Ashbrook Limited v The Chief Land Registrar & 8 Others

COUNTY GOVERNMENT OF KWALE…………. …...….9TH RESPONDENT RULING Introduction 1. This ruling is in respect to the Notice of Motion application dated 24 th July 2026 filed by the 9th Respondent. 2. The application is premised under Order 1 Rule 10(2) of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, Section 9 of the Office of the County Attorney Act, 2020. The application seeks the following orders: a. Spent b. Spent c. Spent d. This Honourable Court be pleased to strike out the Petition with costs to the Respondents. e. The costs of this Application to be provided for. 3. The Application is based on the grounds set out therein and supported by the affidavit sworn by the Kisiwa Mohamed Koja on 24th July 2026. The deponent averred: i) That he was the County Solicitor of the County Government of Kwale and was duly authorized to swear the Affidavit on behalf of the 9th Respondent. ii) That the affidavit was sworn in support of the application seeking joinder of the County Government of Kwale as the 9th Respondent, vacation of the hearing date fixed for 30th July 2026 and upon joinder, the striking out of the Petition. iii) That the 9th Respondent was a necessary and proper party to the suit. 2|Page KWALE ELCPET. NO. E004 OF 2024

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iv) That the suit property formed part of land comprised in the original Government lease, mother lease, which commenced in 1914 and expired by effluxion of time in the year 2013. v) That before the expiry of the mother lease, there was a purported extension and renewal of lease effected through the subdivision process. vi) That the legality of the extension and renewal off the lease was challenged before High Court in Mombasa High Court Miscellaneous Civil Application No. 37 of 2002 and that in 2004, the court quashed the extension and renewal of the lease and all consequential acts therein. That the judgment has never been reviewed, stayed, varied or set aside and was thus binding. vii) That after the judgment, the Petitioner’s predecessors did not make a lawful application for renewal of the lease. viii) That upon expiry of the mother lease in 2013 the suit property reverted to the County Government of Kwale. ix) That upon obtaining the necessary approvals, the land was allocated to the 3rd to 8th Respondents and they were thereafter registered as the proprietors of the suit property. x) That the petition was founded upon the purported 50-year lease quashed by the High Court and was an attempt to derive legal rights from an instrument declared unlawful by a Court of competent jurisdiction. xi) That allowing the Petition would undermine the authority of the judgment and offend the doctrine of finality. xii) That the petition was founded upon a detective root of title and incapable of succeeding in law and that the Court was bound by the Supreme Court’s precedent in Dina Management Limited V County Government of Mombasa & 5 Others (2023) to that effect. 3|Page KWALE ELCPET. NO. E004 OF 2024

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xiii) That entertaining the petition would undermine certainty in the law and the finality of judicial decisions. xiv) That the petition raised questions relating to ownership of land, validity of title, cancellation of title and rectification of the Land Register which ought to be properly ventilated through an ordinary land suit and not by way of constitutional petition. xv) That if the Petitioner suffered any loss from the acquisition of the suit property, such a remedy lay against the persons who sold the land to it. xvi) That if the Petitioner conducted due diligence, it would have discovered the judgment which nullified the lease it relies on. 4. On 30th July 2026 when the matter came up for hearing, Counsels compromised prayer 3 of the 9th Respondent’s application seeking joinder in the suit. That prayer was therefore granted and the was 9th Respondent joined as such. The application proceeded to hearing in respect to prayers 4 and 5, seeking striking out of the petition and costs of the application. 5. The Petitioner opposed the application vide Replying Affidavit sworn on 26 th August 2026 by Niraj Shah Patel. He averred: i) That he was a shareholder and director of the Petitioner, duly authorized to swear the affidavit. ii) That the application was frivolous and an abuse of the Court process. iii) That striking out of suit was a draconian measure that could only be taken in the clearest of circumstances, none of which existed therein. The issues raised by the 9th Respondent required examination of evidence, cross examination of witnesses and full analysis of the history of the suit property, which could not be determined in a summary manner. 4|Page KWALE ELCPET. NO. E004 OF 2024

