Timau Agro Industries Ltd v Bayshore Ltd & 4 others

b. That in so far as the Plainti's suit is commenced by way of an Originating Summons as Amended, the same is incompetent and t for striking out in limine as the issues in dispute are not matters contemplated under Order 37 of the Civil Procedure Rule, 2010. c. That the Plainti's Amended Originating Summons raises questions of alleged fraud hence thereby making the Plainti's claim one beyond the parameters of Order 37 Rule 3. III. Submissions 4. While On 16th November, 2023 while all the parties were present in Court, they were directed to dispose o the Notice of Preliminary objection dated 25th October, 2024 by way of written submissions and all the parties complied. A. The Written Submissions by the Plainti in opposition to the Notice of Preliminary objection dated 25th October, 2024 by the 4th and 5th Defendants. 5. The Plainti through the Law rm of Messrs. Grace Ndinda Regina Advocate led their submissions dated 10th January, 2025. M/s. Ndinda Advocate submitted that the 4th and 5th Defendants herein, who are government ocers, led a Notice of Preliminary Objection dated 25th October, 2024 (hereinafter referred “The P.O”) raising the following alleged points of law:i. That the Plainti's Amended Originating Summons oends the mandatory provisions of Order 4 Rule 1 (4) of the Civil Procedure Rules 2010 and is t for striking out in terms of Order 4 Rule 6 of the Civil Procedure Rules, 2010. ii. That in so far as the Plainti's suit is commenced by way of an Originating Summons as Amended, the same is incompetent and t for striking out in limine as the issues in dispute are not matters contemplated under Order 37 of the Civil Procedure Rules,2010. iii. That the Plainti's Amended Originating Summons raises questions of alleged fraud hence thereby making the Plainti's claim one beyond the parameters of Order 37 Rule 3. 6. The Plainti opposed the Preliminary objection and had led the instant submissions in response thereof. Further to ling the Preliminary objection, the 4th and 5th Defendants led a Notice of Motion Application dated 10th December, 2024 under a certicate of urgency seeking that this Honourable Court issues directions on the Preliminary objection.On 11th December, 2024, Hon. Justice L.L. Naikuni issued directions that the P.O be canvassed by way of written submissions. Therefore, the 4th and 5th Defendants Notice of Motion Application dated 10th December,2024 was now spent. 7. The Learned Counsel relied on the following three (3) issues for determination:Firstly whether the Plainti's Amended Originating Summons oended the mandatory provisions of Order 4 Rule 1 (4) of the Civil Procedure Rules 2010 and if the same was t for striking out in terms of Order 4 Rule 6 of the Civil Procedure Rules, 2010. The Learned Counsel submitted that the 4th and 5th Defendants were seeking that the instant suit be struck out on the grounds that the Plainti's Amended Originating Summons oended the mandatory provisions of Order 4 Rule 1 (4) of the Civil Procedure Rules, 2010 and was t for striking out in terms of Order 4 Rule 6 of the same rules which provides as follows:Order 4 Rule 1 (4) of the Civil Procedure Rules, 2010: “Where the Plainti is a corporation, the Verifying Adavit shall be sworn by an ocer of the company duly authorized under the seal of the company to do so.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18752/eng@2025-03-28 2

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Order 4 Rule 6 of the Civil Procedure Rules, 2010: “The court may of its own motion or on the application by the Plainti or the Defendant order to be struck out any Plaint or Counter - Claim which does not comply with sub-rule (2), (3),(4) and (5) of this rule.” 8. Order 4 of the Civil Procedure Rules, 2010 makes provisions on what should accompany a Plaint. It is noteworthy that the instant suit was commenced through an Originating Summons wherein, the Plainti is not required to le a Verifying Adavit. Nevertheless, at the time of ling these submissions, the Plainti led a board resolution under the seal of the Plainti Company clearly showing that Lawrence Muriithi Mbabu was the Managing Director of the Plainti Company and that he had the authority swear the Adavits on behalf of the Plainti Company from the inception of this suit. 9. The Learned Counsel in all the Adavits on record that are sworn on behalf of the Plainti Company including the Supporting Adavit to the Further Amended Originating Summons, it was clearly stated in those Adavits that Lawrence Muriithi Mbabu is the Managing Director of the Plainti Company and that he had been authorized by the Board of the Plainti Company to swear the Adavit. This was a clear indication that the failure to annex a Board Resolution therein was an oversight on his part that can overlooked in view of the provisions of Article 159 (2) (d) of the Constitution of Kenya, 2010 which requires that justice be delivered without undue regard to procedural technicalities. Therefore, failure to le a Board Resolution at the inception of a suit should not lead to the striking out of the entire suit as doing so would drive the Plainti away from the seat of justice completely. 10. In so submitting, rely on the case of “Leo Investments Ltd – Versus - Trident Insurance Company Ltd(2014) eKLR” at paragraphs 60,61 and 62, where Odunga, J was in agreement with the decision of Kimaru J in the case of “Republic – Versus - Registrar General and 13 Others Misc. Application No. 67 of 2005 [2005] eKLR” where the court stated that: “...such a resolution by the Board of Directors of a company may be led at any time before the suit is xed for hearing as there is no requirement that the same be led at the same time as the suit. Its absence is, therefore. not fatal to the suit...” 11. To buttress on this point, the Learned Counsel relied on the Court of Appeal decision in the case of “Spire Bank Limited – Versus - Land Registrar & 2 others [2019] eKLR” where the Court stated as follows: “ .......It is essential to appreciate that the intention behind order 4 rule 1 (4)was to safeguard the corporate entity by ensuring that only an authorized ocer could institute proceedings on its behalf. This was to address the mischief of unauthorized persons instituting proceedings on behalf of corporations, and obtaining fraudulent or unwarranted orders from the court. The company's seal that is axed under the hand of the directors ensured that they were aware of, and had authorized such proceedings together with the persons enlisted to conduct them. And where evidence was produced to demonstrate that a person was unauthorized, the burden shifted to such ocer to demonstrate that they were authorized under the company seal. With this in mind, we dare say that the provision was not intended to be utilized as a procedural technicality to strike out suits, particularly where no evidence was produced to demonstrate that the ocer was unauthorized...” 12. Therefore, they urged the Honourable Court to make a nding that the failure by the Plainti to le a Board Resolution at the inception of this suit is not fatal to the Plainti’s case and consequently https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18752/eng@2025-03-28 3

