'
Background
1. This suit was filed on 3rd February, 2025. The plaint under which it was instituted is for another suit to wit, a suit between Blacio Onyango Otieno and Muyoyo Otulo & 3 others. The verifying affidavit accompanying the suit is for the intended suit, Charles Kiprop Kipchoge v. Catherine Jeruto Jemaiyo & 6 others. There is an error apparent on the verifying affidavit as it is indicated to have been sworn on 21st January, 2020.
2. The suit was accompanied by a notice of motion dated 21st January 2025, through which the plaintiff seeks a temporary injunction to restrain the defendants, by themselves, their servants and or agents from disposing of, selling, leasing, subdividing or otherwise dealing with the parcels of land known as Elgeyo/Marakwet/Kapterik /b/497, 499, 500, 543, 544, 545, 546 and 547 pending hearing of the suit inter parties. The plaintiff also seeks a temporary injunction to restrain the defendants, by themselves, their servants and or agents from disposing of, selling, leasing, subdividing or otherwise dealing with the parcels of land known as Elgeyo/Marakwet/ Kapterik/B/ 497, 499, 500, 543, 544, 545, 546 and 547 pending hearing and determination of the suit.
3. Upon been served with the suit papers, the defendants filed the notice of preliminary objection, dated 18th February 2025, praying that the suit be strike out in limine with costs to them. The preliminary objection is premised on the following grounds: -
i) The suit is fatally defective and incompetent having been commenced contrary to the express provisions of Order 3 rule 1 of the Civil Procedure Rules;
ii) This court is divested of the primary jurisdiction to hear and determine the suit being a dispute arising from an adjudication process; and
iii) The suit against the 5th defendant, Josphat Maiyo, is fatally defective being a suit against a dead person.
4. In a bid to regularize the defect in the suit, the plaintiff, on 19th February, 2025 filed a new plaint dated 21st January, 2021.
5. Despite having been given opportunity to amicably address the issues arising from the defect in the pleadings filed by the plaintiff, the parties were unable to reach a settlement. Consequently, on 26th May 2025, this court directed that the preliminary objection be disposed of by way of written submissions.
SUBMISSIONS
Defendants submissions
6. In their written submissions filed on 26th June, 2025, the defendants contend that the instant suit was instituted vide the applicant’s notice of motion dated 21st January 2025. The following issues are framed for the court’s determination: -
i) Whether the preliminary objection meets the requisite threshold?
ii) Whether the suit is fatally defective and incompetent having been commenced contrary to the express provisions of Order 3 rule 1 of the Civil Procedure Rules;
iii) Whether the suit against the 5th defendant is defective being a suit against a dead person.
7. On whether the preliminary objection meets the requisite threshold, reference is made to the test espoused in Mukisa Biscuits Manufacturing Company Ltd vs. West End Distributors Ltd (1969) EA 696 and submitted that the issues taken up in support of the preliminary objection to wit, the suit having been commenced contrary to the provisions of Order 3 rule 1 of the Civil Procedure Rules and against a dead person, are purely legal phenomena. It is the defendants’ case, that the issues taken up in support of the preliminary objection are capable of extinguishing the plaintiff’s suit in total as a suit filed without a plaint and against a dead person is a nullity by itself and cannot stand.
8. According to the defendants, there is no contested fact that needs to be argued to enable this court make a decision on whether the matter was instituted vide a plaint and whether a dead person can be sued.
9. The defendants contend that the nature of the dispute is very clear from a glance at the pleadings filed and there is no need to prove any fact.
10. Concerning the alleged death of the 5th defendant, Josphat Maiyo, it is the defendant’s case that the death of Josphat Maiyo is none contentious because it is confirmed by the Probate and Administration documents annexed to the supporting affidavit and in particular the letter from the area chief. The objection, therefore, is said to arise by clear implication out of the pleadings.
11. On whether the suit is fatally defective and incompetent, having been commenced contrary to the express provisions of Order 3 rule 1 of the Civil Procedure Rules, the defendants maintain that the suit is fatally defective and incompetent having been commenced in the absence of a plaint to anchor the notice of motion. In that regard, reference is made to the case of Photo Energy Ltd vs. Hashi Energy Ltd Misc 180 of 2018 where the court stated as follows: -
“Order 3 rule (i) (ii) of the Civil Procedure Rules provides that every suit shall be instituted by way of a plaint. As a general rule a suit can only be instituted by way of a plaint, petition, or an originating summons. A notice of motion is not legally recognized as an originating process. A notice of motion can only be filed within a properly instituted suit. The applicants failed to file any originating process in this matter. I find the attempt to institute this suit by way of a notice of motion renders the entire suit defective.”
