Mwakivonje v Mwakaonje

II. The Notice of Motion application by the Plainti dated 4th March 2025 4. 5. The application dated 4th March 2025 by the Plainti brought under the provisions of Sections 3A, Sections 63[e] and 95 of the Civil Procedure Act, Order 50 Rule 6, Order 8 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The Applicant sought for the following prayers before court; a. That the Plainti be granted leave to Amend the Plaint led on 8th September 2023 b. That this Honourable Court be pleased to extend the time limited for ling the Plainti’s list of documents and documents to be relied upon during trial c. That costs of this application be in the cause The application was premised upon grounds, testimonial facts and the averments made out in the 9 Paragraphed Supporting Adavit of Said Mwakivonje the Plainti/Applicant together with annextures marked as “SM” annexed hereto. It was averred as follows that:a. He was a male adult of sound mind and understanding and the Plainti/Applicant in this suit and thus competent and duly authorised to swear this adavit on his own behalf. b. On 8th September 2023 the Applicant led the present suit on his behalf and on behalf of the estates of Kassimu Ali Nzimu, Salim Mwatenga, Jumaa Vwinyu and Mwamoyo Moyo (All deceased) as the proprietors of land parcel Kwale/Golini/1304 (Hereinafter referred to as “The Suit Property”). c. On 3rd October 2023 the Defendant/Respondent led a Preliminary Objection seeking to strike out the entire suit alleging that the Applicant did not have “locus standi”. d. On 26th April 2024, the Honourable Court delivered its ruling whereby it partly allowed the Preliminary Objection. e. The court struck out the proceedings as relating the estates of the deceased named above herein and ordered that the suit proceeds in respect of the Plainti as against the Defendant. f. The Plainti stated that he was keen on proceeding with the suit and hence the application to obtain leave to amend the Plaint as per the draft Amended Plaint. g. Thus, the Applicant urged the Court to grant him leave to le the list of documents and documents to be relied upon during trial as time to le the same had lapsed and the suit was due for hearing on 23rd July 2025. III. The Notice of Preliminary objection 6. As already indicated above, in response to the above application the Defendant led a Notice of Preliminary Objection dated 8th June 2025 and raised the following ground that, the suit was a non-starter as the Plainti never had “the locus standi” to exclusively institute this suit, for the suit land known as land reference numbers in Kwale/Golini/1304 measuring 380.147 acres without consent or approval of the Co - Proprietors or the Consent or approval of the duly appointed Legal Administrators/Executors of the other Co - Proprietors. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18647/eng@2025-12-02 2

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IV. The Notice of Motion application by the Defendant dated 17th March 2025 7. The Defendant led a Notice of Motion application dated 17th March 2025 brought pursuant to the provisions of Sections 1A,1B and 3A of the Civil Procedure Act and Order 5 Rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. 8. The Applicant sought for the following orders; - 9. a. That this Honourable Court do hereby order that the suit and the plaint be struck o, for failure to take out summons by the Plainti/Respondent in this matter. b. That the costs of this suit and application be borne by the Plainti/ Respondent. The application was premised on the grounds, testimonial facts and averments made out under the 12 Paragraphed supporting Adavit of Ramadhan Kaonje Mwakaonje The Defendant/Applicant averred that: a. He was a male adult of sound mind and understanding and the Defendant herein. Thus, well versed to the facts of this matter and competent to swear this adavit dated 17th March 2025. b. The Plainti instituted a case in ELC Case no E013 of 2023 for a claim of trespass on 8th September, 2023. c. The Defendant was never served with Summons to Enter appearance and which his Advocate thought it was an oversight on the side of the Plainti’s Advocates. d. However, upon a quick scrutiny of the court le, it was discovered that summon were never taken out and thus the suit was improperly brought before court. e. The law under the provision of Order 5 Rule 1[5] of the Civil Procedure Rules, 2010 it is mandatory that summons shall accompany a Plaint and that failure to take summons out renders the suit defective. f. Therefore, the Defendant/Applicant now moved Court and sought that the suit be struck out for failure to take out summons in the matter. g. There would be no prejudice suered in the event that the application was allowed. V. Replies by the Plainti. 10. The application dated 17th March was opposed by the Plainti through a 15 Paragraphed Replying Adavit dated 19th April, 2025 and sworn by Said Mawkivonje. He stated as follows:a. From the onset he wished to state that the Defendant had fully participated in this proceedings for the last year and half and therefore acknowledged its existence. b. Indeed they entered appearance dated 22nd September, 2023 and led a Statement of Defence dated 29th September, 2023. c. Further, the Defendant led a Preliminary Objection dated 3rd October, 2023 which was canvassed via submissions and consequently a Ruling was delivered on 26th April, 2024. The Plainti led an application dated 4th march, 2025 seeking to amend the Plaint. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18647/eng@2025-12-02 3