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exercise your discretion in favour of the Plainti and deem the Board Resolution dated 4th July, 2022 as being properly on record. 13. Secondly, on whether this suit that was commenced vide Originating Summons under Order 37 Rule 3 of the Civil Procedure Rules, 2010. The Learned Counsel argued that the suit was competently before this Honourable Court. The Learned Counsel averred that this suit was commenced under the provisions of Order 37 Rule 3 of the Civil Procedure Rules, 2010 which provided as follows:“A vendor or purchaser of immovable property or their representatives respectively may, at any time or times take out an originating summons returnable before the judge sitting in chambers for the determination of any question which may arise in respect of any requisitions or objections or any claim for compensation or any other question arising out of or connected with the contract of sale (not being a question aecting the existence or validity of the contract).” 14. The Plainti in this suit was the Vendor in the transaction in question and its claim was simply for the balance of the purchase price for the suit property that it sold to the 1st Defendant herein through an Agreement for Sale dated 8th June, 2017. Simply, the Plainti sought to enforce the Agreement for Sale dated 8th June, 2017 that was executed between itself and Bayshore Limited, the 1st Defendant herein. The said Agreement was outrightly acknowledged by both parties to it in their pleadings on record. The existence or validity of the said Agreement is not in question at all. 15. Further to the foregoing, they wished to draw the attention of this Honourable Court to the following admissions made by the 1st and 3rd Defendants in their respective pleadings led in this suit which support the Plainti’s claim for the balance of the purchase price: a. At paragraph 7 of its Further Further Supplementary Adavit sworn by Joseph Mwela on 25th October, 2024, the 1st Defendant alleged to have paid the Plainti the sum of Kenya Shillings One Fifty Four Million Five Eighty Seven Thousand Seven Sixty Eight Hundred and Fifty cents (Kshs. 154,587,768.50/-) out of the total purchase of a sum of Kenya Shillings Two Thirty One Million Six Sixty Eight Thousand Six and Five Hundred (Kshs.231,668,605/-);and b. At Paragraph 24 of the 3rd Defendant’s Replying Adavit sworn by Abdulswamad Abeid Said on 3rd December, 2024, the 3rd Defendant alleges that the Plainti has so far been paid a total sum of Kenya Shillings One Hundred and Eight Million Four Fifty Nine Thousand Six Fifty Hundred (Kshs.108,459,650.00/-) out of the total purchase of Kenya Shillings Two Thirty One Million Six Sixty Eight Thousand Six and Five Hundred (Kshs. 231,668,605/-). 16. The Learned Counsel submitted that the above express admissions made by the 1st Defendant and the 3rd Defendant in their respective pleadings led in this suit in response to the Plainti’s Further Amended Originating Summons dated 27th September, 2024 clearly demonstrates that this is a straight forward case where the pertinent issue for determination before this Court is simply the amount of purchase price that is due and owed to the Plainti being the Vendor. There are no complex issues involved. 17. Further the Learned Counsel contended that the question as to whether this suit was competently before this Honourable Court since it was commenced through Originating Summons is overtaken by events. In its detailed Ruling of 16th September, 2024, this Honourable Court allowed the Defendants to le their respective defences/responses and counterclaims, if any. Again, on 30th October, 2024, this Honourable Court claried in Court that the Defendants could le their defences as though this claim was commenced through a Plaint. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18752/eng@2025-03-28 4

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18. The provisions of Order 37 Rule 19 (1) of the Civil Procedure Rules, 2010 was instructive that this Honourable Court has the powers to make an order, at any stage of the proceedings, that the proceedings before the Court proceeds as if the Cause had been commenced through ling a Plaint. They honestly believe that this Honourable Court has already expressed itself on this issue and should it happen that the Court had not recorded those directions in the Court le, they humbly urged the Honourable Court to exercise its powers under the provisions of Order 37 Rule 19 (1) of the Civil Procedure Rules, 2010 and direct that these proceedings proceed as though they were commenced through a Plaint. 19. The Learned Counsel argued that it was noteworthy that all the Defendants save for the 4th and 5th Defendants, who were government ocers, have led their respective substantive responses to the Further Amended Originating Summons responding to all the issues therein as raised in the Further Amended Originating Summons dated 27th September,2024. Also, this suit went through Pre - trials and was conrmed for hearing for parties to tender “Viva – Voce” evidence wherein, hearing has been deferred twice on 30th October, 2024 and on 11th December, 2024 to 31st March, 2025. 20. The Learned Counsel beseeched the Honourable Court to make a nding that the Plainti’s instant suit was competently before this Honourable Court and that the same should proceed to full hearing and nal determination as previously directed by this Honourable Court. 21. Thirdly, on whether the Plainti’s Amended Originating Summons raises questions of alleged fraud hence thereby making the Plainti’s claim one beyond the parameters of Order 37 Rule 3 of the Civil Procedure Rules, 2010. The Learned Counsel submitted that the issue of fraud as raised by the Plainti was secondary and incidental to the main issue of non - payment of the balance of the purchase price for the suit property. The issue of fraud was amongst the other questions arising out of and connected with the transactions involving the sale and purchase of the suit property between the Plainti and the 1st Defendant and the subsequent transfer of the same to the 2nd Defendant. The fraud in question arose out of the 1st and 2nd Defendants’ tax evasion on the transfer of the suit property to the 1st Defendant and the subsequent transfer to the 2nd Defendant. 22. The provision of Section 46 of the Land Registration Act was clear that an instrument required by law to be stamped shall not be accepted for registration unless it was stamped in accordance with the Stamp Duty Act (Cap.480). The 1st Defendant had since conrmed through its Further Supplementary Adavit sworn by Joseph Mwela on 10th December, 2024 that indeed, no Stamp Duty was paid on the transfer on 23rd November, 2017 when the said transfer was registered in favour of the 1st Defendant. The 1st Defendant recently submitted the already registered transfer for re - assessment of stamp duty on 9th December, 2024 and paid the stamp duty amounting to a sum of Kenya Shillings Ten Million (Kshs.10, 000, 000/=) on the same date during the pendency of this suit. 23. According to the Learned Counsel tax evasion was an oence under the provision of Sections 2 and 45 (1)(d) of the Anti-Corruption and Economic Crimes Act, 2003. Further, the provision Section 19 of the Stamp Duty Act, Cap. 480 was very clear that non - payment of Stamp duty resulted in the invalidity of the relevant transaction and any agreement signed between the parties become null and void and the same was inadmissible in a Court of law as evidence. The Plainti had alleged that the 1st, 2nd and 3rd Defendants in collusion with the 4th and 5th Defendants committed statutory fraud by lodging and registering the transfer of the suit property in favour of the 1st Defendant on 21st November, 2017 and subsequently in favour of the 2nd Defendant on 23rd March.2018 without payment of stamp duty, which fraud has so far been conrmed by the 1st Defendant’s acts of submitting the transfer instrument https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18752/eng@2025-03-28 5

