Hamisi (As the Ad Litem Administrator of the Estate of the Late Kadiri Hamisi Tsumo) v Maingu & 4 others (Environment and Land Case E083 of 2024) [2026] KEELC 3595 (KLR)

1. The Honourable Court was tasked to make a determination unto of three ( 3 ) Notice of Motion applications dated 20th December, 2024, 23rd May, 2025 and 17th September, 2025 respectively. They were all instituted by Ibrahim Tsumo Hamisi the Plaintiff/Applicant herein. 2. Upon service, the application dated 20 th December, 2024 was only opposed by the 4 th Defendant through filing of a Replying Affidavit and Grounds of Opposition dated 4 th April, 2025. Additionally, the application dated 23 rd May, 2025 was opposed only by the 4 th Defendant who filed a Replying Affidavit sworn on 27th June, 2025. The last application dated 17th September, 2025 was opposed through filing of a Replying Affidavit sworn on 2 nd October, 2025. The Honourable Court will be dealing simultaneously with each of these applications in this Omnibus Ruling. II. The Notice of Motion Application dated 20th December, 2024 by the Plaintiffs 3. The application dated 20th December, 2024 was premised upon the provisions of Order 40 of the Civil Procedure Rules 2010, Sections 1A,1B and 3A of the Civil Procedure

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Act, 2010 and all other enabling provisions of the law. The same was for the following prayers; a) Spent. b) Spent. c) That pending the hearing and determination of this suit, an order restraining the themselves, their of injunction Defendants be herein employees, issued either their by servants, associates, agents and/or persons working on their behalf from sub - dividing, amalgamating, selling, placing or offering for sale, purporting to sell, auctioning, placing for auction,purpoting to auction, charging, leasing or offering to charge or lease, transferring or purporting to transfer, trespassing into, taking possession, cultivating, developing in any way including erecting a boundary wall thereon, generally disposing or purporting to dispose of and interfering with the peaceful and quiet possession and control of the applicant over the suit property being land title number KWALE/MSAMBWENI A/2696. d) That the costs of this application be awarded to the Defendant. 4. The application was premised upon 8 grounds, testimonial facts and the averments under a 15 Paragraphed

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supporting affidavit sworn by the applicant IBRAHIM TSUMO HAMISI who averred as follows that:a) the Plaintiff/Applicant obtained the Grant Letters of Administration Ad Litem to bring the instant suit on behalf of the estate of the late Kadiri Hamisi Tsumo [his father] who died intestate on 18th August, 1980. b) The prior to his demise, Kadiri Hamisi Tsumo was the registered owner of KWALE/MSAMBWENI A/2696 hereinafter referred to as the suit property with a title deed having been issued to him on 2nd July, 1979. c) Upon his demise, the 1st Defendant Mwakidziru Tsumo Maingu confiscated the title deed to the suit property together with the original death certificate and all other relevant documents that were in the custody of the deceased. d) For those reasons the family to the deceased delayed in instituting the succession process for purposes of distribution of the estate of the deceased. e) He was nevertheless able to get a copy of the Certificate of Death and a letter from the area locational Chief. The Applicant stated that sometime on 25th February, 1987 and unknown to him, the 1st and 2nd Defendants had

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fraudulently and illegally caused a name change to be effected on the register of the suit property by the property was registered under the name of the 1 st Defendant on 25th February, 1987. f) The title acquired by the 1st Defendant was thus defective, null and void. However on 5th April, 2011 the 1st and 2nd Defendants transferred the suit property to the 3 rd Defendant and who in turn had purported to transfer it to the 4th Defendant. It was averred that the title as held by the 3rd Defendant was thus defective too. g) The instant suit was for recovery of the suit property and nullification of the purported titles fraudulently, illegally and unlawfully as held by the 1st, 3rd and 4th Defendants and for the property to be reinstated to the name of the deceased. h) Also, the Applicant stated that he was apprehensive that the respondents had the intention of selling off the suit property as he had met people with survey equipment on the suit property and hence the need to have the application allowed as prayed. III. Response to the application dated 20th December, 2024

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5. The 4th Respondent opposed the application by way of a Replying Affidavit sworn on 4 th April, 2025, it was averred that:a) The 4th Defendant lawfully entered into a sale agreement with the 3rd Defendant on 14th July, 2022 for the purchase of the suit property. b) Prior to executing the sale agreement the 4 th Defendant had undertaken extensive due diligence to ascertain the 3rd Defendant’s ownership and legal authority and legal authority to sell the subject property. c) It included conducting an official search, scrutinising of the green card. This resulted in confirming the 3 rd Defendant as the registered absolute owner of the suit property. That the green card an official search reflected that the title deed was issued to the 3 rd Defendant on 5th April, 2011 meaning he had been registered as owner for over 11 years. d) A Letter of Consent from a Land Control Board was acquired and valuation of the subject property was conducted on 2nd December, 2022 by the county valuation officer of Kwale and the requisite stamp duty was paid.

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The transfer was registered on 13 th December, 2022 to the 4th Defendant. e) The property was purchased at a valuable consideration of a sum of Kenya Shillings Twenty Five Million (Kshs. 25,000,000/-) and without any notice of defect in title and was therefore an innocent purchaser for value. f) Therefore, the 4th Defendant was protected under the provision of Section 26 (1) of the Land Registration Act, No. 3 of 2012. g) O 2nd September, 2024 the suit property was consolidated with Land Reference Numbers KWALE/MSAMBWENI A/ 3975 and KWALE/MSAMBWENI A/2700 resulting in an amalgamated title number KWALE/MSAMBWENI A/4177. The amalgamated parcel was subsequently sub - divided into new parcels namely KWALE/MSAMBWENI A/4209,4210,4208 and 4211. h) The Applicant had not demonstrated any fraud, illegality or misrepresentation on the part of the 4 th Defendant through documentary evidence as the acquisition of the suit property was done in strict compliance with the law.