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d. The purpose of Summons to Enter Appearance was to notify the Defendant and/or invite them to defend a suit. e. Hence by virture of the Defendant herein having complied by ling a Memorandum of Appearance, Defence and Preliminary objection over the matter they were in seize of the matter and properly before the Court. f. The Memorandum of Appearance and defence were never led under protest and this was close to two ( 2 ) years having elapsed it was a travesty of Justice to dismiss it for want of Summons taking that the Defendants have been actively involved in the matter. g. In any case the Defendant attained some success from the ruling of this Court on 26th April, 2024. h. The Defendant has not and would not suer any prejudice or hardship from the failure of service of Summons to Enter Appearance and which could not be compensated by way of costs. i. It would not be in tandem with the tenets of justice to allow the application by the Defendant to now turn around and seek to dismiss the suit instituted by the Plainti merely for failure to take out Summons to Enter Appearance. j. He urged for the Court to dismiss the application by the Defendant. VI. Submissions 11. On 10th June 2025 while all the parties were present in Court, they were directed to have the two (2) Notice of Motion applications dated 4th March 2025 and 17th March 2025 respectively and the Notice of Preliminary objection is dated 8th June 2025 disposed of by way of written submissions. Unfortunately, at the time of preparing this ruling it was only the Defendant who had complied. Pursuant to that, the Honourable Court reserved 2nd October 2025 as the date for delivering of the Ruling. VII. The Written Submissions by the Defendant/Respondents Submissions onto the application dated 17th March 2025 and the Preliminary Objection dated 8th June 2025. 12. The Law rm of Messrs. Rono Donald & Co Advocates led the instant submissions dated 4th July 2025 on behalf of the Defendant/Respondent. Mr. Rono Advocate commenced his submissions by rst making reference to the provisions of Order 5 Rule 1 of the Civil Procedure Rules, 2010. According to the Learned Counsel, the wording of the provision Order 5 Rule 1 Sub - Rules 1, 3 and 5 were stated by the use of the word “SHALL” which was couched mandatory terms. To support his point, he cited the case of “King’ola – Versus - Wambugu & 2 Others (Civil Appeal) 86 of 2018(2023) KECA 840(KLR) (7th July 2023)” where the Counsel stated that he drew this conclusion mindful of the peremptory nature of this word “shall” as used in the aforementioned rules. Discussing the word “shall” in statutory provision, Wessels JA in “Sutter – Versus - Schepers 1932 A.D 165 at page 173-174”, laid down the following guidelines “The word “shall” when used in a statute is rather to be construed as peremptory than as directory unless there are other circumstances which negative this construction” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18647/eng@2025-12-02 4

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13. The Learned Counsel further referred in the same vein, the supreme Court in Nigeria in the case of:“Dr. Arthur Nwankwo and Anor – Versus - Alhaji Umaru Yaradua and ors (2010) LPELPR 2109(SC at page 78, para C.E Adekye, JSC” had this to say:“ The word “shall” when used in a statutory provision imports a form of command or mandate. It is not permissive it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation” The black’s law dictionary 6th Edition denes the word “shall” as follows; “As used in statutes, contracts or the like, this word as generally imperative or mandatory. in common or ordinary signicance, the term “shall” is a word or command, and one which has always or which must be given a compulsory meaning; denoting obligation. It has a peremptory meaning and is generally imperative or mandatory. It has the invariable signicance of operating to impose is in favor of this meaning, or when addressed to public ocials, or where a public interest is involved or where 4 the public or persons have rights which ought to be exercised or enforced, unless a contract intent appears” 14. According to the Learned Counsel, his understanding of the provision of Order 5 Rule 1 of the Rules was that the rules were framed in mandatory terms and not discretionary terms. And that what had been stated was that a Plaint shall be accompanied by Summons which were taken out at the beginning of the case. Also that the Defendant likened the failure to take out the summons to the holy book of God the bible whereby missing the book Genesis. In that circumstance, then it would not be the Bible as it would be incomplete. Or better still, for a runner nishing a race then the start gun is sounded it doesn’t make any sense, there must have been summons. 