12. It is the defendants’ case that failure/omission by the plaintiff to file a substantive suit cannot be overlooked as a mere technicality that can be cured by invoking the provisions of Article 159 of the Constitution. In that regard, reliance is place on the case of Chacha & Another v Orbit Chemicals Industries Limited & another (E &L Misc case E003 of 2023(2024) KEELC 3278 (KLR)(7 March 2024) (Ruling) where, Mogeni J, stated/held:-
“In this matter the applicants did not anchor their notice of motion in a suit. They do not have a competent suit before the court. The application is not anchored in any pleadings to give it validity. Not every procedural blunder can be excused as a “mere technicality”. The filing of a suit is a mandatory statutory provision which the court cannot simply wish away.”
13. Further reference is made to the case of Dishon Ochieng v SDA Church (2012) e KLR where it was stated/held:-
“I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost effective manner and to eschew defeatist technicalities were meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free for all in the administration of justice. This court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines...”
14. On whether the suit against the 5th defendant is defective, being a suit against a dead person, the defendants assert that the suit is defective for having been instituted against a dead person, the 5th respondent. The defendants indicate that they have supplied a copy of the certificate of death for the 5th respondent and maintain that the documents attached to the applicant’s supporting affidavit and more so the letter from the area chief confirms the fact of the death of the 5th respondent. Based on the decision in the case of Nyoro v. Nyambura (E & L Appeal E072 of 2023)(2024) e KLR where while citing a Court of Appeal decision, the court stated:-
“The Court of Appeal has also had occasion to address the issue of a suit filed against a dead person in the case of Geeta Bharat Shah & 4 others vs Omar Said Mwatayari & Another Court of Appeal at Mombasa, Civil Appeal No. 46 of 2008 (2009) e KLR. The court stated as follows: -
“In the result, as Bharatkumar Nathalal Shah was already dead by the time the suit was filed, we hold the view the suit was a nullity and Mr. Oddiaga, is with respect right in conceding the appeal in respect of him on that score...”
15. It is the defendants’ case that the suit cannot be cured through amendment or substitution of the deceased person. In that regard, reference is made to the case of Shah & 6 others v Seif & 2 others (as Trustees of Wakf of Seif Bin Salim (E & L C case E006 of 2024 (2024)e KLR where Kibunja J stated/held:-
“The plaintiffs herein filed the suit against the named defendants, who had died long before the suit was instituted. The suit is therefore a nullity and the application predicated upon it is invalid. The suit as filed cannot be cured through amendment or substitution of the deceased trustees with the current ones, but ought to be struck out...”
16. Maintaining that their preliminary objection has merit, the defendants urge the court to uphold it and dismiss the suit and the accompanying notice of motion, with costs to them.
Plaintiff’s submissions
17. In his submissions filed on 26th June 2025, the plaintiff gives a brief background of the circumstances leading to the filing of the preliminary objection. In that regard, he points out that the impugned notice of motion was filed through a plaint, albelt a wrong one. Upon realizing the inadvertency in filing the suit, they replaced the plaint with the correct one.
18. Terming the preliminary objection unmerited, the plaintiff contends that disposing off the suit while there is a plaint on record would amount to sacrificing substantive justice at the altar of technicalities.
19. The plaintiff further submits that the objection by the respondents is blurred by factual issues liable to be contested as to which court can exercise discretion and that the issues raised must be ascertained by the court calling evidence and exercising its discretion hence cannot be said to be pure points of law.
20. The plaintiff submits that the preliminary objection should fail because it does not meet the threshold as it offends the principle definition of a preliminary objection set out in Mukisa Biscuits case. Whereas the defendants contend that the suit was filed without a plaint, the correct position is that the suit was accompanied by a plaint albeit one for a different claim which has since being replaced. The question as to whether the plaint replaced is properly on record is an issue of fact not a pure point of law. The plaintiff maintains that the preliminary objection is blurred with factual details, like the alleged death of the 5th defendant which requires evidence hence offends the principle espoused in Oraro Mbaja (2005)1 KLR 141.