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iv) That despite the 9th Respondent relying on a 2004 judgment in seeking to have the petition dismissed, he failed to annex it. The Petitioner only received an uncertified copy upon requesting the 9th Respondent to share a copy of the judgment. v) That they made attempts to trace the judgment and the court file from the High Court in Mombasa to no avail. The registry informed them that the file could not be traced and as such, it could not authenticate or certify the judgement thereof. vi) It was further deponed that without prejudice to the foregoing, the judgment did not establish that the Petitioner’s title was invalid. That the judgment was a result of a judicial review against leases issued in 2002 to Colonial Development Corporation whereas the Petitioner’s tittle related to the lease dated 10th March 2006. That there was no proof that the judgment considered the same leases as those before this Court. That the Petitioner was not a party to the 2002-2004 proceedings. That the Court confined itself to the legality of the administrative process of granting the 50-year lease term and refused to determine the question of ownership. vii) That the Petitioner was the registered proprietor of the suit property, Kwale/Diani Beach Block/1352 having purchased and acquired it legally and after conducting due diligence and obtaining the requisite consent and clearances from the 9th Respondent. viii) That the contention that the suit ought to be instituted as an ordinary civil suit did not provide a basis for striking out the suit. That the Court should consider the predominant purpose of the proceedings which was deponed to be to seeking a redress for violation of the Petitioner’s rights emanating from interference with the its property. 5|Page KWALE ELCPET. NO. E004 OF 2024

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ix) That the issues as to whether the Petitioner has a valid title, whether the 2004 judgment applied to the suit property, whether the registration of the 3 rd to 8th Respondent in 2024 was lawful and whether the suit property reverted back to the Applicant were questions of facts which require examination of evidence. x) That it was in the interest of justice that the petition proceeds to hearing for determination of the disputed issues on their merits. xi) That the application for striking out ought to be dismissed with costs. Submissions by parties Petitioner’s submissions 6. The Petitioner’s filed their submissions to the application dated 28th August 2026. 7. The submissions reiterated the contents of the replying affidavit asserting that in the absence of authentication and certification of the 2004 judgment, the Court could not properly rely on the judgment to make adverse findings against the Petitioner. That doing so would be prejudicial to the Petitioner and inconsistent with the requirement for fair hearing. 8. It was further submitted that the 9th Respondent had not met the threshold for striking out of the petition. They submitted that the petition raised a concrete dispute capable of judicial determination as it identifies the suit property, the impugned transaction, the Respondents, the constitutional provisions relied upon, the alleged violation and the specific reliefs sought. 9th Respondent’s submissions 6|Page KWALE ELCPET. NO. E004 OF 2024

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9. At the time of writing this Ruling, the 9 th Respondent had not filed its submissions, despite the lapse of the timelines granted by the Court for compliance. Issues for determination 10.I have carefully read and considered the Application dated 24 th July 2026, the Replying Affidavit, the submissions and the relevant legal provisions. 11.The Court distills the following issue for determination: i) Whether the 9th Respondent has made a case to strike out the Petition. ii) Who bears the costs of the application? Analysis and Determination Whether the 9th Respondent has made a case to strike out the Petition. 12. The 9th Respondent’s application seeks to strike out the Petition on two main grounds. First, it is contended that the Petition is founded on a lease which was quashed by the High Court in Mombasa High Court Miscellaneous Civil Application No. 37 of 2002. Secondly, it is contended that the Petitioner’s claim ought to have been ventilated through an ordinary civil suit rather than by way of a constitutional petition. The Court shall therefore consider whether the grounds advanced by the 9 th Respondent warrant the striking out of the Petition. 13. Although the 9th Respondent has not expressly invoked Order 2 Rule 15 of the Civil Procedure Rules which provides for striking out of pleadings, the Court is required to consider the substance of the application and determine whether the grounds advanced disclose a legal basis for the relief sought. 7|Page KWALE ELCPET. NO. E004 OF 2024

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14. Order 2 Rule 15 of the Civil Procedure Rules, 2010 provides thus: Striking out pleadings [Order 2, rule 15.] (1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that— (a) It discloses no reasonable cause of action or defence in law; or (b) It is scandalous, frivolous or vexatious; or (c) It may prejudice, embarrass or delay the fair trial of the action; or (d) It is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be. (2) No evidence shall be admissible on an application under subrule (1)(a) but the application shall state concisely the grounds on which it is made. 15. The Court’s power to strike out pleadings is discretionary and must be exercised judiciously, having regard to the circumstances of each case. The Court of Appeal, in the locus classicus case of DT Dobie & Company (Kenya) Ltd v Muchina & another [1980] KECA 3 (KLR) rendered itself as follows: “13. The court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof, before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the court. At this stage the court ought not to deal with any merits of the case for that 'is a function solely reserved for the judge at the trial as the court itself is not usually fully informed so as to deal with the merits "without discovery, without oral evidence tested by crossexamination in the ordinary way". (Sellers, L.J. (supra)). As far as possible, indeed not at all, there should be no opinions expressed upon the 8|Page KWALE ELCPET. NO. E004 OF 2024