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dated 6th November,2017 for reassessment of stamp duty on 9th December, 2024 and paying the same on even date, 7 years after the said transfer instrument was registered in its favour. 24. It was noteworthy according to the Learned Counsel that all the Defendants save for the 4th and 5th Defendants, who are government ocers, have led their substantive responses to the Further Amended Originating Summons responding to all the issues therein including the issue of fraud. Also, this suit went through pre-trials and was conrmed for hearing for parties to tender viva voce evidence wherein, hearing has been deferred twice on 30th October, 2024 and on 11th December, 2024 to 31st March, 2025. In view of the foregoing, they humbly submitted that the Plainti’s claim falls squarely within the provisions of Order 37 Rule 3 of the Civil Procedure Rules, 2010 as a claim for the unpaid compensation/balance of the purchase price for the suit property and that the statutory fraud as raised by the Plainti can be conveniently countered through the Defendants’ production of evidence of payment of stamp duty and not necessarily through viva voce evidence. 25. In conclusion, the Learned Counsel asserted that in view of the foregoing submissions and the nature of dispute amongst the parties before this Court, urged this Honourable Court to make a nding that the 4th and 5th Defendants’ Notice of Preliminary Objection dated 25th October,2024 was devoid of merit and dismiss the same with costs to the Plainti. B. The Written Submissions by the 1st Defendant 26. The 1st Defendant through the Law rm of Messrs. Ogendo Mwidau LLP Advocates led their written submissions dated 13th February, 2025. Mr. Ogendo Advocate commenced their submissions by stating that the 4th and 5th Defendants herein invited the Honourable Court and this Honourable Court to examine and make a determination to the eect of dismissing and/or striking out the Plainti's pleadings in its Notice of Preliminary Objection dated 25th October, 2025. The same raised issues in law touching on the mandatory compliance with the provisions of Order 4 Rule 1(4) of the Civil Procedure Rules 2010; Order 4 Rule 6; Order 37 and Orders 37 Rule 3. 27. The Plainti in response advanced an argument in open court that the same Notice of Objection was indeed raised by the 1st Defendant and as such the court were to be indulging in a matter that has been determined. The same was found to be a misleading position as the issues of law raised by the 1st Defendant were substantively touching on Section 4 (1) (a) of the Limitation Actions Act Cap. 22;Order 37 Rule 6 of the Civil Procedure Act, Cap. 21 and Order 37 rule 3 of the Civil Procedure Rules, 2010. On the issues for determination, the Learned Counsel argued that the 1st Defendant herein would rely on the following two pertinent issues regarding the Notice of Objection to be addressed by this Honourable Court and make a determination: 28. a. Whether the Notice of Objection raised by the 4th and 5th Defendants is merited and its eect of the Plainti's case? b. Cost of the suit. The merits of a Notice of Preliminary Objection were widely discussed in the case of “Samuel Waweru – Versus - Geoery Muhoro Mwangi [2014] eKLR” as set out in the famous case of “Mukisa Biscuit Manufacturing Co. Limited – Versus - West End Distributors Limited (1969) EA 696” as a basis for dening the basis of preliminary objection and stated that: “ So far as I'm 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.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18752/eng@2025-03-28 6

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29. In recent cases, the Supreme Court again reconsidered the position of parties resulting to the use of Preliminary Objections and pronounced itself as follows in the case of “Independent Electoral & Boundaries Commission – Versus - Jane Cheperenger & 2 Others [2015] eKLR” as cited in “Charles Onchari Ogoti – Versus - Safaricom Limited & another[2020] eKLR”; the Supreme Court stated that: “ The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by litigants to Preliminary Objections. The true Preliminary Objection serves two purposes of merit: rstly, it serves as a shield for the originator of the objection-against proigate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement.” 30. The Notice of Objection from their observation and the guidelines oered by the “Mukisa Biscuit” case, indeed oers an opportunity for this court to examine whether the Plainti approached this Honourable Court in compliance with the requirements of Order 4 Rule 1 (4) of the Civil Procedure Rules of 2010. This indeed was a point of law that on the probable scale that the same was not complied with by the Plainti, warrants this Court powers to strike out its pleadings and salvage judicial resources. In this instance, this Honourable Court shall be within its judicial powers to exercise powers under Order 2 Rule 15(1) (d) and (3); and Order 4 Rule 6 Civil Procedure Rules of 2010. 31. To support its point, the 1st Defendant referred Court to the case of: “Blue Shield Insurance Co. Ltd – Versus - Joseph Mboya Oguttu [2009] eKLR” delved into the issue of striking out pleadings which was widely discussed by Madan J.A. (as he then was) in his Judgment in the case of:- “D.T. Dobie and Company (Kenya) Limited – Versus - Muchina (1982) KLR 1” and although what was before him was an application under Order 6 Rule 13 (1) (a) which was seeking striking out a Plaint on grounds that it did not disclose a reasonable cause of action against the defendant, he nonetheless dealt with broad principles which in eect coveredall other aspects where striking out a pleading or part of a pleading is sought. It was held in that case “inter alia’ as follows:“ The power to strike out should be exercised after the Court has considered all facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial Judge. On an application to strike out pleadings, no opinion should be expressed as this would prejudice fair trial and would restrict the freedom of the trial Judge in disposing the case.” 32. One would argue, for argument's sake; for the Plainti to benet from this Honourable Court's discretion to allow it to cure the defects in its pleadings under the proviso of Article 159 (2)(d) and Order 8 of the Civil Procedure Rules, 2010 and litigate happily ever after. However, this being a court of law, it warrants that the oender of a rule does not benet unjustly from its oence in prejudice to the case of the opposing parties. From the inception of this case, the Plainti had indeed enjoyed leave from the Honourable Court to amend all such defects and proper its claim against the Defendants. Even if leave was ripe for this instance, it may not appear to be judicially fair within the reading of Article 159 (2) (b) to having delayed justice for the Defendants further. This would hugely prejudice the Defendants’ case and occasion a miscarriage of justice. The Plaintis were undeserving of leave whatsoever. 33. The law fortied this position in various decisions, and oered a satisfactory reasoning against this argument (as hypothesized above) and considered issues on a case-by-case basis. For instance, the supreme court in guiding itself on this issue, set out its reasoning as was seen in the case of “Salat – Versus - Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014)[2014] KESC 12 (KLR) (4 July 2014)” when it was faced with the issue of exercising its https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18752/eng@2025-03-28 7