Acknowledging the inadvertent error in filing the wrong plaint, the plaintiff explains that the error has since been rectified by filing and serving the correct plaint.
21. Contending that the respondents seek to hang on a technicality over substantive justice, something our constitution frowns upon, the plaintiff urges this court to keep in mind that hearing of the case has not commenced and exercise the discretion vested in it to avoid an injustice and hardship resulting from accident, inadvertence or excusable mistake or error of the plaintiff’s counsel. In that regard, reference is made to Philip Chemowolo & Another v. Augustine Kubender (1982-88)1 KAR 103 where it was stated/held:-
“blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer penalty of not having his case heard on merit the broad equity approach to this matter is that unless there is fraud or intention to overeach, there is no error or default that cannot be put right by payment of costs. The court as is often said, exists for the purpose of deciding the rights of parties and not for the purpose of imposing discipline.”
22. Arising from the foregoing factual background of the case and the submissions, the plaintiff urges this court to dismiss the preliminary objection on the ground that it does not raise pure points of law.
Analysis and determination
23. I have perused the court file and confirmed that a plaint was indeed filed on 3rd February 2025, albeit a wrong one. The claim by the defendant that the suit was instituted without a plaint is not factually correct. The correct argument should be that the filed plaint cannot support the motion because it does not relate to the parties in the notice of motion. In view of the foregoing, I agree with the plaintiff that to the extent that the defendants’ claim is that the suit was instituted without a plaint contrary to Order 3 rule 1 of the Civil Procedure Rules, the defendants cannot sustain the Preliminary objection on that ground because, in actual fact, the suit was accompanied by a plaint, albeit, a wrong one. The defendants ought to have acknowledged that there was a plaint filed and brought to the attention of the court that the plaint was wrong as it did not relate to the parties mentioned in the suit. If that was the case, the court would have had no problem issuing the appropriate orders, which include orders relating to the application by the plaintiff to expunge the wrongly filed plaint and replacing it with the right plaint.
24. Concerning the contention that the suit is unmaintainable for having been brought against a dead person, Josphat Maiyo (5th defendant), the question as to whether that person is dead, as contended by the defendants, cannot be ascertained from the pleadings. Contrary to the claim by the defendants that the question of death of the 5th defendant arises by clear implication from the affidavit sworn in support of the impugned notice of motion, I have perused the affidavit and noted that the deceased person referenced in the documents annexed therein is Pius Kimaiyo Kandie. There is no indication or even suggestion that Pius Kimaiyo Kandie and Josphat Kimaiyo are one and the same person. There is no nexus between the peliminary objection and the affidavit of protest filed on 17th June 2025, long after the preliminary objection was filed. If the defendants wanted to rely on that evidence in support of the contention that the 5th defendant is deceased, they would have filed a notice of motion then attached that document in the affidavit in support of that contention. The alleged death of the 5th defendant having not been admitted by the plaintiff, it cannot form the basis of the defendant’s preliminary objection. In any event, even if it was proven that the 5th defendant is deceased, that would not lead to issuance of the orders sought of striking out the entire suit as there are other parties to the suit. The only suit or claim that would be reliable for being struck out, if death of the 5th defendant was proven, is the case against the 5th defendant and not the other defendants.
Disposition
25. It is clear from the above analysis of the case and the preliminary objection that the preliminary objection as taken up cannot form the basis for granting the orders sought.
26. As pointed out hereinabove, in abid to regularize his pleadings, the plaintiff filed a fresh plaint that relates to the parties to this suit.
27. On 20th January 2025, the plaintiff informed the court that the plaint that accompanied the suit was inadvertedly filed and prayed that the wrong plaint be expunged from the court record and replaced with the fresh plaint.
28. Having determined that the grounds taken up in support of the preliminary objection cannot, in the circumstances of this case, form the basis of striking out the suit, I direct the parties to address me on the prayer by the plaintiff made on 20th January, 2025 (the plaint filed on 3rd February 2025 dated 30th January 2025, be expunged from the court record and be replaced with the plaint dated 21st January 2025) before I make a decision on it.
29. In that regard, I direct the plaintiff to within seven days from the date of delivery of this ruling to file and serve submissions on that issue. Upon service, the defendants shall have seven days to file and serve submissions on the issue.