15. The Learned Counsel asserted that the court must take cognizance of the fact that the Plainti had in all through been represented by an Advocate and there could not be any excuse of ignorance. Furthermore, that the Defendant only entered appearance after an application was lled and orders issued and the Client brought the documents and they thought they had lost or misplaced the summons only Counsel to take a close look into the le and realized that there are no summons in the court le and with haste realized the error. 16. On the role of the Court in correcting errors and Advocates mistake reference was made in the case of:“Salat – Versus - Independent Electoral and Boundaries Commission & 7 others (Application No 16 of 2014) (2014) KESC 12(K.L.R)” where the Court stated:“ In developing the rich jurisprudence, the Court will not shun from correcting glaring error of law, when presented by litigants and/or Counsel for the 2nd Respondent has sought to strike out the draft Petition on the basis that the Notice of appeal was lled before grant of leave and cite rule 30(2) of the Supreme Court rules , 2012 in support of his claim. That the error was puzzling. An Advocate is an ocer of the Court and has a duty to aid the Court reach a legitimate determination founded on sound law. Hence, an Advocate has to be adherent with the law and keep pace with various developments”. 17. The Counsel submitted that at the Advocates on record for the Plainti would have to have led the Plaint accompanied by the summons as they were aware of the laid down procedure in law of following up the same and thus, the Plainti suit ought to be dismissed. 18. The Counsel informed court that on the Preliminary Objection dated 8th June 2025, it was submitted that the preliminary objection was slightly dierent from the one raised on 3rd October 2023. That in the previous preliminary objection it was stated that the Plainti had instituted this suit without https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18647/eng@2025-12-02 5

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authority as provided under paragraph 82a of the Law of succession Act Cap. 160 Laws of Kenya and the said Preliminary Objection succeeded but in that Preliminary objection counsel alleged that he was challenging the lack of “locus standi” for the Plainti to bring the suit on behalf of the Defendants without the Grant of Letters of Administration or Probate. 19. 20. The Counsel averred that the Preliminary Objection dated 8th June 2025 was quite dissimilar. In that Counsel stated that the land being 380.147 acres and there being ve proprietors it would be dicult to:a. Ascertain the boundaries of each proprietor. b. Prove whether the other Co- Proprietors had accepted the Defendant’s occupation of the land. c. Prove whether the beneciaries or the Legal Administrators. d. The land being 380.147 acres what was the other Co-Proprietors view on the trespass. On this, the Counsel cited the provisions of Order 1 Rule 8 of the Civil Procedure Rules, and made reference to the case of: “Andu Akuru A Twiga CBO Vs Chief Land Registrar; National Land 6 Commission (Interested party) (Environment & Land Case E013 of 2023) (2023) KEELC 20419 (KLR) 4th October 2023” where it was held that It is trite law that a preliminary objection should always be a pure point of law as was in the case of “Mukisa Biscuit Manufacturing Co Limited _ Versus - West End Distributors (1969) EA 696,”. That the denition of “locus standi” was given in the case of:- “Law society of Kenya – Versus - Commissioner of Lands & Others Nakuru High Court Civil Case No. 464 of 2000”, in the case the Court held that “Locus standi” signies a right to be heard, a person must have suciency of interest to sustain his standing to sue in court of law. Further, he cited the case of “Alfred Njau & others Vs City Council of Nairobi (1982) KAR 229” where the Court also held that:“ The term locus standi means a right to appear in Court and conversely to say that a person has a locus standi means that he has no right to appear or to be heard in such and such proceedings”. 