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i) The 4th Defendant had used substantive resources in developing the suit property and as such any adverse loss would cause irreparable losses. j) The court was urged to dismiss the application. IV. The Supplementary Affidavit by the Plaintiffs 6. Upon obtaining leave of Court, the Applicant filed a Supplementary Affidavit sworn on 26th September 2025 in response to the averments raised by the 4 th Defendant in the Replying Affidavit sworn on 4th April, 2025. It was averred that:a) The title held by the 1 st Defendant was void ab initio. That therefore the 1st Defendant never had any valid registrable interest to be transmitted to the 3rd and 4th Defendants. b) It was deposed that the alleged consolidation of the suit parcels and the subsequent sub - divisions were invalid as they did not involve the Plaintiff and were intended to subvert the course of justice. That the 4 th Defendant was not a beneficiary of the doctrine of a bonafide purchaser as it could not benefit from an illegal transaction. c) The balance of convenience lay in preserving the estate of the deceased and to prevent further dealings on the suit property.

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d) The 4th Defendants alleged indefeasibility of the tile was untenable in law and could not be upheld by the court. The Notice of Motion application dated 23 rd May, V. 2025 7. The Notice of Motion application was premised upon the provisions of Order 8 Rule 3 of the Civil Procedure Rules 2010. The applicant sought for the following orders:a) Spent. b) That the Plaintiff be granted leave to Amend the Plaint on record as set out in the Draft Amended Plaint annexed to this application. c) That the draft Amended Plaint be deemed as duly filed and served upon payment of the requisite court filing fees or as shall be directed by this Honourable Court d) That the costs of this application be in the cause 8. The application was set upon 12 grounds that were listed on its face and the supporting affidavit sworn by the Applicant. In summary, the applicant stated that:a) He had established that the 1st Defendant in conjunction with the 2nd Defendant had intermeddled with the estate of one Kadiri Hamisi Tsumo [ deceased] and had

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transferred the suit property to several other people and who were the 3rd and 4th defendants. b) From the pleadings as filed by the 4 th Defendant, the suit property had been consolidated on 2nd September, 2024 with Land Reference Numbers KWALE/MSAMBWENI A/ 3975 and KWALE/MSAMBWENI A/2700 resulting in an amalgamated title number KWALE/MSAMBWENI A/4177. The amalgamated parcel was subsequently subdivided into new parcels namely KWALE/MSAMBWENI A/4209,4210,4208 and 4211. c) The title acquired by the 1st Defendant was not legal and hence not valid. The subsequent transfers were thus illegal and hence the need to Amend the Plaint in order to plead all the illegalities that are now visible. d) The application to amend the plaint shall not prejudice the defendants but will enable the court to determine the real questions and issues raised concerning the suit property for the matter to be dealt with conclusively and with finality. VI. The responses to the application dated 23 rd May, 2025

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9. The application was opposed by an affidavit sworn on 27 th June, 2025 by MICHAEL OUTSCHAR the director to the 4 th Defendant herein. He averred that:a) The Plaintiffs application for leave to Amend the Plaint was frivolous and constituted blatant abuse of the court process. b) The original suit was fundamentally flawed and legally unsustainable being premised on a non-existent title known as Land Reference Numbers KWALE/MSAMBWENI A/2696 had already ceased to exist as a distinct parcel. c) On 2nd September, consolidated with 2024 the suit KWALE/MSAMBWENI property was A/ and 3975 KWALE/MSAMBWENI A/2700 resulting in an amalgamated title number KWALE/MSAMBWENI A/4177. The amalgamated parcel was subsequently subdivided into new parcels namely KWALE/MSAMBWENI A/4209,4210,4208 and 4211. d) The prayer for amendment was clearly an afterthought made in response to the information in the 4 th Defendants pleadings and that it was statute barred under the provision of Section 7 of the Limitation of Actions Act, Cap. 22 as the cause of action had arose over thirty-eight [38]

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years ago considering the deceased had died in the year 1980 and the 1st transfer to the 1st Defendant occurred in the year 1987. e) Allowing the amendment would mean that new parcel numbers would be introduced and a new cause of action altogether. f) The principles governing amendments and in particular under the provision of Order 8 Rule 3 (5) of the Civil Procedure Rules, 2010 never permitted the introduction of a new cause of action that is time barred where a suit is fundamentally defective form the start. g) The 4th Defendant was a bona - fide purchaser for value without notice. The property was acquired after proper due diligence and the title as was held by the 4 th Defendant was protected under the provision of Section 26 (1) of the Land Registration Act, No. 3 of 2012. h) The Plaintiff had failed to serve the rest of the Defendants via substituted service despite the directions of the court and the Amendment of the Plaint would occur without giving the other parties an opportunity to participate. i) The court was urged to dismiss the application.

