Njuguna v Chumo

that the Pauline Nyambura Njuguna is the wife of and duly appointed personal representative of the deceased. In the said Supporting Adavit, the facts averred in the Motion were largely rehashed and in addition, the Applicant deponed that they were issued with a Grant of Letters of Administration Intestate in relation to the estate of the deceased on 2nd December 2024 and that the said Application had been made within the statutory period prescribed by the CPR. The following documents were exhibited: (i) a copy of Certicate of Death marked PN-1; and (ii) a copy of the Certicate of Grant of Letters of Administration marked PN-2. 4. On 12th March 2026, the said Application was determined in favour of the Pauline Nyambura Njuguna by my learned senior brother, Hon. Justice E. Washe. 5. Following the said Ruling of my learned senior brother, vide an Amended Plaint dated 14th May 2026 and led on even date, the new Plainti (Pauline Nyambura Njuguna) brought this action against the Defendant primarily seeking Judgement for: 6. i. An order of eviction of the Defendant her servants or agents from the parcel of land known as Uasin Gishu/Kondoo Scheme/ 475; ii. Damages for trespass; and iii. Costs of the suit. This step triggered a Preliminary Objection by the Defendant. Part II:the Defendant’s Preliminary Objection 7. On 26th May 2026, the Defendant/Respondent (hereinafter “the Objector”) led a Notice of Preliminary Objection (hereinafter “the PO”) of even date, on grounds: i. That the Plainti lacks locus standi to bring the suit on behalf of the estate of the deceased as a sole administrator whereas letters of administration intestate of all the estate of Joseph Njuguna Wanyoike were issued to four administrators as per the attached grant; and ii. That by operation of law, Order 24 Rule 3(1) and (2) of the CPR, substitution ought to have been done within one year and there has been unexplained inordinate delay on part of the Plainti despite letters of administration having been issued on 2nd December 2024. 8. It is on this basis that the Objector prays that the suit be struck out for want of jurisdiction with costs to the Defendant. 9. In her written Submissions dated 9th July 2026 and led on the even date, learned Counsel Ms. Muriithi instructed by the Firm of Alwang’a and Company Advocates representing the Defendant, rehashed the substance of the said PO. 10. Regarding the question whether the PO passes the test for a valid PO that it must raise a pure point of law in accordance with the principle in Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696; and Oraro vs. Mbaja 1 KLR 141 and this one has passed the said test arguing that the facts of the Plainti’s death on 7th February 2023 is uncontroverted, citing the copy of Certicate of Death led and the legal consequences of failing to substitute the deceased within the timelines set out under Order 24 Rule 3(2) of the CPR. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5554/eng@2026-09-22 2

