Soy & another

suit land, disrupting operations, interfering, subdividing, alienating transferring, leasing encumbering, or selling the suit property amongst themselves and or third parties; (4) An order for restoration of dwelling structure and/or costs for restoration of the demolished dwelling house and all its developments on the suit parcel of land be borne by the 2 nd, 3rd and 4th Defendants (sic); (5) Such other relief as the Court may deem proper in the circumstance; and (6) Cost of the suit with interest. (3) Contemporaneously, the Plaintiffs/Applicants (hereinafter “the th Applicants”) filed a Notice of Motion dated 18 February 2026 under Certificate of Urgency, seeking the following orders: (1) Spent. (2) Spent. (3) That the Honourable Court be pleased to issue temporary injunction restraining the 1st Defendant/Respondent either by himself, his agents, and/or servant(s) or any person acting or claiming through them from further ploughing, planting, fencing, construction upon and/or carrying out any further developments on the subject parcel of land being Eldoret Municipality Block 14/ 618 (4) Costs be provided for. (4) This Application is predicated on the grounds set out on the face of the Motion and facts deposed in the Supporting Affidavit sworn on 18 th February 2026 by the 1st Applicant. (5) On the face of the Notice of Motion, it is averred that the Applicants inherited the suit land Eldoret Municipality Block 14/618 (hereinafter “the suit property”) which was forming part of the Estate of their late father Edward Kiplagat Soy and succeeded by their late mother Rebecca Soy and have been in continuous actual, peaceful occupation and in use of the subject matter parcel. It is averred that the Defendants knew and ought to have known that the Plaintiffs herein were in actual possession of the suit land as they have constructed a structure thereon, fenced it off and have been cultivating crops and planted standing trees thereon. It is averred that the 1st Defendant in connivance with the 2 nd Defendant herein illegally purported to alter documentations of the suit land to himself knowing that the land belonged to the Plaintiffs. It is averred that the Applicants have erected structures on the suit land and they are enjoying quite possession thereof. It is further averred that the Defendants colluded and collectively purported to transfer the subject parcel of land whereas they knew and/or ought to have known that the suit land had been cautioned by the Applicants. It is averred that it will be in the interest of justice that the suit property be preserved in the state in which it is during the pendency of the suit to avoid prejudicing the Applicants. the said Supporting Affidavit, the 1 st Applicant has rehashed the substance of the Motion. In bolstering the Application, a copy of the Amended Certificate of Confirmation of Grant; photographic evidence alleged to show the state of the suit property; and a copy of the Kenya Gazette have been exhibited, marked as SKI, SKII & SKIII respectively. Further, a copy of a Certificate of Search accompanied with special (6) In Page 2 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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conditions and a copy of Certificate of Lease have also been exhibited, marked SKIV. In addition, a sketch map marked SKV; photographic evidence marked SKVI; and photographic evidence alleged to be showing the encroachment by the Defendants have been exhibited, marked SKVII. (7) Upon perusal of the said Court record both in the physical file and the Judiciary CTS, this Court has found no evidence that the Plaintiffs/Applicants filed written submissions in regard to both the said Application or the said Preliminary Objection. PART III: THE 1ST DEFENDANT/RESPONDENT’S CASE (8) The Application is opposed by the 1st Defendant/Respondent (hereinafter “the 1st Respondent”). The 1st Respondent deposes that he is the bona fide purchaser for value from the 2nd and 3rd Respondents herein for a consideration of Kshs. 7,200,000 and that he has since purchase put the property to the intended use. In this connection, the 1 st respondent has exhibited copies of the Certificate of Lease and Rate Clearance, marked JM1. his Supplementary Affidavit dated 7 th May 2026, the 1st respondent deposes that he bought the suit property from the 2 nd Defendant/ Respondent (hereinafter “the 2nd respondent”) at a consideration of Kshs. 5,200,000. In this connection, a Sale Agreement dated 18 th December 2020 marked JKM1, has been exhibited. (9) In PART IV: THE 2ND DEFENDANT/RESPONDENT’S CASE (10) The Application is opposed by the 2 nd Respondent. In their joint Replying Affidavit dated 14th April 2026 and filed on even date, the 2 nd Respondent deposes that this application is fatally incompetent and incurable in form and context. It is deposed that the applicants failed to exhibit any evidence of ownership. Further, it is deposed that the photographs annexed are without a certificate of electronic evidence. It is deposed further the caution asserted by the applicants was without a legal basis. Further, it is deposed that inclusion of the suit property in the list of properties belonging to the estate of Edward Kiplagat Soy (deceased) without evidence of ownership by the said deceased was void. It is further deposed that the Gazette Notice Number 702 dated 8 th February 2008 on lost Title Deed which was purportedly issued on occasion of the deceased sets out the size of the suit property which is materially different from the actual size of the suit property. In addition, it is deposed that the fact that there is no Certificate of Search, title Deed, Allotment Letter, payment receipts, Sale Agreement or any other document pointing to the direction of ownership by the deceased, makes the application unmerited. PART V: THE 1ST, 2ND AND 3RD DEFENDANT/RESPONDENTS’ PRELIMINARY OBJECTION (11) Filed together with the 2nd Respondent’s Replying Affidavit is the 1 st, 2nd and 3rd Respondents’ Preliminary Objection on grounds: Page 3 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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That the Plaintiffs lack capacity to sue on behalf of the estate of Edward Kiplagat Soy and the estate of Rebecca Soy; a) That the purported Gazette Notice dated 8th February 2008 is defective as the person purported to have lodged the notice on loss of title had died on 17 th November 1990; b) That the Plaint does not disclose the cause of action known in law; c) That the land claimed in the said Gazette Notice dated 8th February 2008 is approximately 0.4168 hectares and it is materially different from the subject matter as the sizes are not actualized or same as the size thereof as indicated on the RIM and the Certificate of Lease which state the size to be 0.400 hectares; d) That the suit offends the doctrines of sub judice or res judicata, considering the Succession Cause Number 165 of 2005, in the matter of the Estate of Elizabeth Jepchoge Sirma, which stands unchallenged; e) f)That this Court lacks jurisdiction over this matter on basis of section 7 of the Limitation of Actions Act, since the Plaintiffs were issued with the letters of administration 35 years ago in 1991 and subsequently amended the Grant on 20th June 2011 in Succession Cause Number 049 of 1991 in the matter of the Estate of Edward Kiplagat Soy and 12 years long expired; and That the 60 days stated in the purported Gazette Notice dated 8th February 2008, expired long ago and no evidence of a new Title Deed has been exhibited. g) PART VI: 4TH DEFENDANT/RESPONDENT’S CASE (12) The 4th Defendant/Respondent did not file any response to the Application. PART VII: THE RESPONDENTS’ JOINT WRITTEN SUBMISSIONS