Ndungu v Equity Bank Company Ltd & 3 others

5. That the costs of this application and of the suit be awarded to the 1st Defendant. 3. The application is based on the grounds on the face of it and supported by the Adavit of Kingori Kariuki which unfortunately was not led with the rest of the documents. 4. From the grounds the application seeks to discharge ex-parte orders and strike out the Plainti's suit primarily because the Plainti lacks locus standi as a mere beneciary rather than an appointed administrator of the estate of the late Simon Ndung'u Kimani pursuant to Section 82(a) of the Law of Succession Act, rendering the suit incompetent and vexatious. Furthermore, the 1st Defendant asserts that the Plainti engaged in material non-disclosure of critical Rulings from Kiambu Succession Cause No. 30 of 2017 specically prior determinations by Meoli J and Mshila J conrming that the disputed property L.R. No. 13537/979 was legitimately sold by the administrators to benet the estate thereby breaching the duty of utmost good faith required for ex-parte relief, making the current suit res judicata and an abuse of Court process. 5. The Application is opposed vide the Replying Adavit sworn by Douglas Guchu Ndungu who is the Plainti/Respondent dated 2/02/2026. In this Replying Adavit, the Plainti, Douglas Guchu Ndungu, strongly opposes Notice of Motion dated 27/08/2025, asserting his standing as a son and direct beneciary of the late Simon Ndung’u Kimani and relying on a Decree dated 30/11/2004 which annexure “DGN” page 1 to conrm the original state of the estate lands L.R. Nos. 13537/46 and 13537/47 from which the charged suit properties were excised. He maintains that the subdivision process commenced fraudulently without a lawful grant long before succession proceedings were initiated, pointing to a Deed Plan dated 2010 and a Death Certicate dated 17/12/2009 which is annexure “DGN” pages 2–3 as proof that transactions were executed after the deceased's murder in violation of the Law of Succession Act. He further demonstrates that titles were unlawfully issued under the 3rd Defendant's name on 14/12/2018 during ongoing succession proceedings before being transferred to the 2nd Defendant and charged to the 1st Defendant, as evidenced by the title documentation for L.R. No. 13537/979 which is annexure “DGN” pages 4–6, rendering the titles void under Section 26 of the Land Registration Act 2012. 6. To refute claims that he lacks locus standi, the Plainti references his application dated 10/11/2022 in Kiambu Succession Cause No. 30 of 2017 attached as annexure “DGN” pages 7–15 to show he actively challenged this intermeddling, and he cites the Judgment of Meoli, J., dated 24/10/2019 attached as annexure “DGN” pages 16–19 to conrm his undisputed status as a vested beneciary. Addressing the 1st Defendant's reliance on Section 82(a) of the Law of Succession Act, he contends that beneciaries are legally entitled to sue third parties to protect estate assets when the administrators themselves are the perpetrators of fraud, supported by Constitutional protections under Articles 21, 40, 47, 50, and 159, as well as the Ruling of Mshila, J., dated 18/07/2025 attached as annexure “DGN pages 20–29”, which restrained the 4th Defendant for failing to account for sale proceeds and deferred determinations on title revocation pending full accounts. Dismissing arguments of res judicata and material nondisclosure, the Plainti asserts that the underlying succession dispute remains active and sub judice, that the existence of the succession cause and relevant lings were fully disclosed in his suit papers, and that an injunction is urgently needed to prevent an imminent auction that would cause irreparable harm to his inheritance, ultimately praying for the dismissal of the 1st Defendant's application and the extension of the interim orders. 7. Before the Application was heard and determined, the Plainti/ Respondent led the Application dated 30/07/2026. The said application is brought under Articles 27, 40, and 159 of the Constitution of Kenya, 2010, together with Sections 1A, 1B, and 3A of the Civil Procedure Act. Procedural backing https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5701/eng@2026-09-21 2

