Japhet Choga Charero and Samuel Charero (suing as administrators of the estate of Charero Choga Mwadzuwa, deceased) v Julie Kisaka and the Land Registrar Kilifi County

vi. That such order further orders be granted as the court shall deem just and expedient; vii. That the costs of this application be paid by the Defendants. 2. The second is the 1st Defendant's Notice of Motion dated 24th March 2026 seeking: i. …..Spent; ii. That this Honourable Court be pleased to discharge the orders of the court made on 5 th February 2026; iii. This Honourable Court be pleased to strike out the Plaintiff’s suit with costs; iv. That the costs of the application be in the cause. 3. The third is a Preliminary Objection by the 1st Defendant dated 24th March 2026 founded on two grounds, namely; i. That this Honourable Court has no jurisdiction to hear and determine the dispute by virtue of Section 7 of the Limitation of Actions Act, Chapter 22 Laws of Kenya, as the cause of action herein arose in the year 2011 and the suit is hereby barred by limitation of action as it is brought more than 14 years after the cause of action arose. ii. The suit is res judicata Mombasa High Court Civil Case No. 107 of 2011 Nuru Abdul Razaq versus Daniel Cherero, Mbarak Swaleh Al Quhum and Juliana Kisaka offending Section 7 MLDELCLCE018/2026/RLG/DF-24.03.26/FH-O5.06.26/DR-29.09.26 Page 2 of 18

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of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) iii. And on such other grounds as may be adduced at the hearing thereof. 4. On 5th June 2026, the Plaintiff’s counsel sought directions and court issued him leave to file a supplementary affidavit and submissions and sought 5 days. The Defendant’s counsel indicated that they had filed submissions on 10th April 2026. The 2nd Defendant’s Counsel Ms Waswa indicated that they shall not be participating in the applications. This court directed that the two applications and the Preliminary Objection be considered together and directed the Plaintiff to file their submissions and supplementary affidavit within 5 days from 5 th June 2026 and the ruling was reserved for 29th September 2026. 5. I have perused the record and note that the Plaintiff did not comply with the timelines and over 2 months have lapsed since the leave window closed. I shall therefore proceed to determine the applications and objection regardless. 6. The Plaintiffs' case, as pleaded, is that the late Charero Choga Mwadzuwa was the registered proprietor of Title No. KILIFI/MTWAPA/716, measuring approximately 4.9 hectares. They allege that the deceased was elderly, illiterate, terminally ill and had diminished mental capacity when the 1st Defendant allegedly procured registration of an interest in the property jointly with him. They further allege that after the deceased's death on 29 th September 2013, the 1st Defendant caused the mother title to be subdivided and subsequently procured registration of Title No. KILIFI/MTWAPA/7222, measuring approximately 2.023 hectares, in her own name. The Plaintiffs characterize the transactions and subsequent registration as fraudulent and unlawful and seek, inter alia, cancellation of the title and restoration of the property to the estate. MLDELCLCE018/2026/RLG/DF-24.03.26/FH-O5.06.26/DR-29.09.26 Page 3 of 18

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7. The Plaintiffs' application for injunction is founded upon the alleged proprietary interest of the estate, the alleged invalidity of the 1 st Defendant's title and the apprehension that the suit property may be dealt with before the dispute is determined. The interim orders granted on 5th February 2026 restrained the 1 st Defendant from selling, transferring, charging, subdividing, leasing or otherwise alienating or interfering with the suit property. The 1st Defendant challenges those orders and the suit itself. In her application dated 24 th March 2026, she asserts that she is the lawful registered proprietor, that she acquired her interest from the deceased, that she has been in possession since 2011, and that the present suit was filed approximately fifteen to sixteen years after her acquisition of the interest. 8. The 1st Defendant further relies upon the judgment in Mombasa High Court Civil Case No. 107 of 2011, Nuru Abdul Razaq v Daniel Cherero, Mbarak Swaleh Al Quhum and Juliana Kisaka, delivered on 14th February 2014. Her contention is that the earlier proceedings conclusively determined ownership of the mother title, Title No. KILIFI/MTWAPA/716, and that the Plaintiffs are consequently precluded from reopening the question of ownership. She additionally contends that the Plaintiffs' failure to include Title No. KILIFI/MTWAPA/7222 among the estate assets in the succession proceedings concluded on 20th May 2022 is inconsistent with the present claim. 9. The issues for determination are therefore: a) Whether the Preliminary Objection is merited; b) Whether the suit should be struck out; c) If the suit survives the foregoing objections, whether the Plaintiffs have satisfied the threshold for the grant of temporary injunctive orders. PRELIMINARY OBJECTION MLDELCLCE018/2026/RLG/DF-24.03.26/FH-O5.06.26/DR-29.09.26 Page 4 of 18

