Kalume v Nyambura; Estate of Wobbe Svend Erik

2. The application is opposed by the plainti through the replying adavit of Harrison Muriithi, advocate, sworn on 23rd September 2025, in which he inter alia deposed that the suit was commenced through the plaint dated 25th February 2019; that in compliance with the court ruling of 10th May 2021, to strike out the name of Estate of Wobbe Svend Erik, 1st defendant, the amended plaint dated 24th May 2021 was led; that the defendant’s amended statement of defence dated 16th August 2021 was then led on 6th October 2021; that on application and vide the ruling of 14th April 2022, the defendant introduced the Estate of Wobbe Svend Erik, as interested party vide a further amended defence dated 9th May 2022 and led on 12th May 2022; that following the death of the plainti, the court allowed she be substituted with Rashid Odhiambo Oyinga as the legal representative and a further amended plaint dated 1st July 2025 was led; that the plainti has all through never sought to change the trajectory of the suit, and the defendant’s application is unfounded and should be rejected. 3. The learned counsel for the defendant and plainti led their submissions dated the 16th October 2025 and 20th October 2025 respectively, which the court has considered. 4. The application dated 20th August 2025 and the reply thereto raises the following issues for the court’s determinations: 5. a. Whether the further amended plaint dated the 1st July 2025 introduced a new cause of action. b. Whether the further amended plaint is an abuse of court’s process. c. Who pays the costs? The court has carefully considered the grounds on the application, adavit evidence, submissions by the learned counsel, the record and come to the following ndings: a. After perusing the grounds on the notice of motion, the adavit evidence and submissions for and against, I have found it necessary to trace a history of the parties’ pleadings so as to appreciate the cause of action at initiation and every other stage along the way. That way, it will be easier to see the previous challenges on the pleadings, applications made and rulings thereof. b. The record conrms that Esther Nzingo Kalume commenced this suit through the plaint dated 25th February 2019, suing on her own behalf and on behalf of the Estate of Kavumbi Kalume Kitsaumbi, deceased. She sued the administrator of the Estate of Wobbe Svend Erik, deceased as 1st defendant and Lucy Nyambura as the 2nd defendant. It is crystal clear that prayers (1) & (2) for a declaration that the 1st defendant had abandoned and breached the lease agreement dated 30th November 2007, and order directing 1st defendant to pay plainti Kshs.86,400 being unpaid rent, were against the 1st defendant. Prayers (3) to (6) for declaration that 2nd defendant was unlawfully and illegally in occupation of subdivision No. 4595 (Original No. 3843/4) Section 111/MN, permanent injunction from remaining or continuing in occupation of the said land , general damages for trespass and order directing 2nd defendant to vacate were against the 2nd defendant. The last prayer was for costs and interests. The 2nd defendant (Lucy Nyambura) led a statement of defence and counterclaim dated 26th April 2019, denying the claim and counterclaiming that she is the eligible heir of Wobbe Svend Erik, as a daughter of the deceased, and prays for an entry to be made in the certicate of title for Subdivision No.45595 (Original No. 3843/4) Section 111/MN, CR. 33346/7 on the encumbrance section to reect the existing list [sic] of 99 years from 1st January 2008. The plainti led a defence to the counterclaim dated 10th May 2019 inter alia averring she is a stranger to the 2nd defendant claim that she is the eligible heir of Wobbe Svend Erik, and disputed that she had any legally https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18324/eng@2025-12-17 2

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recognisable claim over the plainti’s property to warrant entering of the encumbrance. The plainti prayed for the counterclaim to be dismissed with costs. c. The record further conrms that the 2nd defendant led the notice of motion dated 13th November 2020 seeking for entire suit to be struck out for being incompetent. The plainti opposed the application through the replying adavit sworn on the 16th December 2020. The application was heard and vide the ruling delivered by Justice Sila Munyao on 10th May 2021, the court inter alia directed as follows: “ 10. I cannot however strike out the suit against the 2nd defendant. she has been sued in her own capacity, and it is indeed the position of the plainti that she is a trespasser, who has no right to reside in the suit premises. The suit against the 2nd defendant is therefore competent and is one that can proceed to full hearing on merits. The burden will of course be on the plainti to prove that the 2nd defendant is a trespasser and in illegal occupation and the 2nd defendant will have a chance to demonstrate that she is legally in occupation of the suit property. those are issues that will go to trial for determination and I would not wish to say much at this stage. 11. Thus, save that I order the striking out of the name of the 1st defendant and any claim said to be against “The Administrator of the Estate of Wobbe Svend Erik”, and order the amendment of the plaint to reect that position, I nd nothing incompetent against the rest of the suit and I am unable to strike out the whole suit.” The plainti in compliance with the above ruling led the amended plaint dated 24th May 2021 essentially deleting the 1st defendant from the heading and paragraphs (3), (4), (5) to (10) and prayers (1) & (2) of the plaint that related to the 1st defendant. The plainti also deleted the words (Suing on her own behalf and on behalf of the Estate of Kavumbi Kalume Kitsaumbi (Deceased) that appeared after her name at the heading leaving her as the one suing in her own right/name against Lucy Nyambura as the only defendant. d. That vide the notice of motion dated 9th September 2021, the defendant applied to have the estate of Svend Erick Wobbe as a party in the suit, as she had obtained a limited grant in the said estate. The application was heard and determined through the ruling delivered by Justice Sila Munyao on 14th April 2022, in which the court inter alia held that: “ 6. The plainti has not led anything to oppose the motion. 7. I have considered it. It will be noted that the plainti is the lessor of the suit premises. The 2nd defendant is an occupant and she claims to derive her right to occupancy from the claim that she is a daughter to the lessee. The lessee is deceased and but there is now an administrator of his estate. The situation here is akin to that of a lessor suing an occupant, and the lessee seeks to be joined to that suit, on the basis that he has interest in the disputed property. I am persuaded that the lessee would be an interested party to such dispute and would be permitted to adduce evidence either in favour of or against the defendant. It is on https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18324/eng@2025-12-17 3