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is drawn from Orders 40 and 51 of the Civil Procedure Rules, 2010, alongside Rule 15 of the Environment and Land Court (Procedure) Rules, 2014, and all other enabling provisions of the law. 8. The Applicant being the Plainti seeks the following prayers: 1. Spent. 2. That pending the hearing and determination of this application, a temporary injunction do issue restraining the Defendants/Respondents and/or Phillips International Auctioneers or any other auctioneers from advertising, auctioning, or disposing of L.R. Nos. 13537/892 (I.R. 198903) and 13537/979 (I.R. 202675). 3. That pending the hearing and determination of this suit, a temporary injunction do issue restraining the Defendants/Respondents, their agents, servants, auctioneers, or anyone acting through them, from selling, transferring, charging, leasing, auctioning, entering upon, or otherwise dealing with L.R. Nos. 13537/979 (I.R. No. 202675) Original No. 13537/47/14 and 13537/892 (I.R. No. 198903) Original No. 13537/46. 4. That this Honourable Court be pleased to grant a temporary injunction to prevent transfer of the suit premises in favour of the 1st Defendant, further charge, and eviction of the Plainti from the premises pending the hearing and determination of this suit. 5. That this Honourable Court be pleased to make further and appropriate orders that it deems t to grant pending the hearing hereof. 6. That costs of this application be provided for. 9. The Application is based on the grounds of the Application and supported by the Adavit of Douglas Guchu Ndungu sworn on even date. The Applicant elaborates that this application seeks urgent temporary injunctive relief to restrain the Defendants and Phillips International Auctioneers from selling, advertising, transferring, or alienating land parcels L.R. Nos. 13537/892 and 13537/979, which form part of the unnalized estate of the late Simon Ndungu Kimani currently subject to Succession Cause No. 30 of 2017. 10. The Plainti, a lawful dependent of the deceased, asserts that the 3rd and 4th Defendants unlawfully intermeddled with the estate in contravention of Section 45 of the Law of Succession Act by fraudulently subdividing and transferring the suit properties to the 2nd Defendant without a conrmed grant or beneciary consent, who subsequently charged the land to the 1st Defendant. Following an auction notice published in the Daily Nation on 28/07/2025 scheduling a public sale for 5/08/2025, the Plainti moved to Court without delay to preserve the estate, contending that an injunction is necessary because the imminent sale would cause irreparable harm, render the ongoing succession proceedings nugatory, and disinherit the beneciaries, while the balance of convenience heavily favours maintaining the status quo. 11. In this Supporting Adavit, the Plainti, deposes as a lawful dependant and beneciary of the estate of the late Simon Ndungu Kimani, who died intestate on 28/08/2009 as evidenced by the Death Certicate issued on 17/12/2009 as attached annexure “DGN page 1”. He states that at the time of death, the deceased owned land parcels L.R. No. 13537/47 and L.R. No. 13537/46 in Juja, as established by a Court Decree from the Thika Law Courts dated 12/11/2004 attached as annexure “DGN page 2”. The Plainti details how, following the deceased's death, the 3rd and 4th Defendants unlawfully subdivided and transferred L.R. No. 13537/47 (now L.R. No. 202675 / L.R. No. 13537/47/14) to the 2nd Defendant, and similarly subdivided L.R. No. 13537/46 into L.R. No. 13537/892 (I.R. No. 198903) which was registered under Peter Githengu Kariuki and Robert Mungai https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5701/eng@2026-09-21 3

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Kariuki before being sold to the 2nd Defendant, as shown in the respective Certicates of Lease attached as annexure “DGN pages 3–5”. 12. He highlights that these illegal dealings began without any grant of representation, pointing to a Deed Plan dated 6/07/2010 attached as annexure “DGN pages 6–7” created just one year after the deceased's death and long before Succession Cause No. 30 of 2017 was led in Kiambu High Court. He emphasizes that titles were issued in 2016 and 2018 prior to the conclusion of succession proceedings by Judgment on 24/10/2019, constituting unlawful intermeddling under Section 45 of the Law of Succession Act and rendering the titles void under Section 26 of the Land Registration Act 2012. 