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VII. The Notice of Motion application dated 17 th September, 2025 10. As indicated, the third application by the applicant herein was dated 17th September, 2025. It was premised upon the provisions of Sections 1A,1B and 3A of the Civil Procedure Act, Cap. 21; Order 24 Rules 3,4 & 7 of the Civil Procedure Rules, 2010 and all the other enabling provisions of law. The Applicant sought for the following orders:a) That this Honourable Court substitute the deceased Mwakidziru Tsumo Maingu, Mwakidziru Tsumo, the be pleased 1st Defendant, with duly to Tsumo appointed Administrator Ad Litem of the estate of the deceased pursuant to the Grant of Letters of Administration Ad Litem issued in High Court of Kenya at Kwale, Probate & Administration Cause No. E001 of 2025 in the matter of the estate of Mwakidziru Tsumo Maingu. b) That the amended pleadings be accordingly filed and served. c) That the costs of this Application be in the cause. 11. The application was based on the grounds, testimonial facts and the averments made out under the supporting

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affidavit sworn by the applicant IBRAHIM TSUMO HAMISI on 17th September, 2025 and who averred as follows that: a) The 1st Defendant, Mwakidziru Tsumo Maingu, was Deceased. b) On 23rd July, 2025, the High Court of Kenya at “Kwale in HCFP&A E001 of 2025” issued a Grant of Letters of Administration Ad Litem to the son of the Deceased 1st Defendant, Tsumo Mwakidziru Tsumo, limited to represent the estate of the deceased for purposes of defending this suit. c) It was necessary and in the interest of justice that the deceased 1st Defendant be substituted with his legal representative so that this Suit may proceed to full determination on merits. d) No prejudice would be suffered by the other or any of the Defendants if the orders sought herein was granted. e) It was in the interest of justice that this Application be allowed.

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VIII. The response to the application dated 17 th September, 2025 12. The 4th Defendant’s Replying Affidavit opposing the application dated 17th September, 2025 was sworn on 2nd October, 2025 by Michael Outschar a director of the 4 th Defendant. He averred in the 19 Paragraphed affidavit as follows that:a) From the Grant Letters of Administration Ad Litem issued in “HCFP& A E001 of 2025” the 1st Defendant died on 18th August, 1980. b) The suit herein was filed in the year 2024 and which was forty - four (44) years after the death of the 1 st Defendant. That it was trite that a suit against a party who was already deceased is a nullity ab initio and cannot be cured or salvaged by an application for substitution. c) The provisions of Order 24 of the Civil Procedure Rules, 2010 within which the application was premised was only applicable to death of a party during the pendency of a suit and is inapplicable where the party was dead at the time the suit was instituted.

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d) It was averred that the 1 st Defendant was a blood brother to the Plaintiff and it was therefore not possible that he was not aware of his own brother’s death. That the negligence in filing a suit against a deceased was a blatant abuse of the court process. e) The deponent stated that the Plaintiff’s claim was found on transactions relating to the years 1980’s and thus the entire suit was statutory barred by the Limitation of Actions Act, Cap. 22 under the provision of Section 7. f) The proposed Tsumo Mwakidzimu Tsumo was the deceased’s son and was probably a toddler by the time his father passed on. g) It would create great prejudice to the Respondents as the proposed party never had any knowledge of the issues surrounding ownership of the suit property. h) The court was asked to disregard the application and dismiss the same with costs. IX. The Supplementary Affidavit 13. The Applicant filed a supplementary affidavit sworn on 26th September, 2025 and which stated that the High Court in Kwale had issued a Grant Ad Litem to the Estate of the deceased 1st Defendant and which was for purposes

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of substituting the said deceased with Tsumo Mwakidziru Tsumo in his capacity as nominee. 14. That was for purposes of defending the instant suit. X. Submissions 15. On 29th September 2025 while Counsels for the Plaintiff, the 4th Respondent, the 2nd and 5th Defendants were present in Court, they were directed to have the afore stated three ( 3 ) applications dated 20 th December, 2024, 23rd May, 2025 and 17th September, 2025 disposed of by way of written submissions. 16. However, by the time of penning down this Ruling, the Honourable Court was only able to access the written submissions by both the Plaintiff/Applicant and the 4 th Defendant/Respondent only from the Judiciary CTS Portal and the Court file. The Honourable Court was not able to access the Submissions by the 1 st, 2nd nor 3rd Defendants/Respondents herein. 17. Indeed, its instructive to note that on 29 th January, 2026, the parties were granted an opportunity to highlight their written submissions. Mr. Omondi and Mr. Gicheha Advocates did execute their task with high degree of professionalisms clothed with utmost diligence, dedication

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and devotion. Thus, the High Court is sincerely grateful to the Learned Counsels for depicting that gesture. Thereafter, a ruling date was reserved for 16 th April, 2026. Eventually, it was delivered on 20 th April, 2026 accordingly. A. The Written & Oral Submissions by the Plaintiff 18. The Plaintiff’s submissions were filed before court by the Law firm of Messrs. J P Ngoya & company advocates for the Plaintiff. Mr. Omondi Advocate commenced his submissions by giving a brief summary of his case. He then delved into disseminating the three applications and submitting on the same. On the 1st application for injunction dated 20th December, 2024, it was submitted that the Plaintiff had demonstrated a prima facie case with a probability of success as was guided in the case of:- “Mrao Limited - Versus - First American Bank of Kenya Limited & 2 Others”. That it was not in dispute that the late Kadiri Hamisi Tsumo was the original registered owner of the suit property and that he had died intestate. That after his demise, the 1 st Defendant/Respondent who was his son transferred the suit property to his name as facilitated by the 2nd Defendant/Respondent and which