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discretion judicially on the extension of time where the court cited the case of:- “Raila Odinga – Versus - Independent Elections and Boundaries Commission & others, Petition No. 5 of 2013” while addressing itself on discretion to extend timelines stated: “ It may be argued that the Supreme Court ought to apply the principle of substantial justice, rather than technicalities, particularly in a petition relating to Presidential election, which is a matter of great national interest and public importance. However, each case must be considered within the context of its peculiar circumstances. Also, the exercise of such discretion must be made sparingly, as the law and Rules relating to the Constitution, implemented by the Supreme Court, must be taken with seriousness and the appropriate solemnity. The Rules and time-lines established are made with special and unique considerations. ” (Emphasis provided). 34. Further, the Court of Appeal has pronounced itself on this aspect severally. Recently, in “Paul Wanjohi Mathenge – Versus - Duncan Gichane Mathenge [2013] eKLR” the Court of Appeal while referring to other authorities observed (at paragraph 12): “ The discretion under Rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice. I take note that in exercising my discretion ought to be guided by consideration of the factors stated in previous decisions of this Court including but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and interested parties if the application is granted, and whether the matter raises issues of public importance.” 35. The issue of Order 4 Rule (1) (4) of the Civil Procedure Rules, 2010 was indeed an expression of the provision of Sections 34 and 35 of the Companies Act 2015 being what is required from a corporation and its directors in order to make expressions that are to be deemed binding in law. Therefore, the question would come up in this instance and the litigation sphere. The provision of Order 4 Rule 1 (4) of the Civil Procedure Rules provide as follows: “ 1(4) Where the plainti is a corporation, the verifying adavit shall be sworn by an ocer of the company duly authorized under the seal of the company to do so.” 36. The Court in the case of:- “Kariuki – Versus - Deposit Protection Fund Board & Another [2002] eKLR” held that: “ A director or ocer cannot sue or defend a suit on behalf of a company without express authority and stated that ‘A company acts through its directors, and authority to litigate must be conferred by a resolution’... Absent such resolution, the suit is incompetent.” 37. Finally, the court in the case of “Co - operative Bank of Kenya Ltd – Versus - Patrick Kangethe Njuguna & 5 Others [2017] eKLR” held that a suit led by a director without a board resolution was fatally defective and a nullity. The court stated that: “ Directors must demonstrate that they were authorized by the company to institute proceedings...Failure renders the suit void ab initio.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18752/eng@2025-03-28 8

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38. On the issue of costs, the Learned Counsel submitted that the “Reid, Hewitt & Co v Joseph, AIR 1918 Cal 717” and “Myres – Versus - Defries (1880) 5 Ex D 180”,the house of Lords noted that: “ The expression ‘costs shall follow the event' means that the party, who, on the whole, succeeds in the action gets the general costs of the action, but where the action involves separate issues, whether arising under dierent causes of action or under one cause of action, the word ‘event’ should be read distributiveand the costs of any particular issue should go to the party who succeeds upon it.” 39. On the issue of cost, they argued that on the strength of our submissions and the circumstances surrounding this case, they implored upon the discretion of this Honourable Court to allow the objection by the 4th and 5th Defendants with costs. 40. In conclusion, the Learned Counsel submitted that on the strength of their Submissions, and with the overwhelming support of the decided cases attached herewith written laws and the Constitution of Kenya, 2010 they prayed that this Honourable Court does allow the Notice of Preliminary Objection on its merits and dismiss the Plainti's case with costs. Any other order that this Honourable Court deems t and just in the circumstances. C. The Written Submissions by 3rd Defendant. 41. The 3rd Respondent through the Law rm of Muriithi & Masore Law Advocates led their written submissions dated 10th February, 2025. Mr. Muriithi Advocates commenced by stating that these submissions speak to the 4th and 5th Defendants' Preliminary Objection dated 25th October 2024. The Learned Counsel held that the 3rd Defendant supported the Preliminary Objection by associating themselves with the 4th and 5th Defendants' submissions. However, had two (2) things to supplement to the already led submissions. 42. Firstly, the Plainti expressly acknowledged that no resolution was led at the commencement of the suit. Further, that none had been led even as of the time the matter was set down for hearing. Indeed, the Plainti had attempted to le the board resolution alongside their submissions dated 10th January 2025 through yet another supplementary adavit evenly sworn. It was well known that the Plainti never sought leave to le any such further supplementary adavit, not least of which seeks to cure the very defect for which the summons was being assailed. This was contrary irregular and to support himself on this point cited the case of:- “Salat – Versus - Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12(KLR)”, where it was held there was no longer room for a party to le a document irregularly without leave of court then later seek to legalize it. Leave must precede. Such a document, absent leave, was unknown in law and should be struck out. Thus, the supplementary adavit sworn on 10th January 2025 was for striking out. 43. Secondly, in the further amended summons, the Plainti had levelled fraud against all the Defendants. The Plainti also sought nullication of transfer of the suit property. The Learned Counsel refuted the Plainti's submissions that the allegations of fraud therein was peripheral/secondary. The dispute herein as formulated by the Plainti prominently transcended a simple and straightforward Vendor -Purchaser dispute. The Plainti had roped in several other third parties against whom it had made complex factual and legal indictments that could not be accommodated in an originating summons. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18752/eng@2025-03-28 9

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To support this point, the Learned Counsel referred Court to the case of:- “James Joram Nyaga & another – Versus - Attorney General & another [2019] eKLR that: “ An originating summons is only suitable specically for matters or issues that are not complex factually and legally. An ordinary suit allows better canvassing of competing claims. 44. In the upshot, the 3rd Defendant fully supported the objection and the submissions raised by the 4th and 5th Defendants. D. The Written Submissions by the 4th & 5th Defendants. 45. The 4th and 5th Defendants through the State Law Oces, the Honourable Attorney General at Mombasa led their written submissions dated 27th December, 2024. Mr. Mwandeje Advocate held that the submissions pertained to their Preliminary objection was dated 25th October, 2024 on the afore stated grounds. The 4th and 5th Defendants opined that the issues for determination in this preliminary objection were:- 46. Firstly, whether the preliminary objection herein is premised on a pure point of law. While responding to this, the Learned Counsel cited the famous East African Court of Appeal distinguished authority of:- “Mukisa Biscuits Manufacturing Co. Limited – Versus - West End Distributors Limited (1969) EA 696” which dened a Preliminary Objection. The 4th and 5th Respondents submitted that on the basis of the holding in this authority on what constituted a Preliminary Objection, it was not in doubt that a Preliminary Objection raises a pure point of law. However, it could not be raised if any facts was to be ascertained from elsewhere or the court was called upon to exercise judicial discretion. Further, in the case of:- “Quick Enterprises Ltd Vs Kenya Railways Corporation, Kisumu HCCC No. 22 of 1999”, the Court held that:“ When preliminary points are raised, they should be capable of disposing the matter preliminarily without the Court having to result to ascertaining the facts from elsewhere apart from looking at the pleadings." 47. This Court in the authority of “Avtar Singh Bhamra & Another – Versus - Oriental Commercial Bank, Kisumu HCCC No. 53 of 2004” held that a preliminary objection must stem from the pleadings and raise pure point of law. The court held that:“ A Preliminary Objection must stem or germinate from the pleadings led by the parties and must be based on pure points of law with no facts to be ascertained." 48. In the instant case, the Learned Counsel averred that the Preliminary Objection as led stemmed from the pleadings led by the Plainti being the Amended Originating Summons. This was on the account of how they had been originated, drafted and led. 49. Secondly, whether the Plaintis amended Originating Summons oended the mandatory provisions of Order 4 Rule 1(4) of the Civil Procedure Rules 2010. As result, the suit was t for striking out in terms of the provision of Order 4 Rule 6 of the Civil Procedure Rules, 2010. Order 4 Rule 1 (4) provides as follows: Where the Plainti is a Corporation, the verifying adavit shall be sworn by an ocer of the company duly authorized under the seal of the company to do so. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18752/eng@2025-03-28 10