30. The upshot of the foregoing is that the preliminary objection is found to be lacking in merit, at least in the manner crafted, and is dismissed with costs to the plaintiff.
31. The matter is set down for mention on 9th October 2025 to confirm filing of submissions and for further directions.
Dated, signed and delivered virtually at Iten this 23rd day of September, 2025.
Ruling read virtually in the presence of;-
Mr. Oduor for the applicant
Mr. Kenei for the respondent
Mr. Kwame for the 6th & 7th respondents
Court Asst.: Christine.
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Background
1. This suit was filed on 3rd February, 2025. The plaint under which it was instituted is for another suit to wit, a suit between Blacio Onyango Otieno and Muyoyo Otulo & 3 others. The verifying affidavit accompanying the suit is for the intended suit, Charles Kiprop Kipchoge v. Catherine Jeruto Jemaiyo & 6 others. There is an error apparent on the verifying affidavit as it is indicated to have been sworn on 21st January, 2020.
2. The suit was accompanied by a notice of motion dated 21st January 2025, through which the plaintiff seeks a temporary injunction to restrain the defendants, by themselves, their servants and or agents from disposing of, selling, leasing, subdividing or otherwise dealing with the parcels of land known as Elgeyo/Marakwet/Kapterik /b/497, 499, 500, 543, 544, 545, 546 and 547 pending hearing of the suit inter parties. The plaintiff also seeks a temporary injunction to restrain the defendants, by themselves, their servants and or agents from disposing of, selling, leasing, subdividing or otherwise dealing with the parcels of land known as Elgeyo/Marakwet/ Kapterik/B/ 497, 499, 500, 543, 544, 545, 546 and 547 pending hearing and determination of the suit.
3. Upon been served with the suit papers, the defendants filed the notice of preliminary objection, dated 18th February 2025, praying that the suit be strike out in limine with costs to them. The preliminary objection is premised on the following grounds: -
i) The suit is fatally defective and incompetent having been commenced contrary to the express provisions of Order 3 rule 1 of the Civil Procedure Rules;
ii) This court is divested of the primary jurisdiction to hear and determine the suit being a dispute arising from an adjudication process; and
iii) The suit against the 5th defendant, Josphat Maiyo, is fatally defective being a suit against a dead person.
4. In a bid to regularize the defect in the suit, the plaintiff, on 19th February, 2025 filed a new plaint dated 21st January, 2021.
5. Despite having been given opportunity to amicably address the issues arising from the defect in the pleadings filed by the plaintiff, the parties were unable to reach a settlement. Consequently, on 26th May 2025, this court directed that the preliminary objection be disposed of by way of written submissions.
SUBMISSIONS
Defendants submissions
6. In their written submissions filed on 26th June, 2025, the defendants contend that the instant suit was instituted vide the applicant’s notice of motion dated 21st January 2025. The following issues are framed for the court’s determination: -
i) Whether the preliminary objection meets the requisite threshold?
ii) Whether the suit is fatally defective and incompetent having been commenced contrary to the express provisions of Order 3 rule 1 of the Civil Procedure Rules;
iii) Whether the suit against the 5th defendant is defective being a suit against a dead person.
7. On whether the preliminary objection meets the requisite threshold, reference is made to the test espoused in Mukisa Biscuits Manufacturing Company Ltd vs. West End Distributors Ltd (1969) EA 696 and submitted that the issues taken up in support of the preliminary objection to wit, the suit having been commenced contrary to the provisions of Order 3 rule 1 of the Civil Procedure Rules and against a dead person, are purely legal phenomena. It is the defendants’ case, that the issues taken up in support of the preliminary objection are capable of extinguishing the plaintiff’s suit in total as a suit filed without a plaint and against a dead person is a nullity by itself and cannot stand.
8. According to the defendants, there is no contested fact that needs to be argued to enable this court make a decision on whether the matter was instituted vide a plaint and whether a dead person can be sued.
9. The defendants contend that the nature of the dispute is very clear from a glance at the pleadings filed and there is no need to prove any fact.
10. Concerning the alleged death of the 5th defendant, Josphat Maiyo, it is the defendant’s case that the death of Josphat Maiyo is none contentious because it is confirmed by the Probate and Administration documents annexed to the supporting affidavit and in particular the letter from the area chief. The objection, therefore, is said to arise by clear implication out of the pleadings.
