Kithee & 106 others v Ngelani Pioneer Society aka as Ngelani Pioneer Welfare Society & 12 others

NATION MEDIA GROUP STAFF RETIREMENT BENEFIT SCHEME................................................6TH DEFENDANT STEPHEN GITAGANA..............................7TH DEFENDANT LINUS GITAHI........................................8TH DEFENDANT MWIKALI MUTHIANI...............................9TH DEFENDANT JAINDI KISERO.....................................10TH DEFENDANT KENNETH MUOKI.................................11TH DEFENDANT LAND REGISTRAR, MAVOKO.................12TH DEFENDANT THE HONOURABLE ATTORNEY GENERAL13TH DEFENDANT RULING Introduction 1. Before the Court are two applications. The first is the Chamber Summons dated 2nd February 2026 filed by the Plaintiffs seeking leave to amend the Plaint and to regularise the manner in which the proceedings are prosecuted. The second is the Notice of Motion dated 8 th July 2026 by the 6th Defendant seeking a stay of these proceedings pending the hearing and determination of Machakos ELC No. 37 of 2018; Dominic Katua Nzioka & Others v Ziba Trustees Limited & 2 Others. ELCLC E055/2024 RULING 2

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2. The two applications raise different questions and will therefore be considered separately. I shall first determine the 6th Defendant's application for stay and thereafter the Plaintiffs' application for amendment. The 6th Defendant's Notice of Motion dated 8th July 2026 3. The 6th Defendant proceedings in this seeks an order suit pending staying the further hearing and determination of Machakos ELC No. 37 of 2018. The Application is brought under sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules and the other enabling provisions of the law. 4. The application seeks the following orders: a) THAT this Honourable Court be pleased to certify this application as urgent and to allocate it a hearing date on a priority basis. b) THAT this Honourable Court be pleased to issue an order staying further proceedings in this suit ELCLC E055/2024 RULING 3

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pending the hearing and determination of Machakos ELC No. 37 of 2018; Dominic Katua Nzioka & Others vs Ziba Trustees Limited & 2 Others (ELC Case No. 37 of 2018). c) THAT the costs of this application and the suit be provided for. 5. The Application is supported by the grounds appearing on its face and the Supporting Affidavit sworn by Sekou Owino on 8th July, 2026. The 6th Defendant's case 6. The 6th Defendant's case is that the present suit concerns portions of L.R. No. 24605/2, formerly L.R. No. 225330, Mavoko Municipality, Machakos County, which shall hereafter be referred to as "the suit property". 7. The 6th Defendant contends that the Plaintiffs claim to have acquired their respective portions from members of the 1 st Defendant, Ngelani Pioneer Society, also known as Ngelani ELCLC E055/2024 RULING 4

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Pioneer Welfare Society. It is further contended that members of the 1st Defendant are plaintiffs in ELC No. 37 of 2018, where they claim ownership of the same property by adverse possession. 8. It is therefore the 6th Defendant’s case that the Plaintiffs' claims in the present suit are dependent upon the determination of the earlier proceedings. According to the 6th Defendant, if the claim for adverse possession in ELC No. 37 of 2018 fails, the Plaintiffs' claims herein will equally fail. The 6th Defendant further contends that allowing the two suits to proceed concurrently creates the possibility of conflicting findings and orders concerning the same property. 9. The Applicant consequently invokes the interests of justice, judicial economy and the efficient use of judicial resources. It maintains that no prejudice will be occasioned to any party if the proceedings herein are stayed pending determination of ELC Case No. 37 of 2018. ELCLC E055/2024 RULING 5

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The Plaintiffs' response 10. The Plaintiffs opposed the application through the Replying Affidavit of Ambrose Muthini sworn on 1 st September 2026. They contend that the 6th Defendant has not established the requirements for a stay of proceedings and that the mere fact that the two suits concern the same property does not make them the same proceedings. 11. The Plaintiffs contend that the 6th Defendant’s invocation of sub judice misconceives the purpose of section 6 of the Civil Procedure Act and would turn a procedural safeguard against parallel litigation into a means of indefinitely suspending their right to be heard. They contend that the 6th Defendant has not demonstrated that the Plaintiffs are the same parties as those litigating in ELC Case No. 37 of 2018. 12. The Plaintiffs further contend that they comprise an entire community of more than one hundred residents whose homes, livelihoods and economic interests are ELCLC E055/2024 RULING 6

