Kibe v Registered Trustees of Malallani Mosque, Kwale County & 3 others (Land Case E061 of 2024) [2026] KEELC 3039 (KLR)

II. The Notice of Motion Application dated 29th April, 2025 by the Interested Parties 4. 5. The application by the Interested Parties dated 29th April 2025 was brought under the provisions of Sections 1A, 1B, 3A and Section 6 of the Civil Procedure Act, Cap. 21 and Order 51 of the Civil Procedure Rules, 2010 of the Laws of Kenya. They Applicants sought for the following orders:a. That this Court be pleased to admit the 1st and 2nd Intended Interested Party as parties to this suit. b. That this Court be pleased to strike out the suit against the 1st Defendant. c. That the Court be pleased to strike out the Plaint dated 24th September, 2024 in its entirety. d. That the cost of this Application be provided for. The application was premised on the grounds, testimonial facts and the averments made out under the supported by a 17 Paragraphed Supporting Afidavit sworn by Mr. MWAFUMBIRI BAKARI MATATIZO and dated on 29th April 2025. He averred that: a. He was a male adult of sound mind and the Chairperson of the 1 st interested party, well versed with the facts of this case, therefore competent to swear this Afidavit. b. He had authority and instructions to swear this afidavit on behalf of the Diani Resource Scheme Center, Community Based Organization where he was the Chairperson. Attached herewith was a copy of Authority marked as “MBM – 001”. c. They were made aware of this suit filed by the Plaintifi through an application filed in another suit, “ELCOS E008 OF 2023” that they had filed before this court seeking a declaration that the 1st Interested Party were the rightful owners of the suit property, that was community land by way of land adverse possession for a period exceeding 12 years since the year 1977. d. The suit was heard and determined and the Hon. Lady Justice Dena who declared the 1st Interested Party the rightful owner of the suit property on the 27th September, 2024 and this was the basis of our interest in this suit. Attached herewith was a copy of the Judgement in ELC OS of E008 of 2023 marked as “MBM - 002”. e. The Respondent in that suit later filed an application before the Court seeking to set aside the Judgement of the Court and include the Plaintifi in this suit as a Respondent in that suit as the registered owner of the subject suit property, an application that was allowed and the Plaintifi herein is now a party to that suit. Attached herewith was a copy of the Ruling in ELC OS E008 of 2023 - marked as “MBM – 003”. f. As advised by his Advocate, the issues before this Court were already under determination in the other suit, ELC OS E008 of 2023, therefore making this suit Sub - Judice and should therefore be struck out with costs. g. The above notwithstanding as advised by his advocate, this suit never had Defendants capable of defending this suit as the Plaintifi had sued a party that never existed as the 1st Defendant and sued an incorporated body in its name incapable of suing or being sued in its name as the 2nd Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 2

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h. With regard to the 2nd Defendant, the Plaintifi further erred in suing the 2nd Defendant as sometimes in year 2026, members of the 2nd Defendant resolved through vote in a meeting to dissolve the welfare association and register a Community Based Organization and settled on the 1st interested party. Members paid registration fees for the new CBO and the same was duly registered and had been running the community and its activities since then. Attached herewith was a copy of Minutes for the final meeting for Gandakala Welfare Association and a copy of the Certificate of Registration of Diani Resource Scheme Center marked as “MBM – 004” and “MBM – 005” respectively. i. While it was true, the 2nd Defendant through its oficials were in charge of the community activities in the year 2013 when the demand notice was sent to the Plaintifi’s mother, the society was dissolved in the year 2016 giving rise to the 1st Interested Party herein. Therefore, the Plaintifi cannot purport to sue a society that was dissolved by its own members. j. He was advised by his advocates, that the 2nd Defendants present or in existence, it is trite law that a society such as the one Gandakala Welfare Association could not be sued in its own name as they lack a legal personality. k. Part of the community that they were in charge of was the Masjid Luvumba Mosque that was situated on the suit property. They were governed by a committee with elected oficials who formed part of the membership of the Diani Resource Scheme Center. Attached herewith was a copy of the List of members of the Diani Resource Scheme Center marked as “MBM – 006”. l. It was for the above reasons that they prayed that this court strikes out this suit with costs both for being sub judice as well as for lack of Defendants competent to defend the suit. m. It was imperative that this court strikes out this suit to avoid a duplicity in suits determining the same set of issues over the same parties thereby wasting precious judicial time and resources. n. It was imperative that this court noted that there was no Defendant in this suit, in this suit as the 1st Defendant was an entity that never existed and the 2nd Defendant never existed and even if it, could not be sued in its name as such this suit can only be struck out. o. It was in the interest of justice that this court grants these orders to avoid wasting precious judicial time and resources. p. This Application had been brought without undue delay and it is in the interest of justice that the orders sought be granted. III. The Responses by the 2nd Defendant 6. In response to the Replying Afidavit the 2nd Defendant filed a Further Afidavit sworn on 1st September, 2025 by Mr. MOHAMMED HAMISI YANGA where he deposed that:a. He was male adult of sound mind and the Chairperson of the 2nd Interested Party, well versed with the facts of this case, therefore competent to swear this Afidavit. b. He had authority and instructions to swear this Afidavit on behalf of Masjid Luvumba Mosque where he was the Chairperson. c. On or about year, 2005 the Gandakala Welfare Group was formed by the community and the oficials were elected. The group was formed to govern the resources of the community and it was registered after some years. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 3