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50. The Counsel averred that whereas an Originating Summons was one of the ways of commencing legal proceedings, it was a legal requirement that a resolution or resolutions passed either at a Company or Board of Directors' meeting and recorded in the minutes had to accompany such pleadings. See the case of “Ibacho Trading Company Limited – Versus - Samuel Aecha Ondora & 3 others [2017] eKLR; Kenya Commercial Bank Limited – Versus - Stage Coach Management Limited [2014] eKLR”. 51. On the contrary, from the led Originating Summons there was no such company resolution led together with a verifying adavit sworn by an ocer of the Plainti Company evidencing the Plainti Company's authorization for the ling of the suit herein. To buttress on this point, the Counsel referred Court to the cases of: “Ibacho Trading Company Limited – Versus - Samuel Aecha Ondora & 3 others [2017] eKLR;, Kenya Commercial Bank Limited – Versus - Stage Coach Management Limited [2014] eKLR”, the Court observed:“ In the instant case the Plainti did not avail any written document before the court to show that the ling of the suit was authorized by the company under seal. Indeed the Plainti did not produce any minutes or formal resolution of the company appointing M/s. Ombachi & Co. Advocates to sue on behalf of the Plainti company”. Courts have held time and again that seeking such authority before the institution of a suit is mandatory. In East African Portland Cement Limited – Versus - The Capital Markets Authority & 5 Others Petition NO. 6000 of 2013 in which the Ugandan case of Bugerere Coee Growers Limited – Versus - Seraduka & Another (1970) EA 147 was quoted, it was held, in dismissing the suit, that when companies authorize the commencement of legal proceedings, a resolution or resolutions have to be passed either at a company or Board of Directors' meeting and recorded in the minutes but no resolution had been passed authorizing the proceedings in the case. The court further held that where an advocate has brought legal proceedings without an authority, the said advocate becomes personally liable to the Defendants for costs. See Kenya Commercial Bank Ltd - Versus - Stage Coach Limited [2014] eKLR. From the above foregoing, it is crystal clear that the case before the court was led without the Plainti company's written authorization as is envisaged by the law. One may however argue that failure to le the plaintis written authorization is a procedural technicality which should not overshadow the substantive justice due to the parties to the case as envisaged under Article 159 (2) (d) of the Constitution. It has, however been reiterated in several instances that the provisions of Article 159 (2) (d) of the Constitution should not be used by litigants as a panacea to all irregularities and procedural technicalities. The court has cautioned that the same should not be used to trash procedural provisions as the rules are the handmaidens of justice. See Joshua Werunga – Versus - Joyce Namunyak [2013] eKLR wherein it was held inter alia: "In the case of Raila Odinga – Versus - I.E.B.C & Others [2013] eKLR, the Supreme Court said that Article 159 (2)(d) of the Constitution simply means that a Court of Law should not pay undue attention to the procedural requirements at the expense of substantive justice. It was never meant to oust the obligation of litigants to comply with the procedural imperatives as they seek justice from the courts." As regards the necessity for a company resolution to back the institution of the suit, it was held in Assia Pharmaceuticals – Versus - Nairobi Veterinary Centre Limited HCCC No. 391 of 2000 as follows: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18752/eng@2025-03-28 11

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"It is settled law that where a suit is to be instituted for and on behalf of a company there should be a company resolution to that eect.......As regards litigation by an incorporated company, the directors are as a rule, the persons who have the authority to act for the company; but in the absence of any contract to the contrary in the articles of association, the majority of the members of the company are entitled to decide even to the extent of overruling the directors, whether an action in the name of the company should be commenced or allowed to proceed. The secretary of the company cannot institute proceedings in the name of the company in the absence of express authority to do so; but proceedings started without proper authority may subsequently be ratied.” In this case, as I have already found, there has been no such ratication even after the Plainti, through its advocates or otherwise, became aware of the Defendants' defence that contained a notice of intention to raise a Preliminary Objection on the competence of the suit. In my view, the Plainti had a chance, even at the hearing of the case, to demonstrate to the court that the suit had the blessings or ratication of the company through the production of the company resolutions. This was not done and as I have already observed in this Judgment, PW -1 stated that he had the minutes but did not bother to avail them to court. My humble view is that the Plainti was lackadaisical in pursuing their case and it is my nding that the failure to tender the company resolution authorizing the case dealt a fatal blow to say their case". 52. Additionally, in the case of:- “Leo Investments Limited – Versus - Trident Insurance Co. Limited (2014) eKLR and Republic – Versus - Registrar General and 13 Others (2015) eKLR”, Odunga J. and Kimaru J. respectively rendered that the legal position being a resolution of the Board of Directors of a company may be led at any time before the suit was xed for hearing. However, in the circumstances of the suit herein, the Originating Summons had already been set down for hearing on 30th October, 2024 and 11th December, 2024. Thus, the position as held by the Learned Judges in the above case of “Leo Investments Ltd does not apply thereby rendering the Plainti's Originating Summons proper for striking out. Consequent to the foregoing, the Preliminary Objection was merited and prayed it be allowed. The suit should be struck out with costs. 53. Whether the Plainti's suit commenced by way of an Originating Summons as Amended, is incompetent and t for striking out in limine. This was as the issues in dispute were not matters contemplated under the provision of Order 37 of the Civil Procedure Rules, 2010. The Learned Counsel argued that the provision of Order 37 of the Civil Procedure Rules, 2010 stipulates which matters an Originating Summons may be taken out in respect of as the pleaded facts herein were by vendor or purchaser of land as envisaged under the provision of Order 37 Rule 3. However, there were other issues of the alleged fraudulent means had since transpired. Hence, this aspect aected the existence or validity of the contract sought to be enforced by the Plainti. To the Counsel, this issue was not available to the Plainti. It was outside the realm and parameters of Order 37 Rule 3 and therefore incompetent and t for striking out. To support his point the Counsel cited the case of:“John . W. Wephukhulu – Versus - Secretary Board of Governors, Burn School (2005) eKLR”, the Court of Appeal held thus:“ The procedure of Originating Summons is designed for the summary or ad hoc determination of points of law, construction of certain specic facts or obtaining of specic directions of the court such as trustees, administrators or court execution ocers. The https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18752/eng@2025-03-28 12