COVERING BOTH THE APPLICATION AND PRELIMIANRY OBJECTION (13) In his written Submissions dated 17 th June 2024 and filed on even date, learned Counsel Mr. Muhatia instructed by the Firm of Messieurs Muhatia Pala & Associates Advocates representing the Respondents, rehashed the contents of the Replying Affidavit, the Supplementary Affidavit and the Preliminary Objection. I thus find no need of reproducing that part of the Submissions. Page 4 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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Learned Counsel urges this Court to find that the Applicants have failed to meet the conditions for grant of a temporary injunction, placing reliance upon Giella Cassman Brown & Co. Ltd [1973] EA 358; Mrao Limited vs. First American Bank of Kenya Limited & 2 others [2003] eKLR; and Pius Kipchirchir Kogo vs. Frank Kimeli Tenai [2018] eKLR. (14) It is submitted that the Applicants have not presented any credible ownership documents in relation to the suit property, arguing that mere photographs and allegations do not confer proprietary rights since the burden of proof lies on the party alleging ownership. Besides, it contended that a mere caution does not confer ownership. (15) Further, it is submitted that reliance on a Gazette Notice whose acreage and particulars differ from that of the suit property, have founded inconsistences which raise doubts as to the legitimacy of the claim and this disentitles the Applicants to any equitable relief. (16) In addition, it is submitted that the 1 st respondent has presented evidence on how he purchased the suit property from the 2 nd and 3rd Defendants for valuable consideration amounting to Kshs. 5,200,000 and that he exhibited a Sale Agreement in his Supplementary Affidavit dated 7th May 2026. (17) Regarding the assertion on fraud, illegality and collusion, it is argued that the applicants have tendered no evidence to support the allegations. (18) Finally, it is submitted that the balance of convenience tilts in favour of the 1st respondent, and that if this Court issues a temporary injunction, it will unjustly prejudice the 1st respondent who has acquired the property through a lawful transaction and who enjoys rights protected under the law. (19) (20) Finally, this Court is urged to dismiss the Application with costs. Turning to the said Preliminary Objection, first, it is submitted that the Applicants lack the capacity to sue on behalf of the estate of Edward Kiplagat Soy and Rebecca Roy, since they have no Grant of Letters of Administration to sue on behalf of the estate and none has been annexed to their Supporting Affidavit and list of documents. (21) It is further submitted that the land claimed in the said Gazette Notice dated 8th February 2008 is approximately 0.4168 hectares and it is materially different from the subject matter as the sizes are not actualized or same as the size thereof as indicated on the RIM and the Certificate of Lease which state the size to be 0.400 hectares. (22) Regarding the objection in relation to jurisdiction of this Court, it is submitted that the cause of action is time barred since it occurred in the year 2001 and therefore 12 years have lapsed and the Honourable Court should lay down it tools citing Owners of the Motor Vessels & Lilian S & (23) Page 5 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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v Caltex Oil (Kenya) ltd [1989] eKLR; Rebecca Chumo vs. Christina Cheptoo Chumo, Misc. Application No. E001 of 2020; and Mukisa Biscuits Manufacturing Ltd -vs- West End Distributors (1969) EA 696. Counsel thus urges that the Preliminary Objection raises pure points of law and it stands unopposed. (24) PART VIII: QUESTIONS FOR DETERMINATION Commending themselves for determination - gleaning from the Notice of Motion; the Replying Affidavit; the Supplementary Affidavit; the Preliminary Objection; and the Respondents’ written submissions – are four primary and seven secondary questions as follows: (25) (i) Whether any of the 1st, 2nd and 3rd Defendants’ seven (7) Objections has surmounted the test of a Preliminary Objection (as to be sustained). (ii) If the answer to question (i) is in the affirmative: Whether the Plaintiffs lack capacity to sue on behalf of the estate of Edward Kiplagat Soy and the estate of Rebecca Soy, on account of not being personal representatives of Edward Kiplagat Soy (deceased) and Rebecca Soy (deceased); a) Whether this suit is time-barred in the context of section 7 of the Limitation of Actions Act; b) Whether the purported Gazette Notice dated 8 th February 2008 is defective as the person purported to have lodged the notice on loss of title had died on 17 th November 1990; c) Whether the Plaint does not disclose the cause of action known in law; d) Whether the land claimed in the said Gazette Notice dated 8th February 2008 is approximately 0.4168 hectares and it is materially different from the subject matter as the sizes are not actualized or same as the size thereof as indicated on the RIM and the Certificate of Lease which state the size to be 0.400 hectares; e) f)Whether this suit offends the doctrines of sub judice or res judicata, considering the Succession Cause Number 165 of 2005, in the matter of the Estate of Elizabeth Jepchoge Sirma; and Page 6 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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Whether the 60 days stated in the purported Gazette Notice dated 8th February 2008, expired long ago and no evidence of a new Title Deed has been exhibited. g) (iii) Whether this Application has met the threshold for grant of a temporary injunction. (iv) Which party should bear the costs of this Application? PART IX: ANALYSIS AND DETERMINATION I now embark on determination of each of the four primary and seven secondary questions, in turn. (26) (i) Whether any of the 1st, 2nd and 3rd Defendants’ seven (7) Objections has surmounted the test of a Preliminary Objection (as to be sustained) The 1st, 2nd and 3rd Defendants’ Preliminary Objection is anchored on seven (7) autonomous Objections as follows: (27) That Plaintiffs lack capacity to sue on behalf of the estate of Edward Kiplagat Soy and the estate of Rebecca Soy; a) That the purported Gazette Notice dated 8th February 2008 is defective as the person purported to have lodged the notice on loss of title had died on 17 th November 1990; b) That the Plaint does not disclose the cause of action known in law; c) That the land claimed in the said Gazette Notice dated 8th February 2008 is approximately 0.4168 hectares and it is materially different from the subject matter as the sizes are not actualized or same as the size thereof as indicated on the RIM and the Certificate of Lease which state the size to be 0.400 hectares; d) That the suit offends the doctrines of sub judice or res judicata, considering the Succession Cause Number 165 of 2005, in the matter of the Estate of Elizabeth Jepchoge Sirma, which stands unchallenged; e) f)That this Court lacks jurisdiction over this matter on basis of section 7 of the Limitation of Actions Act, since the Plaintiffs were issued with the letters of administration 35 years ago in 1991 and subsequently Page 7 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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amended the Grant on 20 th June 2011 in Succession Cause Number 049 of 1991 in the matter of the Estate of Edward Kiplagat Soy and 12 years long expired; and That the 60 days stated in the purported Gazette Notice dated 8th February 2008, expired long ago and no evidence of a new Title Deed has been exhibited. g) First, at the outset, this Court is cognizant that this plea falls in the class of