Aji & 3 others v Agunga & another

the verifying adavit, may swear the verifying adavit on behalf of the others. It is stated that the two other plaintis, Maimuna Hasham Aji and Hussain Abdalla Salim together with the said allegedly deceased Esther Wamaitha Muriuki have not signed any authority giving Yusrah Ahmed Abdallah consent to swear the verifying adavit on their behalf. It is also averred that as per the pleadings, it is apparent that the cause of action emanates from a sale and purchase transaction between Ahmed Abdalla Bakhshwein and whose estate the rst 3 plaintis are administrators and the company known as Agunga and Company Limited vide an agreement dated and executed on 3rd May 2011 in respect of 5 acres of land; that the defendants, Alfred Agunga and Pamela Auma Ogola, have been wrongly sued in their personal capacity in respect of matters which arose out of transactions conducted by the said company, of which the defendants are neither directors nor shareholders; that the purported cause of action arose directly from the corporate activities and transactions of the said company and not from any personal actions of the 1st and 2nd defendants; that nevertheless, even if the defendant herein were directors or shareholders of the said company, the Companies Act, Number 17 of 2015 provides for a distinct legal identity between the company and its directors or shareholders, and issues arising from a company's transactions should be directed against the company and not the individual directors or shareholders; therefore, so argue the applicants, the suit is against the 1st and 2nd defendants who are not even associated with the said company and it oends Section 19 of the Companies Act which upholds the separate legal personality of a company. 3. Further, it is stated that going by the current company records vide a search certicate dated 28th May 2025, the said company is incorporated and registered in Kenya and has its known and identied director and company secretary respectively known as John Kazungu Mutsuga as director/shareholder and Lucy Mburu as company secretary. It is stated that the action cannot proceed legally against the 1st and 2nd defendants in their personal capacity, and who are also not related to the company, as the company itself has not been sued as the principal party to the transactions in dispute. The applicants say the suit is an abuse of the court process and ought not to be allowed to continue as it would be a waste of judicial time and resources. 4. The application is opposed. Yusra Ahmed Abdallah the 2nd plainti led his replying adavit, wrongly titled as “supplementary adavit”, dated 11th June 2025. In that adavit he states that the application is only a delaying tactic; that the issue of the demise of the second plainti, Esther, does not render the entire suit fatally defective as the cause of action substantially arises from the Estate of the late Ahmed Abdallah Bakhshwein and the 1st 2nd and 3rd plaintis have capacity to sue as administrators to his estate. 5. Further, the deponent states that the appropriate steps will be taken to substitute the deceased plainti in due course upon issuance of letters of administration or full grant to her personal representative in accordance with Order 24 of the Civil Procedure Rules, and such substitution does not defeat or extinguish the suit; that in any event, the suit herein is not founded solely on the person of the 2nd plainti but concerns broader proprietary interests over Plot Number 10585 Malindi and its subdivisions, which aect the estate of the late Ahmed Abdalla Bakshwein and not just the 2nd plainti; that failure to le a written authority under Order 4 Rule 3 of the Civil Procedure Rules is not fatal, and the verifying adavit is validly sworn by the deponent as an administrator; that in any event, that defect can be regularized at any time with leave of court and no prejudice has been occasioned to the defendants. The deponent states that the defect in the verifying adavit is a mere technicality curable under Article 159 2(d) of the Constitution. Regarding the claim that they were wrongly sued in their personal capacity instead of the company, it is stated that the pleadings expressly disclose the fraudulent acts and the personal involvement of the defendants in the trespass and demolition of structures on the suit properties, and so, that is a matter for determination at the trial. Finally, it is stated that in any event, the sale agreement of 3rd May 2011 relied upon by the defendants is contested and is the subject https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18521/eng@2025-12-17 2

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of the current suit, its legality, validity, and enforceability being in dispute cannot be resolved at the present interlocutory stage; that in any event the 4th plainti is alive. 6. Another adavit sworn by the 4th plainti and dated 11th June 2025 was also led in response to the application. The deponent adopted the contents of the rst replying adavit sworn by Yusra Ahmed Abdalla. She denied that she is deceased. She attached her national identity card as proof of her existence and legal personality. She blamed the defendants for mischief that appears to be intended to unlawfully defeat her interests in the suit property. The deponent avers that she is ready to appear in court physically for the hearing in order to prove that she is alive and well. She also avers that the suit raises genuine triable issues of trespass and fraudulent interference with land rights and ought to be heard on the merits. 7. The plaintis led submissions dated 26th September 2025 while the defendants led nothing in terms of submissions. 8. I have considered the led submissions. Analysis And Determination. 9. The issue of whether the 4th plainti is alive or not has been settled by way of the adavit sworn by one Esther Wamaitha Muriuki. When an allegation has been made that a party is deceased and someone going by the name of that party swears an adavit stating that they are alive the court cannot in an interlocutory stage proceed to make any further inquiries as to whether that party is indeed deceased. It would be a matter to be explored at the hearing of the main suit, if it still pleases the doubter then, as to whether that is the proper party to the suit. The court must take it to be true, just the way it has presumed the other named parties to be alive, that the party is alive and well. Any further attempts at that stage to go into the evidence beyond that which has been presented by way of an adavit, of their being alive, would be futile, or a premature attempt to try a substantive issue in a suit. In any event there was no further or supplementary adavit sworn by the applicants to insist that the adavit of Esther Wamaitha Muriuki sworn on 11th June 2025 or the national identity card attached thereto are forgeries. That issue has therefore been laid to rest. 10. The only issues remaining for determination are: 11. a. Whether the suit ought to be struck out or dismissed on the basis that the rst and second defendants have been joined yet the transaction from which the suit apparently arose was executed by a company by the name Agunga and Company Limited of which the defendants are not shareholders or directors; b. Whether the suit ought to be struck out on the basis of a defect in the verifying adavit. Regarding the rst issue, it is noteworthy that the plaint claims that the 1st and 2nd defendants have been consistently trespassing into the suit property. The allegations of actions in paragraph 9 thereof is that of actions commenced or perpetrated by natural persons, for example, sending armed youth with crude weapons to destroy the fence belonging to the plaintis and destroying the structures and pit latrines on the site. Those are matters pleaded specically against the 1st and the 2nd defendants. The court does not know whether or not they were involved in those actions. Where the suit has been led against them, it is for the plaintis to eventually prove his case against them at the hearing, and if he does not do so the case will be dismissed at their risk as to costs. It is therefore for the plainti to take care not to join persons who are not liable for the actions that he alleges. The defendants have indicated that there is a company with which an agreement was executed. This is merely an averment from the defendants. It is not from the plaintis in the present case. If the plaintis eventually nd out that there https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18521/eng@2025-12-17 3