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6. A preliminary objection occupies a narrow procedural field. In Mukisa Biscuit Manufacturing Co. Ltd v West Distributors (1969) EA 696, Law JA stated: “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.” 7. In Oraro v Mbaja (2005) KLR 141, Ojwang J stated: “I think the principle is abundantly clear, a “Preliminary Objection” correctly understood, is now well defined as, and declared to be, 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 processes of evidence.” 8. These principles are particularly important in the present matter because both grounds of the objection are founded upon the historical relationship between the parties and the chronology of dealings with the land. The Court must therefore determine whether the facts necessary to sustain each limb are apparent from the pleadings themselves or whether their determination requires evidence. If the latter is the case, the objection cannot succeed merely because the 1 st Defendant has placed before the Court a competing version of the history of the property. 9. The statutory foundation of the first limb, res judicata, is Section 7 of the Civil Procedure Act. The section prohibits the Court from trying a suit or issue in which the matter directly and substantially in issue was directly and substantially in issue in a former suit between the same parties, or parties under whom they or any of them claim, litigating under the same title, where the matter was heard and finally determined by a competent Court. MLDELCLCE018/2026/RLG/DF-24.03.26/FH-O5.06.26/DR-29.09.26 Page 5 of 18

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10. The Supreme Court of Kenya in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR), at paragraph 319, stated: “There are conditions to the application of the doctrine of res judicata: 1. the issue in the first suit must have been decided by a competent Court; 2. the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and 3. the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title.” 11. The 1st Defendant's position is that the earlier suit determined the ownership of Title No. KILIFI/MTWAPA/716 and that the present Plaintiffs are effectively seeking to reopen that determination. The earlier proceedings are therefore undoubtedly relevant. However, relevance is not the statutory test. The question is whether the matter directly and substantially in issue in the present proceedings is the same matter that was directly and substantially in issue and finally determined in the former proceedings. 12. On the material before the Court, the earlier suit concerned Title No. KILIFI/MTWAPA/716. The 1st Defendant's own submissions describe the earlier dispute as one in which Nuru Abdul Razaq claimed 6 acres out of the 12 acres which he had allegedly purchased from the deceased, resulting in a judgment dated 14th February 2014. The 1st Defendant's position is that following that judgment, half of the MLDELCLCE018/2026/RLG/DF-24.03.26/FH-O5.06.26/DR-29.09.26 Page 6 of 18

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interest in the mother title remained hers pursuant to the sale transaction with the deceased. 13. The present Plaint, however, is not pleaded simply as a claim seeking to reverse the judgment of 14 th February 2014. The Plaintiffs specifically challenge the subsequent dealings which allegedly resulted in the creation and registration of Title No. KILIFI/MTWAPA/7222. They plead that the deceased died on 29 th September 2013 and that the impugned subdivision and registration occurred thereafter. The pleaded complaint is therefore directed not merely at the historical existence of the 1st Defendant's interest but at the legality of subsequent acts allegedly undertaken after the death of the registered proprietor. 14. This distinction is important. A determination that the 1 st Defendant had an interest in the mother title does not necessarily amount, without more, to a determination that every subsequent dealing with that interest was validly undertaken. The present Plaint raises questions as to who caused the subdivision, the authority under which it was undertaken, the documents relied upon, the circumstances in which they were executed, the effect of the deceased's death upon any authority previously granted, and the circumstances in which Title No. KILIFI/MTWAPA/7222 was registered. Those questions cannot be answered merely by looking at the existence of the 2014 judgment. 15. The 1st Defendant argues that the present suit is an attempt to reopen ownership already settled. That may ultimately be demonstrated at trial if the evidence establishes that the present title merely represents the interest conclusively determined in the former proceedings and that the subsequent registration was only an administrative consequence of that determination. But that is precisely the point. The Court would have to examine the former judgment, the MLDELCLCE018/2026/RLG/DF-24.03.26/FH-O5.06.26/DR-29.09.26 Page 7 of 18