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directly connected to the suit property. Photographs showing developments on the land have been annexed to the Replying Affidavit. They therefore contend that the effect of the proposed stay would extend well beyond the procedural convenience of the 6th Defendant and would place the Plaintiffs in continuing uncertainty as to their rights and future. 13. The Plaintiffs nevertheless acknowledge a connection between the two suits. They submit that, if the Court considers coordination necessary, consolidation, concurrent hearing or appropriate case-management directions would be more proportionate than bringing their proceedings to a halt. Submissions 14. The Court directed that the application be canvassed by way of written submissions. The 6th Defendant did not file submissions. The Plaintiffs filed written submissions dated 1 st September 2026, although outside the period prescribed by ELCLC E055/2024 RULING 7

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the Court. In the interests of justice, I shall consider the submissions on record. Plaintiff submissions 15. The Plaintiffs submit that the 6th Defendant has not satisfied the threshold for the grant of a stay of proceedings. They rely on the principle that a stay is a grave remedy which interferes with a party's right to have its dispute heard and determined without undue delay. 16. They further submit that the requirements of section 6 of the Civil Procedure Act have not been met because the parties in the two suits are not the same and the Plaintiffs in the present proceedings are not litigating under the same title as the plaintiffs in ELC No. 37 of 2018. 17. The Plaintiffs further contend that, should the Court find sufficient commonality between the proceedings, the appropriate course is to adopt case-management measures ELCLC E055/2024 RULING 8

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that preserve each party's right to have its claim determined. 18. The Plaintiffs accordingly invite the Court to decline the application for stay and allow the present proceedings to move forward, while retaining the power to make appropriate case-management directions in relation to the two suits. Issues for determination 19. Having considered the Notice of Motion, the Supporting Affidavit, the Replying Affidavit, the written submissions and the annexures thereto, the issue for determination is whether the 6th Defendant has established sufficient cause for the present proceedings to be stayed pending the hearing and determination of Machakos ELC No. 37 of 2018. Analysis and determination ELCLC E055/2024 RULING 9

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Whether the threshold for stay of proceedings has been met 20. The 6th Defendant seeks an order staying these proceedings pending the determination of Machakos ELC No. 37 of 2018. The issue for determination is whether the circumstances of the case warrant such an order. 21. The jurisdiction to stay proceedings is discretionary. It may be exercised under the Court’s inherent jurisdiction where the circumstances of the case justify interrupting the ordinary prosecution of the suit. The discretion must, however, be exercised judicially and with due regard to the right of a party to have its dispute determined expeditiously. 22. A stay of proceedings is a grave order because it prevents a party from prosecuting its claim until the event upon which the stay is made has occurred. The Court must therefore be satisfied that there is sufficient cause for taking that step. In the words of Ringera J, (as he then was) ELCLC E055/2024 RULING 10

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in Global Tours & Travels Limited (Nairobi HC Winding Up Cause No. 43 of 2000): - “As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice.....the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, utilization of ELCLC E055/2024 RULING the judicial scarcity time and and optimum whether the 11

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application has been brought expeditiously” (emphasis added) 23. In Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR), Gikonyo J held: “Stay of proceedings should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent.” 24. Similarly, in Al Husnain Motors v Njoroge [2024] KEHC 15213 (KLR), the Court summarized the considerations as follows: “For an order of stay of proceedings to issue the following points of consideration ought to be ELCLC E055/2024 RULING 12

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adhered to: a. Whether the applicant has established that he has a prima facie arguable case; b. Whether the application was filed expeditiously; and c. Whether the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought.” 25. I will therefore consider whether the 6 th Defendant has shown that the present suit is so connected to ELC No. 37 of 2018 that its continued prosecution should await the determination of that suit. 26. The Plaintiffs’ claims, as pleaded, arise from alleged purchases of their respective portions of the Suit Property from members of the 1st Defendant. The 6th Defendant contends that those claims depend upon the 1 st Defendant establishing title to the Suit Property by adverse possession in ELC No. 37 of 2018. ELCLC E055/2024 RULING 13