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d. At the time, they had a semi permanent mosque with that was grass thatched with mud walls, but it still served its purpose. That even then, the mosque was headed by a committee. e. He was part of the committee members together with other seven members who are currently deceased, appointed by the community to be in charge of the mosque. Attached were copies of Certificate of Death of the members of the committee of the Masjid and Madarasa Luvumba who was deceased marked as “MHY – 001”. f. On 8th March 2014, the Secretary of Gandakala Welfare Group called for an emergency meeting in the afternoon stating that he was oficially resigning as the secretary of the Gandakala welfare group and that another group to be formed with new oficials or remain the same with new oficials. g. On the same day, members agreed to dissolve the group and decided to form another group named Diani Scheme Resource Centre. New oficials were elected and the former Secretary Mr. Hamisi Madzumba congratulated the members stating that from then onwards the Gandakala Welfare Group had no mandate to run anything from the community as it was oficially dissolved. Attached herewith was a copy of Minutes for the final meeting for Gandakala Welfare Association marked as “MHY – 002”. h. It was around that time that the construction for the permanent mosque was coming to an end and it was time to transition to the newly built mosque. Attached herewith were copies of the previous mosque and the newly built mosque marked as “MHY – 003” and “MHY – 004”. i. On 16th March, 2014, the members of Diani Scheme Resource Center dissolved the previous Masjid and Madarasa Luvumba committee and selected new ones where he was appointed as the Chairperson by the members of the community through casting votes. Attached was a copy of minutes of the Diani Resource Scheme electing the new oficials of Masjid and Madarasa Luvumba marked as “MHY – 005”. j. They were elected as oficials of the committee of the Masjid Luvumba Mosque taking over from the previous committee members who were in charge of the mosque before it became a permanent structure. k. They were informed of this suit regarding our mosque and the property on which it was situated by the 1st Interested Party where the committee of the mosque was a member. l. They noted that the 1st Defendant sued in this case are the registered trustees of the Malalani Mosque. However, our Mosque that was located on the suit property was called Masjid Luvumba Mosque and they did not have registered trustees who the Plaintifi could sue. m. Their mosque had a committee, with oficials through which persons may sue. n. What he stated herein was true to the best of his knowledge and belief. IV. The Preliminary Objection by the 2nd Defendant 7. The 2nd Defendant raised a Preliminary Objection dated 29th April, 2025 on a point of law. It sought to have the suit filed against them be struck out with costs on grounds that:a. The suit against the 2nd Defendant was incompetent, bad in law, and incurably defective and ought to be struck out; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 4

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b. The 2nd Defendant was a welfare association, not a body corporate. Therefore, it lacked capacity to sue and be sued in its own name. c. The Plaint filed herein was fatally defective in law as the 2nd Defendants were not a body corporate and thus lacked the fundamental legal capacity to be sued in their name; d. A society registered under the Societies Act Chapter 108 Laws of Kenya was not a body corporate for it to sue or to be sued as a legal personality. e. A party without legal capacity was so grave, so incompetent and that it could not be cured. Any proceedings emanating from it was a nullity in law ab initio. V. The responses by the Plaintifi/Respondent to the Preliminary Objection dated 29th April, 2026. 8. The Plaintifi/Respondent responded to the Preliminary Objection dated 29th April 2025. This was through Grounds of Opposition dated 20th June 2025 on the following grounds that:a. The Preliminary Objection never raised a pure point of law as required under the test laid down case of:- “Mukisa Biscuit Manufacturing Co. Limited – Versus - West End Distributors Limited [1969] EA 696”. b. The issue of whether the 2nd Defendant was a legal entity capable of being sued was a matter that required factual evidence and could not be determined at this preliminary stage without full hearing. c. Even if the 2nd Defendant was improperly named, such misjoinder is not fatal to the suit and could be cured by substitution or amendment under the provision of Order 1 Rule 10 of the Civil Procedure Rules, 2010. d. No prejudice would be sufiered by the Defendants if the suit proceeded to hearing on merits, whereas the Plaintifi stood to sufier grave injustice if the suit was struck out on technicalities. e. The Preliminary Objection was premature, misconceived, and an abuse of the court process. f. The objection went against the principles of Article 159 (2) (d) of the Constitution and the Over - riding Objectives under the provision of Sections 1A and 1B of the Civil Procedure Act, 21. VI. The Notice of Motion application dated 29th April, 2025 by the Plaintifi 9. As indicated above, the Plaintifi filed a Notice of Motion application dated 29th April, 2025. The application was anchored on the provision of Order 1 Rules 3 and 10, Order 8 Rule 3 of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21. 10. The application sought to substitute the defunct Gandakala Welfare Association with its successor body — the Diani Resource Scheme Center oficials — and to join the oficials of Masjid Luvumba Mosque Committee as Defendants. 11. The application was premised under the grounds, testimonial facts and averments made out under the Replying Afidavit sworn and dated on 24th September 2025 by JOHN KAMAU KIBE where he deposed that: a. He opposed the Applicants’ Motion only to the extent that it sought to strike out or stay this suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 5

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b. He did not object to the joinder of the Applicants, but they ought to be joined as Defendants, not as “Interested Parties,” since the reliefs sought would directly bind them. c. The Gandakala Welfare Association, originally named as 2nd Defendant was now defunct. He relied on the contents of a demand letter dated 20th July 2012 from the Law firm of Messrs. Musyoki Mogaka and Company Advocates addressed to his late mother Veronicah Kibe alleging illegal trespass and land grab on her part and seeking her to surrender title to Kwale/Diani S.S./466. d. He had since discovered (from the Applicants’ own afidavit) that the members of Gandakala Development Welfare Association resolved in the year 2016 to dissolve that welfare association and its members reconstituted themselves under Diani Resource Scheme Center. e. The omission to name the oficials of that body was a bona fide error curable through amendment of pleadings under the provision of Order 1 Rule 10 of the Civil procedure Rules, 2010. Annexed and marked “JKK - 1” was a copy of the demand letter from afire – said Law firm to that efiect. f. The mosque on the suit land was managed by the Masjid Luvumba Mosque Committee. His intention was always to sue those responsible for its unlawful occupation. Any misdescription of the 1st Defendant was technical and did not render the suit fatally defective. g. He was advised by advocates on record that no suit could be defeated by misjoinder or nonjoinder and the Court had wide discretion to strike out or add parties to meet the ends of justice, as guided by the provision of Order 1 Rule 9 of the Civil Procedure Rules, 2010 and Article 159(2)(d) of the Constitution. h. The Applicants’ reliance on civil suit “Kwale ELC OS No. E008 of 2023” did not bar a suit. Their case concerned a claim of land adverse possession, while this suit sought for orders of eviction, injunction and damages for trespass. The causes of action were distinct. i. The Ex - Parte Judgment in the Originating Summons was set aside and the matter was pending afresh with his participation. j. Meanwhile, he remained the registered proprietor of the suit land and continued to sufier trespass. k. Striking out this suit would cause him grave prejudice, while the Applicants sufier no prejudice if joined as Defendants and allowed to raise their adverse possession claim by way of defence or consolidation. l. In the interests of justice, this Honourable Court should decline the strike-out prayers, allow joinder of the correct parties and let the matter proceed on the merits. m. What he deposed the above facts from my own knowledge, save for matters stated on legal advice which he believed to be true. VII. The Supplementary responses by the Plaintifi 12. In response to the Further Afidavit the Plaintifi filed a Supplementary Afidavit sworn on 25th September 2025 by Mr. John Kamau Kibe where he deposed that:a. He read the Further Afidavit sworn by Mohammed Hamisi Yangaand and wished to respond briefiy. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 6