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11. As to whether the substitution of the deceased Plainti is valid and or tenable in reviving the case, it is argued that the law governing the death and substitution of parties is set out under Order 24 of the CPR. It is argued that Order 24 Rule 3(2) of the CPR is couched in mandatory terms. It is urged that the Plainti passed away on 7th February 2023 and the one-year window for which his legal representatives or survivors ought to have applied to be substituted lapsed on 7th February 2024 and the grant on record was issued long after the window period lapsed. Learned counsel takes a position that upon expiry of twelve (12) months without an Application for substitution, a suit terminates automatically by operation of law, placing reliance on the decision of the Court of Appeal (hereinafter ‘COA’) in Said Sweilem Gheithan Saanum v Commissioner of Lands & 5 Others [2015] eKLR. 12. Besides, counsel maintains that there is no suit capable of being revived or kept alive since the statutory time limit lapsed without any Application for substitution and that there is legally no suit pending before this Court, citing the COA holding in Mbugua (Suing as the legal representative of the estate of Tabitha Watiri Mbugua) v Gathaiya & Another [2023] eKLR, for this proposition. 13. Further and in the alternative, it was argued that it worth noting that the PO was raised by the Defendant rst orally on 27th January 2026 and remained an issue for determination by the Court on 12th March 2026 when the Court directed that a formal notice be led after dispensation of the Application by the Plainti dated 9th March 2026 seeking to substitute the Plainti and that no leave was sought to extend time for substitution and the same was raised in the Defendant’s replying adavit to the said Application. It is contended that the Plainti only led an amended notice of motion dated 9th March 2026 seeking to add a prayer for extension of time without the leave of Court and it was consequently struck out on 12th March 2026 upon Application by counsel for the Defendant, meaning that there was no leave to substitute the deceased Plainti out of time. 14. On the second limb of the PO, it is the Defendant position that even if substitution of the deceased Plainti was allowed out of time, the substitute lacks the locus standi to prosecute the suit as a sole Plainti when the grant over the estate was issued jointly to four administrators, citing Order 31 Rule 2 of the CPR which stipulates that where there are several executors or administrators, they shall be made parties to a suit against one or more of them, and all such executors or administrators shall join in a suit brought by them. In this connection, it is argued that joint administrators hold a joint oce, placing reliance upon Saoli (Suing on his own Behalf and as an administrator of the estate of Leposo Ole Saoli) & 2 others v Saoli [2023] KEELC 20284; and the COA decision in Zeinab Kahalif Khator & 4 others v Abdulrazak Khalifa Salim & another [2017] KECA 81. In this context, it is contended that if a single administrator les a plaint without enjoining the other three administrators as co-Plaintis (or alternatively, naming them as nominal Defendants if they refuse to join), the suit suers a fatal procedural and substantive inrmity and a non- starter on this account and this Court is urged to so nd. 15. It is on the foregoing basis that this Court is urged to allow the said PO and strike out the suit with costs to the Defendant, to be recovered from the estate of the deceased Plainti pursuant to Order 24, Rule 3(2) of the CPR. Part III: The Plainti ’s Submissions In Relation To The Preliminary Objection 16. In his Submissions dated 8th July 2026 and led on the even date, learned Counsel, Mr. Maina instructed by the Firm of Maina Makome & Company Advocates, argues in relation to the rst objection whether the Pauline Nyambura Njuguna has the locus standi to substitute the deceased in this suit, it is submitted that she is an administrator of the estate of the deceased person and that in that https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5554/eng@2026-09-22 3

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capacity, she has been granted authority to act by the other administrators and that the said authority by the co-administrators was annexed in the Plainti’s further list of documents. 17. Regarding the question whether the PO is competent, it is answered by the learned Counsel that the Defendant’s objection is not founded upon pure points of law. This is because the matter at hand such as whether the administrator herein acted diligently, when succession proceedings commenced, why the grant was issued after the expiry of one year, whether there is sucient reason which existed for the delay and the legal eect of the Court’s earlier order allowing substitution are all matters requiring examination of facts and judicial discretion. Therefore, it’s the Learned Counsel view that the issue cannot be properly be determined through a PO as it oends the principal laid down in Mukisa Biscuit and ought to be dismissed. 18. In respect to the question whether the question of abatement is now spent, it is answered that the Defendant’s objection herein ignores one important fact that upon the Application by the Administrators on the 26th January 2026, the Honorable Court considered the said Application for substitution and allowed the said Application on the 12th March 2026. The said order remains valid and has nether been appealed, reviewed nor set aside. The said order is binding upon the parties. The Defendant herein failed to challenge through the procedure provided by law and therefore the Defendant herein cannot invite the Court to nullify its own decision by way of PO. Regarding the doctrine of nality of judicial decisions, it demands that substituting Court orders remain binding until lawfully set aside. Therefore, if the Defendant was dissatised with the order allowing substitution the appropriate remedy was to lay in an Application for review or an appeal and not through a PO. 19. Regarding the issue whether the delay in substitution has been suciently explained, it is answered in the armative that there existed sucient cause of delay as the deceased Plainti passed away before the determination of the suit and no person possessed legal capacity to continue the proceedings until the estate obtained a Grant of Letters of Administration. The said administrator therefore lacked the locus standi until the Grant was issued. Eventually, the Grant was issued long after the one-year period had lapsed as stipulated under Order 24 Rule 3 and the said delay was not occasioned by indolence or disregard of the law but by the unavoidable legal process involved in succession proceedings. In addition, the administrators could not lawfully le an Application for substitution before acquiring legal authority from the succession Court this would have made the said Application incompetent. 20. It is further submitted that the Court retains the Jurisdiction to revive an abated suit, the Learned Counsel for the Plainti made a reference to Order 24 Rule (7) and armed that the Honorable Court to be guided by the Court of Appeal decision in Swellem Gheithan Saanum v Commissioner of Land & 5 Others (sic). 21. It is submitted that the dispute at hand is a land dispute concerning proprietary rights in regards to article 40 of the Constitution of Kenya and the dispute ought to be determined on evidence rather than technical procedural objections and the issue of substituting parties after the suit has been abated is a procedural question and not a substantive question. The learned Counsel for the Defendant urged the Honorable Court to be persuaded by the decision made in Microsoft Corporation v Mitsumi Computer Garage ltd (2001)- EA Pasticio Lucio Garofalo v Security and Fire Equipment Co (2001) EA 184. In addition, it is submitted that the Defendant has not demonstrated any prejudice arising from the said delay and the said Defendant has always been aware of the dispute and the subject matter remains identiable. Conversely according to the Defendant, allowing the PO would permanently deny the estate an opportunity to prosecute a claim that has already been instituted by the deceased during his lifetime and such an outcome would occasion grave injustices. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5554/eng@2026-09-22 4