actions conceptually known as actio praejudicialis (a preliminary action seeking determination of a preliminary issue on which other primary issues proposed for litigation depend). This Court is further cognizant that this preliminary plea further falls in the class of actions conceptually known as actio non or actionem non habere debet (a plea which seeks a declaration of this Court that the Plaintiffs/Respondents have been deprived of the right to maintain this action by filing it out of timeline of 12 years limited by section 7 of the Limitation of Actions Act). (28) Second, such a plea is dispositive in nature. See the Court of Appeal (hereinafter “COA”) rendition in the cause celebre and now locus classicus decision in Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696 (hereinafter “the Mukisa case”); the Supreme Court of Kenya (hereinafter “SCORK”) in Aviation & Allied Workers Union Kenya vs. Kenya Airways Ltd & 3 Others [2015] eKLR; and Oraro vs. Mbaja [2005] 1 KLR 141. (29) Third, a Preliminary Objection cannot be raised if any fact requires to be but it is not yet ascertained. If the any assertion which claims to be a Preliminary Objection bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed. It should thus be premised on a pure point of law, unblemished with either disputed or contested or unascertained facts which can only be established in a trial or immediately unascertainable facts which can only be established in a trial. It follows that a PO, properly so, is a pure point or question of law which has been pleaded, or which arises by clear implication of the pleadings, and which if argued as a preliminary point, is capable of disposing the suit. However, it does not mean that a PO is raised in a vacuum. It should properly so be predicated on either facts of common cause or undisputed or contested or ascertained or immediately ascertainable facts. See the Mukisa case, at page 700, where Law JA (as he then was) expressed a judicial view that “So far as I’m aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. 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.” In the Mukisa case, Sir Charles (30) Page 8 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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Newbold, P (as he then was), at page 701, reasoned that “A Preliminary Objection is in the nature of what used to be a demurrer. It arises a pure point of law which is argued on the assumption that all the facts pleaded by the other side or correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” The Supreme Court of Kenya (hereinafter “SCORK”) has since affirmed the rendition in the Mukisa case. See for instance Aviation & Allied Workers Union Kenya vs. Kenya Airways Ltd & 3 Others [2015] eKLR, where SCORK stated as follows: “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.” It follows that if any Motion which claims to be a PO, as a matter of necessity, is predicated on a question or fact which calls for proof or authentication or ascertainment, as a matter of legal principle, the question should set down for hearing and determination. In Oraro vs. Mbaja [2005] 1 KLR 141, Ojwang J. (as he then was) citing in approval the Mukisa case held as follows: “1. A Preliminary Objection correctly understood, is a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. 2. Any assertion which claims to be a Preliminary Objection, and yet it bears s factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed. 3. If a matter comes before the Court dressed as a “Preliminary Objection” it will not come co-exist with such factual scenarios as may lead to the Court to exercise its discretion by virtue of Section 3A of the Civil Procedure Act. 4. The Court’s discretion is never exercised just on the basis of proposition of law: there must be a factual situation of which the Court takes cognizance, and in relation to which its equitable conscience is exercised. 5. It has to be appreciated that the Court’s discretion exercised by virtue of Section 3A of the Civil Procedure Act is always of for the purpose of upholding the law as far as is possible; and this would require preserving the claims of parties so that they may be heard and determined according to law. 6. The Applicant’s plea is that the Respondent’s pleadings be terminated in limine. There is no consistency between such a prayer, which belongs to the normal practice attending Preliminary Objection (matters of law), on the one hand, and the case for ensuring fair trial which the Applicant has also urged, on the other hand.” Fourth, and joined at the hip with the foregoing is the position that it is now established law, that a PO can properly so be raised in regard to the doctrine of sub judice; the doctrine of res judicata; locus standi; whether a Plaint discloses a cause of action known in law; and whether an action is barred by the Limitation of Actions Act, provided the objection passes the test in the third principle above. (31) Page 9 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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Fifth, the Court should always tread the road towards a lower risk of possible injustice. This is achieved by electing a pathway which ensures that none of the parties suffers prejudice at the preliminary stage. It follows that before taking the drastic direction of striking out a pleading, premised on the overriding objective of civil procedure, the Court should first consider the closest alternative to striking out, which will best serve the interests of administration of justice. In this connection, either upon the Application of any party or on its own motion, the Court should consider whether it will serve the interest of administration of justice to order a separate trial or make such order as may be expedient. See Kenya Commercial Finance Company Limited vs. Richard Akwesera Onditi (Civil Appeal (Application) 329 of 2009) [2010] KECA 134 (KLR) (19 March 2010) (Ruling) [hereinafter “the Onditi case”], where Omolo, Waki & Nyamu, JJA, (as they then were) rendered themselves as follows: “There is no doubt that if Mr. Wanjala’s Submissions were made in this Court before the enactment of Sections 3A and 3B of the Appellate Jurisdiction Act, there would have been no valid answer to them. Since the enactment of the said provisions, which brought in the principle or concept of overriding objective in litigation, there can be no automatic striking out of an appeal or a notice of appeal unless there is no alternative to that course…” See also William Kiprono Towett & 1597 Others v Farmland Aviation Ltd & 2 Others [2016] KECA 301 (KLR), where the COA reiterated the said judicial view that “Whereas the trial Court was of the considered opinion that the suit filed before it could not be conveniently tried and determined as filed, the Court was at liberty to and should have, in our considered and respectful opinion, either upon the Application of any party, or on its own motion ordered separate trials, or made such order as may be expedient. See Order 3 Rule 8 of the Civil Procedure Rules (2010). Given that avenue that was available to it, the trial Court’s order to strike out the Appellant’s suit comes into sharp focus. The same was discretionary in the face of the grounds adduced by the Respondents and Submissions both in favour and against the issuance of the said order. Thus, strictly speaking the Respondent’s Preliminary Objection did not meet the requisite threshold and should not have been allowed. We think that Newbold, J.A. was right to opine that matters discretionary are outside the purview of Preliminary Objections and while we note Mr. Musangi’s contrary view, we respectfully think Counsel has it wrong.” (32) Sixth, striking