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application which may prejudice the fair trial of the action or make it uncomfortable or restrict the freedom of the trial judge in disposing of the case in the way he thinks it right. 14.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. 15.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.” 16.Similarly, in the case of Crescent Construction Co. Ltd v Delphis Bank Ltd (2007) eKLR the Court of Appeal stated thus: “However, one thing remains clear, and that is that the power to strike out a pleading is a discretionary one. It is to be exercised with the greatest care and caution. This comes from the realization that the rules of natural justice require that the court must not drive away any litigant however weak his case may be from the seat of justice. This is a time-honoured legal principle. At the same time, it is unfair to drag a person to the seat of justice when the case purportedly brought against him is a non-starter.” 9|Page KWALE ELCPET. NO. E004 OF 2024

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17. The 9th Respondent contends that the Petition ought to be struck out on the ground that it is founded on a lease which was quashed and set aside in Mombasa High Court Miscellaneous Civil Application No. 37 of 2002. It is argued that allowing the Petition to proceed to hearing would undermine the authority of the judgment in the former proceedings and the doctrine of finality of litigation. The 9th Respondent further contends that, where the root of title is challenged, the holder of the title must prove legality of its acquisition. It is argued that since the Petitioner’s title traces its origin to the impugned lease, it is incapable of succeeding in law. 18.It is trite that a party who asserts the existence and legal effect of an earlier judgment bears the burden of establishing its existence, contents and relevance to the present proceedings. Sections 107, 108 and 109 of the Evidence Act place the burden of proof upon the party who asserts the existence of a fact and, where necessary, its legal effect. 19.In determining whether the alleged earlier judgment has the effect of invalidating the present petition, rendering it a non-starter and a subject for striking out, the Court has to examine the material placed before it, including the pleadings, the parties, the issues, the reliefs sought, the judgment and the final orders in the former proceedings. In essence, the court would be setting out to establish whether the earlier proceedings concerned the same subject matter, whether the Petitioner or its privy was a party, what issues were directly and substantially determined, and the terms and legal effect of the final order. 20.In the present application, the 9th Respondent has not placed before the Court the pleadings, judgment, decree or proceedings in the alleged former suit. It was therefore 10 | P a g e KWALE ELCPET. NO. E004 OF 2024

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incumbent upon the 9th Respondent to discharge and surmount the burden of proof as envisioned by Sections 107, 108 and 109 of the Evidence Act. The mere assertion that the lease was quashed and set aside does not, without proof of the judgment and its terms, form a lawful basis of striking out the pleadings herein. 21.Given that no certified copy or authenticated record of the decision has been placed before the Court, the court is unable to ascertain whether the earlier proceedings concerned the same leases and properties; whether the Petitioner or its privy was a party; what issues were directly and substantially determined; whether the former court was competent to determine those issues; the terms of the final order; or whether the judgment remains operative. 22.In the circumstances, the Court cannot determine the legal effect of the alleged judgment or whether it renders the present Petition untenable. The first ground of the application therefore fails for want of proof. 23.It follows that the question whether the Petitioner’s title was lawfully acquired is a matter of fact and law, which cannot be conclusively determined at this preliminary stage without examining the evidence relating to the root of title. The Supreme Court’s decision in Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), as relied upon by the 9 th Respondent, underscores the importance of establishing the legality of the acquisition of title where the root of title is challenged. The application of that principle to the present dispute requires probing of the evidence. 24.The 9th Respondent further contends that the Petition raises substantive questions relating to ownership of the land, validity of title, cancellation of title and rectification 11 | P a g e KWALE ELCPET. NO. E004 OF 2024