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b. There was no grass-thatched or mud-walled mosque on the suit land in or before the year 2012. At that time, only one squatter occupied part of his land, whom he personally evicted. c. The mosque now called Masjid Luvumba was constructed later without his consent or that of his predecessors in title. Annexed and marked as “JKK - 2” were copies of the Agreements dated 20th July 2012 and 28th March 2012 between the trespasser known as Juma Salim Kururushi and himself and removal which involved the Area Chief as a witness. Hence, it amounted to negotiated eviction. d. He was a stranger to the annexed Certificates of death and committee membership records, which were irrelevant to the issue of ownership and never conferred any legal right to occupy the land. e. The alleged dissolution of Gandakala Welfare Association and creation of Diani Resource Scheme Center were internal matters of that group. They could not override his registered ownership as provided under Sections 24, 25 and 26 of the Land Registration Act, No. 3 of 2012. f. None of the new averments in the Further Afidavit displaced his proprietary rights. The Defendants’ occupation remained as trespass. g. What he deposed to the above were facts from his own knowledge, save for matters stated on legal advice which he believed to be true. VIII. Submissions 13. On 30th September 2025 while all the parties were present in Court, they were directed to canvass the applications and the objections simultaneously through written submissions. 14. Pursuant to that all parties fully complied. Thus, the Honourable Court reserved 22nd October 2025 for the delivery of the Ruling. However, due to unavoidable circumstances, it was eventually delivered on 13th April, 2026 accordingly. A. The Written Submissions by the 2nd Defendant/Objector to the Notice of Preliminary Objection 15. The Law firm of Messrs. OG Makowade Advocates for the 2nd Defendant/Objector filed written submissions dated 15th March 2025 in support of the Preliminary Objection dated 29th April 2025. Mr. MaKowade Advocate identified one key issue for determination, namely: Whether the Preliminary Objection dated 29th April 2025 is merited. 16. The Learned Counsel submitted that the suit as instituted against the 2nd Defendant was incompetent, bad in law, incurably defective. Therefore, according to him it ought to be struck out with costs. Thus was purely on the ground that the 2nd Defendant, Gandakala Development Welfare Association, was a welfare association registered under the the provision of Societies Act, Cap. 108 and not a body corporate with capacity to sue or be sued in its own name. It was argued that under the Societies Act, such an entity lacked legal personality and consequently any proceedings instituted against it in its name was a nullity. 17. The Learned Counsel relied on ‘the locus classicus” decision of “Mukisa Biscuit Manufacturing Co. Limited” (Supra) where the Court defined a preliminary objection as one that raises a pure point of law which, if successful, may dispose of the entire suit. Sir Charles Newbold P. emphasized that such https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 7

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an objection assumes the correctness of the facts as pleaded by the opposite party and must not involve disputed evidence. 18. Further, reliance was placed on the Supreme Court’s decision in the case of:- “Hassan Ali Joho & Another – Versus - Suleiman Said Shahbal & 2 Others [2014] eKLR”, where the Court reafirmed that a preliminary objection consisted purely of a point of law which, if argued successfully, could dispose of the entire suit. The Counsel submitted that the instant objection met this test, as it raised a clear point of law regarding the 2nd Defendant’s capacity to be sued. 19. The Learned Counsel observed that the Plaintifi’s own pleadings, particularly Paragraph 3 of the Plaint dated 24th September, 2024, expressly described the 2nd Defendant as a registered welfare association under the Societies Act, Cap. 108. It was therefore not in dispute that the 2nd Defendant was a society and by law, societies registered under the Societies Act lacked corporate status and could not sue or be sued in their own names. 20. To buttress this position, Counsel cited the case of:- “Kimani & 3 Others (On behalf of Corner Neighborhood Residents Association) – Versus - Attorney General & 4 Others (Constitutional Petition E004 of 2024) [2024] KEHC 10423 (KLR)”, where the Court held that a society under the Societies Act was not a legal person capable of suing or being sued, and may only do so through its registered oficials. Similarly, this position was afirmed in the case of:- “Trustees Kenya Redeemed Church & Another – Versus - Samuel M’Obiya & 5 Others [2011] eKLR” and “Omari – Versus - Registered Trustees Muslim Association Mosque Committee Eldoret & 8 Others [2023] KEHC 26117 (KLR)”. 21. The Learned Counsel further referred court to the case of “Redeemed Gospel Church Inc – Versus - Jesus Celebration Centre Ministry International & 3 Others (ELC No. 2 of 2023) [2024] KEELC 4159 (KLR)”, where the Court upheld a similar objection and struck out the suit, reiterating that unincorporated societies have no legal capacity to be sued in their own names. In so doing, the Court cited the case of:- “Festus Makau Kitati – Versus - New Konza Ranch Association [2019] eKLR” and “John Otteyo Amwayi & 2 Others – Versus - Rev. George Abura & 2 Others (Civil Appeal No. 6339 of 1990)”, holding that the Societies Act never contemplated suits being brought by or against unincorporated associations in their own names. 22. The Learned Counsel asserted that in view of the clear statutory and judicial pronouncements, the suit as instituted against the 2nd Defendant was defective, incompetent, and bad in law, as the 2nd Defendant lacked “the locus standi” to appear or defend itself in these proceedings. The only lawful mode of instituting such a claim would had been through its registered oficials. 23. In conclusion, the Learned Counsel urged this Honourable Court to uphold the Preliminary Objection dated 29th April 2025 and strike out the suit against the 2nd Defendant with costs, submitting that the defect was incurable and that the continued existence of the suit against the 2nd Defendant was an abuse of the court process and a waste of judicial time. B. The Written Submissions by the 1st & 2nd Interested Parties to the Notice of Motion application dated 29th April 2025 24. The Learned Counsel for the 1st and 2nd Interested Parties/Applicants through the Law Firm of Messrs. Og Makowade Advocates filed submissions dated 15th March 2025 in support of the Notice of Motion https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 8