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amounted to intermeddling of the estate of the deceased. That the suit property was later transferred to the rest of the Defendants and which transactions were termed as a nullity. That a prima facie case had thus been established. 19. On the argument raised by the 4th Defendant/Respondent that the suit was statute barred as per the provisions of the limitation of actions act. The Learned Counsel submitted that are nullitied and had no basis as was held in the case of:- “Barrack Biwott – Versus - Peter Boisio Ngetich [2018] eKLR” and in “Njoki – Versus – Pussy [ELC Appeal no. E006 of 2022] KLR” where the court held that intermeddling do not suffer limitation. 20. To counter the argument on indefeasibility of title, it was submitted that courts could not allow an illegality to be perfected by time or registration as was held in the case of:- “Dina Management - Versus - County Government of Mombasa & Others [2023] eKLR”. 21. On whether the Plaintiff/Applicant would suffer irreparable harm if the injunction is not granted. It was submitted that estate land has a unique hereditary value and damages to compensate loss of the same can never

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be adequate enough to replace ancestral realty or to reverse unlawful subdivisions. That the court should therefore preserve the suit property as the same constituted the estate of the deceased. The Applicant lastly submitted that the balance of convenience titled towards allowing the application as the inconvenience to be caused against the Plaintiff/Applicant was greater as compared to that of the Defendants. 22. With regards to the motion seeking to Amend the Plaint. The Plaintiff/Applicant submitted that he had only learnt of certain things concerning the suit property after the 4 th Defendant/Respondent filed its pleadings. That this new information thus necessitated the filing of an amended plaint to include the new facts. That the decision on whether to allow or deny an amendment of pleadings was solely upon the court as was held in the case of “ Jobling Versus - Firearms Licensing Board Civil Application E69 of 2022 KECA 1170”. 23. Lastly, the Learned Counsel for the Plaintiff/Applicant averred that on the application dated 17 th September, 2025 on the substitution of the 1 st Defendant/Respondent with his administrator ad litem. It was averred that the 1 st

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Defendant/Respondent died on 22nd June, 2022 and his son who was even older than the Plaintiff/Applicant was appointed an administrator to the estate of the deceased. That it was Kadiri Tsumo who died in the year 1980 and not the 1st Defendant/Respondent as alleged. That it was important to substitute the 1st Defendant/Respondent so as to enable court to properly interrogate the documents placed before it and to get proper information on the history of the transfer of the suit property. The court was asked to allow all the three applications as prayed. B. The Written and Oral Submissions by the 4th Defendant/Respondent 24. The 4th Defendant/Respondent submissions was dated 3 rd October 2025 and were filed before court by the Law firm of Messrs. Lewis & Company Advocates. Mr. Gicheha Advocate held through his written and oral submissions were based on the Replies and the ground of Opposition dated 17th October, 2025. He held that the Plaintiff/Applicant had been filing numerous applications all intended to delay the matter unnecessarily. 25. On the application for an injunction dated 20 th December, 2024, it was submitted that the applicant had failed to

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prove the three limb test for grant of injunctions as was stated in the case of “Giella – Versus - Cassman Brown & Co Ltd [1973] EA 358”. That the aspect of establishing a prima facie case was hindered by the fact that the plaintiffs claim for recovery of the land was statute barred as per the provisions of Section 7 of the Limitation of Actions Act. 26. That the present suit has been filed over 35 years after the cause of action arose. That the court has no jurisdiction to entertain an action that is time barred as was stated in the case of “Gathoni - Versus - Kenya Cooperative Creameries Limited [1982] eKLR”. That the 4th Respondent acquired the suit property KWALE/MSAMBWENI A/2696 on 14th July 2022 from the 3rd Defendant. That his title is thus protected by Section 26 of the Land Registration Act 2012 and which provides that a title deed shall be taken by all courts as prima facie evidence that the title holder is the absolute and indefeasible owner. That the Plaintiffs claim is solely against the 1st and 2nd Respondents as no evidence has been tendered to show any fraud or illegality on the part of the 4th Respondent.

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27. On the second aspect of irreparable injury, counsel for the 4th Respondent stated that the suit property has a calculable monetary value. That irreparable injury only occurs when damages would not be a sufficient remedy. That the 4th Defendant is a cooperate entity capable of compensating the Plaintiff in damages should the suit ultimately succeed. That the 4th Respondent has further made substantial investment in the suit property and any orders against it would cause financial loses and maintained that the prejudice in its economic interests. 28. The 4th Defendant/Respondent balance of convenience must lean heavily in favour of the 4th Defendant. For reasons that a prima facie case had not been established, the investments by the 4 th Defendant/Respondent would suffer economic harm in the event that the orders sought are granted and lastly that upholding the injunction would undermine the principle of sanctity of title. 29. The Learned Counsel for the 4th Defendant/Respondent made further submissions on the Notice of Motion application on Amendment of the Plaint and stated that the power to amend pleadings as provide for under the

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provision of Order 8 Rule 3 of the Civil Procedure Rules, 2010 and it was discretionary. The Counsel stated that however the said power was not unfettered. That an amendment could not be allowed if the same seeks to introduce a claim that is time barred and meant to cure a defect in a suit as was stated in the case of “ Central Kenya Limited - Versus -Trust Bank Limited & 5 Others [2002] 2 EA 365” where the court held that the guiding principle in allowing amendments was for to help in determining the real questions in controversy. 30. That the amendment herein would cause prejudice to the 4th Defendant/Respondent taking that it was a clear attempt to circumvent the substantive legal barrier of limitation which had been in place for decades. That the amendment sought to introduce new transactions on the title and which the Plaintiff/Applicant did not state from the onset. The Counsel asserted that allowing the substitution of the 1st Defendant would amount to bringing in the case a fresh through backdoor. The issue of limitation of time had been mentioned. The Plaintiff/Applicant’s claim was that the cause of action took place in the year 1987 while the 1 st Defendant died