out a suit amounts to summary adjudication of a suit which should only be exercised in plain and obvious cases when the action is one which cannot succeed for being plainly and obviously hopeless in the sense that it is so weak as to be beyond redemption and incurable by amendment; one which is plainly and obviously amounts to an abuse of the process of the Court; or one which plainly and obviously discloses no reasonable cause of (33) Page 10 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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action. See the cause celebre COA decision in DT Dobie & Company (Kenya) Ltd v Muchina & another (Civil Appeal 37 of 1978) [1980] KECA 3 (KLR) (18 March 1980) (Judgment) [hereinafter “the DT dobie case”]. First, the threshold of plain and obvious is not met if the suit discloses even a mere semblance of a cause of action and if it can be rescued by way of amendment, in which case it should be permitted to progress and finally determined after the Court has received the full facts of the case. See the DT Dobie case. Second, the threshold of plain and obvious is not met if the Application calls for a protracted examination of documents which is worsened by affidavit evidence which had not been tested in crossexamination. See the DT Dobie case. See also Nagle vs. Fielden (1966) 2 Q.B.D. 633, per Danckwerts, L.J.; and Salmon L.J.; and Lawrence v. Lord Norreys, 15. A.C. 210, per Lord Herschell, both of which were cited in approval in the often-quoted cause celebre COA decision in the DT Dobie case. In Lawrence v. Lord Norreys, 15. A.C. 210, at p. 219, Lord Herschell adopted the judicial view expressed by Danckwerts, L.J. in Nagle vs. Fielden (1966) 2 Q.B.D. 633 that “The summary remedy which has been applied to this action is only applied in plain and obvious cases when the action is one which cannot succeed or is in some way an abuse of the process of the Court.” Similarly, Salmon L.J. expressed a view in Nagle vs. Fielden (1966) 2 Q.B.D. 633 that “It is well settled that a statement of claim should not be struck out and the Plaintiff driven from the judgment seat unless the case is unarguable. Accordingly it is necessary to consider whether or not this Plaintiff has an arguable case. That is the only question that arises on this appeal.” Seventh and intertwiningly linked to the foregoing sixth principle, striking out a pleading is a draconian step which results in driving a litigant from the seat of justice/judgment and as such, the step should be taken as the last resort and a Court of law should strive to sustain an action. See Sebei District Administration vs. Gasyali and others [1968] 1 EA 300; Dickson Karaba vs. John Ngata Kariuki & Another [2010] eKLR; and Pharmaceutical Products Ltd v Development Bank of Kenya & 2 others [2004] KEHC 1307 (KLR), where it was held that the Court must also remember that to shut a litigant out of the Court should be the Court’s last resort. One of the principal reasons why striking out should be the last resort was explained by the COA in Richard Ncharpi Leiyangu vs. Independent Electoral Boundaries Commission & 2 Others [2013] eKLR, where Visram and Odek, JJA (as they then were), Koome, JA stated as follows: “22]. The right to a hearing has always been a well-protected right in our Constitution and is also the cornerstone of the Rule of law. This is why even if the Courts have inherent jurisdiction to dismiss suits, this should be done in circumstances that protect the integrity of the Court process from abuse that would amount to injustice and at the end of the day there should be proportionality.” The second chief reason was explained in Dyson vs. Attorney General [1911] KB (34) Page 11 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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418, Fletcher Moulton L. J. (as he then was) expressed a view which has now almost gained universal acceptance that “...the Courts have properly considered that this power of arresting an action and deciding it without trial is one to be very sparingly used and rarely, if ever, excepting in causes where the action is an abuse of legal procedure… To my mind, it is evident that our judicial system would never permit a Plaintiff to be “driven from the Judgment seat” in this way without any Court having considered his right to be heard, excepting in cases where the cause of action was obviously and almost incontestably bad.” In this vein, before striking out a pleading or Application, a Court should strive to sustain an action. This step - being draconian - should be sparingly deployed (and I must add in the rare of the rarest circumstances). In the DT Dobie case, Madan JA took an emphatic judicial view that a suit is for hearing and not for summary dismissal or striking out. His Lordship had this to say and I entirely concur: “If an action is explainable as a likely happening which is not plainly and obviously impossible the Court ought not to overact by considering itself in a bind summarily to dismiss the action. A Court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. Normally a law suit is for pursuing it. No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a Court of justice ought not to act in darkness without the full facts of a case before it. On the other hand, if there is a point of law which merits a serious discussion the Court should be asked to proceed under order XIV Rule 2.” See also Blue Shield Insurance Company Ltd vs. Joseph Mboya Oguttu [2009] eKLR. Eighth and intimately connected to the seventh principle, unless the threshold in the DT Dobie case, all parties before the Court should be given an opportunity to present their cases before a decision is rendered. This principle is anchored on both the legal maxim audi alteram partem (that no person should be judged or condemned without a fair chance to defend themselves, now firmly enshrined under Article 50(1) of the Constitution) and the principle of substance over form now enshrined in Article 159(2)(d) of the Constitution. Speaking about the need for an opportunity to ventilate issues and the need to avoid the draconian stance of striking out pleadings in Republic v Public Procurement Administrative Review Board & 2 others [2018] KEHC 9167 (KLR), Mativo, J. took an insistent judicial view that “29. Striking out pleadings is a draconian step and as was held in Agip Kenya Ltd vs Highlands Tyres Ltd {2001} KLR 630 the process of the judicial system requires that all parties before the Court should be given an opportunity to present their cases before a decision is given. As Lord Cairns in Roger Vs Comptoirs Escompts De Paris, {1871} (35) Page 12 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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LR 3 PC 465. bluntly put it: - "One of the first and highest duties of all, Courts is to take care that the act of the Court does no injury to any of the suitors and when the expressions Act of the Courts is used it does not mean merely the act of the primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matters up to the highest Court which finally disposes of the case." 30. The fundamental duty of the Court is to do justice between the parties. It is, in turn, fundamental to that duty that parties should each be allowed a proper opportunity to put their cases upon the merits of the matter. It is fundamental principle of natural justice, applicable to all Courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justiciae, to have any determination which affects him set aside. 