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transaction between the deceased and the 1st Defendant, the subdivision records, the registration history and the circumstances surrounding the creation of the present title before it could reach such a conclusion. Such an exercise is evidentiary in character and cannot properly be undertaken under a preliminary objection. 16. The requirement as to similarity of parties' also merits careful consideration. The Plaintiffs are before Court as administrators of the estate of Charero Choga Mwadzuwa. The earlier proceedings were instituted by Nuru Abdul Razaq against Daniel Cherero, Mbarak Swaleh Al Quhum and Juliana Kisaka. The 1st Defendant was therefore a party to the earlier litigation, but the Plaintiffs' present capacity as administrators and the legal capacity in which the deceased and the other parties litigated previously cannot simply be assumed to be identical for purposes of Section 7. Whether the present Plaintiffs claim under a party to the earlier suit and whether they are litigating under the same title are matters that may require examination of the previous pleadings and judgment. 17. The fact that the Plaintiffs derive their asserted interest from the deceased does not automatically make every subsequent dispute concerning the deceased's property res judicata. Section 7 is concerned with the matter directly and substantially in issue, not merely with the identity of the property or the existence of a previous judgment concerning it. This Court must guard against converting the doctrine into a rule that any later dispute involving the same land is barred merely because some aspect of the land was previously litigated 18. I therefore find that the 1st Defendant has not established the constituent elements of res judicata as a pure question of law. The first limb of the Preliminary Objection therefore fails. LIMITATION OF AN ACTION TO RECOVER LAND MLDELCLCE018/2026/RLG/DF-24.03.26/FH-O5.06.26/DR-29.09.26 Page 8 of 18

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19. The second limb of the Preliminary Objection is founded upon Section 7 of the Limitation of Actions Act, which provides: “7. Actions to recover land An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.” 20. The 1st Defendant's position is that the cause of action is statute barred, the Plaintiffs having challenged a transaction which was concluded during the deceased's lifetime and in respect of which the 1st Defendant has been in occupation for over sixteen years. The Plaintiffs, on the other hand, have pleaded fraud and seek to invoke Section 26 of the Limitation of Actions Act. 21. Section 26 of the Limitation of Actions Act provides: “26. Extension of limitation period in case of fraud or mistake Where, in the case of an action for which a period of limitation is prescribed, either—(a)the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or (b)the right of action is concealed by the fraud of any such person as aforesaid; or (c)the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it” 22. The Court of Appeal in Wandaka & 2 others v Mwangi [2025] KECA 83 (KLR), at paragraph 24, considered the effect of Section 26 where fraud is pleaded and stated: MLDELCLCE018/2026/RLG/DF-24.03.26/FH-O5.06.26/DR-29.09.26 Page 9 of 18

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“24. The second limb of that ground was that the learned Judge erred in holding that the suit was time-barred by dint of the provisions set out in the Limitation of Actions Act. This was on account of the fact that the suit, being for recovery of land, was not filed within the stipulated period of 12 years. It is important to note that the appellants instituted the suit in 2013 after they learnt that the title to the suit land was transferred to the respondent in the year 2011. We note that the trial Judge was wrong on the issue that the suit was time-barred. The first title was indeed issued in 1990, but when a party pleads fraud, time starts running from the time the fraud is discovered.” 23. In the instant case, however, the question of discovery cannot be considered in isolation from the Plaintiffs' own conduct in relation to the suit property. The evidence and the history pleaded before the Court demonstrate that the 1st Defendant has been in occupation of the property for over 16 years. The transfer in her favour predates the death of the deceased. The 1st Defendant has throughout been living alongside the Plaintiffs, who were therefore not dealing with an unknown or concealed interest in the land. 24. More significantly, the property was subsequently subdivided into 3 portions. 2 of the resultant portions became Titles No. Kilifi/Mtwapa/6987 and Kilifi/Mtwapa/6988, in respect of which the Plaintiffs proceeded with succession proceedings. The succession proceedings were undertaken in 2021. The Plaintiffs therefore demonstrated, by their own conduct, knowledge of the subdivision of the mother title and the titles resulting therefrom. 25. It is this conduct that, in my view, is material to the application of Section 26 of the Limitation of Actions Act. The Plaintiffs cannot demonstrate that the alleged fraud remained concealed from them until the institution of the present suit when, in 2021, they themselves MLDELCLCE018/2026/RLG/DF-24.03.26/FH-O5.06.26/DR-29.09.26 Page 10 of 18