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22. Finally, it is submitted that this Court should determine the dispute on its merits in reference to the Court of Appeal (hereinafter ‘COA’) in Philip Chemwolo & Another v Augustine Kubende (sic). It is argued that this PO is devoid of merit since the Court already allowed the substitution of the deceased Plainti with his legal representative and that the order remains valid, binding and unchallenged; and that in this light, the Defendant cannot use a PO as a collateral attack on substituting Court order; the delay in substitution was occasioned by the late issuance of the grant of letters of administration, without which the administrator lacked legal capacity to move Court; and that Order 24 Rule 7(2) of the CPR expressly preserves the Court’s jurisdiction to revive an abated suit upon sucient cause being shown; the Defendant has demonstrated no prejudice, whereas allowing the PO would unjustied deprive the estate of its right to have a land dispute determined on its merit; and the overriding objective under section 1A and 1B of the Civil Procedure Act, together with Article 40, 48, 50 and 159 (2)(d) of the Constitution, favours sustaining the suit and determining the parties rights on the merits rather than on procedural technicalities. 23. This Court is thus urged to dismiss the Defendant PO with costs; nd that the issue of abatement was eectively addressed when the Court allowed the substitution of the deceased Plainti with his legal representatives and the Defendants cannot reopen the legal determination through a PO; and direct that the suit proceeds to hearing on merits. Part IV: Questions For Determination 24. Commending themselves for determination - gleaning from the PO and the rival written Submissions - are ve questions as follows: i. Whether the Defendant’s Objection to the eect that by operation of law, Order 24 Rule 3(1) and (2) of the CPR, substitution of the Plainti ought to have been done within one year and that the suit has consequently abated, has surmounted the test of a Preliminary Objection (as to be sustainable). ii. Whether the Defendant’s Objection to the eect that the Plainti lacks locus standi to bring the suit on behalf of the estate of the deceased as a sole administrator in circumstances where the Grant of Letters of Administration Intestate of all the estate of Joseph Njuguna Wanyoike [deceased] was issued to four administrators, has surmounted the test of a Preliminary Objection (as to be sustainable). iii. If the answer to Question (i) is in the armative, whether by operation of law, Order 24 Rule 3(1) and (2) of the CPR, substitution of the Plainti ought to have been done within one year and that the suit has consequently abated. iv. If the answer to Question (ii) is in the armative, whether the Plainti herein lacks locus standi to bring the suit on behalf of the estate of the deceased as a sole administrator in circumstances where the Grant of Letters of Administration Intestate of all the estate of Joseph Njuguna Wanyoike [deceased] was issued to four administrators, has surmounted the test of a Preliminary Objection (as to be sustainable). v. Which party should bear the costs of this Application? https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5554/eng@2026-09-22 5