11. On whether the suit is fatally defective and incompetent, having been commenced contrary to the express provisions of Order 3 rule 1 of the Civil Procedure Rules, the defendants maintain that the suit is fatally defective and incompetent having been commenced in the absence of a plaint to anchor the notice of motion. In that regard, reference is made to the case of Photo Energy Ltd vs. Hashi Energy Ltd Misc 180 of 2018 where the court stated as follows: -
“Order 3 rule (i) (ii) of the Civil Procedure Rules provides that every suit shall be instituted by way of a plaint. As a general rule a suit can only be instituted by way of a plaint, petition, or an originating summons. A notice of motion is not legally recognized as an originating process. A notice of motion can only be filed within a properly instituted suit. The applicants failed to file any originating process in this matter. I find the attempt to institute this suit by way of a notice of motion renders the entire suit defective.”
12. It is the defendants’ case that failure/omission by the plaintiff to file a substantive suit cannot be overlooked as a mere technicality that can be cured by invoking the provisions of Article 159 of the Constitution. In that regard, reliance is place on the case of Chacha & Another v Orbit Chemicals Industries Limited & another (E &L Misc case E003 of 2023(2024) KEELC 3278 (KLR)(7 March 2024) (Ruling) where, Mogeni J, stated/held:-
“In this matter the applicants did not anchor their notice of motion in a suit. They do not have a competent suit before the court. The application is not anchored in any pleadings to give it validity. Not every procedural blunder can be excused as a “mere technicality”. The filing of a suit is a mandatory statutory provision which the court cannot simply wish away.”
13. Further reference is made to the case of Dishon Ochieng v SDA Church (2012) e KLR where it was stated/held:-
“I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost effective manner and to eschew defeatist technicalities were meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free for all in the administration of justice. This court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines...”
14. On whether the suit against the 5th defendant is defective, being a suit against a dead person, the defendants assert that the suit is defective for having been instituted against a dead person, the 5th respondent. The defendants indicate that they have supplied a copy of the certificate of death for the 5th respondent and maintain that the documents attached to the applicant’s supporting affidavit and more so the letter from the area chief confirms the fact of the death of the 5th respondent. Based on the decision in the case of Nyoro v. Nyambura (E & L Appeal E072 of 2023)(2024) e KLR where while citing a Court of Appeal decision, the court stated:-
“The Court of Appeal has also had occasion to address the issue of a suit filed against a dead person in the case of Geeta Bharat Shah & 4 others vs Omar Said Mwatayari & Another Court of Appeal at Mombasa, Civil Appeal No. 46 of 2008 (2009) e KLR. The court stated as follows: -
“In the result, as Bharatkumar Nathalal Shah was already dead by the time the suit was filed, we hold the view the suit was a nullity and Mr. Oddiaga, is with respect right in conceding the appeal in respect of him on that score...”
15. It is the defendants’ case that the suit cannot be cured through amendment or substitution of the deceased person. In that regard, reference is made to the case of Shah & 6 others v Seif & 2 others (as Trustees of Wakf of Seif Bin Salim (E & L C case E006 of 2024 (2024)e KLR where Kibunja J stated/held:-
“The plaintiffs herein filed the suit against the named defendants, who had died long before the suit was instituted. The suit is therefore a nullity and the application predicated upon it is invalid. The suit as filed cannot be cured through amendment or substitution of the deceased trustees with the current ones, but ought to be struck out...”
16. Maintaining that their preliminary objection has merit, the defendants urge the court to uphold it and dismiss the suit and the accompanying notice of motion, with costs to them.
Plaintiff’s submissions
17. In his submissions filed on 26th June 2025, the plaintiff gives a brief background of the circumstances leading to the filing of the preliminary objection. In that regard, he points out that the impugned notice of motion was filed through a plaint, albelt a wrong one. Upon realizing the inadvertency in filing the suit, they replaced the plaint with the correct one.
18. Terming the preliminary objection unmerited, the plaintiff contends that disposing off the suit while there is a plaint on record would amount to sacrificing substantive justice at the altar of technicalities.
19. The plaintiff further submits that the objection by the respondents is blurred by factual issues liable to be contested as to which court can exercise discretion and that the issues raised must be ascertained by the court calling evidence and exercising its discretion hence cannot be said to be pure points of law.