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2022 that was a duration of 35 years in between down the line. The substitution of out of time. The Plaintiff/Applicant waited for over 35 years to challenge their own brother and not a stranger. They never challenged him during the pendency of his life. 31. The Learned Counsel maintained that an amendment ought not to be allowed if the same will prejudice the rights of an opposite party existing at the date of the proposed amendment as was held in case of:- “ Gatimu Versus - Simon and 2 Others [2014] eKLR”. The amendment could not resuscitate a nullity. 32. Lastly, the 4th Defendant/Respondent submitted on the application dated 17th September, 2025 which was for substitution of the 1st Defendant. The Learned Counsel for the 4th Defendant/Respondent submitted that the fundamental principle of law on filing a suit against a deceased person is nullity ab initio. That the Plaintiff/Applicant was seeking to substitute the deceased 1st Defendant/Respondent but this was after filing of the suit. That exception to the limitation bars when a defendant dies and applies to pending suits, not suits that are null from the word go.

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33. He averred that it was not in dispute that the 1 st Defendant/Respondent was already deceased before the filing of the suit. The Grant Letters of Administration showed that the 1st Defendant died on 22nd June, 2022 and hence by the time of filing the suit on 2024 the 1 st Defendant was already deceased. Such a case was a nullity. He cited the case of “Hassan Ali & Hassan Harji” to buttress on this point. Hence, they cannot seek for substitution of a such a person. 34. It was submitted that the person who is to substitute the deceased is one Tsumo Mwakidziru Tsumo who was likely a toddler by the time his father died in the year 1980. That the said person therefore has no personal knowledge of issues surrounding the suit property and this would be a violation of his right to fair hearing. 35. In conclusion the court was urged to dismiss all the applications by the Applicant herein and to further award the 4th Respondent the costs thereto. IV. Analysis and Determination 36. I have carefully read and considered the pleadings herein by the parties herein, the myriad of cases cited herein by

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parties, the relevant provisions of the Constitution of Kenya, 2010 and statures. 37. In order to arrive at an informed, just, equitable and reasonable decision, the Honourable Court has four (4) framed issues for its determination. These are: a) Whether the Plaintiff/Applicant has satisfied the threshold for grant of a temporary injunction orders b) Whether the Plaintiff/Applicant has met the threshold for grant of the prayer to amend the plaint herein c) Whether the Notice of Motion application dated 17th September, 2025 has any merit to wit should the 1st Defendant in this proceedings be substituted by Tsumo Mwakidziru Tsumo d) Who bears the costs of all the three applications dated 20th December, 2024, 23rd May, 2025 and 17th September, 2025 respectively? ISSUE No. a). Whether the Plaintiff/Applicant has satisfied the threshold for grant of a temporary injunction orders 38. Under this Sub – heading, the Honourable Court shall be examining the legal parameters and whether to grant the temporary injunctive orders as sought by the

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Plaintiff/Applicant. The law regarding grant of interlocutory injunctions is found in the provision of Order 40 Rule 1 of the Civil Procedure Rules, 2010 which provide as follows: “Where in any suit it is proved by affidavit or otherwise: (a) That any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree; (b) That the Defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the Defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further order.” 39. Further, the principles upon which an interlocutory injunction may be granted are well settled in the famous case of “Giella – Versus - Cassman Brown & Co Ltd

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(Supra)”. A litigant has to establish a prima facie case with a probability of success and an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. If in doubt, the court will decide the matter on a balance of convenience. 40. This is buttressed by the Court of Appeal in the case of “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others [2014] eKLR”, where they posited that the three limbs were sequential. The Court stated as follows: “In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;(a) establish his case only at a prima facie level, (b)demonstrate irreparable injury if a temporary injunction is not granted, and(c)ally any doubts as to (b) by showing that the balance of convenience is in his favour. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See the case of:- “Kenya Commercial Finance Co. Limited – Versus - Afraha Education Society [2001] Vol. 1 EA 86”. If the applicant establishes a prima

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facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leapfrogging” by the applicant to injunction directly without crossing the other hurdles in between.” 41. The first test is the issue of a prima facie case. The words prima facie are derived from the Latin words prima facies, meaning first appearance or on the face of things. Oxford Dictionary of law – 7TH Edition 2009 – Oxford University Pages 422 defined the term prima facie as ‘a case that has been supported by sufficient evidence for it to be taken as proved should there be no adequate evidence to the contrary’ 42. The Plaintiff/Applicant’s case is that he is amongst the beneficiaries of the estate of one Kadiri Hamisi Tsumo and who was the registered owner of the suit property

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herein. a limited grant ad litem as was issued in the case of:- “Kwale Succession Miscellaneous Cause No E001 of 2021” has been annexed in confirmation of the fact that the Plaintiff is not only a beneficiary but administrator to the estate of the deceased. The court has also had the chance to peruse an extract of the green card of the suit property and which indicated that the suit property was first registered in the name of the deceased Kadiri Hamisi Tsumo on 2nd July, 1979 before the same was changed to the 1st Defendant on 25th February, 1987, this alleged transfer is the backbone of the suit herein as the same is disputed. 43. The interest of the Applicant having been established. I am convinced that a prima facie case has been established. On the second aspect of whether the applicant has proved that he will suffer irreparable harm in the event that the orders sought are not granted. My attention has been Defendant/Respondent’s drawn response the 4 th opposing the to in application for injunction where it was stated that the value of the suit property was calculable and as such could be compensated by way of damages. To this, the