31. Discretion vested in the Court is dependent upon various circumstances, which the Court has to consider among them the need to do real and substantial justice to the parties to the suit. Discretion must be exercised in accordance with sound and reasonable judicial principles. The King’s Bench in Rookey’s Case stated as follows: - “Discretion is a science, not to act arbitrarily according to men’s will and private affection: so the discretion which is exercised here, is to be governed by Rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the Constitution entrusted with.” 32. Writing on judicial power, Chief Justice John Marshall wrote:"Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.” The said legal maxim audi alteram partem and the principle of substance over form were also reiterated in Branco Arabe Espanol vs. Bank of Uganda [1999] 2 EA 22, where it was held that “The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits, and that errors, lapses should not necessarily debar a litigant from the pursuit of his rights and unless a lack of adherence to Rules renders the appeal process difficult and Page 13 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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inoperative, it would seem that the main purpose of litigation, namely the hearing and determination of disputes, should be fostered rather than hindered.” See also Sebei District Administration vs. Gasyali and others [1968] 1 EA 300; Dickson Karaba vs. John Ngata Kariuki & Another [2010] eKLR; and Pharmaceutical Products Ltd v Development Bank of Kenya & 2 others [2004] KEHC 1307 (KLR). Ninth, the Court in exercising the discretionary power on striking out a pleading, should bear in mind that if the gist relates to noncompliance of rules of procedure, before granting, the Court should be persuaded that the procedural non-compliance cannot be rescued by Article 159(2)(d) of the Constitution of Kenya. See the COA decision in the Onditi case where a view was expressed that “The Court now has wider powers and will not automatically strike out proceedings but will before doing so, look at available alternatives. According to the Defendant, a verifying Affidavit must be filed with the Plaint and not subsequently. Order 4 Rule 1(6), however, gives the Court discretion when it comes to striking out based on such omission. The Defendant is, however, incorrect in submitting that the omission to file one verifying Affidavit would necessarily lead to the striking out of the suit. In my view, the only suit that would be affected by such omission in the present case is that of the 3 rd Plaintiff. In exercising this discretion, the most important consideration, in my view, is that of justice and unless the omission has occasioned the Defendant prejudice, the Court, as always, should lean towards sustaining a suit. The only prejudice alleged herein is that the effect of validating the Plaint and the suit would be to pull the rag from the feet of the Defendant as it were since it would have the effect of rendering a port ion of the Defendant’s Application filed earlier on superfluous. That may be so; however, it does not, in my view justify resort to the draconian option of striking out a suit, especially where the defect would only affect the suit by one of the several Plaintiffs. The issue of the place of abode, in my view, is no longer a matter of life and death in light of the provisions of Order 19 Rule 7 of the Civil Procedure Rules, 2010 which empower the Court to receive any Affidavit sworn for the purpose of being used in any suit notwithstanding any defect by misdescription of the parties or otherwise in the title or other irregularity in the form thereof or on any technicality. (36) Tenth, an application to strike out a suit should be brought without undue delay. See George P. B. Ogendo vs. James Nandasa & 4 others [2006] eKLR, where GBM Kariuki, J. (as he then was) stated that “In such cases, the Court has power and will not hesitate to strike out the offending pleading if the justice of the case so demands… An Application to strike out must also be brought without undue delay. These then are the principles that (37) Page 14 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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are to be applied to each case where, as here, the Court is called upon to exercise its discretionary power to strike out a pleading.” In determining this objection, this Court will be guided by the ten legal principles discussed above. (38) In relation to the objection on section 7 of the Limitation of Actions Act, upon subjecting the said objections to the test of a Preliminary Objection discussed at length above, and upon addressing my judicial mind to the ten principles discussed above, and upon addressing my judicial mind to the factual issues raised by the Objector and principally that time started to run in 2001; and upon juxtaposing the Objector’s assertion to the Plaintiffs’ rebuttal housed in the Plaint, paragraph 8, to the effect that time started to run on 21st January 2026 when the fraud was discovered; and upon taking into account that fraud is pleaded and particularized in the Plaintiffs’ said Plaint, and upon subjecting the resultant issues to section 26 of the Limitation of Actions Act which provides that time does not start to run until the fraud is discovered which then becomes a triable issue, and persuaded by the rendition in Jubilee Insurance Company Limited vs. Nyaema & 4 others [2024] KEHC 6803 (KLR), where it was held that time starts to run from the date of discovery of the fraud - it is the finding of this Court and it is so concluded that the objection has failed the test of a PO having not been anchored on a pure point of law and instead erected upon disputed, contested, unascertained and immediately unascertainable facts which can only be established in a trial. This question cannot conclusively be determined without venturing into an in-depth examination of unascertained facts surrounding this objection which will constrain this Court to venture into evidential issues whether time started to run in 2001 as asserted by the Objectors or 21 st January 2026 as asserted by the Plaintiffs. s asserted by the Objector or in 2023 by dint of fraud as averred in the Plaint by the Plaintiff/Respondent, which issue is appropriate for plenary action as opposed to summary procedure, and should therefore be settled after hearing parties. The PO, therefore, takes the impermissible posture of constraining this Court, as a matter of necessity, to venture into a protracted analysis and examination of the said disputed, contested, unascertained and immediately unascertainable fact of when time started to run. It is this basis that I conclude this Objection – asserting that this suit was filed out of time has failed the test of a Preliminary Objection and consequently unsustainable. In any event, granted that this finding does not at all oust the Objectors’ right of prosecuting this factual issue and calling evidence thereon at the hearing stage, it is the further conclusion of this Court that the Objectors will absolutely suffer no prejudice which is irreparable by costs. (39) On the same token, this Court finds the following objections riddled with disputed, contested, unascertained and immediately unascertainable facts which can only be established in a trial and that they cannot thus be (40) Page 15 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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conclusively determined without venturing into an in-depth examination of unascertained facts surrounding these objections which will constrain this Court to venture into evidential issues appropriate only in trial and thus incompatible with the test of a Preliminary Objection and consequently unsustainable: (c) the purported Gazette Notice dated 8th February 2008 is