13. Furthermore, the 2nd and 3rd Defendants subsequently transferred the property to the 1st Defendant pursuant to a deed of variation over a sale agreement dated 5/01/2021 attached as annexure “DGN pages 8–11”. That subsequently the 1st Defendant has now advertised the suit property for public auction through Phillips International Auctioneers, as shown in a Daily Nation newspaper advert dated 28/07/2025 attached as annexure “DGN page 12”. Asserting that he was never consulted nor received any proceeds, the Plainti warns that the pending auction threatens permanent disinheritance and irreparable loss, urging the Court to issue interim restrictions under Section 68(1) of the Land Registration Act to preserve the estate and cancel the unlawful titles pending the outcome of the suit. 14. The 1st Defendant led a Replying Adavit in opposition to the Application sworn on 8/05/2026. In this Replying Adavit, Anastasia Wachira, Senior Manager of Special Assets Management at Equity Bank (Kenya) Limited the 1st Defendant, opposes the Plainti’s injunction application dated 30/07/2025, asserting rst that the Plainti lacks locus standi under Section 82(a) of the Law of Succession Act as a mere beneciary rather than an administrator, as conrmed by the Judgment of Meoli, J., dated 24/10/2019 in Kiambu Succession Cause No. 30 of 2017 attached as annexure “AW-1 pages 1–4”. 15. The deponent details how the bank advanced KES 190,000,000 in credit facilities to Geospatial Engineers and Business Consultant Limited under a facility letter dated 22/12/2021 shown as annexure “AW-1 pages 5–20”, secured by a charge dated 11/02/2022 and attached as annexure “AW-1 pages 21–51” and a deed of assignment of rental income dated 11/02/2022 attached as annexure “AW-1 pages 52–65” over L.R. Nos. 13537/892 and 13537/979, which had both been legally transferred to the 2nd Defendant on 25/01/2021. She explains that the bank subsequently granted additional facilities of KES 50,000,000 via a facility letter dated 23/06/2022 which is also annexure “AW-1 pages 66–81” secured by a further charge dated 20/07/2022 shown as annexure “AW-1 pages 82–108”, followed by a second project nance facility of KES 150,000,000 via a facility letter dated 16/09/2022 attached as annexure “AW-1 pages 109–114”. 16. She further avers that following default on total indebtedness exceeding KES 728,035,933 as of 6/08/2025, the bank issued a formal demand letter dated 11/12/2024 which is annexure “AW-1 page 115”, a 90-day statutory notice under Section 90 of the Land Act 2012 dated 7/01/2025 annexure “AW-1 pages 116–119”, a 40-day notice to sell under Section 96 dated 7/04/2025 with accompanying email receipts as annexure “AW-1 pages 120–124”, and a 45-day redemption notice with notication of sale issued by Phillips International Auctioneers on 28/05/2025 attached as annexure “AW-1 pages 125–138”, receipt of which was acknowledged by the 2nd Defendant in an email dated 3/06/2025 shown as annexure “AW-1 page 139”. The bank also obtained a forced sale valuation report from Hillscape Valuers Limited dated 18/02/2025 which is annexure “AW-1 pages 140–188”. 17. The deponent points out that the 2nd Defendant and Geospatial previously led High Court Commercial Case No. E508 of 2025 as annexure “AW-1 pages 189–200”, where Njoki Mwangi, J., issued a conditional order dated 3/08/2025 annexure “AW-1 page 201” that lapsed when the borrowers https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5701/eng@2026-09-21 4

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failed to deposit KES 5,000,000. Finally, relying on the Ruling of Mshila, J., delivered on 18/07/2025 in Kiambu Succession Cause No. 30 of 2017 annexure “AW-1 pages 202–210”, the deponent emphasizes that the Succession Court already established that the land was legitimately sold to the 2nd Defendant for Kes 23,900,556 and part of the proceeds of Kes 11,400,000 was paid to the 4th Defendant for the second house, meaning the Plainti will not be disinherited by the sale and the 1st Defendant is fully entitled to exercise its statutory power of sale. 18. In this Replying Adavit sworn by Joseph Kimani Ndungu, the 3rd Respondent conrms his capacity as a duly appointed co-administrator of the estate of the late Simon Ndungu Kimani representing the rst house in Kiambu High Court Succession Cause No. 30 of 2017, alongside Valentine Njeri Ndungu, the 4th Respondent representing the second house, which includes the Applicant, Douglas Guchu Ndungu. The 3rd Respondent asserts that distribution of the estate was conclusively nalized by a High Court Judgment delivered on 24/10/2019 as per annexure “JKN 1”, which ordered the sale of the frontage portion of L.R. No. 13537/979 (original No. 13537/47/14) and equal division of the proceeds among all eight beneciaries. 19. Pursuant to that unappealed Judgment, both administrators sold the land to Robinson Muriithi Ndwiga the 2nd Respondent via a sale agreement dated 4/03/2021 and a deed of variation dated 5/01/2021 as annexures “JKN 2(a) and 2(b)” for Kes 23,900,556, from which the 4th Respondent received Kes 10,600,000 on behalf of the ve beneciaries of the second house, as evidenced by payment records from the purchaser as per annexure “JKN 3”. 