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27. The basis of the alleged connection between the two suits is therefore apparent from the pleadings before the Court. The earlier suit concerns the claim by members of the 1st Defendant to ownership of the Suit Property by adverse possession. In contrast, the present suit concerns claim by persons who say they acquired portions of that property from those members. The determination of the earlier suit may consequently have a bearing on the rights asserted by the Plaintiffs in the present proceedings. However, that connection does not answer whether the proceedings in the present suit should be stayed. 28. I have perused the Application, the supporting affidavit of Sekou Owino and the annexures thereto. The 6 th Defendant has not demonstrated that the Plaintiffs’ claims can only be determined after the 1 st Defendant’s claim in ELC No. 37 of 2018 has been resolved. The Plaintiffs’ case is founded on alleged purchases from members of the 1 st Defendant. Whether those transactions conferred enforceable rights upon the Plaintiffs, and the nature and ELCLC E055/2024 RULING 14

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extent of those rights, are matters to be determined in the present suit. 29. The fact that the determination in ELC No. 37 of 2018 may affect the determination of some issues in the present suit is therefore different from establishing that the present suit cannot properly proceed until the earlier suit is concluded. The 6th Defendant has established a connection between the two suits, but has not shown that the connection provides sufficient cause to suspend the present proceedings. 30. I also take into account the delay in bringing the application. The present suit was filed in 2024, while the application for stay was filed on 8 th July 2026, approximately two years later. No explanation has been offered for that delay. The delay is therefore a factor that weighs against the exercise of the Court’s discretion to stay the proceedings. ELCLC E055/2024 RULING 15

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31. The 6th Defendant also relies on the possibility of conflicting findings in the two suits. I accept that the two matters concern the same Suit Property and that their determination may involve some common issues. That concern must, however, be considered alongside the fact that the Plaintiffs are not parties to ELC No. 37 of 2018 and have no control over the progress or determination of that suit. Staying the present proceedings would require the Plaintiffs to await the determination of litigation to which they are not parties. 32. The Court must also consider the prejudice likely to result from granting or refusing the stay. The 6 th Defendant has not identified any prejudice arising from the continued prosecution of the present suit which could not be addressed through the ordinary conduct and management of the proceedings. The Plaintiffs, on the other hand, have pleaded that they have been in occupation of the Suit Property since 2004 and have undertaken developments on it. A stay would postpone determination of their claims without the Court ELCLC E055/2024 RULING 16

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having found that those claims cannot properly be heard before ELC No. 37 of 2018 is concluded. 33. I have also considered the Plaintiffs’ submission that appropriate directions may be made concerning the conduct of the two suits if the Court considers that necessary. I do not need, for purposes of the present application, to determine what particular case-management measures may ultimately be appropriate. It is sufficient to observe that the possibility of common issues arising in two suits does not, in the circumstances before the Court, justify bringing the present proceedings to a halt. 34. Having considered the connection between the two suits, the nature of the Plaintiffs’ claims, the delay in bringing the application and the respective prejudice to the parties, I am not satisfied that the 6 th Defendant has shown sufficient cause for staying the present proceedings pending the determination of ELC No. 37 of 2018. The Notice of Motion dated 8th July 2026 is therefore dismissed. ELCLC E055/2024 RULING 17

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The Chamber Summons dated 2nd February 2026 30. I now turn to the Plaintiffs' Chamber Summons dated 2nd February 2026. The application is brought under Order 1 Rules 9 and 10, Order 8 Rule 5, and Order 24 Rules 3, 4, 5 and 6 of the Civil Procedure Rules and the other enabling provisions of the law. 31. The Plaintiffs seek the following orders: a) THAT the applicants be granted leave to amend plaint as set out in the draft amended plaint annexed thereto. b) THAT this Court be pleased to grant an order to amend the plaint allowing regularization of parties. c) THAT the draft amended plaint attached to the application be deemed as duly filed and served, upon payment of requisite court fees. d) THAT costs be in the cause. ELCLC E055/2024 RULING 18

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32. The application is supported by the affidavit of Louis A. Otwani, one of the Plaintiffs. The Plaintiffs explain that, before instituting the suit, they had commenced the process of registering a society which was intended to provide an umbrella through which members of the community could conduct their affairs. 33. According to the Plaintiffs, the registration process took longer than anticipated. They consequently instituted the present proceedings in their individual names while the registration process was still underway. 34. The evidence before the Court shows that Morans Annex Residents Katani Association was registered under the Societies Act on 9 th October 2024. The present suit however, had already been instituted on 19th July 2024. 35. The proposed Amended Plaint describes the Plaintiffs as: ELCLC E055/2024 RULING 19

