'1. There are three motions in the present file which require directions regarding their disposal. Of two of the motions, everything has been filed in respect of responses and they only await determination. These are the Motions dated 8/5/2024 by the Plaintiff and the one dated 10/4/2025 by the Defendant. The first Application seeks injunctive orders pending hearing and determination of the suit while the second one seeks striking out of the suit against the 1st Defendant.
2. Mr Murage for the plaintiffs who are the applicants in it, is unsure that the 3rd Application, dated 7/11/2025 and made by the Plaintiffs, is fully ready and thinks it is dependent of whether there will be denial of the allegations made in the application and which if so may need further evidence. That application seeks stay of all proceedings in the present matter pending cross-examination of the 1st Defendant as well as Mr. George Joseph Kangethe Advocate who allegedly commissioned the 1st Respondent’s Affidavits dated 10th April 2025, 17th February 2025 and 28th February 2025.
3. The Application also seeks cross-examination of Mr. Nicholas Sumba, the Advocate for the 1st and 2nd Defendants over his swearing of the Affidavit dated 29/10/2025 though he is not a party to the proceedings. It is further sought that the Affidavits sworn by Mr Tirito and Mr. Sumba be struck out and expunged from these proceedings, and that the Forensic Document Examiner’s Report dated 31/10/2025 be deemed as properly filed and admitted as evidence in support of the application.
4. While submitting on the propriety of the last motion dated 7/11/2025, Mr. Murage, Counsel for the Plaintiff urged that it was necessary due to the importance of proper commissioning of Affidavits in legal proceedings. The gist of that motion is that the deponents of those Affidavits could not have appeared before the Commissioner for oaths named in the document and going by the earlier ruling of this court dated 6/2/2025 which now I understand to be simply referred to as the “ Dardannelli Ruling”, the said Affidavits ought to go.
5. Mr. Sumba strongly protested the filing of the application dated 7/11/2025 which protestations were met by Mr. Murage’s rejoinder, which both counsel’s submissions almost argued the substance of the application to completion. However, Mr Murage is of the view that the motion of 7/11/2025 should be heard first as it may strike out the application of 10/4/2025.
6. Mr. Sumba on his part thinks that the Replying Affidavit dated 22/10/2025 filed in response to the Replying Affidavit in response to the plaintiffs’ motion dated 8/5/2025 has paragraphs that are unfit to be entertained in the present proceedings. Those are paragraphs 4, 5, 11, 12 and 13.
7. Paragraph 6 of the said Replying Affidavit states as follows;
“That in the event the contents in paragraph 4 and 5 are disputed by any party, the court transcript shall confirm and the applicant is happy to move the court to obtain the relevant evidence from Safaricom and the Law Society of Kenya.”
8. This court has delivered itself of what it thinks of the solemnity surrounding the swearing of affidavits in its earlier ruling of 6/12/2025 and should not be seen to depart from that position in this same matter, and it is only proper that the application dated 7/11/2025 be determined on its merits since, as stated by Mr. Murage, it has, in addition, the potential of disposing of the motion dated 10/4/2025
9. However, perchance the application dated 7/11/2025 does not succeed in dislodging the application dated 10/4/2025, bearing in mind that the stay of proceedings sought therein targeted proceedings brought only after the motion of 10/4/2025 and in connection thereto only and not all proceedings, then that motion of 10/4/2025 should be heard before the motion dated 8/5/2024.
10. What I have outlined hereinabove is indicative that the court is capable of hearing all the three motions in a series depending on which ranks first or which one affects the other in a certain way, and issue a single ruling in all of them, or issue separate rulings as it may deem fit in the circumstances.
11. Consequently, this court orders that all the motions shall be heard together and determined together. Owing to the time to be involved in addressing them, and also having regard to other duties, the court shall issue its decisions on the three motions on 26/2/2026.
Dated, signed and delivered at Malindi this 1st day of December 2025.
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2. Mr Murage for the plaintiffs who are the applicants in it, is unsure that the 3rd Application, dated 7/11/2025 and made by the Plaintiffs, is fully ready and thinks it is dependent of whether there will be denial of the allegations made in the application and which if so may need further evidence. That application seeks stay of all proceedings in the present matter pending cross-examination of the 1st Defendant as well as Mr. George Joseph Kangethe Advocate who allegedly commissioned the 1st Respondent’s Affidavits dated 10th April 2025, 17th February 2025 and 28th February 2025.
3. The Application also seeks cross-examination of Mr. Nicholas Sumba, the Advocate for the 1st and 2nd Defendants over his swearing of the Affidavit dated 29/10/2025 though he is not a party to the proceedings. It is further sought that the Affidavits sworn by Mr Tirito and Mr. Sumba be struck out and expunged from these proceedings, and that the Forensic Document Examiner’s Report dated 31/10/2025 be deemed as properly filed and admitted as evidence in support of the application.
4. While submitting on the propriety of the last motion dated 7/11/2025, Mr. Murage, Counsel for the Plaintiff urged that it was necessary due to the importance of proper commissioning of Affidavits in legal proceedings. The gist of that motion is that the deponents of those Affidavits could not have appeared before the Commissioner for oaths named in the document and going by the earlier ruling of this court dated 6/2/2025 which now I understand to be simply referred to as the “ Dardannelli Ruling”, the said Affidavits ought to go.
5. Mr. Sumba strongly protested the filing of the application dated 7/11/2025 which protestations were met by Mr. Murage’s rejoinder, which both counsel’s submissions almost argued the substance of the application to completion. However, Mr Murage is of the view that the motion of 7/11/2025 should be heard first as it may strike out the application of 10/4/2025.
6. Mr. Sumba on his part thinks that the Replying Affidavit dated 22/10/2025 filed in response to the Replying Affidavit in response to the plaintiffs’ motion dated 8/5/2025 has paragraphs that are unfit to be entertained in the present proceedings. Those are paragraphs 4, 5, 11, 12 and 13.
7. Paragraph 6 of the said Replying Affidavit states as follows;
“That in the event the contents in paragraph 4 and 5 are disputed by any party, the court transcript shall confirm and the applicant is happy to move the court to obtain the relevant evidence from Safaricom and the Law Society of Kenya.”
8. This court has delivered itself of what it thinks of the solemnity surrounding the swearing of affidavits in its earlier ruling of 6/12/2025 and should not be seen to depart from that position in this same matter, and it is only proper that the application dated 7/11/2025 be determined on its merits since, as stated by Mr. Murage, it has, in addition, the potential of disposing of the motion dated 10/4/2025
9. However, perchance the application dated 7/11/2025 does not succeed in dislodging the application dated 10/4/2025, bearing in mind that the stay of proceedings sought therein targeted proceedings brought only after the motion of 10/4/2025 and in connection thereto only and not all proceedings, then that motion of 10/4/2025 should be heard before the motion dated 8/5/2024.
10. What I have outlined hereinabove is indicative that the court is capable of hearing all the three motions in a series depending on which ranks first or which one affects the other in a certain way, and issue a single ruling in all of them, or issue separate rulings as it may deem fit in the circumstances.
11. Consequently, this court orders that all the motions shall be heard together and determined together. Owing to the time to be involved in addressing them, and also having regard to other duties, the court shall issue its decisions on the three motions on 26/2/2026.
Dated, signed and delivered at Malindi this 1st day of December 2025.
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