defective as the person purported to have lodged the notice on loss of title had died on 17th November 1990; (d) the Plaint does not disclose the cause of action known in law; (e) the land claimed in the said Gazette Notice dated 8 th February 2008 is approximately 0.4168 hectares and it is materially different from the subject matter as the sizes are not actualized or same as the size thereof as indicated on the RIM and the Certificate of Lease which state the size to be 0.400 hectares; and (g) the 60 days stated in the purported Gazette Notice dated 8th February 2008, expired long ago and no evidence of a new Title Deed has been exhibited. I must also note that this finding does not at all oust the Objectors’ right of prosecuting this factual issue and calling evidence thereon at the hearing stage. (41) Finally, upon subjecting the said objections to the test of a Preliminary Objection discussed at length above, and upon addressing my judicial mind to the ten principles discussed above, this Court finds that the following 1st, 2nd and 3rd Defendants’ Objections to have surmounted the lofty test of a Preliminary Objection and as a result, sustainable: (42) (a) the Plaintiffs lack capacity to sue on behalf of the estate of Edward Kiplagat Soy and Rebecca Soy; and (f) this suit offends the doctrines of sub judice or res judicata, considering the Succession Cause Number 165 of 2005, in the matter of the Estate of Elizabeth Jepchoge Sirma. I now turn to determine on merit the two objections which surmounted the test of a Preliminary Objection. (43) (a) Whether the Plaintiffs lack capacity to sue on behalf of the estate of Edward Kiplagat Soy and the estate of Rebecca Soy, on account of not being personal representatives of Edward Kiplagat Soy (deceased) and Rebecca Soy (deceased) Page 16 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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The fundamental question here is whether this suit is maintainable, which turns on the fulcrum of whether the Plaintiffs herein are personal representatives of the estate of Edward Kiplagat Soy and the estate of Rebecca Soy. (44) Before determining this question, some historical background is important. In common law, it was the unflinching position that “actio personalis moritur cum persona.” Actionable causes die with the person. Although common law is one fo the sources of law in Kenya, in the hierarchy of laws, it submits to statute law. In Kenya, this common law position has since been modified by statute law and precisely, the Law Reform Act, the Law of Succession Act, the Civil Procedure Act and the Civil Procedure Rules. That modification commands that all causes of action subsisting against or vested in the deceased survives against or for the benefit of his estate with the exception of a limited number of causes of personal nature namely defamation, seduction, inducing one spouse to leave or remain apart from each other, and claims for damages on ground of adultery. Relevant to this is section 2 of the Law Reform Act which provides that “(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate: Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery. (2) Where a cause of action so survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person—(a) shall not include any exemplary damages; (b) in the case of a breach of promise to marry, shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry; and (c) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included. (3) No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person unless either—(a) proceedings against him in respect of that cause of action were pending at the date of his death; or (b) proceedings are taken in respect thereof not later than six months after his executor or administrator took out representation. (4) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this Act, to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered. (5) The rights conferred by (45) Page 17 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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this Part for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependents of deceased persons by the Fatal Accidents Act or the Carriage by Air Act, 1932, of the United Kingdom, and so much of this Part as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under those Acts as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1). (6) In the event of the insolvency of an estate against which proceedings are maintainable by virtue of this section, any liability in respect of the cause of action in respect of which the proceedings are maintainable shall be deemed to be a debt provable in the administration of the estate, notwithstanding that it is a demand in the nature of unliquidated damages arising otherwise than by a contract, promise or breach of trust.” {Emphasis supplied} First things first. Does this suit fit the bill of section 2(1) of the Law Reform Act? Considering the cause of action, I am satisfied that it is not part of the causes of action ousted by section 2 of the Law Reform Act (namely defamation or seduction or inducing one spouse to leave or remain). I thus conclude that by dint of the cause of action, it survived the death of both Edward Kiplagat Soy and Rebecca Soy, and it can thus be brought for the benefit of the estate of Edward Kiplagat Soy and the estate of Rebecca Soy. (46) Turning to the main question, do the Plaintiffs lack locus standi as asserted by the Defendants? The Law of Succession Act is the principal residence of an answer to this. Section 2 of the Act provides that it “… shall constitute the law in Kenya in respect of and shall have universal Application to all cases of intestate or testamentary succession to the estates of deceased persons dying after the commencement of this Act.” Section 82 thereof provides for powers of personal representatives. It states that “Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers — (a) to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative; (b) to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best: Provided that— (i) any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and (ii) no immovable property shall be sold before confirmation of the grant; (c) to assent, at any time after confirmation of the grant, to the vesting of a specific legacy in the legatee thereof; (d) to appropriate, at any time after confirmation of the grant, any of the assets vested in them in the actual condition or state of investment thereof at the time of appropriation in or towards satisfaction of any legacy bequeathed (47) Page 18 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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by the deceased or any other interest or share in his estate, whether or not the subject of a continuing trust, as to them may seem just and reasonable to them according to the respective rights of the persons interested in the estate of the deceased, and for that purpose to ascertain and fix (with the assistance of a duly qualified valuer, where necessary) the value of the respective assets and liabilities of such estate, and to make any transfer which may be requisite for giving effect to such appropriation: Provided that except so far as otherwise expressly provided by any will— (i) no appropriation shall be made so as to affect adversely any specific legacy; (ii) no appropriation shall be made for the benefit of a person absolutely and beneficially entitled in possession without his consent, nor for the purpose of a continuing trust without the consent of either the trustees thereof (not being the personal representatives themselves) or the person for the time being entitled to the income thereof, unless the