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application dated 29th April 2025. The Learned Counsel submitted on three ( 3 ) key issues for determination: i. Whether the court should admit the 1st and 2nd Interested Parties as parties to this suit; ii. Whether the court should strike out the suit against the 1st Defendant; and iii. Whether the court should strike out the Plaint dated 24th September 2024 in its entirety. 25. In general terms, the Advocate submitted that the 1st Interested Party, Diani Resource Scheme CBO, was a duly registered Community-Based Organization comprising members who had been in occupation of the suit property since the year 1977. It was noted that the 1st Interested Party was registered in the year 2016 following a resolution by members of the 2nd Defendant – a Welfare Association to dissolve the association and transition to a CBO structure. Accordingly, the 2nd Defendant ceased to exist, and all its members became part of the 1st Interested Party. 26. Further, the Learned Counsel averred that the 2nd Interested Party was the committee of Masjid Luvumba Mosque, situated on the suit property and managed by oficials who were members of the 1st Interested Party. It was emphasized that the mosque never registered trustees and therefore could only sue or be sued through its elected oficials. 27. The Advocate argued that the Interested Parties had demonstrated a direct and identifiable stake in the outcome of this matter, as any orders issued by this Honourable Court would directly afiect their legal interests. To buttress on this issue, reference was made to the case of:- “Trusted Society of Human Rights Alliance – Versus - Mumo Matemu & 5 Others [2014] eKLR”, where the Court of Appeal held that an Interested Party was one who had a recognizable stake and would be afiected by the Court’s decision either way. The Learned Counsel urged that, in line with the provision of Order 1 Rule 10 (2) of the Civil Procedure Rules, 2010 and Rule 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, the 1st and 2nd Interested Parties be joined to these proceedings. 28. On the second issue. The Learned Counsel submitted that the suit ofiended “the doctrine of Sub Judice rule” under the provision of Section 6 of the Civil Procedure Act, Cap. 21 as there existed a previously instituted matter — “Kwale ELC (OS) No. E008 of 2023” — between the same parties, involving the same subject matter and pending before a competent court. The Learned Counsel argued that the earlier suit was filed before this one and concerned ownership of the same property, LR. No. Kwale/Diani S.S/5190 (now sub - divided into parcels LR. No. 5476 to 5487). It was submitted that proceeding with this suit would lead to a duplication of issues, waste judicial time, and risk confiicting decisions. 29. The Advocate emphasized that the purpose of the sub judice doctrine was to prevent parallel proceedings over the same subject matter and to protect the integrity of the judicial process. Citing the case of:- “Kenya National Human Rights Commission – Versus - Attorney General & Another [2020] eKLR”, the Counsel urged the Court to strike out this suit against the 1st Defendant to avert embarrassment and multiplicity of proceedings. 30. On the third issue. The Learned Counsel argued that the Plaint dated 24th September 2024 was fatally defective and incompetent as it named entities that were incapable of being sued. It was submitted that the 1st Defendant no longer existed, having been dissolved and the 2nd Defendant was a welfare association under the Societies Act, Cap. 108, which lacked corporate personality and therefore could https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 9

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not be sued in its own name. On this point, the Learned Counsel cited the case of:- “Trustees Kenya Redeemed Church (Supra”), where the Court held that a society under the Societies Act was not a legal person with capacity to sue or be sued except through its oficials. 31. The Learned Counsel also relied on the provision of Order 2 Rule 15 of the Civil Procedure Rules, 2010, which empowers the Court to strike out pleadings that disclose no reasonable cause of action, are scandalous, frivolous, vexatious, or otherwise an abuse of court process. It was contended that the current plaint, as filed, ofiends this provision since there are no competent defendants before the Court. 32. In conclusion, the Learned Counsel urged the Honourable Court to: 33. a. Admit the 1st and 2nd Interested Parties as parties to this suit; b. Strike out the suit as against the 1st Defendant; and c. Strike out the Plaint dated 24th September, 2024 in its entirety with costs to the Interested Parties. The Learned Counsel submitted that the Plaintifi’s suit was incompetent, misconceived, and an abuse of the judicial process, having been filed against non-existent and unincorporated parties and over a subject matter already pending before this Court in a related suit. C. The Consolidated Submissions by the Plaintifi In Opposition To The Defendants’ Preliminary Objection and Notice of Motion application dated 29th April 2025 and 25th September 2025. 34. 35. The Learned Counsel for the Plaintifi, Mr. Joram Wangombe of Messrs. Joram Wangombe & Associates Advocates, filed these consolidated submissions addressing three applications presently before this Honourable Court, namely:th April 2025 filed by the 2nd Defendant;th April 2025 filed by the Interested Parties (Diani Resource Scheme Center & Masjid Luvumba Mosque Committee); andth September 2025 seeking substitution, joinder and amendment of the Plaint. i. The Preliminary Objection dated 29 iii. The Plaintifi’s own Notice of Motion application dated 25 ii. The Notice of Motion application dated 29 The Learned Counsel confirmed reliance upon the Plaintifi’s Grounds of Opposition dated 20th June 2025, the Replying Afidavit dated 24th September 2025 and the Supplementary Afidavit dated 25th September 2025 filed in response to the Defendants’ applications, as well as the Plaintifi’s own Motion dated 25th September 2025 and its supporting afidavit. A. On the Preliminary Objection dated 29th April, 2025 36. The Learned Counsel submitted that the Preliminary Objection never raised a pure point of law as envisaged in the case of:- “Mukisa Biscuit Manufacturing Co. Limited (Supra)”, since the question of whether the 2nd Defendant was a registered or defunct association requires evidence to be ascertained. No certificate of registration, proof of dissolution or documentary confirmation was annexed to the objection, rendering the issue a mixed question of fact and law. Accordingly, the objection fell outside the strict ambit of a preliminary objection as defined in “Mukisa Biscuit” and as restated in the case of:- “Oraro – Versus - Mbaja [2005] eKLR”. 37. Without prejudice, Counsel conceded that suing a society in its own name was an imperfect pleading, but contended that such defect was curable and not fatal. Under the provision of Order 1 Rules 9 and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 10