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undertook succession proceedings in respect of two of the three titles resulting from the subdivision of the suit property. 26. The question therefore arises: if the Plaintiffs knew of and relied upon 2 of the subdivisions in conducting succession, why was the third resultant subdivision excluded, particularly when all three portions emanated from the same subdivision of the mother title? The remaining portion, now represented by Title No. Kilifi/Mtwapa/7222, is the very property which the Plaintiffs now contend was fraudulently acquired by the 1st Defendant. 27. The chronology is therefore significant. The deceased had, during his lifetime, transferred an interest in the property to the 1st Defendant. The 1st Defendant thereafter remained in occupation and possession. The property was subsequently subdivided into three portions. The Plaintiffs, with knowledge of that subdivision, proceeded with succession in respect of two of the resultant titles in 2021 but omitted the portion now registered in the 1st Defendant's name. 28. In those circumstances, I find that the Plaintiffs, at the very latest, had actual knowledge of the subdivision and the resultant titles when they undertook the succession proceedings in 2021. Alternatively, the alleged fraud could, with reasonable diligence, have been discovered at that point. The commencement of the limitation period cannot therefore be postponed indefinitely merely by the subsequent assertion of fraud in pleadings. 29. The Plaintiffs cannot, on the one hand, rely upon the subdivision to identify and administer two portions of the original property and, on the other hand, contend that another portion emanating from the same subdivision was unknown to them or had been fraudulently created. Their conduct in the succession proceedings is inconsistent with an assertion that the subdivision itself was concealed from them. MLDELCLCE018/2026/RLG/DF-24.03.26/FH-O5.06.26/DR-29.09.26 Page 11 of 18

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30. I therefore find that time began to run, for purposes of the alleged fraud in relation to the resultant titles, when the Plaintiffs undertook succession proceedings in 2021 and thereby demonstrated knowledge of the subdivision and the titles emanating therefrom. The present suit was filed in 2026, approximately 5 years thereafter. The Preliminary Objection founded on limitation consequently does not succeed as a pure point of law. 31. The second limb of the Preliminary Objection therefore fails. The Preliminary Objection is accordingly dismissed. APPLICATION TO STRIKE OUT THE SUIT 32. I now turn to the Notice of Motion dated 24th March 2026. The application invites the Court to exercise its jurisdiction under Order 2 rule 15 of the Civil Procedure Rules. The 1st Defendant contends, among other grounds, that the Plaint is scandalous, frivolous and vexatious, constitutes an abuse of the process of the Court and is inconsistent with the Plaintiffs' own conduct in the succession proceedings. 33. Order 2 Rule 15 permits the Court, at any stage of the proceedings, to strike out a pleading where it discloses no reasonable cause of action or defence, is scandalous, frivolous or vexatious, may prejudice, embarrass or delay the fair trial of the action, or is otherwise an abuse of the process of the Court. The jurisdiction is discretionary and drastic, and must ordinarily be exercised cautiously. 34. The governing principle in DT Dobie & Company (Kenya) Limited v Muchina & another [1980] KECA 3 (KLR), relied upon by the 1st Defendant, is that: “No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable MLDELCLCE018/2026/RLG/DF-24.03.26/FH-O5.06.26/DR-29.09.26 Page 12 of 18