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Part V: Analysis And Determination 25. Since Questions (i) and (ii) are joined at the hip, I will tackle them simultaneously. (i) Whether the Defendant’s Objection to the eect that by operation of law, Order 24 Rule 3(1) and (2) of the CPR, substitution of the Plainti ought to have been done within one year and that the suit has thus abated, has surmounted the test of a Preliminary Objection (as to be sustainable); and (ii) Whether the Defendant’s Objection to the eect that the Plainti lacks locus standi to bring the suit on behalf of the estate of the deceased as a sole administrator in circumstances where the Grant of Letters of Administration Intestate of all the estate of Joseph Njuguna Wanyoike [deceased] was issued to four administrators, has surmounted the test of a Preliminary Objection (as to be sustainable) 26. 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 Plaintis/Respondents have been deprived of the right to maintain this action by ling it out of timeline of 12 years limited by section 7 of the Limitation of Actions Act). 27. 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 v Kenya Airways Ltd & 3 others (Application 50 of 2014) [2015] KESC 23 (KLR) (6 May 2015) (Ruling) [hereinafter “the Aviation and Allied Workers case”]; and Oraro vs. Mbaja [2005] 1 KLR 141 [hereinafter “the Mbaja case”]. 28. 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 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.” SCORK has since https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5554/eng@2026-09-22 6

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armed the rendition in the Mukisa case. See for instance the Aviation and Allied Workers case, 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 satised 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 the Mbaja case, 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.” 29. 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. 30. 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 suers 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 rst 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 led before it could not be conveniently tried and determined as led, 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5554/eng@2026-09-22 7

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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.” 31. 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 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 nally 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 adavit evidence which had not been tested in cross-examination. 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 oftenquoted 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 Plainti driven from the judgment seat unless the case is unarguable. Accordingly it is necessary to consider whether or not this Plainti has an arguable case. That is the only question that arises on this appeal.” 32. 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 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 Plainti to be “driven from the Judgment seat” in this way without any Court having https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5554/eng@2026-09-22 8

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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. 33. 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 rmly 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} LR 3 PC 465. bluntly put it: - "One of the rst 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 nally 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 aected is entitled, ex debito justiciae, to have any determination which aects 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 aection: 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5554/eng@2026-09-22 9

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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 eect to the will of the Judge, always for the purpose of giving eect 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 dicult and 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). 34. Ninth, the Court in exercising the discretionary power on striking out a pleading, should bear in mind that if the gist relates to non-compliance 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 Adavit must be led 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 le one verifying Adavit would necessarily lead to the striking out of the suit. In my view, the only suit that would be aected by such omission in the present case is that of the 3rd Plainti. 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 eect 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 eect of rendering a port ion of the Defendant’s Application led earlier on superuous. 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 aect the suit by one of the several Plaintis. 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 Adavit 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. 35. Tenth, an Application to strike out a suit - a PO being one of them - should be brought without undue delay and determined in limine. 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 oending 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 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.” 36. In determining this objection, this Court will be guided by the ten legal principles discussed above. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5554/eng@2026-09-22 10