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10 of the Civil Procedure Rules, 2010, no suit shall be defeated for misjoinder or non-joinder of parties. The Court is empowered at any stage to add or substitute the proper parties necessary for efiectual and complete adjudication. This principle has been afirmed in the case of:- “Kipsiwo Community Self Help Group – Versus - Attorney General & 6 Others [2013] eKLR and Supreme Council of Kenya Muslims (SUPKEM) – Versus - Registrar of Societies [2024] eKLR”, where courts held that technical defects of party capacity should be remedied through amendment rather than summary dismissal. 38. The Learned Counsel submitted that the Plaintifi had already taken corrective steps by filing a concurrent application to substitute the oficials of the Diani Resource Scheme Center in place of Gandakala Welfare Association, and to enjoin the oficials of the Masjid Luvumba Mosque Committee as Defendants. Thus, the Court had before it a mechanism to rectify any procedural defect without causing prejudice to any party. 39. Additionally, the Learned Counsel citing the case of:- “D.T. Dobie & Company (Kenya) Limited – Versus - Muchina [1980] eKLR”, whereby the Counsel urged that striking out was a drastic remedy to be employed only in the clearest of cases. Since the underlying dispute concerns land ownership and occupation, it was in the interest of justice that the Court allowed amendment to regularize parties rather than terminate the suit on a technical ground. 40. In conclusion on the Preliminary Objection, the Counsel reiterated that the alleged misjoinder of the 2nd Defendant was a curable irregularity and not a nullity. The Court should dismiss the Preliminary Objection dated 29th April 2025 with costs to the Plaintifi. B. On the Interested Parties’ application dated 29th April, 2025 41. The Learned Counsel acknowledged that the Applicants — Diani Resource Scheme Center and Masjid Luvumba Mosque Committee — had demonstrated a substantial interest in the suit property as they were in occupation and manage the mosque standing thereon. On this issue, he cited the case of:- Trusted Society of Human Rights Alliance (Supra)”, whereby the held that their joinder to the suit was proper and necessary to enable the Court to completely determine all questions in controversy. 42. However, given that the Applicants were directly afiected by the substantive reliefs sought (including the orders being sought for injunction, eviction and damages for trespass), the Counsel urged that they be joined as Defendants and not merely as Interested Parties. This would allow them to fully defend the claims and ensure that any orders of the Court was binding and enforceable against them. 43. On the issue of misdescription of the 1st Defendant as “Registered Trustees of Malalani Mosque,”. The Learned Counsel submitted that this was a minor error curable by amendment. The mosque in question was Masjid Luvumba, managed by its committee and not by registered trustees. The Court was urged to invoke its powers under the provision of Order 1 Rule 10 (2) of the Civil Procedure Rules, 2010 to rectify the misdescription rather than strike out the suit. 44. With regard to the argument on the breach and/or violation of the doctrine Sub Judice under the provision of Section 6 of the Civil Procedure Act, Cap. 21. The Learned Counsel distinguished Kwale ELC (OS) No. E008 of 2023 from the present suit. The former concerned a claim for land adverse possession, whereas the current suit sought for the declaratory reliefs and damages for trespass. The causes of action, issues and prayers were difierent. Hence, the doctrine of sub judice was inapplicable. 45. Counsel therefore submitted that the Applicants’ joinder should be allowed as Defendants, but their prayers to strike out the suit or the Plaint should be dismissed with costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 11

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C. On the Further Afidavit of Mohammed Hamisi Yanga 46. The Learned Counsel observed that the Further Afidavit introduced new factual assertions — including claims of a grass-thatched mosque existing on the suit land prior to the years 2012 and the annexation of Certificates of Death and purported minutes of Gandakala’s dissolution. The Plaintifi’s Supplementary Afidavit squarely rebutted these allegations, clarifying that the permanent structure known as Masjid Luvumba was erected without the Plaintifi’s consent after the year 2012, and that the documents annexed bear no relation to ownership rights over the suit land. 47. The Learned Counsel submitted that none of the facts deponed to in the Further Afidavit could displace the Plaintifi’s registered title protected under the provision of Sections 24, 25 and 26 of the Land Registration Act, No. 3 of 2012. The allegations were immaterial to the question of proprietorship and did not constitute a defence to the claim for eviction and trespass. D. On the Plaintifi ’s application for substitution and joinder dated 25th September, 2025 48. The Counsel submitted that the application was anchored on Order 1 Rules 3 and 10, Order 8 Rule 3 of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21. The law empowers the Court to substitute or add parties at any stage of proceedings to ensure that the real issues in controversy are determined on their merits. 49. The application sought to substitute the defunct Gandakala Welfare Association with its successor body — the Diani Resource Scheme Center oficials — and to join the oficials of Masjid Luvumba Mosque Committee as Defendants. Counsel argued that this will regularize the pleadings, align the suit with reality on the ground, and avoid multiplicity of proceedings. 50. In support of this point, the Counsel cited the case of:- “SUPKEM – Versus - Registrar of Societies [2024] eKLR” and “Kipsiwo Community Self Help Group – Versus - AG & Others [2013] eKLR”, where the Courts held that defects arising from suing unincorporated bodies are curable by substitution. He also relied on the case of:- “D.T. Dobie – Versus - Muchina [Supra]’, which urged courts to sustain suits where possible so that substantive justice may be done. 51. The Counsel submitted that the intended amendment introduced no new cause of action but merely clarifies party description and ensures that the real controversy — ownership, trespass and eviction — can be heard and determined on its merits. No prejudice will be sufiered by the Defendants, who were already aware of and participating in the proceedings. 52. In light of the foregoing submissions, the Plaintifi respectfully urged this Honourable Court to: i. Dismiss the Preliminary Objection dated 29th April, 2025 with costs; ii. Partially allow the Notice of Motion application dated 29th April, 2025 by admitting the Applicants as Defendants only (not as Interested Parties) and reject their prayers for striking out; iii. Allow the Plaintifi’s Notice of Motion application dated 25th September, 2025 by striking out Gandakala Welfare Association and substituting the oficials of Diani Resource Scheme Center as 2nd Defendants, and by joining the oficials of Masjid Luvumba Mosque Committee as 3rd Defendants; iv. Grant leave to the Plaintifi to amend the Plaint dated 24th September, 2024 in terms of the proposed Amended Plaint annexed to the Motion dated 25th September, 2025; and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 12