21. The Learned Counsel noted that a person must have suciency of interest to sustain his standing to sue in a court of law, consequently, locus standi denotes the legal right of a party to appear before and he heard by a court of law. Without the fundamental requirement even a party with a 7 meritorious claim was barred from accessing Judicial relief. The signicance of locus standi could not be overstated, as its absence renders any claim of application before the Court devoid of any legal foundation. Simply put, a party lacking locus standi has no legal standing to invoke the jurisdiction of this Court. That the instant preliminary objection simply stated that:a. The Plainti could not by himself sue the Defendant for the trespass for land measuring 380.147 acres. b. The land in Kwale/Golini/1304 had ve proprietors. c. Land measuring 380.147 acres was very large that one could not when standing see its end. d. The sons (Mwarandu Juma Rangombe and Abdala Juma Kushindwa) of one of the proprietors being Jumaa Vwinyu, one being the administrator, had consented to the Defendant to be on the property as seen in their witness statement and a copy of the order for succession for the estate of Jumaa Vwinyu. e. There was no laid down boundaries marked, to ascertain whose portion among the ve proprietors one has trespassed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18647/eng@2025-12-02 6

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22. Thus, that a claim for any tort in land in Kwale/Golini/1304, measuring 380.147 acres could not be instituted by one person as the same must be instituted collectively with all the other four proprietors as the land was vast and the other proprietors might have consented to the occupation and thus it cannot be a tort of trespass again or an illegality. That if the other four ( 4 ) proprietors were dead it became even more dicult because one must rst seek the consent from the administrator or the beneciaries of the deceased Co-proprietor. In conclusion it was submitted that the suit was improperly before this Court. VIII. Analysis and Determination 23. I have carefully read and considered the pleadings herein, being the two ( 2 ) Notice of Motion applications dated 4th March 2025 and 17th March 2025 respectively and the Notice of Preliminary objection dated 8th June 2025, the relevant provisions of the Constitution of Kenya, 2010 and the statures. 24. In order to arrive at an informed, reasonable, fair and Equitable decision, the Honorable Court has four (4) framed issues for determination as follows: a. Whether the Preliminary Objection dated 8th June 2025 by the Defendant herein meets the required threshold as laid - down in Law and precedents. b. Whether or not the Notice of Preliminary Objection dated 8th June 2025 is merited c. Whether the two ( 2 ) Notice of Motion applications dated 4th March 2025 and 17th March 2025 respectively have merit. d. Who bears the costs of the preliminary objection and both applications? Issue No. a). Whether the Preliminary Objection dated 8th June 2025 by the Defendant herein meets the required threshold as laid - down in Law and precedents. 25. Under this sub - title, the Honourable Court will be examining the broad concept – meaning, scope and nature of a Preliminary Objection. According to the Black Law Dictionary a preliminary objection is dened as:“ In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….” 26. In the case of:- “Nitin Properties Limited – Versus - Singh Kalsi & Another [1995] eKLR” the court stated thus:'A Preliminary Objection raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.' 27. Additionally, the Tanzanian Court of Appeal sitting in Dar es Salaam, in the case of:- “Karata Ernest & Others – Versus – the Attorney General (Civil Revision No 10 of 2020) [2010] TZCA https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18647/eng@2025-12-02 7

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30 (29 December 2010), (Luanda, JA, Ramadhani, CJ, Rutakangwa, JJA), expounded the issue of preliminary objections in a more exhaustive manner as follows: “ At the outset we showed that it is trite law that a point of preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it. It only "consists o f a point of law which has been pleaded, or which arises by dear implication out of the pleading obvious examples include: objection to the jurisdiction of the court; a plea of limitation; when the court has been wrongly moved either by non-citation or wrong citation of the enabling provisions of the law; where an appeal is lodged when there is no right of appeal; where an appeal is instituted without a valid notice of appeal or without leave or a certicate where one is statutorily required; where the appeal is supported by a patently incurably defective copy of the decree appealed from; etc. All these are clear pure points of law. All the same, where a taken point of objection is premised on issues of mixed facts and law that point does not deserve consideration at all as a preliminary point of objection. It ought to be argued in the "normal manner" when deliberating on the merits or otherwise of the concerned legal proceedings.’ 