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37. It is instructive to underscore that during the hearing of the said NTSC, on 26th November 2025, learned Counsel Mr. Maina appeared and explained why the suit should not be dismissed, apparently, to the satisfaction of my learned brother Justice E. Washe, J. who proceeded to dismiss the NTSC. 38. This Court has carefully considered the Defendant's PO to the legal test of POs and the ten legal principles discussed above. This Court must observe that although the question whether a suit has abated by operation of Order 24 Rule 3(2) of the CPR ordinarily raises a pure point of law, this objection extends beyond the mere issue of abatement. 39. The competing positions taken by the Objector and Plainti inevitably call upon the Court to consider not only the legal consequences of abatement under Order 24 Rule 3(2) of the CPR, but also the eect and legal validity of the two subsisting judicial determinations of my learned brother, Justice E. Washe, J., dismissing the Notice To Show Cause (hereinafter “NTSC”) why the suit should not be dismissed; and the one which allowed the Application for substitution of the deceased Plainti, and whether the Court thereby exercised its jurisdiction under Order 24 Rule 7(2) of the CPR to revive the suit. 40. While this Court suers do doubt that a question of abatement under Order 24 Rule 3(2) of the CPR may, in appropriate cases, properly so found a PO, the present objection is distinguishable. The issue before the Court is no longer conned to whether the suit abated by operation of law, but whether the subsequent decision of my learned senior brother allowing substitution validly revived and sustained the suit. 41. Determining that question would necessarily entail an examination of my senior learned brother’s exercise of discretionary power and the legal eect of his subsisting decision, matters that cannot be resolved through a PO, which ordinarily should be a pure question of law. It translates that if this Court entertains the objection in the manner fashioned and urged by the Defendant would, in eect, amount to a collateral attack on a valid judicial decision, the appropriate recourse against which lies in appeal as opposed to PO. Once my learned brother rendered a determination on the NTSC in favour of the Plainti which eectively revived the suit, and any question challenging that decision morphed into an appellate question, eectively placing it beyond the purview of a PO. It follows that this issue cannot be re-opened before a Judge of coordinate jurisdiction in guise of a PO. Put dierently, the Plainti having shown cause why the suit should not be dismissed to the satisfaction of my learned brother Justice E. Washe and further, the Application for substitution having been considered and granted by my learned brother, any challenge launched against the said decision mutated into an appellate question. In re Estate of Kiniti Ndura (Deceased) [2019] KEHC 11426 (KLR) [hereinafter “the Kiniti case”], just like in this case, an Application for substitution of a deceased Plainti was granted and the grant triggered a PO on grounds that the suit had already abated. The HC expressed a judicial view which I nd heavily persuasive that once substitution has been allowed by a Court, an aggrieved party’s remedy lies in either review or appeal, and the substitution cannot be properly challenged through a subsequent PO. Faced with a similar situation - where the Application for substitution was lodged long after the one-year period provided by the law had lapsed and the question was whether the suit had by this time abated and whether the suit was capable of being revived - in Mathenge v Maina & another [2024] KECA 1035 (KLR) [hereinafter “the Mathenge case”], the Respondents conceded to the substitution of the deceased Appellant but later raised a PO that the appeal had abated, the COA held that by implication, the Respondents had agreed to the revival of the suit. I nd the rendition of the COA in the Mathenge case instructive, since the primary question for determination, just like in this case, was “Whether the learned Judge erred in nding that there was no existing suit, for the 1st Respondent to be substituted, on account of abatement.” In answering this question, the COA reasoned that depending on the terms and circumstances of an order, an order permitting substitution and continuation of proceedings may operate as an implied revival of an abated suit. It was reasoned that a Court should https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5554/eng@2026-09-22 11

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consider the substance and eect of the order rather than merely the terminology employed by the Court and whether the order remains valid and binding unless until reviewed, varied, discharged or set aside by a Court of competent jurisdiction. It was nally reasoned that a party cannot elect to treat an existing order as a nullity merely because it considers the order legally erroneous. Similarly, in the decision of the COA in Peter Mbiri Michuki v Samuel Mugo Michuki [2014] KECA 342 (KLR), at paragraph 18, a judicial view was expressed that once a trial Court makes an order reviving the suit that had been led by the deceased Plainti, the revival order operates as an order reinstating the suit. Besides, this Court of the judicial persuasion that the issue of abatement ought to have been raised and prosecuted during the hearing of the NTSC or during the hearing of the Application for substitution since a subsequent challenge cannot surmount the doctrine of res judicata. 42. Turning to question whether the Defendant’s Objection to the eect that the Plainti lacks locus standi to bring the suit on behalf of the estate of the deceased as a sole administrator in circumstances where the Grant of Letters of Administration Intestate of the estate of Joseph Njuguna Wanyoike were issued to four administrators, has surmounted the test of a PO (as to be sustainable), the record reveals that the issue of substitution was placed before the Court through the Notice of Motion dated 26th January 2026 and was conclusively determined vide a Ruling delivered by my learned senior brother, Justice E. Washe, on 12th March 2026, wherein the Court allowed the substitution of the deceased Plainti with one of the four personal representatives of the deceased. This decision is subsisting and binding upon the parties. In the same vein, once my learned senior brother rendered himself on the question of substitution, any challenge levelled against that determination morphed into an appellate question, eectively transcending the narrow boundaries of a pure point of law which must underpin a proper PO. It also follows that the decision of my learned brother cannot be re-opened before me - a Judge of coordinate jurisdiction - in guise of a PO. See the Kiniti case. Besides, this Court of the judicial persuasion that the issue of locus standi of one personal representative instead of the four personal representatives should have been prosecuted on the date of hearing the Application for substitution. Since such a challenge should have been raised during the hearing of the Application for substitution, a subsequent challenge cannot surmount the doctrine of res judicata. 43. In sum, the Defendant's PO eectively invites this Court to interrogate the propriety or otherwise of an existing judicial determination of a Judge of coordinate jurisdiction. Since it is fashioned as a rst appeal, such an inquiry would necessarily require the Court to revisit the factual basis upon which the substitution was allowed, including the explanation for the delay, the legal eect of the grant of letters of administration outside the one-year period, and the exercise of judicial discretion of a Judge of coordinate jurisdiction under Order 24 Rule 7(2) of the CPR. The present PO asks this Court, in substance, to reconsider and nullify the order made on 12th March 2026. That would amount to an indirect or collateral attack upon an existing judicial order. If the Defendant considered that the Court wrongly allowed substitution without a distinct prayer for extension of time or revival, the challenge is appropriate for appeal. A PO is not a substitute for an appeal. Those issues fall outside the narrow connes of a true PO as contemplated in the Mukisa case; the Aviation and Allied Workers case; and the Mbaja case. I accordingly decline the invitation to sit on appeal over or otherwise nullify the order of 12th March 2026 through the present PO. 44. Consequently, this Court nds and holds that the Defendant's PO has failed to surmount the lofty test of a PO, since the issues raised transcend a pure point of law which must underpin a PO. Accordingly, the PO is unsustainable. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5554/eng@2026-09-22 12