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v. 53. Award costs of the Defendants’ objection and applications to the Plaintifi. Finally, the Counsel averred that these orders would best serve the Over - riding Objective of Sections 1A & 1B of the Civil Procedure Act, Cap. 21 and Article 159(2)(d) of the Constitution by facilitating the determination of the real issues in controversy without undue regard to technicalities. VIII. Analysis and Determination 54. I have carefully considered the three applications presently before this Honourable Court — namely, the 2nd Defendant’s Preliminary Objection dated 29th April, 2025, the Notice of Motion application by the Interested Parties dated 29th April, 2025 and the Plaintifi’s own Notice of Motion application dated 25th September, 2025. I have also taken into account the pleadings, afidavits, annexures, and the comprehensive written submissions by all Learned Counsel on record, the relevant provision of the Constitution of Kenya, 2010 and the statutes. 55. From the record, and the issues framed by counsel, the Court distils the following four ( 4 ) key issues for its determination. These are: a. Whether the Preliminary Objection dated 29th April 2025 raised by the 2nd Defendant’s meets the threshold and hence based on a pure point of law merits the striking out of the suit against it; b. Whether the Notice of Motion application dated 29th April 2025 by Interested Parties meets the threshold for joinder and/or striking out of the Plaint; c. Whether the Notice of Motion application dated 25th September 2025 by the Plaintifi for substitution, joinder, and amendment is merited; and d. What are the orders on costs to the application and the Objection. ISSUE No. a). Whether the 2nd Defendant’s Preliminary Objection dated 29th April, 2025 raises a pure point of law meriting the striking out of the suit against it 56. Under this sub – heading, the Honourable Court shall be examining the aspects, scope and meaning of “the Preliminary Objection” and whether it has any merit to the instant case. 57. However, prior to proceeding on with the issues under the sub – heading, it is imperative that the Court extrapolates into the back – round of this matter briefiy. As a matter of relevant information, the suit before court was initiated through a Plaint dated 24th September 2024 the Plaintifi/Respondent herein as follows:1. The Plaintifi is a male adult of sound mind residing and working for gain in Nairobi within the Republic of Kenya and whose address of service for the purpose of this suit is C/O Joram Wangombe & Associate Advocates, Jiwabhai Vekera Buliding, 1st Floor, Taveta Road, P.O. BOX 45010-00100 NAIROBI. 2. The 1st Defendant is a registered religious society under the Societies Act Chapter 108 with a mosque at Diani Settlement Scheme within Kwale County. (Service of summons shall be efiected through the Plaintifi Advocates ofices). https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 13

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3. The 2nd Defendant is a registered welfare association under the Societies Act chapter 108 with a mosque at Diani Settlement Scheme within Kwale County. (Service of summons shall be efiected through the Plaintifi Advocates ofices). 4. At all material times relevant to this suit, The Plaintifi states that he is the registered proprietor of Kwale/Diani S.S/5476, 5477, 5478, 5479, 5480, 5481, 5482, 5483, 5484, 5485, 5486 and 5487 (hereinafter referred to as “the properties”) which are subdivisions of Kwale/Diani S.S/5190 originally a sub - division of Kwale/Diani S.S/466 (hereinafter referred to as “the property”). 5. According to the Plaintifi, Mr. Wallace Mungai Thiga originally acquired Kwale/Diani S.S/466 the mother plot that were subdivided to the current properties from the Plaintifi’s late mother Veronicah Njeri Kibe on 19th February 2014 as a gift. 6. The Plaintifi’s late mother was the original owner of Veronicah Njeri Kibe had acquired the mother plot Kwale/Diani S.S/466 on or about 25th October 1993 and paid Kshs.2000/= survey and legal fees on 8th December 1993. 7. The Plaintifi is aware that the 2nd Defendant on behalf of Malalani Community through a letter from the firm of Musyoki Mogaka and Company Advocates dated 20th July, 2012 demanded that his late mother surrenders the title to Kwale/Diani S.S/466 alleging there was impropriety on the part of his mother and his late father who was an adjudication oficer sometime in 1992 when they alleged grabbed the parcel of land Known as Kwale/ Diani S.S/337 which was land allocated for public use and renamed it Kwale/Diani S.S/466 unlawfully. 8. The 2nd Defendant did not file any suit against the Plaintifi but has continued through the members of the said Malalani community occupying some of the properties on and ofi over the years despite attempted negotiations earlier on to get the squatter community members to leave but later they become violent and refused the Plaintifi access to the property. 9. The Plaintifi is also aware that a caveat/caution had been registered against the Plaintifi’s late mother’s title to Kwale/Diani S.S/466 by a Mr. Salim Ali Nyawa sometime prior to August 2013 and on two occasions through her then advocates Njiru Boniface & Company Advocates she managed to have the same removed at Kwale Lands Registry sometime in 2014 prior to transferring the said parcel to Mr. Wallae Mungai Thiga on February 2014. 10. Mr. Wallace Mungai Thiga owned the parcel known as Kwale/Diani S.S/466 up to 8th June, 2022 when he applied for consent to have the said parcel subdivided into two parcels from Msambweni Land Control Board Registry which subdivisions were then registered under Title numbers Kwale/Diani S.S/5189 and Kwale/Diani S.S/5190 all under Mr. Thiga’s name on 1st July , 2022. 11. The Plaintifi then acquired the property that is Kwale/Diani S.S/5190 on or about 10th November, 2022 for valuable consideration and without any notice of any defects in title or adverse claims by any person from one Wallace Mungai Thiga. 12. After acquiring the property, The Plaintifi went to take up physical possession of the property on or about November 2022 when he discovered herein the 1st Defendant had without any colour of right trespassed into the suit property and put up a permanent building in the form of a mosque on one of the properties along with structures belonging to the 2nd Defendant’s members. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 14