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of the Land Register, which ought to have been ventilated through an ordinary civil suit rather than by way of a constitutional petition. The Petitioner, on the other hand, maintained that the predominant purpose of the suit was to seek redress for violation of its constitutional right to property arising from the alleged unlawful registration of the 3rd to 8th Respondents as proprietors of the suit property. 25.Essentially, the 9th Respondent seeks to invoke the doctrine of constitutional avoidance. The doctrine provides that where a dispute may properly and adequately be resolved through an existing statutory or other legal framework, the Court ought to determine the matter on that basis before resorting to constitutional adjudication. In Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR) the Supreme Court held that: “The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.” 26. The Supreme Court in Janmohammed (SC) (Suing as the Executrix of the Estate of the Late HE Daniel Toroitich Arap Moi) & another v District Land Registrar Uasin Gishu & 4 others [2024] KESC 39 (KLR) considered the argument that proceedings therein ought to have been commenced by way of an ordinary civil suit rather than a constitutional petition and observed that such an issue relates to the procedure through which that jurisdiction was invoked, and not the jurisdiction of the Court. The Court further recognized that even where such an objection succeeds, it does not necessarily follow that the proceedings must be brought to an end with finality. 27. In this case, it is apparent that the Petition raises two related but distinct issues. The first concerns the proprietary interests in the suit property and the circumstances under 12 | P a g e KWALE ELCPET. NO. E004 OF 2024

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which the 3rd to 8th Respondents were registered as proprietors. The second issue is whether the Petitioner’s constitutional rights were violated in the registration of the 3 rd to 8th Respondents and thereafter. The first issue is capable of determination under the ordinary land registration framework, while the second may be considered to the extent that the facts and applicable law require. 28. That notwithstanding, the issue before this Court at this stage is whether the manner in which the Petitioner has invoked the jurisdiction of this Court is so fundamentally defective to warrant striking out the Petition. I am not persuaded that it is. The Petition alleges that the Petitioner was unlawfully deprived of its property and invokes, among other provisions, Article 40 of the Constitution. Whether those allegations will ultimately be established is a matter for determination upon examination of evidence. At this stage, it cannot be said that the constitutional complaints are merely cosmetic or that the Petition discloses no constitutional issue whatsoever. 29. The reliefs sought by the Petitioner are reliefs which this Court is competent to consider in the exercise of its jurisdiction over land disputes. The fact that the Petitioner has coupled those reliefs with constitutional claims does not render the underlying controversy incapable of determination by this Court. 30. Taking into account the allegations of the existence of competing titles, the issue of ownership cannot be properly determined from the pleadings or affidavit evidence, it would require interrogation of evidence. In Mohamed Sheikh Abdullahi & another v National Land Commission & 3 others; Kenya Deposit Insurance Corporation (Receivers of Dubai Bank Kenya Limited) & another (Interested Parties) [2019] KEELC 3102 (KLR), the Court, faced with competing claims to title presented through constitutional proceedings recognized that such disputes may require detailed 13 | P a g e KWALE ELCPET. NO. E004 OF 2024

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evidentiary interrogation, including examination of documents and cross-examination. It held that a full trial was required. The Court invoked the provisions of Article 159 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and Section 3 of the Environment and Land Court Act and ordered that the proceedings therein continue as if the cause had been begun by filing of a plaint. 31. I associate myself with the approach adopted by the Court therein as it avoids elevating the form of the proceedings over their substance. The dispute is already before the Environment and Land Court, which is competent to determine both the underlying land dispute and any constitutional questions properly arising therefrom. Striking out the Petition and requiring the Petitioner to commence a fresh suit would, in the circumstances of the age of the matter, risk occasioning duplication of proceedings without expediting the disposal of the issue in controversy. It would essentially require the parties to return to the same Court to litigate substantially the same issues on the same evidence, albeit under a different procedural form. 32. In the circumstances, the more proportionate course is for the proceedings to continue before this Court, with the Petition and the affidavits filed in support thereof constituting the pleadings for purposes of the determination of the dispute with leave to parties to file further pleadings, witness statements and any relevant evidence for the fair determination of the contested issues. 33. Accordingly, although I find that the dispute is predominantly one concerning legality and validity of title, ownership and registration of land, I do not find the invocation of constitutional jurisdiction, in the circumstances of this case, constitute an incurable procedural defect warranting the striking out of the Petition. 14 | P a g e KWALE ELCPET. NO. E004 OF 2024

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34. In the end, prayer (d) in the 9th Respondent’s Notice of Motion application dated 24th July 2026 fails and is hereby disallowed. 35. Given the nature of the case and taking into account that the Application partially succeeds on the issue of joinder of the 9th Respondent, costs of the application shall be in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT KWALE THIS 22nd DAY OF SEPTEMBER 2026. HON. E.G NDERITU LJ ELC KWALE In the presence of: Mr Makori for the Petitioner Mr Owade for the 3rd to 8th Respondents Ms Mwanahawa for the 9th Respondent 15 | P a g e KWALE ELCPET. NO. E004 OF 2024

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