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(iii) Whether by Operation of Law, Order 24 Rule 3(1) and (2) of the CPR, Substitution of the Plainti Ought to have been done within one Year and that the Suit has Since Abated 45. Having reached the forgoing conclusion – under Question (i) - that the objection in this regard has failed the test of POs, this substantive question is rendered moot. (iv) Whether the Substituted Plainti Lacks Locus Standi to bring the Suit on behalf of the Estate of the Deceased as a Sole Administrator whereas Letters of Administration Intestate of all the Estate of Joseph Njuguna Wanyoike were Issued to Four Administrators, Including the Current Plainti 46. Having reached the forgoing conclusion – under Question (ii) - that the objection in this regard has failed the test of POs, this substantive question is rendered moot. (v) Which Party should Bear the Costs of this Application? 47. The law on costs as I discern it is that rst, 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. 48. How then is this discretion exercised? Discretion is not the same thing as carte blanche. Beacons demarcating how discretion is exercised are as follows: 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. Wakeeld [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, 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 oce, ought to conne 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 denition of discretion as follows: “Discretion is a science, not to act arbitrarily according to men’s will and private aection: 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.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5554/eng@2026-09-22 13

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49. ii. Second, costs follow the event unless the Court nds 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. 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. Considering that the PO cannot properly so be described as far-fetched, this Court exercises its discretionary power in the direction of ordering that the costs incurred in the PO shall abide the outcome of the main suit. Part VI: Disposition 50. Wherefore: i. The Defendant’s Preliminary Objection dated 26th May 2026 – to the eect that by operation of Order 24 Rule 3(1) and (2) of the CPR, substitution of the Plainti ought to have been done within one year and that the suit has consequently abated - is dismissed. ii. The Defendant’s Preliminary Objection dated 26thMay 2026 – to the eect that the substituted Plainti lacks locus standi to bring the suit on behalf of the estate of the deceased as a sole administrator in circumstances where the Grant of Letters of Administration Intestate of all the estate of Joseph Njuguna Wanyoike [deceased] was issued to four administrators - is dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5554/eng@2026-09-22 14

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iii. The costs of the Preliminary Objection shall abide by the outcome of the suit. iv. Considering the old age of this matter, it shall be set down for mention for Case Management Conference at the earliest on a priority basis. VIRTUALLY DELIVERED, SIGNED AND DATED IN ELC ELDORET THIS 22ND SEPTEMBER 2026 …………….………… C.N. ONDIEKI JUDGE In the presence of: Advocate for the Plainti/Respondent: No Appearance Advocate for the Defendant/Objector: Ms. Muriithi Court Assistants: Ms. Chepkoech and Ms. Juma https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5554/eng@2026-09-22 15

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