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procedure should not be used for determination of matters that involve a serious question or determination of disputed questions of facts". 54. Further in the case of:- “Mukesh Manchana Shar & Another – Versus - Priyat Shah & Another (2015) eKLR” the Court of Appeal reversed a High Court ruling declining jurisdiction and held thus:“ Before we consider how these provisions apply to the question before us, we emphasize that it is perfectly well settled and indeed engrained in practice as repeatedly stated by legious of judicial authorities that unrestricted use of Originating Summons procedure is discouraged. It follows that the application by Originating Summons has never been a substitute for initiating claims involving contentious issues o acts looking at the history of its evolution.....". 55. To prove fraud, one had to examine in detail the documents that led to the acquisition of the said suit property, examination and cross-examination of the people involved in the processing of the title and sometimes the calling of expert witnesses or the ocials from the Ministry of Lands and other relevant institutions. Indeed, matters of fraud, nullication and rectication of the register by all means were complex and require detailed evidence at a full hearing which the Respondents submit was outside the scope of an originating summons. In the case of:- “Kibatiri – Versus - Kibutiri (1983) KLR 1, it was held as follows:“ The scope of an inquiry which could be made on an Originating Summons and the ability to deal with a contested case was very limited. When it becomes obvious that the issues raised are complex and contentious questions of facts and law a judge should dismiss the summons and leave the parties to pursue their claim by ordinary suit". 56. Further, to buttress on the submission that an Originating Summons was meant for simple and straight forward issues and whereby fraud was not one such issue, the Counsel relied on the cases of:- “Frederick Kiura Nyaga & 24 others (2020) eKLR, Vijay Morjaria – Versus - Nancing M. Darbar & another (2000) eKLR,; Wakf Commissioner – Versus - Mohamed Bin Umeya Bin Abdulamaji Bin Mwijabu (1984) eKLR 346 and Mwanga Juma – Versus - Iwamba Nzaka Munga (2019) eKLR .The Counsel argued that a suit led contra-statute could not be saved by the Oxygen Principle or the provisions of Article 159 of the Constitution. In the case of:- “Siasa Pasua & 2 Others – Versus - Mbaruk Khamis Mohamed & Another (2012) eKLR” Ojwang J as he was then had this to say about the provisions of Article 159 (2) (d) of the Constitution. “ The obligation placed upon the courts by the Constitution's requirement (Article 159 (2) (d)), that they render justice without undue regard to procedural technicalities, does not, in my opinion, negate the orderly scheme of litigation provided for by the Civil Procedure Rules; and the law in respect of Originating Summons is by no means nullied." 57. The provisions of Article 159(2) (d) could not come to the aid of such a party. A suit which had been led contra-statute is incompetent and could not be allowed to proceed because it should not be there in the rst place as supported by the cases of:- “The Speaker of the National Assembly – Versus Karume (2008) eKLR ep 425, Hunker Trading Company Limited – Versus - ELF Oil Kenya limited: C.A No. 6 of 2010, Mrabura Suresh Kenteria – Verusu - Suresh Nanalal Kentevial C.A. No. 277 of 2005 and Mumo Matemu – Versus - Trusted Society of Human Rights Alliance & 5 others (2013) eKLR to reinforce the submission that the oxygen principle or even article 159 of the Constitution could not be used to circumvent, defeat, or depart from the laid down procedure. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18752/eng@2025-03-28 13

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58. In a nutshell, the Learned Counsel urged the Court to nd the sit by the Plainti incompetent and proceed to strike out the same with costs. IV. Analysis & Determination. 59. I have carefully read and considered the Notice of Preliminary objection herein by the 4th and 5th Defendants, the written submissions, the myriad of cases cited herein by parties, the relevant provisions of the Constitution of Kenya, 2010 and statures. 60. In order to arrive at an informed, Just, equitable and reasonable decision, the Honorable Court has ve (5) framed issues for its determination. These are: a. Whether the objections raised meet the laid – down threshold of an objection based on Law and Precedents. b. Whether the Plainti’s Amended Originating Summons oend the mandatory provisions of Order 4 Rule 1 ( 4) of the Civil Procedure Rules 2010and is t for striking out in terms of Order 4 Rule 6 of the civil procedure Rules, 2010. c. Whether in line with the provisions of Order 37 of the Civil Procedure Rules, 2010 the Plainti’s suit was properly instituted? d. Whether the issue of fraud could be raised in an Originating Summons for a claim of land adverse possession ? e. Who will bear the Costs of Notice of Preliminary objection dated 25th October, 2024. ISSUE No. a). Whether the objections raised meet the laid – down threshold of an objection based on Law and Precedents. 61. Under this Sub – heading, the Honourable Court will decipher on the substratum of the matter is whether the objection raised pure points of law. In determining this instant Notice of Preliminary Objection, the Court will rst consider what amounts to a Preliminary Objection and then Juxtapose the said description herein and come up with a nding on whether what has been raised herein ts the said description. 62. According to the Black Law Dictionary a Preliminary Objection is dened as being: “ In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….” 63. The above legal preposition has been made graphically clear in the now famous case of “Mukisa Biscuits – Versus - Westend Distributor Ltd [1969] EA 696”, the court observed 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. ” 64. This statement of the law has been echoed time and again by the courts: see for example, “Oraro – Versus - Mbaja [2007] KLR 141”.The same position was held in the case of “Nitin Properties Ltd – https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18752/eng@2025-03-28 14