person whose consent is so required is a minor or of unsound mind, in which case consent on his behalf by his parent or guardian (if any) or by the manager of his estate (if any) or by the Court shall be required.” {Emphasis supplied} And who is deemed a personal representative in the context of section 82 of the Law of Succession Act? Under section 3 of the Law of Succession Act, a “personal representative” means “executor or administrator of a deceased person”. (48) And who then is deemed an administrator in the context of section 3 of the Law of Succession Act? Section 3 of the Law of Succession Act defines an administrator to mean “a person to whom a grant of letters of administration has been made under this Act.” (49) Section 53 of the Law of Succession Act provides for diverse forms of grants. It reads as follows: “A Court may—(a) where a deceased person is proved (whether by production of a will or an authenticated copy thereof or by oral evidence of its contents) to have left a valid will, grant, in respect of all property to which such will applies, either— (i) probate of the will to one or more of the executors named therein; or (ii) if there is no proving executor, letters of administration with the will annexed; and (b) if and so far as there may be intestacy, grant letters of administration in respect of the intestate estate.” Section 54 of the Law of succession Act confers discretionary jurisdiction on a Court to limit a grant of letters of administration contemplated by section 53 (b) of the Act. It provides as follows: “A Court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act.” (50) Section 66 of the Law of Succession Act provides for an order of preference which the Court must consider when faced with an Application (51) Page 19 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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for grant of letters of administration. The section provides: “When a deceased has died intestate, the Court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference— (a) surviving spouse or spouses, with or without association of other beneficiaries; (b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V; (c) the Public Trustee; and (d) creditors: Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.” If a person approaches a Court to enforce a cause of action which survived for the benefit of the estate of the deceased person under the Law Reform Act, then the person must approach the Court in his/her capacity as personal representative of the deceased. Put differently, a claim contemplated by the Law Reform Act (that is to say, a claim which would have otherwise been maintained by the deceased had he/she been alive), can be maintained by a personal representative under section 82 (a) of the Law of Succession Act, read together with section 3 thereof, which empowers a personal representative (that is to say a person who has obtained letters of administration, whether limited or otherwise) to enforce, by suit, all causes of action which, by virtue of any law, survive the deceased. It should be noted that other claims which would not have been maintained by the deceased had he/she been alive, do not require letters of administration. Such claims include claims under the Fatal accidents which are usually maintained by the beneficiaries in their own and independent right as such. (52) It was in Trouistik Union International & another v Mbeyu & another (Civil Appeal 145 of 1990) [1993] KECA 89 (KLR) (19 October 1993) (Judgment), where the Court of Appeal, while concurring with the Appellants, held that under the Law Reform Act, the Respondents having approached the Court in their capacity as personal representatives (unlike the Fatal Accidents Act where they were viewed as dependants) should have obtained letters of administration before commencing the suit. See also Mbaya Nzulwa vs. Kenya Power & Lighting Co. Ltd (2018) eKLR, where the Applicants were allowed to revive and substitute the deceased parties after obtaining a Limited Grant of Letters of Administration Ad Litem. See also Geoffrey Mwangi Kihara vs. Mwihoko Housing Company Ltd & 3 others (2015) eKLR; Loice Wanjiru Meru & 3 others vs. John Migui Meru (2017) eKLR, et alia. (53) In this matter, the Plaintiffs held themselves out as sons of the late Edward Kiplagat Soy and the late Rebecca Soy. In the context of section 66 of the Law of Succession Act, they are entitled to take out a Grant of Letters of Administration. (54) Page 20 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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The Plaintiffs exhibited an Amended Certificate of Confirmation of Grant in respect to the estate of Edward Kiplagat Soy (only), marked SK-I. Upon considering this objection and the written submissions argued to bolster the objection, all in the context of the Plaint where the capacity of Plaintiffs Steven Kipkurui Soy and Benjamin Lagat is described in the Citation section as “suing on behalf of the estate of Edward Kiplagat Soy & Rebecca Soy” and upon subjecting the foregoing to the said Amended Certificate of Confirmation of Grant in respect to the estate of Edward Kiplagat Soy (only) and which on the face of it was issued on 20th June 2011, in which the four Administrators of the estate of Edward Kiplagat Soy (only) are named as: “(1) Rebecca Chepkemboi Soy; (2) Bernard Kipyegon Langat; (3) Steven Kipkurui Soy; and (4) Peter Kipkosgei Langat”; and although one of the Plaintiffs namely Steven Kipkurui Soy is named as one of the four Administrators of the estate of Edward Kiplagat Soy, no appropriate Grant has been exhibited to have been issued to Steven Kipkurui Soy and Benjamin Langat in relation to the estate of Rebecca Soy was exhibited; and no appropriate Grant has been exhibited to have been issued to Benjamin Langat in relation to the estate of Edward Kiplagat Soy. (55) Put differently, whereas Benjamin Langat has exhibited no Grant in respect to estate of Edward Kiplagat Soy, both Plaintiffs (Steven Kipkurui Soy and Benjamin Langat) have exhibited no joint Grant in respect to the estate of Rebecca Soy. Since the suit is filed on behalf of two estates, it follows that the Plaintiffs have exhibited no joint Grant issued to them, in respect to both estates of Edward Kiplagat Soy and Rebecca Soy. (56) It follows that: (i) Benjamin Langat lacks locus standi to bring this action on behalf of both the estate of Edward Kiplagat Soy and the estate of Rebecca Soy, on account of not being a personal representative of Edward Kiplagat Soy (deceased) and Rebecca Soy (deceased); and (ii) Steven Kipkurui lacks locus standi to bring this action on behalf of the estate of the estate of Rebecca Soy, on account of not being a personal representative of Rebecca Soy (deceased). (57) Equally important, it will be remiss of this Court if I do not underscore that granted the fact that the Plaintiffs’ locus standi is the core challenge, it runs deep into the root of jurisdiction of this Court in which case it cannot find reprieve and absolution in the fifth, sixth, seventh, eighth and ninth principles discussed under Question (i) above. (58) Accordingly, this Court reaches a conclusion that both Plaintiffs lack locus standi to bring this action on behalf of the estate of Edward Kiplagat Soy and the estate of Rebecca Soy. (59) (f) Whether this suit offends the doctrines of sub judice or res judicata, considering the Succession Cause Number 165 of 2005, in the matter of the Estate of Elizabeth Jepchoge Sirma Page 21 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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Upon considering the Preliminary Objection plus the written submissions in this connection, this Court