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13. The Plaintifi in a bid to prevent and control the invasion of squatters and to develop the areas within the Kwale/Diani S.S/5190 without squatters applied for sub - division from Msambweni Land Control Board and the said consent issued on 14th December, 2022. 14. The sub - divisions of Kwale/Diani S.S/5190 were registered at Kwale Lands Registry and new title numbers issued for the parcels as Kwale/Diani S.S/5476, 5477, 5478, 5479, 5480, 5481, 5482, 5483, 5484, 5485, 5486 and 5487 all under the name of the Plaintifi on or about 13th February 2023. 15. The Plaintifi attempted to engage the local administration through the Area Chief before and after the subdivision process to have the Defendants and other squatters not before this Court vacate but to date only one squatter has vacated after being paid for the trees he had planted on the property, the rest have refused to vacate the properties they occupy including the Defendants. 16. The Plaintifi approached the County Commissioner and the Oficer Commanding Station (O.C.S) Diani Police Station for assistance but they refused to have the Defendant’s trustees charged for trespass and forcible citation but advised me to seek civil remedy for orders of eviction. 17. The Defendants have no claim of ownership of the property but they are taking advantage of the Plaintifi to extort money from him and coerce him into surrendering a portion of the properties to them. 18. The Plaintifi states that should the illegal act of incitement to trespass by the Defendants on the Plaintifi pieces of land be allowed to continue, then the Plaintifi will sufier irreparably as it has been a long and tortious journey for the Plaintifi to acquire vacant possession of the property now properties. 19. The Plaintifi states that it amounts to violation of the Plaintifi’s Constitutional rights which protects private property. As a proprietor, the Plaintifi/Applicant needs urgent Court protection to enable it utilize its private property. 20. There is a real danger that justice will not be served and that the Plaintifi’s proprietary rights may be defeated unlawfully and without regard to constitutional and statutory protection on private property. 21. The Plaintifi states that the Defendants, squatters, trespassers and all those claiming under them and/or all the persons unlawfully attempts to rely on the Defendants incitement to invade Plaintifi’s properties without his consent violates the constitutional rights of the Plaintifi to private property and ought to be evicted by an order of this Court. 22. The Plaintifi claim against the Defendants is for an order of Injunction restraining the Defendant from trespassing onto, sub-dividing, inciting the public to invade and in anyway interfering with the Plaintifi’s occupation and possession of the suit property. 23. That the Plaintifi states that as a result of the Defendants illegal actions he has sufiered loss and damages which he wholly blames the Defendants for and the Plaintifi claims general damages for loss and sufiering as a result of the Defendants breaches. 24. Despite demand and Notice of intention to sue having been given, the Defendant has failed, refused, ignored and/or neglected to make good the Plaintifi’s demand. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 15

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25. The cause of action arose in Kwale County and this Honourable Court has Jurisdiction to hear and determine this suit. REASONS WHEREFORE, the Plaintifi prays for Judgment against the Defendants as follows:a. A Permanent Injunction against the Defendants their servants agents licensees or whoever is acting on their behalf restraining them from trespassing onto, invading, subdividing, remaining upon, and/or interfering with the Plaintifi’s quite possession, occupation and use of his property Kwale/Diani S.S/5190 which he has now subdivided into Kwale/Diani S.S/5476, 5477,5478, 5479, 5480, 5481, 5482, 5483, 5484, 5485, 5486 and 5487 (the suit properties). b. An order for the Plaintifi’s immediate entry and repossession of the suit properties and eviction of the Defendants along with any other persons in accordance with Sections 152A to 152I of the Land Act. c. An order to the Msambweni Sub - County Police Commander, Oficer Commanding Station Diani Police Station, Principal Secretary Interior, Regional Commissioner, Coast Region and Coast Regional Police Commander to provide security and ensure compliance with this Court’s orders. d. An order for the County Land Surveyor to re-survey the Parcel of lands registered as Kwale/Diani S.S/5476, 5477,5478, 5479, 5480, 5481, 5482, 5483, 5484, 5485, 5486 and 5487for the purposes of boundary identification and replacement of the beacons which may have been displaced by the Defendants. e. General Damages. f. Costs of the suit. 58. Now the issues under this Sub – heading. The Honourable Court is tasked with determining the Notice of Preliminary Objection. The Court will first consider what amounts to a Preliminary Objection and then Juxtapose the said description herein and come up with a finding on whether what has been raised herein fits the said description. 59. According to the Black Law Dictionary a preliminary objection is defined as: In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….” 90. The Superior Court have comprehensively expended on this issue and hence there will be no need to re – invent the wheel herein. As already stated above, the court in the case of “Mukisa Biscuits Manufacturing Co Ltd (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.' https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 16

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61. 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.' 62. Further, 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.' 63. The Tanzanian Court of Appeal sitting in Dar es Salaam, in the case of:- “Karata Ernest & Others – Versus – Attorney General (Civil Revision No. 10 of 2020) [2010] TZCA 30 (29th 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 certificate 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.’ 64. 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” and stated:“ 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 satisfied that there is no proper contest as to the facts.” 65. 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.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 17

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66. 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. 67. It is trite law that a preliminary objection can be brought at any time at least before the final conclusion of the case. Ideally, all facts remaining constant, it should be filed at the earliest opportunity of the subsistence of a case, in order to pave way for the smooth management and determination of the main dispute in a matter. From the most of them of the issues and facts of contention in this objection are to be adduced during a full trial. For instance, the 2nd Defendant contends that the Plaintifi’s suit and claim against the 2nd Defendant is incompetent, bad in law, and incurably defective and ought to be struck out and the suit against the 2ndDefendant should be dismissed for lack of capacity. 68. Therefore, a Preliminary Objection can only be premised on undisputed facts, must raise pure points of law and cannot be raised where facts have to be ascertained or where the Court is asked to exercise judicial discretion. For a Preliminary Objection to be maintained, the pure points of law raised must sprout from the pleadings. In the case of ”Avtar Singh Bhamra & Ano. – Versus - Oriental Commercial Bank HCC No 53 of 2004, the Court stated as follows; “ A preliminary objection must stem or germinate from the pleadings filed by the parties and must be based on pure points of law with no facts to be ascertained.” 69. The 2nd Defendant stated in the preliminary objection that it does not have locus standi to be sued in this suit. That due to the lack of the said capacity the suit is null and void ab initio and should be dismissed. In the case of the ”Law Society of Kenya – Versus - Commissioner of Lands & Others, Nakuru High Court Civil Case No. 464 of 2000, the Court held that:“ Locus Standi signifies a right to be heard, A person must have suficiency of interest to sustain his standing to sue in Court of Law”. Further in the case of Alfred Njau and Others – Versus - City Council of Nairobi (1982) KAR 229, the Court also held that:“the term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings”. 70. It is therefore evident that “Locus Standi” is the right to appear and be heard in Court or other proceedings and literally, it means ‘a place of standing’. Therefore, if a party is found to have no locus standi, then it means he/she cannot be heard even on whether or not he has a case worth listening to. It is further evident that if this court was to find that the 2nd Defendant have no locus standi, then they cannot be sued and that point alone may dispose of the suit against them. In the case of “Quick https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 18