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that reasoning that I allow this application. I direct that the applicant be joined to this suit as interested party. For avoidance of doubt, the applicant is neither plainti nor defendant and will not therefore be ling any pleadings but will be permitted to adduce evidence in the suit. If the applicant feels that she has a claim of her own, the avenue is for her to le a fresh suit. There is also liberty for the plainti to seek to sue the applicant if at all the plainti feels she has a cause of action against the applicant.” That pursuant to the directions of the court the defendant led the further amended statement of defence and amended counterclaim dated the 9th May 2022 inter alia adding “The Estate of Wobbe Svend Erik, (Deceased)” as the Interested Party. e. The plainti then moved the court through the notice of motion dated 4th June 2025 seeking inter alia to have the time to substitute the deceased plainti extended and Rashid Odhiambo Oyinga be substituted as the legal representative for the plainti. The defendant did not le any documents in opposition and was allowed on 19th June 2025 as prayed. The court further directed the amended plaint be led and served in seven days and parties were granted 30 days to le and exchange any additional statements/documents with corresponding leave to reply upon service. In compliance the plainti led on 4th August 2025 the further amended plaint dated 1st July 2025. I have perused the said further amended plaint dated 1st July 2025 and compared it to the amended plaint dated 24th May 2021 and contrary to the claim by the defendant, I have not seen any pleadings or prayers that connotes a change or variation in the cause of action. The only change noticeable is on the heading where the name of Esther Nzingo Kalume is deleted as the plainti and replaced with the name of Rashid Odhiambo Oyinga as the plainti. f. From the summary of the history of the parties’ pleadings as set out above, it should be obvious to all that the defendant’s onslaught on the plainti’s suit vide her notice of motion dated 13th November 2020 seeking for entire suit to be struck out for being incompetent, was unsuccessful as it was dismissed vide the ruling delivered by Justice Sila Munyao on 10th May 2021. The court at paragraph 11 of the said ruling held that: “ 11. Thus, save that I order the striking out of the name of the 1st defendant and any claim said to be against “The Administrator of the Estate of Wobbe Svend Erik”, and order the amendment of the plaint to reect that position, I nd nothing incompetent against the rest of the suit and I am unable to strike out the whole suit.” It is a fact that the plainti’s pleadings in respect of the cause of action has not changed since the ling of the amended plaint dated the 24th May 2021 in compliance to the ruling of 10th May 2021. That as I observed herein above the said amended plaint primarily deleted the 1st defendant from the heading and paragraphs (3), (4), (5) to (10) and prayers (1) & (2) of the plaint that related to the 1st defendant. The plainti also deleted the words (Suing on her own behalf and on behalf of the Estate of Kavumbi Kalume Kitsaumbi (Deceased) that appeared after her name at the heading leaving her as the one suing in her own right/name against Lucy Nyambura as the only defendant. There is nothing on record to show or suggest that any of the parties appealed against the ruling of 10th May 2021 or sought for a review of the same. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18324/eng@2025-12-17 4

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The defendant’s application dated 20th August 2025 that is subject of this ruling is more or less seeking what was declined through the ruling of 10th May 2021. The defendant is as it were, trying to have a second bite at the cherry. This court as constituted, and being of concurrent jurisdiction to the court that made the said ruling cannot sit on appeal against the decision or nding thereof.. g. The defendant should have considered to pursue an appeal if she was dissatised, but did not. She instead led notice of motion dated 9th September 2021, seeking to join the estate of Svend Erick Wobbe as a party in the suit, as she had obtained a limited grant in the said estate. The application was heard and determined through the ruling delivered by Justice Sila Munyao on 14th April 2022, in which the court allowed the application and inter alia held that: “ …… I am persuaded that the lessee would be an interested party to such dispute and would be permitted to adduce evidence either in favour of or against the defendant. It is on that reasoning that I allow this application. I direct that the applicant be joined to this suit as interested party. For avoidance of doubt, the applicant is neither plainti nor defendant and will not therefore be ling any pleadings but will be permitted to adduce evidence in the suit. If the applicant feels that she has a claim of her own, the avenue is for her to le a fresh suit. There is also liberty for the plainti to seek to sue the applicant if at all the plainti feels she has a cause of action against the applicant.” The court takes judicial notice that the defendant did not challenge the competency of the amended plaint dated 24th May 2021 through the joinder application. It is further noted that after the joinder application was granted by Justice Sila Munyao on 14th April 2022, the defendant proceeded to le the Further Amended Statement of Defence and Counterclaim dated9th May 2022 incorporating the Estate of Wobbe Svend Erik (Deceased) as the Interested Party, without any challenge on the competency of the plainti’s suit. The defendant’s application dated the 20th August 2025 is therefore without merit and is for dismissal. h. 6. Under section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya, costs follow the event unless where for good cause the court directs dierently. In this instance, the defendant has failed in her application, and should bear the plainti’s costs. Flowing from the above conclusions on the defendant’s notice of motion dated the 20th August 2025, the court nds and orders as follows: a. That the application is without merit and is hereby dismissed. b. The defendant to meet the costs for the plainti. It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 17TH DAY OF DECEMBER 2025. S. M. KIBUNJA, J. ELC MOMBASA. In The Presence Of: Plainti : Mr Muriithi Defendant : Mr Mutugi https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18324/eng@2025-12-17 5

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Interested Party : No Appearance Kalekye-court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18324/eng@2025-12-17 6

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