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cause of action and is so weak as to be beyond redemption and incurable by amendment.” 35. The present application, however, is not founded solely on the assertion that the Plaintiffs' case is weak. The central question is whether, having regard to the history of the property, the previous litigation and, most importantly, the Plaintiffs' own conduct in the succession proceedings, permitting the suit to proceed would amount to allowing the Court process to be used in a vexatious and abusive manner. 36. The Plaintiffs' case is founded upon the assertion that the 1 st Defendant fraudulently acquired Title No. Kilifi/Mtwapa/7222. Yet the material before the Court shows that the 1st Defendant's interest in the mother title predates the death of the deceased and that the 1 st defendant has been in occupation of the property for over 16 years. The Plaintiffs have not challenged that occupation during that period. More significantly, the Plaintiffs subsequently participated in succession proceedings involving 2 of the 3 portions resulting from the subdivision of the same property. 37. The circumstances raise a fundamental inconsistency in the Plaintiffs' position. They cannot rely upon the subdivision of the mother title to identify and pursue succession in respect of two of the resultant parcels, while simultaneously seeking to invalidate one of the other portions arising from that very subdivision on the basis that its existence or acquisition was fraudulent. The subdivision cannot be selectively relied upon for purposes of succession and rejected for purposes of challenging the 1st Defendant's title. The evidence presented by the Plaintiffs, specifically Exhibit JCC-5 is the mutation allegedly conducted by the 1st Defendant which resulted in the three portions two of which are Kilifi/Mtwapa/6988. MLDELCLCE018/2026/RLG/DF-24.03.26/FH-O5.06.26/DR-29.09.26 Page 13 of 18 Kilifi/Mtwapa/6987 and

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38. The remaining approximately 4.9 hectares, equivalent to the 6 acres which remained after the other 6 acres had been conclusively dealt with in favour of Nuru Abdul Razaq, form the factual background to the present dispute. The 1st Defendant's case is that the deceased had, during his lifetime, transferred his interest in the remaining portion to her, after which the land was subdivided. The Plaintiffs' subsequent succession proceedings in respect of two of the resultant titles are consistent with knowledge of that subdivision. 39. The Court is therefore unable to accept that the Plaintiffs were wholly unaware of the existence and consequences of the subdivision until the filing of the present proceedings. Their conduct in 2021 is significant. If the Plaintiffs considered that the subdivision or the 1 st Defendant's resultant portion was fraudulent, the first point of contact with the alleged fraud would have been to challenge the entire transaction or the subdivision when they were dealing with the resultant titles in the succession proceedings. Instead, they proceeded selectively with succession in respect of 2 portions and left out the portion now challenged. 40. In my view, the omission is not a mere technical matter. It goes to the consistency and bona fides of the present claim. A party cannot derive a benefit from a particular transaction or state of affairs and, in the same breath, seek to impeach another consequence of that same transaction or state of affairs when it becomes inconvenient to the party's present position. 41. This is the principle underlying the doctrine of approbation and reprobation. In Premier Food Industries Limited v Public Health Prosecutor – Kisumu [2021] KEHC 6453 (KLR), the Court observed: “30. Having received payment on the strength of the Ruling dated 16th September 2020, the Applicant was now seeking leave to challenge the very same Ruling. In effect, the MLDELCLCE018/2026/RLG/DF-24.03.26/FH-O5.06.26/DR-29.09.26 Page 14 of 18

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Applicant was seeking to challenge the validity of the decision from which it has been conferred with a benefit, whilst at the same time retaining the said benefit. 31. In the case of EVANS Vs BARTLAM (1937) 2 ALL. E.R. 649, at page 652 Lord Russel of Killowen said; “The doctrine of approbation and reprobation requires for its foundation, inconsistency of conduct, as where a man, having accepted a benefit given him by a judgement cannot allege the invalidity of the judgement which conferred the benefit.” 32. It is well settled that the court cannot approve an attitude in which a party approbates and reprobates. For that reason, too, the application before me fails. 33. Accordingly, the application dated 23rd November 2020 is dismissed, with costs to Premier Food Industries.” 32. The principle applies with equal force to the conduct before this Court. The Plaintiffs relied upon the subdivision of the mother title in undertaking succession proceedings in respect of two of the resultant portions. Having taken that position, they cannot at the same time seek to impeach the very subdivision insofar as it resulted in the third portion which is registered in the 1st Defendant's name. 33. The Court must also consider the prolonged occupation of the property by the 1st Defendant a fact which is unrebutted by the Plaintiffs as no rejoinder is on record. The 1 st Defendant has been in occupation for over 16 years. The Plaintiffs, who are members of the deceased's family and are now suing as administrators of his estate, have not demonstrated any intervening challenge to that occupation during that period. The transfer relied upon by the 1 st Defendant also predates the deceased's demise. MLDELCLCE018/2026/RLG/DF-24.03.26/FH-O5.06.26/DR-29.09.26 Page 15 of 18