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Versus - Jagjit S. Kalsi & another Court of Appeal No. 132 of 1989[1995-1998] 2EA 257” where the Court held that; “ A preliminary Objection raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any facts has to be ascertained or if what is sought is the exercise of Judicial discretion.” 65. Similarly in the case of “United Insurance Company LTD – Versus - Scholastica A Odera Kisumu HCC Appeal No. 6 of 2005(2005) LLR 7396”, the Court held that; “ A preliminary Objection must be based on a point of law which is clear and beyond any doubt and Preliminary Objection which is based on facts which are disputed cannot be used to determine the whole matter as the facts must be precise and clear to enable the Court to say the facts are contested or disputed .” 66. 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.” 67. 68. 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 (iii) The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute. Taking into account the above ndings and holdings of various Courts on what amounts to a preliminary Objection, the Court now turns to the grounds raised by the 4th and 5th Defendants. Essentially, it is on whether the Plainti's Amended Originating Summons oends the mandatory provisions of Order 4 Rule 1 (4) of the Civil Procedure Rules 2010. That it is t for striking out in terms of Order 4 Rule 6 of the Civil Procedure Rules, 2010, whether in so far as the Plainti's suit is commenced by way of an Originating Summons as Amended, the same is incompetent and t for striking out in limine as the issues in dispute are not matters contemplated under Order 37 of the Civil Procedure Rule, 2010 and whether a party can raise such complex the issue as of fraud in a claim for adverse possession.By and large, in the instant, I am fully satised that the objection raises pure points of law in that the preliminary objection. ISSUE No. b). Whether the Plainti ’s Amended Originating Summons oend the mandatory provisions of Order 4 Rule 1 (4) of the Civil Procedure Rules 2010and is t for striking out in terms of Order 4 Rule 6 of the civil procedure Rules, 2010? 69. Under this subtitle the 4th and 5th Defendants contend whether the Plainti's Amended Originating Summons oends the mandatory provisions of Order 4 Rule 1 (4) of the Civil Procedure Rules 2010 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18752/eng@2025-03-28 15

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and if the same is t for striking out in terms of Order 4 Rule 6 of the Civil Procedure Rules, 2010. The 4th and 5th Defendants are seeking that the instant suit be struck out on the grounds that the Plainti's Amended Originating Summons oends the mandatory provisions of Order 4 Rule 1(4) of the Civil Procedure Rules, 2010 and is t for striking out in terms of Order 4 Rule 6 which provides as follows:Where the Plainti is a corporation, the Verifying Adavit shall be sworn by an ocer of the company duly authorized under the seal of the company to do so. 70. Order 4 Rule 1(6) states:The Court may of its own motion or on the application by the Plainti or the Defendant order to be struck out any Plaint or Counter - Claim which does not comply with sub-rule (2) (3), (4) and (5) of this rule. 71. The objective behind Order 4 Rule 1 was to ensure that the persons who bring suits to court own up to the led cases. Further, it is to prevent the ling of ctitious suits where the actual Plaintis do not even know of the existence of the suits. This was more so in running down suits where brokers or “ambulance chasers” would have a multiplicity of suits led without the knowledge of the Plaintis.As relates to corporations the objective was to ensure the ling of the suit has been duly authorized and sanctioned by the company. The authorization under the seal of the company ensures the company has sanctioned the ling of the suit as by having the seal axed, the company is deemed to have executed the document. 72. In my own view, the provision of Order 4 Rule 1 (4) does not expressly state that the authorization has to be led with the verifying adavit in court. Thus, as far as I am concerned, and without wanting to tolerate splitting of hairs here, provided the person swearing the Verifying Adavit has been authorized by the company to do so, that constitutes sucient compliance with the requirement. Hence, so long as the Verifying Adavit shall be sworn by an ocer of the company duly authorized under the seal of the company to do so. Nowhere is it stated that such authority must be led. In other words, where the person deponing or swearing the Verifying Adavit is an ocer of the company and he depones that he has been duly authorized by the company to swear the verifying adavit, he is deemed to have been authorized in accordance with Order 4 Rule 1 (4). The provision does not require that the authority be led in court with the verifying adavit and the wording of the sub - rule leaves it open such that such authority, provided it was granted before the suit was commenced could be furnished and/or led at any stage of the proceedings. Of course to obviate the occurrence of a situation such as the present one the “best practice” would be where the authority is exhibited at the time the suit is led and/or is led as part of the Plainti’s bundle of documents. 73. On this particular aspect, I cannot agree more with the observations of Odunga J as regards the eect of Order 4 Rule (1) (4) expressed in the case of “Insignia Limited – Versus - Zadok & 3 others (2012) eKLR” referred to the court by the Learned Counsel for the Plaintis where he stated thus: “ On the issue of the competency of the Verifying Adavit, under Order 4 Rule 1 (4) of the Civil Procedure Rules, where the Plainti is a corporation, the Verifying Adavit shall be sworn by an ocer of the company duly authorized under the seal of the company to do so. Nowhere is it stated that such authority must be led. The failure to le the same may be a ground for seeking particulars assuming the authority does not form part of the Plainti’s bundle of documents which good sense dictates it should of course, if a suit is led without a resolution of a corporation, it may attract consequences. The mere failure to le the same with the Plaint does not invalidate the suit. I associate myself with the decision of Kimaru, J in Republic –Versus - Registrar General and 13 others Misc. Application NO. 67 of 2005 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18752/eng@2025-03-28 16

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(2005) eKLR and hold the position in law is that a resolution by the Board of Directors of a company may be led anytime before the suit is xed for hearing as there is no requirement that the same be led at the same time as the suit”. 74. In the instant case, it is noteworthy that the Plainti led a board resolution under the seal of the Plainti Company clearly showing that Lawrence Muriithi Mbabu was the Managing Director of the Plainti Company and that he had the authority swear the Adavits on behalf of the Plainti Company from the inception of this suit. In all the Adavits on record that are sworn on behalf of the Plainti Company including the Supporting Adavit to the Further Amended Originating Summons, it was clearly stated in those Adavits that Lawrence Muriithi Mbabu is the Managing Director of the Plainti Company and that he had been authorized by the Board of the Plainti Company to swear the Adavit. This was a clear indication that the failure to annex a Board Resolution therein was an oversight on his part. 75. Though the portion of the rule requiring ling of an authority under seal is couched in mandatory terms, the portion on consequences of noncompliance is not. Therefore, the Court has discretion on whether or not to order striking out of any pleading that is non-compliant. In exercising that discretion, the court must be alive to its obligations under the provision of Article 159 of the Constitution of Kenya, 2010 to see to it that justice is administered without undue regard to procedural technicalities. In that regard, with great humility, I note that save for the case of:- “Bactlab Limited – Versus - Bactlabs East Africa Limited & 5 others [2002] eKLR”, all the authorities cited by the Defendants pre-date the promulgation of the Constitution of Kenya, 2010. 76. Consequently, I do not consider that failure to exhibit an authority under seal should result, in the present dispensation, to striking out of the amended originating summons in the rst instance. The court should give the litigant a chance to comply with the rules. It is only after failure to comply that such drastic consequences as striking out should come into operation. For these reasons, therefore, I hold that the objection outrightly fails. ISSUE No. c). Whether in line with the provisions of Order 37 of the Civil Procedure Rules, 2010 the Plainti ’s suit was properly instituted? 77. Under this sub title, the Learned Counsel for the Plainti has contended, the substratum was one on sale of goods and recovery of the outstanding balance. Accordingly, the Plainti and the 1st Defendant herein duly executed into Sale Agreement dated 8th June, 2017 terms and conditions stipulated herein. It was for sale of the suit property. However, out of the breach of said terms, the Plainti through this suit was simply seeking the enforcement of the contract being the outstanding balance of the purchase price. The said Agreement is outrightly acknowledged by both parties to it in their pleadings on record. The existence or validity of the said Agreement is not in question at all. 78. The provision of Order 37 Rule 3 of the Civil Procedure Rules, 2010 which provided as follows: “A vendor or purchaser of immovable property or their representatives respectively may, at any time or times take out an originating summons returnable before the judge sitting in chambers for the determination of any question which may arise in respect of any requisitions or objections or any claim for compensation or any other question arising out of or connected with the contract of sale (not being a question aecting the existence or validity of the contract).” 79. The Plainti contended that the question as to whether this suit was competently before this Honourable Court since it was commenced through Originating Summons is overtaken by events. I https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18752/eng@2025-03-28 17