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Enterprises Limited – Versus - Kenya Railways Corporation, Kisumu High Court Civil Case No. 22 of 1999, the Court held that: “ Where preliminary points are raised, they should be capable of disposing the matter preliminarily without the court having to resort to ascertaining the facts from elsewhere apart from looking at the pleadings alone”. ISSUE No. b). Whether the Notice of Motion application dated 29th April 2025 by Interested Parties meets the threshold for joinder and/or striking out of the Plaint; 71. Having laid – down the legal principles aforestated, I now wish to apply the same to the instant case. A keen perusal of the filed Plaint under Paragraph 2 and 3 where it states “The 1st Defendant is a registered religious society under the Societies Act chapter 108 with a mosque at Diani Settlement Scheme within Kwale County. (Service of summons shall be efiected through the Plaintifi Advocates ofices). The 2nd Defendant is a registered welfare association under the Societies Act chapter 108 with a mosque at Diani Settlement Scheme within Kwale County. (Service of summons shall be efiected through the Plaintifi Advocates ofices). Being a society under the Societies Act, the issue being raised in the preliminary objection is whether the 2nd Defendant has a legal capacity “Locus Standi”) to be sued in its own name, as it has done. Fundamentally, this to me is a noble legal question which goes to the root of the matter herein. It is a point of law which could dispose of the case depending on how it goes. I therefore find the issue raised satisfy the principle set out in the case of “Mukisa Biscuit case. 72. The provision of Article 260 of the Constitution of Kenya, 2010 defines a person as: “ Person” includes a company, association or other body of persons whether incorporated or unincorporated.” 73. In the case of: “Trustees Kenya Redeemed Church & Anor – Versus - Samuel M’Obiya & 5 others [2011] eKLR it was held thus:“ It is trite law that a society under the Societies Act is not a legal person with capacity to sue or be sued. A society can only sue or be sued through its due oficers’ orders. It has not been pleaded that the 2nd defendant has been sued in the capacity of an oficial of Kenya Redeemed Church nor has it been pleaded that he has been sued in his personal capacity.” 74. Further in the case of: “Free Pentecostal Fellowship in Kenya – Versus - Kenya Commercial Bank Nairobi HCCC No. 4116 of 1992 Justice Bosire (as he then was) stated thus: “ The position at common law is that a suit by or against unincorporated bodies of persons must be brought in the names of, or against all the members of the body or bodies. Where there are numerous members the suit may be instituted by or against one or more such persons in a representative capacity pursuant to the provisions of Order 1 rule 8 Civil Procedure Rules.” 75. Therefore, the instant matter the suit is instituted against the Registered Trustees and a welfare association. Clearly, it is not a body corporate with perpetual succession for it to sue as a legal personality. That being so it lacks the capacity to be sued in proceedings in its own name. 76. Thus, the action taken by the Plaintifi in filing this suit and suing parties that lacks capacity to be sued was a short cut and certainly erroneous. For these reasons, I hold that the Preliminary Objection raised by 2nd Defendant herein is meritorious and well founded in Law. It is sustained. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 19

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ISSUE No. c). Whether the Notice of Motion application dated 25th September 2025 by the Plaintifi for substitution, joinder, and amendment is merited. 77. Arising from the above legal ratio and conclusive decision on the fate of the suit having upheld the Preliminary Objection raised by the 1st and 2nd Interested Parties, it follows that there is nothing more substantive to deliberate under this sub – heading. I need say no more as it is “fait compli”. ISSUE No. d) Who will bear the Costs of the Objection? 78. It is now well established that the issue of Costs is the discretion of Courts. According to the Black Law Dictionary, “Cost” is defined to mean, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”. The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. By the events, it means the results or outcome of any legal action or proceedings thereafter. 79. Further, these legal principles were upheld in the Supreme Court case of “Jasbir Rai Singh – Versus – Tarchalans Singh, (2014) eKLR” and the Court of Appeal cases of “Cecilia Karuru Ngayu – Versus – Barclays Bank of Kenya & Ano. (2016) eKLR” the Courts held: “ ………. the basic rule on attribution of costs is that costs follow the event…...it is well recognized that the principles costs follow the event is not to be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in presenting or defending the case”. 80. In the instant case, the Notice of Preliminary objection dated 29th April 2025 by the 2nd Defendant has succeeded on the fundamental threshold of locus standi and thus it is allowed. It follows that the 2nd Defendant is entitled to the costs thereof. IX. Conclusions & Disposition 81. Consequently, upon causing an in-depth analysis to the framed issues herein, the Honourable Court on Preponderance of Probabilities and the balance of convenience reaches at the following findings. These are: a. That Preliminary Objection dated 29th April, 2025 raised by the 2nd Defendant be and is hereby found to have merit. b. That the Court finds that the 1st Defendant, Registered Trustees Of Malalani Mosque, Kwale County and 2nd Defendant, Gandakala Development Welfare Association, being a welfare association registered under the Societies Act, Cap. 108 lacks legal capacity to sue or be sued in its own name. Accordingly, the suit as instituted against it is incompetent in law – both substance and form. c. That the suit instituted through Plaint against them be and is hereby dismissed as it is incompetent on grounds of legal capacity (“Locus Standi”) to sue and be sued in law whatsoever. d. That subject to the provision of Limitation of Action Cap. 22 , the Plaintifi be and is hereby advised to consider filing a fresh suit suing the proper parties. e. That costs of the suit, the applications and the Preliminary Objections to be awarded to the 2nd Defendant herein. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 20

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IT IS ORDERED ACCORDINGLY. RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS…………13th ………. DAY OF ………... APRIL ………….2026 ……………………………… HON. MR. JUSTICE L.L NAIKUNI, ENVIRONMENT & LAND COURT AT KWALE. Ruling delivered in the presence of: a. M/s. Asmaa Maftah, the Court Assistant. b. Mr. Wang’ombe Advocate for the Plaintifi. c. M/s. Minywa Advocate holding brief for Mr. MaKowade for the 2nd Defendant. d. No appearance for the 1st Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13 21

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