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Plaintiff/Applicant has stated that the suit property is ancestral land. That this aspect cannot be equated with any form of damages whether monetary or not. 44. Equivalent to community land, ancestral land in my view holds a high sentimental value to any individual as opposed to a parcel of land with no ancestral links. This is because of the fact that ancestral land is passed from one generation to the next and hence most people tend to hold a deep connection to the same. In most instances, the attachment is based on dip sentimental, customary, social and cultural beliefs, rites, and attachments on what entails ancestral land and the spiritual importance of land as held by a particular community. In certain communities, the dead are strictly buried on ancestral land and not any other parcel of land. Coupled with this fact is the contentious issue arising from the amalgamation of the suit property with another parcel and sub - division of the amalgamated parcel to several other portions by the 4th Defendant/Respondent. 45. It is rather obvious that the resultant sub - divisions place the monetary value of the suit property higher than what it was before and might be a subject of dispute in the

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event that the need for assessment of damages arises. Also, the court is alive to the sub - divisions that have already taken place and as of now, the initial parcel and which is the suit property herein is no longer in existence. The Plaintiff/Applicant is apprehensive that with this trend, the sale of the sub - divisions might continue and result in more complications as a result of several persons claiming to be innocent purchasers for value, a situation that the court also foresees. Hence, I strongly believe that the second ground has been adequately been demonstrated by the Plaintiff/Applicant. 46. The balance of convenience automatically shifts to the Plaintiff/Applicant based on the discussions above herein. 47. The 4th Defendant/Respondent informed the court that the instant suit is statute barred by virtue of the provision of Section 7 of the Limitation of Actions Act, Cap. 22. He has contended that the cause of action took place in the year 1987 yet the suit was has been filed over 30 years since transfer of the property to the 1 st Defendant. The provision of Section 7 of the Limitation of Actions Act, which provides as follows:-

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“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.” 48. From the above provisions of law, a suit for recovery of land should be brought before expiry of 12 years. See the case of:- “Sohanladurgadass Rajput and Another – Versus Divisions Integrated Development Programmes Co Ltd [2021] eKLR” where the Court held:“Section 7 of the Limitation of Actions Act provides that an action for recovery of land may not be brought after the lapse of 12 years from the date the right of action accrued to the Plaintiff. Therefore, in regard to the agreement of 8th December, 2007, the limitation 8th December, 2019. On the 25th January 2008, the period second limitation lapsed on agreement of period lapsed on 25th January, 2020. Essentially therefore, the Plaintiffs’ suit having been filed on 7th July, 2020, was filed out of time.” 49. However, it is noted that the Plaintiff/Applicant has raised the issue of fraud in his pleadings and pleaded that he discovered the fraudulent activities surrounding ownership of the suit property at the time when he filed the suit. The suit was filed in the year 2024, the provision

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of Section 26 of the Limitation of Actions Act, Cap. 22 provides as follows: 26. “Where in an action for which a period of limitation is prescribed either a. the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent or b. the right of action is concealed by the fraud of any such person as aforesaid; or c. the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the Plaintiff has discovered the fraud, or the mistake or could with reasonable diligence have discovered it. Provided that this section does not enable an action to be brought to recover or enforce any mortgage upon, or set aside any transaction affecting any property which i. in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; or ii. in the case of mistake has been purchased for valuable consideration, after the transaction in which the mistake was made, by a person who did

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not know or have reason to believe that the mistake had been made.” 50. This case falls under the category listed in section of the Limitation of Actions Act. Therefore, based on this, I discern that a case has thus been made for grant of the injunctive orders sought. It follows that the application must succeed. ISSUE No. b). Whether the Plaintiff/Applicant has met the threshold for grant of the prayer to amend the Plaint herein; 51. Under this sub – heading, the Honourable Court will be examining whether the orders for amendment of the pleadings was justifiable. The Plaintiff/Applicant has further asked the court to allow the amendment of the Plaint herein so as to include the facts that were initially not within his knowledge at the time of filing the suit. The facts include the amalgamation of the suit property together with the subsequent subdivisions which have not been disputed. 52. On the contrary, the 4th Defendant/Respondent has vehemently opposed the said application under numerous grounds. The 4th Defendant/Respondent has

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argued that the amendment would be a clear prejudice to it as the same would amount to introduction of new issues and evidence to the suit. In a nutshell they hold that this would amount to introducing new cause of action such as new parcels of land through a back door to their chagrin. 53. Legal speaking, the provisions of Order 8 Rule 5 of the Civil Procedure Rules, 2010 gives the court the general power to amend or to allow amendments for the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings. The court may either on its own motion or on the application of a party order any document to be amended in such manner as it directs and, on such terms as to costs or otherwise as are just. 54. Halsbury’s Laws of England, 4th Ed. (re-issue), Vol. 36(1) at paragraph 76, states as follows on the issue: The purpose of the amendment is to facilitate the determination of the real question in controversy between the parties to any proceedings, and for this purpose the court may at any stage order the amendment of any document, either on application by any party to the proceedings or of its own