finds them equivocal and imprecise. In both the Preliminary Objection and the said Submissions - in circumstances where the Plaintiff neither admitted nor acknowledged the Objector’s assertions in this regard - this Court was provided with scanty material, insufficient to properly contextualize the objection in order to render justice expecte by the oxygen principle. It’s instructive to underscore that beyond merely referencing Succession Cause Number 165 of 2005, in the matter of the Estate of Elizabeth Jepchoge Sirma, the Objectors did nothing more to provide this Court with the specific question which was determined in the referenced matter as to render the present matter run afoul of both the doctrine of sub judice or res judicata. At the minimum, the Objectors should have provided the pleadings and the resultant determination in the referenced matter. (60) (61) Consequently, this Court finds this objection without merit. (iii) Whether this Application has met the threshold for grant of a temporary injunction Having concluded that the Plaintiffs lack capacity to sue on behalf of the estate of Edward Kiplagat Soy and the estate of Rebecca Soy, on account of not being personal representatives of Edward Kiplagat Soy (deceased) and Rebecca Soy (deceased), this Court cannot determine this merit question. (62) (iv) Which party should shoulder the costs of this Application? The law on costs as I discern it is that first, an award of costs is discretionary. Second, save where costs and interest are compromised, the Court reserves the discretionary power to award. See Morgan Air Cargo Ltd vs. Everest Enterprises Ltd (2014) eKLR, Gikonyo, J. Third, even where a suit has been compromised without including costs in the compromise, the discretion of the Court aforesaid remains unscathed. See Rose Kaume & Another vs. Stephen Gitonga Mbaabu & Another [2016] eKLR, per C. Kariuki, J. (63) How then is this discretion exercised? Discretion is not the same thing as carte blanche. Beacons demarcating how discretion is exercised are as follows: (64) (i) First, discretion ought to be exercised with circumspection and judiciously. See Christopher Kiprotich vs. Daniel Gathua & 5 others [1976] eKLR; Mbogo and Another vs. Shah [1968] EA 93 and Mohindra vs. Mohindra (1953) 20 EACA 56. Speaking of discretion, Lord Halsbury L. C., in the case of Sharp vs. Wakefield [1891] 64 L.T Rep. 180 Ap. Ca.173 held that: “When it is said that something is to be done within the discretion of the authorities, that thing is to be done according to the rules of reason and justice, not according to private opinion, according to law and not humour. It is not to be arbitrary, Page 22 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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vague and fanciful but legal and regular. It must be exercised within the limit to which an honest man, competent to the discharge of his office, ought to confine himself.” In Rooke’s case, 5 Rep. 99b (1598), adverted to in approval by Mativo, J. in Republic vs. Public Procurement Administrative Review Board & 2 others [2018] eKLR, the Court attempted a definition of discretion as follows: “Discretion is a science, not to act arbitrarily according to men’s will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the Constitution entrusted with.” (ii) Second, costs follow the event unless the Court finds a good cause to negate this trajectory. See Cecilia Karuru Ngayu vs. Barclays Bank of Kenya & another [2016] eKLR). In this context, the meaning ascribed to the words “costs shall follow the event” is that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the Defendant or Respondent will bear the costs. See the seminal works of Kuloba, J. (as he then was), Judicial Hints on Civil Procedure 2nd edition at page 99; Dipchem East Africa Limited vs. Karutturi Limited (In Receivership) [2015] eKLR, per Gikonyo, J.; Cecilia Karuru Ngayu vs. Barclays Bank of Kenya & Another (2016) eKLR, per Mativo, J.; and Jasbir Singh Rai & 3 others vs. Tarcholan Singh Rai & 4 others (2014) eKLR, per Mutunga, CJ & P (as he then was) Tunoi, Ojwang and Rawal, SCJJ (as they then were) Ibrahim and Wanjala, SCJJ. (iii) Third, and closely intertwined with the second is that costs should not be used to penalize the losing party but rather to compensate the successful party for the trouble invested in the proceeding or defending the suit. See Joseph Oduor Anode vs. Kenya Red Cross Society [2012] eKLR, per Odunga, J. (iv) Fourth, and also closely connected with the second and third is that the purpose served by an award of costs is guided by the principle restitution in integrum i.e to reimburse the successful party the money expended in the case. See the SCOK decision in Jasbir Singh Rai & 3 others vs. Tarcholan Singh Rai & 4 others (2014) eKLR, per Mutunga, CJ & P (as he then was) Tunoi, Ojwang and Rawal, SCJJ (as they then were) Ibrahim and Wanjala, SCJJ. Page 23 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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(v) Fifth, and too connected to the second, third and fourth beacons is that a successful party should ordinarily be awarded costs unless its conduct is such that it would be denied costs or the successful issue was not attracting costs. See Orix Oil (Kenya) Ltd vs. Paul Kabeu & 2 Others (2014) eKLR; and Morgan Air Cargo Ltd vs. Everest Enterprises Ltd (2014) eKLR, Gikonyo, J. In this Application, the Plaintiffs having demonstrated through Exhibit SK-I, that they were duly cognizant that it is legally obligatory upon them to perfect their legal capacity as personal representatives of the estate of Edward Kiplagat Soy (deceased) and the estate of Rebecca Soy (deceased), before filing this suit but apparently disregarded this legal requirement nonetheless, and having thereby inflicted undue hardship upon the Defendants in terms of costs incurred in both the Plaintiffs’ application and defending the suit, and this being a dispositive Ruling after which there will be no proceedings into which costs can possibly be subsumed, this Court has found no good cause to depart from the general principle that costs follow the cause. (65) It is on this basis that this Court is of the judicial view that it will best serve the interests of administration of justice to further find and hold that the Plaintiffs shall foot the costs of the application, Preliminary Objection and defending this suit. (66) PART X: DISPOSITION On basis of the foregoing principal reason, this Court finds the Preliminary Objection partially successful on the basis that the Plaintiffs lack capacity to sue on behalf of the estate of Edward Kiplagat Soy and the estate of Rebecca Soy, on account of not being personal representatives of Edward Kiplagat Soy (deceased) and Rebecca Soy (deceased), rendering the entire Suit incompetent. (67) Accordingly, the entire Plaintiffs’ Suit is struck out and this file is marked as closed. (68) However, the Plaintiffs are at liberty to lodge the claim afresh after regularization of their capacity to sue accordingly. (69) The Plaintiffs shall foot the costs incurred in both the application, the Preliminary Objection, and defending this suit. (70) Virtually Delivered, Signed and Dated in ELC Eldoret this 16th day of September 2026 …………….………… C.N. Ondieki Judge Page 24 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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In the presence of: Advocate for the Plaintiff: Mr. Bitok Advocate for the 1st, 2nd and 3rd Defendants/Objectors: No Appearance 4th Defendant: Never Entered Appearance Court Assistants: Ms. Chepkoech & Ms. Juma Page 25 of 25 Eldoret ELCLC E018 of 2026 - CNO(R)

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