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34. The combination of these circumstances is material. This is not a case where an unknown person has suddenly emerged after the death of a proprietor and asserted a title to property which had remained undisputed throughout. Rather, the 1st Defendant's interest and occupation were longstanding, the property was subsequently subdivided, and the Plaintiffs themselves engaged with two of the resultant titles in succession proceedings. 35. In the circumstances, I find that the present proceedings are not merely a weak claim requiring determination at trial. The Plaintiffs' conduct in relation to the subdivision and succession proceedings renders the present challenge to the 1 st Defendant's portion inconsistent with the position they themselves adopted in 2021. To permit the Plaintiffs to proceed with the suit would allow them to approbate and reprobate in respect of the same subdivision. 36. The Court is also mindful that its process should not be employed to subject a party to litigation where the circumstances demonstrate that the proceedings have become vexatious and constitute an abuse of that process. The 1st Defendant has been in possession for over sixteen years, while the Plaintiffs proceeded with succession in respect of two portions arising from the same subdivision and omitted the portion now challenged. 37. I therefore find that the suit, in the circumstances disclosed by the record, is scandalous and vexatious and amounts to an abuse of the process of the Court within the meaning of Order 2 rule 15(1) of the Civil Procedure Rules. The Plaintiffs cannot use the subdivision to their advantage by pursuing succession on two portions and, at the same time, allege that the 1st Defendant's portion, which resulted from the same subdivision, was fraudulently obtained. 38. Proceeding with the suit to final determination would, in the circumstances, serve no useful adjudicatory purpose. It would amount MLDELCLCE018/2026/RLG/DF-24.03.26/FH-O5.06.26/DR-29.09.26 Page 16 of 18

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to permitting the Plaintiffs to pursue a claim inconsistent with the position they adopted in the succession proceedings and would unnecessarily subject the 1st Defendant to further litigation in respect of a property in which she has asserted ownership and occupation for a substantial period. 39. I consequently find merit in the Notice of Motion dated 24th March 2026. The suit is liable to be struck out on the ground that it is scandalous, vexatious and an abuse of the process of the Court. 40. Having reached that conclusion, it is unnecessary to consider the remaining grounds of the application for striking out or to proceed to determine the Plaintiffs' application for temporary injunctive relief on its merits. The interim orders issued on 5th February 2026 cannot survive the striking out of the suit and must accordingly be discharged. 51. In the result, I make the following orders: 1. The Preliminary Objection dated 24th March 2026 is hereby dismissed with no orders as to costs; 2. The 1st Defendant’s Notice of Motion dated 24 th March 2026 is merited and is hereby allowed in terms of prayers 2, 3 and 4, with costs awarded to the 1st Defendant; 3. The Plaintiffs' application dated 5th February 2026 for temporary injunctive relief consequently stands dismissed with costs awarded to the 1st Defendant; 4. The file is hereby marked as closed. It is so ordered. Dated, Signed, And Delivered at Malindi on This 29th Day of September 2026 MLDELCLCE018/2026/RLG/DF-24.03.26/FH-O5.06.26/DR-29.09.26 Page 17 of 18

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HON. JUSTICE MWANGI NJOROGE, JUDGE, ENVIRONMENT AND LAND COURT, MALINDI MLDELCLCE018/2026/RLG/DF-24.03.26/FH-O5.06.26/DR-29.09.26 Page 18 of 18

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