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motion. The person applying for amendment must be acting in good faith. Amendment will not be allowed at a late stage of the trial if on analysis of it is intended for the first time thereby to advance a new ground of defence. If the amendment for which leave is asked seeks to repair an omission due to negligence or carelessness, leave to amend may be granted if the amendment can be made without injustice to the other side. 55. I have perused the draft Amended Plaint herein in comparison with the Plaint earlier filed. Other than seeking to recover the suit property from the Defendants, the Plaintiff/Applicant further seeks to cancel and nullify the illegal transactions carried out over the suit property. The Plaintiff/Applicant has detailed the fraud allegations on the part of the 1st Defendant and which he states was enabled by the actions of the 2nd Plaintiff/Applicant has further Defendant. detailed Further, the the of issue consolidation of the suit property with another parcel and the amalgamation arising from this act and which was Land Reference Numbers KWALE/MSAMBWENI A/4177. 56. From my understanding, the Plaintiff/Applicant was not aware of the consolidation of the suit property with

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another property and the amalgamation of the same to a new number. The Plaintiff/Applicant was also initially not aware of the sub - divisions and this information came to light after the 4th Defendant/Respondent filed their Statement of Defence. Does the amendment in any way cause any prejudice to the 4th Defendant/Respondent? 57. In my opinion the answer is in the negative. At paragraph 15 of the 4th Defendant/Respondent’s submissions, it has been stated that the Plaintiff/Applicant’s claim is against the actions of the 1st and 2nd Defendants only. But is it rather not obvious that the title that the 4 th Defendant/Respondent currently holds is as a result of this actions? In my view, the parties including the 4 th Defendant/Respondent will have the chance to prove that his title is clean, that it was acquired in the way subscribed by the law and this can only happen if the root of the said title is properly interrogated and established. the amendment is meant to achieve this one thig; establish the root of title. This will not only establish how the subsequent transfers from the deceased Kadiri Hamisi Tsuma to the 4th Respondent were made but also put a lot of the issues arising into clear perspective and rest.

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58. In arriving at this legal position, I am guided by the holding of the court in the case of:- “Angelina Chepng’etich Kimaiti - Versus - Tom Mong’are Nyariki & Another [2021] eKLR” where the Court held that:“As to the first issue, amendments of pleadings can be allowed at any stage before Judgment. But it is most ideal to allow pleadings before tendering of evidence starts in order to avoid the recalling of witnesses which may at times be inevitable particularly where the amendments introduced affect the evidence already tendered. The only amendments that can be allowed after the witnesses are put on the witness box are minor amendments, say those to do with clerical errors, correct spelling of people’s names, places, anomalies in the dates, typographical errors, spelling mistakes, minor inaccuracies in measurements or quantities, slight inexactness in colours, impressions and such other minor things which do not substantially alter the substratum of the case. Such are excusable. But it would be an abuse of the process of the court to allow a party to amend his case after evidence has been adduced so that the amended pleadings suit the evidence on record. This, in my view, is not what the provisions of order 8 Rule 3 of the Civil Procedure Rules were meant to achieve. The purpose of amending pleadings was to ensure that nothing is left out of the case since should one not include all the causes of

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action in the suit, he cannot file another suit for the cause of action that ought to have been included in the suit. Such would be Procedure Res Judicata. Rules gives Order the 8 court Rule (5) powers of the Civil to allow an amendment notwithstanding that its effect will be to add a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.” 59. I think I have said enough in demonstrating why the amendment is necessary. In a nutshell, therefore, I hold that the application must be allowed herein. ISSUE No. c). Whether the Notice of Motion application dated 17th September, 2025 has any merit to wit should the 1st Defendant in this proceedings be substituted by Tsumo Mwakidziru Tsumo 60. Under this sub – title, the Honourable Court shall be examining whether the issue of substitution of the deceased 1st Defendant with another party being Tsumo Mwakidziru Tsumo is viable in law. It has been alleged by the 4th Defendant/Respondent that the 1st Defendant passed on in the year 1980. This issue has however been

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clarified by the Plaintiff/Applicant who stated that the said Defendant died on 22nd June, 2022. The Plaint instituting this suit is dated 20th December, 2024. The question therefore is whether or not it is fatal for the suit bearing in mind that at the time of instituting the suit, the 1 st Defendant had already passed on. 61. The pertinent legal provision for substitution of a deceased Defendant is found in the provision of Order 24 Rule 4 of the Civil Procedure Rules, 2010, which provides: “(1) Where one of two or more Defendants dies and the cause of action does not survive or continue against the surviving Defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased Defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within one year no application is made under sub rule (1), the suit shall abate as against the deceased Defendant.”

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62. The circumstances of this case do however present themselves a little different from the norm that informs the provisions of Order 24 Rule 4 of the Civil Procedure case. In the instant, the suit was instituted two years after the death of the 1st Defendant. Therefore, it is evident that the suit was filed against a dead person. Certainly, it is trite that no suit can proceed as against a dead person, for they are non-existent and hence making the whole institution of a claim against them a nullity. The Court of Appeal in the case of:- “ Geeta Bharat Shah & 4 Others – Versus - Omar Said Mwatayari & Another (2009) eKLR”, stated that no court has jurisdiction to hear a suit filed against a person who was already dead by the time the suit was filed. 63. Also in the case of:- “Pratap Chand Mehta – Versus - Chisna Devi Meuta Air 1988 Delhi 267” as was mentioned in “Naikuni – Versus - Naikuni & 7 others; Manyuele (Applicant) (Environment & Land Case 9 of 2023) [2025] KEELC 3064 (KLR) (3 April 2025) (Ruling); wherein the court held:“…… if a suit is filed against a dead person, then it is a nullity and we cannot join any legal representative; you cannot even join any other party, because it is just as if no suit had been filed. on the other hand, if a suit has been