28. Further, the Court in the now famous case of:- “Mukisa Biscuits Manufacturing Co Limited (Supra) described a preliminary objection as hereunder:- 'So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.' Sir. Charles Newbold, JA in the same case stated that: 'A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.' 29. The Supreme Court addressed its mind on this issue in the case of:- “Aviation & Allied Workers Union Kenya – Versus - Kenya Airways Limited & 3 Others [2015] eKLR” by holding that: “ Thus, a Preliminary Objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satised that there is no proper contest as to the facts.” 30. Finally, I have further relied on the decision of “Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR”: - as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection inter alia: (i) A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct. (ii) A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18647/eng@2025-12-02 8

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(iii) 31. The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute. Therefore, from the above holdings of the Courts, it is clear that a Preliminary Objection must be raised on a pure point of law and no fact should be ascertained from elsewhere. See also the case of: “In the matter of Siaya Resident Magistrate Court Kisumu HCCMisc. App No. 247 of 2003” where the Court held that; “ A Preliminary Objection cannot be raised if any facts has to be ascertained.” 32. The question is whether the preliminary objection dated 8th June 2025 by the Defendant satises the above strictures. I rst wish to state that I will not belabour much on this issue having perused the previous ruling by my predecessor Justice Hon. Dena over the preliminary objection dated 3rd October 2023 as was raised by the Defendant. In its ruling this court struck out the suit as instituted by the Plainti with regards to the estates of the deceased persons and ordered that the suit only does proceed between the Plainti and the Defendant only. 33. From a face value, the Honourable Court holds that though all these were primarily tackled from the Ruling by this Court they indeed constitute issues of Law. To that extend the Preliminary Objection meets the laid - down principles of an objection only that they are now moot. Issue No. b). Whether or not the Notice of Preliminary Objection dated 8th June 2025 is merited 34. Under this sub heading, the Honourable Court will be assessing the meritorious nature of the Preliminary Objections raised by the Defendant. I say this with great humility as indeed the Court has already observed that these were issues extensively dealt with from the Ruling afore said. Be that as it may, I have keenly perused the gist of the instant preliminary objection, whereby the Counsel for the Defendant has stated that the suit property is vast and as such the court cannot make a decision with regards to who owns what portion given that the land is owned by several persons. 35. From the very onset, I wish to state that the Plainti is interested in pursuing his claim as allowed by the court vide its ruling of 26th April 2024. In the event that the rest of the alleged aected party see the need to prosecute their claims then they will take the necessary steps to do so. With all due respect, they are no longer parties in the suit having been discharged by the court. In my view, the Defendant has no business whatsoever to try and pre-empt what he thinks will become of them once the suit proceeds and a decision is made over the suit property. 36. If anything, issues to do with the acreage of the land, its owners and whether or not the same has been sub - divided are facts which ought to be ascertained after interrogation of evidence as guided by the provision of Section 13 of the Environment & Land Court Act, No. 19 of 2011 through intensive full trial. By all means, being matters of facts, they do not fall under the purview of issues of law as dictated under the legal tenets of “Mukisa Biscuits case”. From that stand alone reason, the preliminary objection dated 8th June 2025 raised by the Defendant lacks merit and hence automatically fails. Issue No. c). Whether the two ( 2 ) Notice of Motion applications dated 4th March 2025 and 17th March 2025 respectively have merit. 37. Under this Sub – heading, the Court now turns to the legal basis of the two (2) applications. Firstly, the Notice of Motion application dated 4th March 2025 seeks for leave to amend the Plaint led on 8th September 2023. There are myriad of Court decisions over this issue. I need not b re–- invent the wheel here. However, I am guided by the holding in the case of:- “Abdul Karim Khan – Versus - Mohamed https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18647/eng@2025-12-02 9