20. The 3rd Respondent maintains that the 2nd Respondent is a bona de purchaser for value without notice protected under Section 26(1) of the Land Registration Act 2012, having taken possession and extensively developed the land, meaning the property no longer forms part of the deceased's distributable estate. He further points out that the Applicant's attempt to revoke the grant in the Kiambu High Court was formally dismissed on 2/09/2025 as per annexure “JKN 4”, rendering the present suit a collateral attack, improper forum shopping, and barred by res judicata under Section 7 of the Civil Procedure Act. Emphasizing that the Applicant's real grievance is a compensable monetary dispute regarding the 4th Respondent's failure to remit his portion of the proceeds which is currently subject to an accounting order before the succession Court and noting that allegations of fraud are unproven, the 3rd Respondent urges the Court to dismiss the application dated 30/07/2025 with costs. 21. On her part, the 4th Respondent swore a Replying Adavit on 6/07/2026 and conrms her capacity as a child and conrmed beneciary of the late Simon Ndungu Kimani, who died intestate on 28/08/2009, as well as her role as co-administrator alongside the 3rd Respondent under Letters of Administration issued on 6/10/2015, conrmed by the Court Judgment delivered on 24/10/2019 and subsequent conrmation on 24/07/2024. She emphasizes that she never intermeddled with the estate prior to conrmation and asserts that the 3rd Respondent illegally transferred land to himself and sold L.R. No. 13537/979 along with a portion of L.R. No. 13537/46 to Robinson Mureithi without disclosing the full purchase price. 22. She further deposes that she was completely unconsulted and uninvolved in the sale of L.R. No. 13537/892, which was carried out solely for the 3rd Respondent's benet, leading her to deem the sales to third parties fraudulent, illegal, and void while denying any collusion. She claries that the Kes 10,600,000 she received from the 3rd Respondent on behalf of herself and her four siblings was accepted under protest on a "take it or leave it" basis to prevent receiving nothing, and that these funds were subsequently invested in a commercial building project constructed on L.R. No. 13537/47 for the second family's benet. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5701/eng@2026-09-21 5

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23. Reiterating her commitment to diligently administer the estate and comply with all Court orders regarding management, accounting, and distribution, she supports the Plainti's application dated 30/07/2025, contending that it has merit and ought to be allowed to halt an impending auction that would inict irreparable loss on the beneciaries. 24. On 22/07/2026 the Court granted the parties 14 days to the Plainti/Applicant to le a Further Adavit as requested and serve together with written submissions. The Respondents were granted 14 days after service to le their written submissions. I have considered the led written submissions by all parties. Issues for Determination 25. The primary issues for determination arising from the two applications, the pleadings, and the respective responses are: i. Whether the Plainti possesses the requisite locus standi to institute and maintain the present suit on behalf of or regarding the estate of the late Simon Ndung’u Kimani; ii. Whether the Plainti’s suit constitutes an abuse of the Court process, forum shopping, or is barred by the doctrine of res judicata; iii. Whether the 1st Defendant’s Notice of Motion dated 27/08/ 2025 satises the legal threshold for striking out the Plaint under Order 2 Rule 15(1)(b) and (d) of the Civil Procedure Rules, 2010; and iv. Whether the Plainti’s Notice of Motion dated 30/07/2025 satises the settled legal criteria for the grant of temporary injunctive relief under Order 40 Rule 1 of the Civil Procedure Rules, 2010 and the principles governing statutory powers of sale under the Land Act, 2012. Analysis and Determination 26. Regarding the rst issue of locus standi, the law governing representation of a deceased person's estate is strictly statutory. Under Section 82(a) of the Law of Succession Act (Cap 160, Laws of Kenya), personal representatives (administrators or executors) are vested with the exclusive statutory authority to enforce all rights of action that survive the deceased, administer estate assets, and represent the estate in legal proceedings. A mere beneciary lacks the legal capacity to initiate actions in respect of estate property. In Troustick Inclusion Limited v. Philip Ndenteri & Others [2010] eKLR, the Court observed: “ It is a well-settled principle of law that a person who has not obtained a grant of representation to the estate of a deceased person has no locus standi to le any suit or proceedings on behalf of or for the benet of the estate of the deceased." 27. Similarly, in Julian Adayo Ongunga & Another v. Francis Kiberenge Namatsi [2014] eKLR, the Court stated: “ A beneciary does not have locus standi to sue on behalf of the estate of a deceased person... section 82 of the Law of Succession Act strictly reserves the right to represent the estate to the personal representatives who have obtained a valid grant of representation." 28. However, equity and jurisprudence recognize narrow exceptions where beneciaries may sue third parties to preserve estate assets, specically where the appointed personal representatives are themselves https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5701/eng@2026-09-21 6