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"LOUIS A. OTWANI & 101 OTHERS suing on their behalf and on behalf of MORANS ANNEX RESIDENTS KATANI ASSOCIATION." 36. The Plaintiffs submit that the proposed amendment does not introduce a new dispute, a new parcel of land or a new cause of action. Their position is that the amendment merely places the proceedings under the umbrella of the Association which, was subsequently registered. 37. The 6th Defendant opposed the application through Grounds of Opposition dated 15th July 2026. Its major objection is founded on Order 8 Rule 3(4) of the Civil Procedure Rules. It is contended that the Plaintiffs cannot amend the Plaint to assume a representative capacity in respect of an Association which was subsequently registered. 38. The 6th Defendant relies on Esther Muthoni Wanyoike (Suing as Administrator of Stanley Kariuki ELCLC E055/2024 RULING 20

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Njau) v Catherine Muthanji Kariuki [2022] KEELC 589 (KLR) and Kabiru v Industrial Commercial Development Authority & another [2023] KECA 363 (KLR) for the proposition that an amendment to change the capacity in which a party sues is irregular and bad in law if it seeks to confer a capacity that did not exist at the time of filing suit. It is further contended that the proposed amendment would occasion substantial prejudice to the Defendants as it would require them to defend an irregular suit instituted by a party that lacked the requisite legal capacity to sue at the time the suit was filed. Issues for determination 39. The issue for determination is therefore whether the proposed amendment is permissible under Order 8 of the Civil Procedure Rules. Analysis and Determination ELCLC E055/2024 RULING 21

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40. There is no dispute that the Court has a broad power to permit amendments. The power of the Court to permit amendment of pleadings is conferred by Order 8 Rule 3 of the Civil Procedure Rules, which empowers the Court, at any stage of the proceedings and on such terms as to costs or otherwise as may be just, to allow a party to amend his pleadings. 41. The power is complemented by the general provision in Order 8 Rule 5, which permits the Court, for the purpose of determining the real question in controversy between the parties or correcting any defect or error in the proceedings, to order the amendment of any document in such manner as it may direct. The two provisions are therefore material to the Court’s consideration of the present application. 42. Order 8 rule 3 provides: “3. Amendment of pleading with leave ELCLC E055/2024 RULING 22

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(1) Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the Court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings. (2) Where an application to the Court for leave to make an amendment such as is mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the Court may nevertheless grant such leave in the circumstances mentioned in any such subrule if it thinks just so to do. (3) An amendment to correct the name of a party may be allowed under subrule (2) notwithstanding that it is alleged that the ELCLC E055/2024 RULING 23

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effect of the amendment will be to substitute a new party if the Court is satisfied mistake sought to be that the corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued. (4) An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under subrule (2) if the capacity in which the party will sue is one in which at the date of filing of the plaint or counterclaim, he could have sued. (5) An amendment may be allowed under subrule (2) notwithstanding that its effect will be to add or substitute a new cause of ELCLC E055/2024 RULING 24

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action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.” 43. Order 8 rule 5 provides: “5. General power to amend (1) For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the Court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just. ELCLC E055/2024 RULING 25

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(2) This rule shall not have effect in relation to a judgment or order.” 44. It is apparent from the foregoing provisions that the Court is vested with a wide discretion to allow amendments to pleadings at any stage of the proceedings and upon such terms as to costs or otherwise as may be just. The discretion is directed towards enabling the Court to determine the real questions in controversy between the parties and to correct defects or errors in the proceedings where the interests of justice so require. The power is wide, but not unlimited. Where the Rules prescribe a particular condition for the allowance of an amendment, that condition must first be satisfied. 45. The principles governing the exercise of that discretion were subsequently restated by the Court of Appeal in Central Kenya Ltd v Trust Bank Ltd & 5 others [2000] eKLR. The Court stated thus: ELCLC E055/2024 RULING 26