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Roshan (1965) EA.289 (C.A)”, where the court laid down the principle that the courts will not permit an amendment that is inconsistent with original pleading and entirely alters the nature of the Defence or Plaint. The principles upon which a court acts in an application to amend a pleading before/during trial are also well settled and succinctly stated in the case of:- “Eastern Bakery – Versus - Castelino, (1958) E.A.461 (U.) at p.462”. The Court held that:“ It will be sucient, for purposes of the present case, to say that amendments to pleadings sought before the hearings should be freely allowed, if they can be made without injustice to the other side, and that there is no injustice if the other side can be compensated by costs. 38. 39. Additionally, in the case of:- “Ochieng and Others – Versus - First National Bank of Chicago Civil Appeal Number 147 of 1991” the court of Appeal clearly set out the principles under which Courts may grant leave to amend the pleadings. These were as follows: a) the power of the court to allow amendments is intended to determine the true substantive merits of the case; b) the amendments should be timeously applied for; c) power to amend can be exercised by the court at any stage of the proceedings; d) that as a general rule however late the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side; e) the Plainti will not be allowed to reframe his case or his claim if by an amendment of the Plaint, the Defendant would be deprived of his right to rely on limitations Act subject however to powers of the court to still allow and amendment notwithstanding the expiry of current period of limitation. To further emphasise the legal principle applicable to amendments of pleadings, it is appropriate to reiterate the holding of the Court of Appeal in the case of “Central Bank of Kenya - Versus - Trust Bank Limited (in liquidation) (2000) eKLR”, where the Court of Appeal stated and observed as hereunder:“ The settled rule with regard to amendment of pleadings has been concisely stated in Vol.2, 6th Ed. at P.2245, of the AIR Commentaries on the Indian Civil Procedure Code by Chittaley and Rao, in which the learned authors state: "That a party is allowed to make such amendments as maybe necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is aected and that the amendment can be allowed without injustice to the other side. And at page 2248, they continue to say that an amendment merely clarifying the position put forward in the plaint or written statement of defence must be allowed”. 40. Being guided by the above plethora of authorities in relation to the instant suit, the Plainti/Applicant had initially instituted this suit on his own behalf and on behalf of several other parties who were deceased and he hence cited their respective estates. However, through its Ruling of 26th April, 2024, the Court discharged the other parties as has been explained above herein in the said ruling. It is imperative of the Applicant to implement the court orders and accordingly amend the Plaint so as to proceed with the remaining part of the subject matter. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18647/eng@2025-12-02 10

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41. In a nutshell, I am persuaded that sucient basis has been laid out to warrant the exercise of discretion to and in favour of the Plainti/Applicant, to facilitate the ling of the intended amended Plaint, for purposes of discharging the rest of the Plaintis. 42. Secondly, it with regard on determining the Defendant’s application dated 17th March 2025. Its sole prayer was striking out of the instant suit citing failure by the Plainti/Applicant to take out and serve Summons to Enter appearance. 43. I fully concur with the Learned Counsel for the Defendant while submitting that the law relating to issuance and service of summons to enter appearance is Order 5 rule (1) of the Civil Procedure Rules, 2010. It provides that: 1. 44. Issue of summons [Order 5, rule 1] 1. When a suit has been led a summons shall issue to the Defendant ordering him to appear within the time specied therein. 2. Every summons shall be signed by the Judge or an ocer appointed by the Judge and shall be sealed with the seal of the court without delay, and in any event not more than thirty days from the date of ling suit. 3. Every summons shall be accompanied by a copy of the Plaint. 