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the perpetrators of fraud, act in collusion with third parties, or neglect their duty to protect the estate. In Otieno v. Ougo [1987] KLR 407, the Court of Appeal established: “ An administrator is not entitled to deal with the estate of a deceased person to the detriment of the beneciaries, and where there is clear evidence of fraud or intermeddling by an administrator, equity will intervene to protect the interest of the estate." 29. Equity and established jurisprudence recognize that while personal representatives or trustees have the primary authority to sue on behalf of an estate, a beneciary may be allowed under narrow special circumstances such as fraud, collusion, or wrongful refusal/neglect by the representative to institute proceedings to safeguard estate assets. 30. Furthermore, academic literature reinforces this exception; as observed in Halsbury’s Laws of England (4th Edition, Volume 17, Para 1542): “ As a general rule, creditors or next-of-kin cannot bring actions against persons indebted to the estate... but an exception is allowed where there is collusion between the representative and the debtor, or where the representative is insolvent, or refuses to sue, or where there are other special circumstances." 31. In the present case, the Plainti has established that the administrators who are the 3rd and 4th Defendants are engaged in disputable and uncoordinated dealings demonstrated by the 4th Defendant's own sworn Adavit repudiating the sales and that the underlying property transactions initiated prior to full estate administration raise justiciable questions of intermeddling under Section 45 of the Law of Succession Act. Consequently, the Plainti, as a conrmed beneciary facing potential disinheritance, holds sucient special circumstances and equitable standing to invoke the Court's jurisdiction to protect the subject land. 32. On the second issue of abuse of Court process, forum shopping, and res judicata, Section 7 of the Civil Procedure Act Cap 21, Laws of Kenya prohibits Courts from trying any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties and determined by a competent Court. 33. The substantive law on res judicata is found in Section 7 of the Civil Procedure Act, which provides that: “ No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and nally decided by such Court.” 34. The Act has further expounded on the principle setting out under explanations 1-6 thus: “ Explanation (1) —The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it. Explanation (2) —For the purposes of this section, the competence of a Court shall be determined irrespective of any provision as to right of appeal from the decision of that Court. Explanation (3) —The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5701/eng@2026-09-21 7

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Explanation (4)—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation (5) — Any relief claimed in a suit, which is not expressly granted by the Decree shall, for the purposes of this section, be deemed to have been refused. Explanation (6)—Where persons litigate bona de in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.” 35. From the foregoing, it is thus clear from that this doctrine applies to bar subsequent proceedings where there has been adjudication by a Court of competent and/or concurrent jurisdiction which conclusively determined the rights of the parties with regard to all or any matters in controversy. In the case of John Florence Maritime Services Limited & Another vs Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021]KESC 39 (KLR) (Civ) (6August 2021) (Judgment), the Supreme Court delved into an in-depth discussion of the concept of res judicata thus: “ This Court in the case of Kenya Commercial Bank Limited v Muiri Coee Estate Limited & another Motion No 42 of 2014 [2016] eKLR (Muiri Coee case) held as follows regarding the doctrine of res judicata: “Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights...The doctrine of res judicata, in eect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to Court to claim further reliefs not claimed in the earlier action. It isa doctrine that serves the cause of order and ecacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively. It emerges that, contrary to the Respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not aected by the substantialjustice principle of article 159 of the Constitution, intended to over ride technicalities of procedure. Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept.56.The learned authors of Mulla, Code of Civil Procedure, 18th Ed 2012 have observed that the principle of res judicata, as a judicial device on the nality of Court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293):The principle of nality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a Judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.” …Whenever the question of res judicata is raised, a Court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The Court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a Court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, (2010) eKLR, under ve distinct heads: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5701/eng@2026-09-21 8

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(i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) nality of the previous decision…” 36. While the 1st and 3rd Respondents argue that the Kiambu Succession Cause No. 30 of 2017 conclusively determined the distribution of the estate and that the dismissal of the revocation application on 2/09/2025 bars this Court from entertaining the suit, an examination of the record reveals that the core dispute in the present suit concerns the lawfulness of the charges created in favor of the 1st Defendant, Equity Bank Kenya Limited, the validity of the titles issued under the Land Registration Act 2012, and the statutory exercise of the bank's power of sale under the Land Act 2012. The bank was not a party to the succession proceedings, and the Environment and Land Court holds exclusive statutory and constitutional jurisdiction under Article 162(2)(b) of the Constitution of Kenya, 2010, and Section 13 of the Environment and Land Court Act to determine disputes relating to the title, use, and occupation of land. Thus, the present suit is not barred by res judicata, nor does it constitute an improper collateral attack or forum shopping. 37. Regarding the third issue, being the 1st Defendant’s application to strike out the Plaint pursuant to Order 2 Rule 15(1)(b) and (d) of the Civil Procedure Rules, 2010, the legal principles governing the striking out of pleadings are stringent. Striking out is a summary remedy of last resort that should be exercised with extreme caution. In D.T. Dobie & Company (Kenya) Ltd v. Muchina [1982] KLR 1, the Court of Appeal famously held: “ No suit should be summarily dismissed if it raises a bona de triable issue... a Court of law should be slow to shut out a litigant unless the suit is hopelessly unarguable and incapable of amendment." 38. Order 2 Rule 15 of the Civil Procedure Rules, which provides for striking out of pleadings states as follows: Rule 15 “ (1) (2). 39. 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. No evidence shall be admissible on an application under sub rule (1)(a) but the application shall state concisely the grounds on which it is made.” As it has been held time and again the striking out of pleadings is a drastic remedy that should only be resorted to where a pleading is a complete sham. The Court of Appeal in the case of Blue Shield Insurance Company Ltd vs. Joseph Mboya Oguttu [2009] eKLR restated these principles as follows: “ The principles guiding the Court when considering such an application which seeks striking out of a pleading is now well settled. Madan J.A. (as he then was) in his Judgment in the case https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5701/eng@2026-09-21 9

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of D.T. Dobie and Company (Kenya) Ltd vs Muchina (1982) KLR 1 discussed the issue at length and although what was before him was an application under Order 6 Rule 13 (1) (a) which was seeking striking outa plaint on grounds that it did not disclose a reasonable cause of action against the Defendant, he nonetheless dealt with broad principles which in eect covered all other aspects where striking outa pleading or part of a pleading is sought. It was held in that case inter alia as follows:“The power to strike out should be exercised after the Court has considered all facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial Judge. On an application to strike out pleadings, no opinion should be expressed as this would prejudice fair trial and would restrict the freedom of the trial Judge in disposing the case.” 40. Because the Plainti’s Plaint raises serious triable issues regarding alleged intermeddling under Section 45 of the Law of Succession Act, the validity of titles under Section 26 of the Land Registration Act, and whether the bank acquired an encumbrance over land held under defective administrative acts, the Plaint is neither frivolous, vexatious, nor an abuse of court process. The 1st Defendant's application to strike out the Plaint fails. 