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“The settled rule with regard to amendment of pleadings has been concisely stated in Vol.2, 6th Ed. at P.2245, of the AIR Commentaries on the Indian Civil Procedure Code by Chittaley and Rao, in which the learned authors state: "that a party amendments is as allowed to make such maybe necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is affected and that the amendment can be allowed without injustice to the other side.” 46. The principles were comprehensively restated by the Court of Appeal in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited [2013] eKLR, drawing from Bullen and Leake & Jacob’s Precedents of Pleadings, 12th Edition, and the ELCLC E055/2024 RULING 27

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Court’s earlier decision in Joseph Ochieng & 2 others v First National Bank of Chicago, Civil Appeal No. 149 of 1991. The Court stated that the power to amend pleadings is exercised on the following principles: a) The power of the court to allow amendments is intended to determine the true substantive merits of the case; b) The amendments should be timeously applied for; c) power to so amend can be exercised by the court at any stage of the proceedings (including appeal stages); d) that as a general rule, however late, the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side; e) that the proposed amendment must not be immaterial or useless or merely technical; ELCLC E055/2024 RULING 28

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f) that if the proposed amendments introduce a new case or new ground of defence it can be allowed unless it would change the action into character one which of a could substantially more different conveniently be made the subject of a fresh action; g) that the plaintiff will not be allowed to reframe his case or his claim if by an amendment of the plaint the defendant would be deprived of his right to rely on Limitation Acts.” 47. I now turn to the nature of the amendment sought. The Plaintiffs seek leave to amend the Plaint and to regularise the parties. The proposed Amended Plaint describes the Plaintiffs as “Louis A. Otwani & 101 Others suing on their behalf and on behalf of Morans Annex Residents Katani Association.” The original Plaint, filed on 19th July 2024, describes the Plaintiffs in their individual names. The amendment would therefore introduce a representative capacity in which the Plaintiffs did not originally sue. ELCLC E055/2024 RULING 29

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48. The proposed amendment alters the capacity in which the Plaintiffs sue and therefore falls within Order 8 Rule 3(4) of the Civil Procedure Rules. The question is whether, at the time the suit was instituted, the 49. Plaintiffs could have sued in the capacity which they now seek to introduce. 50. The Association was registered on 9th October 2024, whereas the suit was filed on 19th July 2024. The representative capacity now proposed was therefore not available to the Plaintiffs when the suit was instituted. They could not at that date have sued on behalf of the Association described in the proposed Amended Plaint. 51. The Plaintiffs' own evidence confirms this. In his Supporting Affidavit, Louis A. Otwani states that “at the time of filing the instant suit the applicants were in the process of ELCLC E055/2024 RULING 30

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registering a society.” The registration process had therefore not been completed when the suit was filed. 52. The Plaintiffs submit that the amendment does not introduce a new dispute, parcel of land or cause of action. That does not answer the requirement in Order 8 Rule 3(4) of the Civil Procedure Rules. The provision applies where the proposed amendment alters the capacity in which a party sues and permits such an amendment only where the party could have sued in that capacity when the suit was instituted. That condition was not satisfied in this case. 53. I therefore find that the proposed amendment cannot be allowed under Order 8 Rule 3(4) of the Civil Procedure Rules. The Plaintiffs cannot, by amendment, introduce a representative capacity which was not available to them when the suit was instituted. 54. The prayers for regularization of the parties and for the draft Amended Plaint to be deemed duly filed and served are ELCLC E055/2024 RULING 31

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dependent upon the amendment being allowed. They consequently cannot be granted. 55. Accordingly, the Chamber Summons dated 2 nd February 2026 is dismissed Disposition 56. Having considered the two applications, the affidavits, the Grounds of Opposition, the written submissions and the applicable law, I make the following orders: a) The 6th Defendant's Notice of Motion dated 8 th July 2026 is hereby dismissed. b) The Plaintiffs' Chamber Summons dated 2 nd February 2026 is hereby dismissed. c) The costs of both Applications shall abide the outcome of the suit. Orders accordingly. Delivered and Dated at Machakos this 17th day of September, 2026. ELCLC E055/2024 RULING 32

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HON. J. N. KUYIONI JUDGE 17.09.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Catherine Court Assistant. Mr. Mola Ahenda for the Plaintiff. Ms. Wahinya for the for the 6th Defendant. N/A for the other parties ELCLC E055/2024 RULING 33

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