4. The time for appearance shall be xed with reference to the place of residence of the defendant so as to allow him sucient time to appear: Provided that the time for appearance shall not be less than ten days. 5. Every summons shall be prepared by the Plainti or his Advocate and led with the Plaint to be signed in accordance with sub rule (2) of this rule. 6. Every summons, except where the court is to eect service, shall be collected for service within thirty days of issue, failing which the suit shall abate. Sub rule (2) concerns the validity of summons. It is common practice that where no summons to enter appearance are issued within 12 months a suit abates. The validity of the summons may however be extended. Be that as it may, the main question that stands out at this point is what purpose does service of summons serve in any proceedings? The court in the case of: “Paulina Wanza Maingi – Versus - Diamond Trust Bank Limited & another [2015] eKLR”, while faced with a similar situation and which holding was also accepted by Majanja J (RIP) in the case of:- “Amina Hersi Moghe & 2 others – Versus - Diamond Trust Bank Kenya Limited & another [2021] eKLR”, agreeing with Jeanne Gacheche J in the case of: “Fredrick Kibet Chesire – Versus Paymond W. Bomet [2006] eKLR”- stated that the sole purposes of summons to enter appearance is to notify the Defendant that a suit has been led against him in a particular court, particulars of which are contained in the plaint, which should be served together with the said summons. The summons to enter appearance also serve as a notice to inform a defendant of the mode of action to take and the time within which he should enter appearance and le his defence. It also informs him of the consequences for failure to comply. Majanja J elaborately put is as follows, in his ruling in the above cited case of “Hersi Moghe & 2 others (Supra) held:“ 35. In my humble view, since the purpose of summons to enter appearance is to notify the Defendant and or invite them to defend the suit, and the 1st Defendant having led a notice of appointment of advocates and statement of defence which was not even led under protest, and six years having elapsed https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18647/eng@2025-12-02 11

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since this suit was instituted, it would be a travesty of justice to dismiss the suit for want of summons when the 1st Defendant has actively been participating in the suit. Albeit the 1st Defendant alleges that its key witnesses left employment and that it shall be prejudiced by the delay, this court notes that the 1st Defendant has not sought for dismissal of this suit for want of prosecution as is required under Order 17 Rule 35 of the Civil Procedure Rules. They have invoked very specic provisions of the law and it would be unfair and unjust if this court were to dismiss this suit for delay in its prosecution when no such application is before it for determination and or when the court has not heard the parties on a notice to show cause why the suit should not be dismissed for inaction. I am in total agreement with Honourable Jeanne Gacheche J ( as she was then) in Fredrick Kibet Chesire – Versus - Paymond W. Bomet (supra) case (2006) e KLR- that the sole purposes of summons to enter appearance is to notify the Defendant that a suit has been led against him in a particular court, particulars of which are contained in the plaint, which should be served together with the said summons. The summons to enter appearance also serve as a notice to inform a Defendant of the mode of action to take and the time within which he should enter appearance and le his defence. It also informs him of the consequences for failure to comply.” 45. I have looked at the court record which gives a clearer picture of the Defendant’s participation in this suit from the time it was instituted. I note that the Plaint was led on 8th September 2023 and consequently a Defence was led on 27th September 2023. The defence Counsel has appeared before this court over this matter over 10 times with the specic dates being 23rd October 2023, 30th November 2023, 18th January 2024,5th February 2024,19th June 2024,7th October 2024, 21st January 2025, 27th February 2025 and 10th June 2025. 46. From the above, it is clear that the issue of service of summons has been raised at an advanced stage of the proceedings, yet the Defendant has all along been aware of the suit and participated in it by whereby he has even led two preliminary objections and applications. 47. I am convinced that the Defendant’s conduct and the ling of this suit points towards one thing, hinging its case on having the instant suit dismissed on procedural technicalities which is discouraged under the provision of Article 159 ( 2 ) ( d ) of the Constitution of Kenya, 2010 rather than having the same heard and determined on substantive issues. In saying so, I am guided by the holding in the case of:- “Karanja (Suing as the Representative of the Estate of David Karanja Ng’ang’a) v Kiboinet T/A Sweetland Consultant Limited & 2 others (Environment & Land Case 45B of 2021) [2024] KEELC 3654 (KLR) (30 April 2024) (Ruling) where the Court stated:“ Every person has a right to be heard as envisaged in the constitution of Kenya 2010 and the court cannot take the same away unless under extremely stringent circumstances. The right to be heard is one of the two cardinal rules established under the principle of natural justice and it is generally expressed as audi alteram partem (that a party should not be condemned unheard). 