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say so as the Court is one for records. In its detailed Ruling of 16th September, 2024, this Honourable Court allowed the Defendants to le their respective Defences/responses and counterclaims, if any. Again, on 30th October, 2024, this Honourable Court claried in Court that the Defendants could le their defences as though this claim was commenced through a Plaint. 80. This Honourable Court does recall giving out the orders for the Defendants to led their respective defences/ responses. Is this a ground of objection that should stand. The Court answers this question in the negative reasons. Primarily, that is the legal import of the provision of Order 37 Rules, 13, 16 and 18 of the Civil Procedure Rules, 2010 whereby the Court as a matter of Pre – Trial to grant directions of converting an originating summons into a Plaint; the Applicant to the Plainti; the Respondent to the Defendant and the attached documents in both the Supporting and Replying adavits to documents to be relied on as evidence and the matter to proceed by adducing of “Viva Voce” evidence. Therefore, based on all these reasoning hereof, the objection is found to be baseless, unreasonable and without any merit at all. Thus, the 2nd Objection fails as well. ISSUE No. d). Whether the issue as complex as fraud could be raised in an originating summons suit for a claim of land adverse possession? 81. Under this issue the Court would like to borrow from the case of “Margaret Monyani – Versus - Agnes Naliaka Wanambisi [2018] eKLR” here the Court held that:“ The fact the Defendant’s proprietary rights had not crystalized when the Plainti took possession disentitles the Plainti from a claim of adverse possession. The fact that the claim is also premised on fraud shows a misconception by the Plainti of her rights. She cannot claim adverse possession on a title that was fraudulently obtained as a claim of adverse possession is an admission that the Defendant has good title but has abandoned his rights to the land.” 82. The Defendants have vigorously argued that such a complex issue as fraud was not available under the Originating Summons which only dealt on straight forward matters as envisaged under Order 37 of the Civil Procedure Rules, 2010. In a rejoinder, the Plainti contended that the issue of fraud as raised by the Plainti is secondary and incidental to the main issue of non - payment of the balance of the purchase price for the suit property. To them, the aspect of fraud is amongst the other questions arising out of and connected with the transactions involving the sale and purchase of the suit property between the Plainti and the 1st Defendant and the subsequent transfer of the same to the 2nd Defendant. The fraud in question is a remote point that arises out of the 1st and 2nd Defendants’ deliberate attempt on tax evasion on the transfer of the suit property to the 1st Defendant and the subsequent transfer to the 2nd Defendant. 83. In all disposition of land, statutory requirements must be fullled. For instance attaining consents, approvals and payments of stamp duty. The provision of Section 46 of the Land Registration Act, No. 3 of 2012 is clear that an instrument required by law to be stamped shall not be accepted for registration unless it is stamped in accordance with the Stamp Duty Act, Cap.480. The 1st Defendant has since conrmed through the contents of its Further Supplementary Adavit sworn by Joseph Mwela on 10th December, 2024 that indeed, no Stamp Duty was paid on the transfer on 23rd November, 2017 when the said transfer was registered in favour of the 1st Defendant. The 1st Defendant recently submitted the already registered transfer for re assessment of stamp duty on 9th December, 2024 and paid the stamp duty amounting to a sum of Kenya Shillings Ten Million (Kshs.10, 000, 000/=) on the same date during the pendency of this suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18752/eng@2025-03-28 18

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84. From the Court’s understanding of the doctrine of adverse possession is that the Claimant in this case Applicants (the person contending to be in adverse possession) must rst and foremost concede to, acknowledge and admit the title of the owner of the property which is in question. Indeed, the doctrine of adverse possession is hinged on the provisions of Sections 7, 13, 17, 37 and 38 of the Limitations of Actions Act, Chapter 22 Laws of Kenya but that in itself should not be used to dispense the suit entirely in the interim. Further, I take notice that this suit was led in year 2022. The raised Preliminary objection was led in year 2024 almost 2 years after. Although, an objection may be raised at any stage of the proceedings, but on this one I cannot fail to conclude that it was done in bad faith and as an after thought to say the east. In the circumstances, I nd the third objection without basis and consequently dismisses the Preliminary objection entirely. ISSUE No. e). Who will bear the Costs of Notice of Preliminary objection dated 25th October, 2024. 85. 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”. 86. In this case, this Honourable Court nds that the Costs of the Notice of Preliminary objection dated 25th October, 2024 will be in the cause. V. Conclusion & Disposition 87. In long analysis, the Honorable Court has carefully considered and weighed the conicting parties’ interest as regards to balance of convenience. 88. Ultimately in view of the foregoing detailed and expansive analysis to the rather omnibus application, this court arrives at the following decision and makes below order: a. THAT the Notice of Preliminary objection dated 25th October, 2024 be and is hereby found to lack merit and thus it is dismissed in its entirety. b. THAT for expediency sake, the matter already has a xed hearing date for 26th May, 2025. There shall be a mention on 12th May, 2025 for conducting of Pre – Trial Conference pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010 before Hon. Justice Olola. c. THAT the costs of the Notice of Preliminary objection dated 25th October, 2024 shall be in the cause. It is so ordered accordingly. RULING DELIVERED THROUGH THE MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS .28TH DAY OF MARCH 2025. ……………………………………. HON. MR. JUSTICE L. L. NAIKUNI, ENVIRONMENT AND LAND COURT AT MOMBASA Ruling delivered in the presence of: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18752/eng@2025-03-28 19

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M/s. Firdaus Mbula, the Court Assistant. M/s. Grace Ndinda Advocate for the Plainti. No appearance for the 1st Defendant. Mr. Oloo Advocate for the 2nd Defendant. Mr. Muriithi Advocate for the 3rd Defendant. Mr. Kemei Advocate for the 4th and 5th Defendants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18752/eng@2025-03-28 20

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