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filed against a number of persons, one of whom happens to be dead when the proceedings were instituted, then the proceedings are not null and void, but the court has to strike out the name of the party who has been wrongly joined. If the other case has been instituted against a dead person and that person happened to be the only person, then the proceedings are a nullity” 64. Having interrogated the circumstances of this case and the fact that the two previous application by the applicant were merited, this court at some point thought of salvaging the suit against the 1st Defendant by seeking to find whether the issue at hand could be dealt with by way of substitution. The long and short of it however turned out to be that a nullity in law cannot be cured in any way. This was aptly put by the court in the case of “Benjamin Leonard Mcfoy – Versus - United Africa Company Limited [1961] All ER 1169”, wherein the court held:- “If an Act is void, then it is in Law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put

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something on nothing and expect it to stay there. It will collapse.” 65. It is inevitable that the suit against the 1 st Defendant cannot survive and ought to be struck out. However, looking at the nature of the prayers sought herein, and the circumstances that have so far been presented, each and every party herein is accused of having participated in the fraudulent transfer of the suit property from its initial deceased owner. 66. The Respondents are collectively responsible for the subsequent amalgamation, sub - divisions and transfers as seen by the green card and several title deeds annexed to the pleadings bearing their names. They each hold individual responsibility leading to what arise as issues that need to be examined by this court in determining the lawful proprietor of the suit property. It is my view that the cause of action as against the rest of the Defendants survives, and the court cannot therefore strike out the suit in its entirety but only as against the 1 st Defendant. It is imperative of the rest of the Defendants to defend their titles as against the Plaintiff/Applicant’s claim. For these reasons, therefore, the application dated

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17th September, 2025 fails to see the light of the day thereof. ISSUE No. d). Who bears the costs of all the three applications dated 20th December 2024, 23rd May 2025 and 17th September 2025? 67. It is now well established that the issue of costs is at the 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 Black Law Dictionary defines cost to means: - “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other” 68. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. Section 27 (1) of the Civil Procedure Act provides as follows:“(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no

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jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.” 69. By the costs following the event means the result of the legal action. Bearing in mind the circumstances of this case, although out of the three ( 3 ) applications, two of them dated 20th December, 2024 and 23rd May, 2025 respectively have succeeded while the third one dated 17th September, 2025 has not been successful, the Honourable Court finds it reasonable, just and Equitable to direct that each party to bear its own costs. C. Conclusion and Disposition 70. Ultimately, having conducted an in-depth analysis to the framed issues herein, the Honourable Court on the Preponderance of Probabilities and the Balance of Convenience, finds that the Plaintiff/Applicant has well established his case against the Defendants herein. Thus, the Court proceeds to make the following specific orders: -

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a) THAT the Notice of Motion application dated 20th December, 2024 be and is hereby found to be merited and thus allowed. b) THAT pending the hearing and determination of this suit, an order of injunction be issued restraining the 2nd to 5th Defendants herein either by themselves, their employees, their servants, associates, agents and/or persons subdividing, working on amalgamating, their selling, behalf from placing or offering for sale, purporting to sell, auctioning, placing for auction,purpoting to auction, charging, leasing or offering to charge or lease, transferring or purporting to transfer, trespassing into, taking possession, including cultivating, erecting a developing boundary in wall any way thereon, generally disposing or purporting to dispose of and interfering with the peaceful and quiet possession and control of the Applicant over the suit property being land title number KWALE/MSAMBWENI A/2696 and the resultant titles from the amalgamation and sub - division being Land Reference Number KWALE /MSAMBWENI A /4209, 4210, 4208 and 4211.

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c) THAT the Notice of Motion application dated 23 rd May, 2025 be and is hereby allowed in the following terms:i. the Draft Amended Plaint, save for the additional aspect of deleting, removing and/or expunging the names of the 1st Defendant herein from the pleadings – having been sued while already deceased - be deemed as duly filed and served upon payment of the requisite court filing fees. ii. The 2nd to 5th Defendants are granted corresponding leave to file their relevant documents and serve accordingly WITHIN 14 DAYS of the delivery of this ruling herein. d) THAT the Notice of Motion application dated 17th September, 2025 be and is hereby found to lack merit and hence dismissed. Subsequently, the suit against the 1st Defendant be & is hereby struck out pursuant to the provision of Order 24 ( 4 ) of the Civil Procedure Rules, 2010.

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e) THAT for expediency sake for the suit against 2 nd , 3rd & 4th Defendants there be a mention on 2 nd July, 2026 for conducting Pre – Trial conference in according with the provision of Order 11 of the Civil Procedure Rules, 2010. There shall be a hearing on 29th October, 2026 preferably through Physical means. f) THAT each party to bear its own costs. IT IS SO ORDERED ACCORDINGLY RULING DELIVERED THROUGH THE MICRO SOFT TEAMS VIRTUAL MEANS AT KWALE ON THIS……20TH ……..DAY OF ………APRIL ………………..2026 ……..………………………….. HON. MR. JUSTICE LL. NAIKUNI ENVIRONMENT LAND & COURT AT KWALE Ruling delivered in the presence of:a) M/s. Asmaa Maftah, the Court Assistant. b) Mr. Omondi Advocate of the Plaintiff/Applicant.

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c) M/s. Kiti Advocate for the 2nd Defendant/Respondent. d) Mr. Gicheha Advocate for the 4th Defendant/Respondent. e) No appearance for the 1st & 3rd Defendants/Respondents.

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