48. My attention has also been drawn to the expansive argument by the Defendant that the use of the word ‘shall” in statutes is not permissive but rather mandatory and ought not to be departed from in terms of application by way of discretion. I am of the view that, this should be on a case to case basis depending on the circumstances at hand. To buttress this point, I choose to adopt the reasoning in the case of:- https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18647/eng@2025-12-02 12

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“The Standard Chartered Bank Ltd – Versus - Lucton (K) Ltd HCC 462 of 1997 (unreported)”, where the Learned Judge drew guidance from the "Principles of statutory interpretation" by G.P. Singh, a former Chief Justice of the Madhya Pradesh High Court in India, as stated on page 242: “ The use of word “shall” raises a presumption that the particular provision is imperative; but this prima facie inference may be rebutted by other consideration such as object and scope of the enactment and the consequences #owing from such construction. There are numerous cases where the word “shall” has, therefore, been construed as merely directory.” 49. Therefore, based on the above analysis, it is this court’s nding that the application dated 17th March 2025 lacks merit and hence it is for dismissal. ISSUE No. d). Who bears the costs of the preliminary objection and both applications? 50. It is now well established that costs is an issue of discretion of the Court. Costs is what is awarded to a party upon the conclusion of legal action or proceedings in any litigation. The proviso of Section 27 ( 1 ) holds that costs follow the event. By the event it means the outcome or result of a legal action. 51. The factors to be considered while determining the issue of whether to award costs or not were set out in the case of “Morgan Air Cargo Limited vs Everest Enterprises Limited [2014] eKLR, as follows:- 52. a. the conduct of the parties b. the subject of litigation c. the circumstances which led to the institution of the proceedings d. the events which eventually led to their termination e. the stage at which the proceedings were terminated f. the manner in which they were terminated g. the relationship between the parties and h. The need to promote reconciliation amongst the disputing parties pursuant to Article 159 (2) (c) of the Constitution. The court has considered the circumstances of the instant applications and the preliminary objection. It opines that it will be reasonable, just and proper for each party to bear its own costs. IX. Conclusion and Determination 53. Consequently, having caused an indepth analysis of the framed issues herein, based on the Principles of Preponderance of Probabilities and balance of Convenience, the Honourable Court arrives at the following specic orders. These are:a. That the Notice of Motion application dated 17th March 2025 be and is hereby dismissed. b. That the Notice of Preliminary Objection dated 8th June 2025 be and is hereby dismissed for lacking in merit. c. That the Notice of Motion application dated 4th March 2025 be and is hereby allowed in the following terms:- https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18647/eng@2025-12-02 13

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i. the Plainti granted 14 days to le and serve the Draft Amended Plaint upon payment of the requisite court fees. ii. the Defendants to be at liberty of 14 days to le and serve Amended Defences. iii. the Plainti is further at liberty to le and serve a Plainti’s list of documents and documents to be relied upon during trial within the next 14 dayS of this ruling. d. That there be a Pre – Trial Conference conducted on 23rd February, 2026 on case management pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010. There be hearing on 16th July, 2026 preferably through Physical means. e. That each party to bear its own costs. It is ordered accordingly. RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 2NDDAY OF DECEMBER 2025 HON. MR. JUSTICE L.L NAIKUNI, ENVIRONMENT & LAND COURT AT KWALE. Ruling delivered in the presence of: a. Mr. Daniel Disii, the Court Assistant. b. M/s. Kimani Advocate for the Plaintis/Respondents. c. Mr. Rono Donald Advocate for the Defendant/Applicant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18647/eng@2025-12-02 14

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