41. On the fourth issue, concerning the Plainti’s application for a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules, 2010, the governing criteria are settled by the seminal decision in Giella v. Cassman Brown & Co. Ltd [1973] EA 358: rst, the Applicant must establish a prima facie case with a probability of success; second, an injunction will not normally be granted unless the Applicant would otherwise suer irreparable injury that cannot be adequately compensated by damages; and third, if the Court is in doubt, it will decide the application on the balance of convenience. In Mrao Ltd v. First American Bank of Kenya Ltd & 2 Others [2003] KLR 125, a prima facie case was dened as: “ a case which, on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has been infringed by the opposite party calling for an explanation or rebuttal." 42. Applying these principles, the Plainti has established a prima facie case with a probability of success. The evidence demonstrates that initial subdivisions and transactions leading to the creation of the charged titles (L.R. Nos. 13537/892 and 13537/979) were initiated as early as 2010 via Deed Plans prior to the grant or conrmation of representation, raising valid legal questions regarding intermeddling under Section 45 of the Law of Succession Act and the root of title under Section 26(1) of the Land Registration Act, 2012. Additionally, the co-administrator who is the 4th Respondent has deposed under oath that the transfers were conducted without her knowledge or full consent, directly challenging the lawful authority of the 3rd Respondent to pass clear title to the 2nd Defendant and subsequently to the 1st Defendant bank. 43. Regarding the second limb of Giella v. Cassman Brown, if the 1st Defendant proceeds with the public auction of the suit properties prior to the full trial of the suit, the subject matter of the dispute will be permanently alienated to third-party purchasers, eectively disinheriting the beneciaries and rendering the underlying succession and land disputes academic. The loss of ancestral family property that is the subject of ongoing estate administration constitutes an irreparable injury that cannot be adequately compensated by an award of monetary damages. Finally, the balance of convenience heavily favors preserving the status quo pending the full hearing and determination of the suit to avoid creating irreversible third-party equities. 44. Finally given the foregoing I make the following orders: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5701/eng@2026-09-21 10

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i. The 1st Defendant’s Notice of Motion application dated 27/08/2025 seeking to set aside the interim orders and strike out the Plaint is hereby dismissed in its entirety. ii. The Plainti’s Notice of Motion application dated 30/07/2025 is hereby allowed as prayed. iii. A temporary injunction is hereby issued restraining the Defendants/Respondents, whether by themselves, their agents, servants, auctioneers, including Phillips International Auctioneers, or anyone acting through them, from advertising, auctioning, selling, transferring, charging, leasing, entering upon, or in any other manner dealing with or alienating land parcels L.R. No. 13537/979 (I.R. No. 202675) and L.R. No. 13537/892 (I.R. No. 198903) pending the full hearing and determination of this suit. iv. Parties are referred to the Deputy Registrar for Pre-trial Conference on 5/10/2026. v. Costs of both applications shall abide the outcome of the main suit. It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 21ST DAY OF SEPTEMBER, 2026. ……………………… MOGENI J JUDGE In the presence of: Mr. Kimotho holding brief for Mr. Wanga for the Plainti/Applicant Mr. Ondieki for the 1st Defendant/Respondent 2nd and 3rd Respondents – Absent Mr. Steve holding brief for Mr. Omondi for the 4th Defendant/Respondent Mr. Melita - Court Assistant ………………………… MOGENI J JUDGE ELCLC NO. E158 OF 2025 5 | Page https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5701/eng@2026-09-21 11

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