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was indeed that kind of agreement, it is for the plaintis to elect whether to join that company to the present suit or not, of course again at their own risk. For now, they have opted not to. Whether they can succeed without such joinder is an issue for their own contemplation and not the court. The court can not decide whom they ought to sue unless it is absolutely necessary. The court has not determined that it is necessary at this stage to do so as the pleading of the plainti seems satisfactory. Furthermore, the self-explanatory provisions of Order 1 Rule 5 of the Civil Procedure Rules state that a claim may not be dismissed for misjoinder or non-joinder of parties. On that ground alone, the request by the defendants to strike out the suit for failure to join Agunga and Company Limited fails. 12. The next issue is whether the suit should be struck out on the basis of a defect in the verifying adavit. The applicants state that the adavit of Yusra Ahmed Abdalla sworn in verication of the matters in the plaint has not complied with provisions of Order 4 Rule 1(3) of the Civil Procedure Rules. 13. Order 4 Rule 1(3) of the Civil Procedure Rules provides as follows: “ Where there are several plaintis one of them with written authority led with a verifying adavit may swear the verifying adavit on behalf of the others." 14. The plaintis do not deny that there is no authority led authorizing the 2nd plainti to swear the verifying adavit in the suit. What they say is that it is a curable defect which can be regularized at any time by leave of Court and that in any event no prejudice would be occasioned to the other party. They cite Article 159 2(d) of the Constitution which requires that justice shall be administered without undue regard to procedural technicalities. The question that arises is whether failure to attach authority is fatal to the suit or is a mere technicality that can be rectied. 15. It must be noted that the current situation the plaintis nd themselves in is that in which the 1st the 3rd and the 4th plaintis is can be deemed not to have led any verifying adavit at all. 16. The purpose of a verifying adavit is to arm the correctness of the averments in the plaint and nothing more. In this case the plaint has already been led. At least one of the plaintis has armed the veracity of the contents thereof. Noteworthy is the fact that he is one of the three administrators of the estate of Ahmed Abdallah Bakhshwein. No objection has been raised by any of the other two administrators. It is the presumption of the court that the three administrators are acting in concert in bringing this suit, and that failure to le verifying adavit of the other 2 administrators is a mere technicality. By extension of that very argument, the 4th plainti is part of the team that has assembled itself to bring the suit against the defendants, and she must be presumed to be acting in concert with the 1st to the 3rd plaintis. When viewed in that light, the 4th plainti’s failure to le her own verifying adavit is reduced to a technicality. Article 159 2(d) of the Constitution frowns on the glorication of technicalities over substantive justice. It is not that this court condones lack of compliance with procedure, noting how much time objections premised thereon waste. However, in the present case, I would suppose that if this court struck out the suit on the basis of this technicality, the plaintis would be rendered to be without a suit and would be referred back to the drawing board, to le a fresh suit using the same contents of the very struck out plaint; all that on the basis that only verifying adavits were missing. Those verifying adavits, once led, would not come to add anything to the suit except to arm that the contents of the plaint are correct. I think there should be lenience in order to promote the expedition espoused by the overriding objective clause in both the Civil Procedure Act and Rules. 17. For that reason, I nd that failure to le authority or failure to le a verifying adavit for each of the remaining plaintis is not fatal to the suit. It is a defect that can be corrected through an order of this court directing the ling of verifying adavits of the remaining plaintis. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18521/eng@2025-12-17 4

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18. In the light of the foregoing the motion dated 6th June 2025 lacks merit and it is hereby dismissed. Each party shall bear their own costs thereof. 19. I also order that the 1st, the 3rd and the 4th plaintis shall le their respective verifying adavits in the suit within 14 days from the date hereof. This matter shall be mentioned on 19th February 2026 for further directions. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 17TH DAY OF DECEMBER, 2025. MWANGI NJOROGE JUDGE, ELC, MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18521/eng@2025-12-17 5

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