibited authorizing the institution of the suit or appointment of counsel. 30. This defect is not a mere technicality curable under Article 159(2)(d) of the Constitution. As held in the case of:- “Spire Bank Limited – Versus - Land Registrar & 2 Others [2019] eKLR”, the Court cannot sanitize a suit that is fundamentally defective for want of authority. The Plainti’s suit is therefore incompetent, and the verifying adavit fatally defective. 31. The legal consequence of this is fatal to the Plainti's suit. In the case of “Malta Imports Limited – Versus - W. M. Spry & another [2001] KLR 512”, the Court of Appeal held: “ The requirement of a verifying adavit is not a mere technicality… if the adavit is not sworn by a competent person, then the plaint is incompetent and must be struck out.” 32. Similarly, in the case of:- “Krystalline Salt Limited – Versus - Krystalline Solutions Limited & 4 others [2019] eKLR”, the Court emphasized that a Plaint led without a properly sworn verifying adavit is incurably defective. 33. The Plainti's failure to respond to these damning allegations with any evidence of authority (such as a board resolution or a CR - 12 from the time of ling showing Mr. van Beveren as a director) is telling. In the face of the uncontroverted evidence presented by the 2nd Defendant, this Court has no option but to nd that the verifying adavit dated 5th February 2020, and by extension the plaint it veries, is incompetent and a nullity. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18293/eng@2025-11-27 8

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34. Accordingly, the Court nds merit in the 2nd Defendant’s application. The verifying adavit dated 5th February 2020 is struck out, and consequently, the plaint and suit are dismissed for want of authority. ISSUE No. d). What orders should issue as to costs. 35. It is now well established that the issue of Costs is a discretion of the Court. Costs mean the award a party is awarded at the conclusion of a legal action or proceedings in any litigation. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. By event it means the results or outcome of the legal action or proceedings. See the decisions of Supreme Court “Jasbir Rai Singh – Versus - Tarchalan Singh (2014) eKLR” and Cecilia Karuru Ngayo – Versus – Barclays Bank of Kenya Limited, (2014) eKLR”. 36. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. In the present case, both the Intended Interested Party and the 2nd Defendant have succeeded in their respective applications. The Plainti/Respondent has been found to have instituted proceedings without proper authority, and further, serious allegations of fraud and misrepresentation have been raised against its conduct. It would therefore be unjust to burden the successful Applicants with costs of proceedings necessitated by the Plainti’s defective pleadings and questionable conduct. 37. Accordingly, the Court nds that the Plainti/Respondent shall bear the costs of both applications and the suit. This order is consistent with the principle that costs follow the event and serves to compensate the successful parties for the expense incurred in vindicating their rights. VI. Conclusion & Disposition 38. In long analysis, the Honorable Court has carefully considered and weighed the conicting parties’ interest as regards to the Preponderance of Probabilities and balance of convenience. Ultimately in view of the foregoing detailed and expansive analysis to the application, this court arrives at the following decision and makes the following orders:a. That the Notice of Motion application dated 3rd February 2025 be and is hereby found to have merit and hence allowed in the following terms: i. Prayer (b) is Allowed. Omar Hamad Mwandekwa is hereby enjoined in this suit as an Interested Party, representing the Estate of Hamad Athuman Mwachanze (Deceased). ii. Prayers (c) and (d) concerning referral to the DCI are hereby allowed; the matter is referred to the Directorate of Criminal Investigations – Kwale for inquiry into allegations of fraud, perjury, and forgery. iii. Prayer (e) for Review is consolidated with the 2nd Defendant’s application and is allowed in the terms set out below. b. That the Notice of Motion application dated 8th July 2025 be and is hereby found to have merit and hence allowed in its entirety with costs. c. That consequently, and by virtue of the granting of the above applications: i. The Verifying Adavit dated 5th February 2020 sworn by Paul van Beveren is hereby struck out for being incompetent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18293/eng@2025-11-27 9

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d. ii. The Plaint dated 5th February 2020 is hereby struck out for being incompetent and a nullity. iii. The entire suit, ELC Cause No. 121 of 2021, is hereby dismissed with costs for want of authority. iv. All orders issued heretofore in this suit, including any eviction orders, are hereby Vacated, Set Aside, and Declared Null And Void ab initio, having been issued in a suit that was incompetent and a nullity from its inception. That the costs of both applications and of the suit are awarded to the 2nd Defendant (Kim Jin Woo) and the Intended Interested Party (Omar Hamad Mwandekwa), to be paid by the Plainti (Pwani Maoni Limited) jointly and severally. It is so ordered accordingly. RULING DELIEVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS………27TH ……DAY OF ………NOVEMBER….……..……..2025. …………………………………. HON. MR. JUSTICE L. L. NAIKUNI, ENVIRONMENT AND LAND COURT AT KWALE Ruling delivered in the presence of: a. Mr. Daniel Disii, the Court Assistant. b. Mr. Asige K. Advocate for the 1st Defendant/Applicant. c. M/s. Kiti Advocate for the 3rd & 4th Defendants. d. Mr. Ateng Advocate for the Interested Party/Applicant e. No appearance for the 2nd Defendant/Applicant and the Plainti/ Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18293/eng@2025-11-27 10

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