20. The plaintiff submits that the preliminary objection should fail because it does not meet the threshold as it offends the principle definition of a preliminary objection set out in Mukisa Biscuits case. Whereas the defendants contend that the suit was filed without a plaint, the correct position is that the suit was accompanied by a plaint albeit one for a different claim which has since being replaced. The question as to whether the plaint replaced is properly on record is an issue of fact not a pure point of law. The plaintiff maintains that the preliminary objection is blurred with factual details, like the alleged death of the 5th defendant which requires evidence hence offends the principle espoused in Oraro Mbaja (2005)1 KLR 141.
Acknowledging the inadvertent error in filing the wrong plaint, the plaintiff explains that the error has since been rectified by filing and serving the correct plaint.
21. Contending that the respondents seek to hang on a technicality over substantive justice, something our constitution frowns upon, the plaintiff urges this court to keep in mind that hearing of the case has not commenced and exercise the discretion vested in it to avoid an injustice and hardship resulting from accident, inadvertence or excusable mistake or error of the plaintiff’s counsel. In that regard, reference is made to Philip Chemowolo & Another v. Augustine Kubender (1982-88)1 KAR 103 where it was stated/held:-
“blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer penalty of not having his case heard on merit the broad equity approach to this matter is that unless there is fraud or intention to overeach, there is no error or default that cannot be put right by payment of costs. The court as is often said, exists for the purpose of deciding the rights of parties and not for the purpose of imposing discipline.”
22. Arising from the foregoing factual background of the case and the submissions, the plaintiff urges this court to dismiss the preliminary objection on the ground that it does not raise pure points of law.
Analysis and determination
23. I have perused the court file and confirmed that a plaint was indeed filed on 3rd February 2025, albeit a wrong one. The claim by the defendant that the suit was instituted without a plaint is not factually correct. The correct argument should be that the filed plaint cannot support the motion because it does not relate to the parties in the notice of motion. In view of the foregoing, I agree with the plaintiff that to the extent that the defendants’ claim is that the suit was instituted without a plaint contrary to Order 3 rule 1 of the Civil Procedure Rules, the defendants cannot sustain the Preliminary objection on that ground because, in actual fact, the suit was accompanied by a plaint, albeit, a wrong one. The defendants ought to have acknowledged that there was a plaint filed and brought to the attention of the court that the plaint was wrong as it did not relate to the parties mentioned in the suit. If that was the case, the court would have had no problem issuing the appropriate orders, which include orders relating to the application by the plaintiff to expunge the wrongly filed plaint and replacing it with the right plaint.
24. Concerning the contention that the suit is unmaintainable for having been brought against a dead person, Josphat Maiyo (5th defendant), the question as to whether that person is dead, as contended by the defendants, cannot be ascertained from the pleadings. Contrary to the claim by the defendants that the question of death of the 5th defendant arises by clear implication from the affidavit sworn in support of the impugned notice of motion, I have perused the affidavit and noted that the deceased person referenced in the documents annexed therein is Pius Kimaiyo Kandie. There is no indication or even suggestion that Pius Kimaiyo Kandie and Josphat Kimaiyo are one and the same person. There is no nexus between the peliminary objection and the affidavit of protest filed on 17th June 2025, long after the preliminary objection was filed. If the defendants wanted to rely on that evidence in support of the contention that the 5th defendant is deceased, they would have filed a notice of motion then attached that document in the affidavit in support of that contention. The alleged death of the 5th defendant having not been admitted by the plaintiff, it cannot form the basis of the defendant’s preliminary objection. In any event, even if it was proven that the 5th defendant is deceased, that would not lead to issuance of the orders sought of striking out the entire suit as there are other parties to the suit. The only suit or claim that would be reliable for being struck out, if death of the 5th defendant was proven, is the case against the 5th defendant and not the other defendants.
Disposition
25. It is clear from the above analysis of the case and the preliminary objection that the preliminary objection as taken up cannot form the basis for granting the orders sought.
26. As pointed out hereinabove, in abid to regularize his pleadings, the plaintiff filed a fresh plaint that relates to the parties to this suit.
27. On 20th January 2025, the plaintiff informed the court that the plaint that accompanied the suit was inadvertedly filed and prayed that the wrong plaint be expunged from the court record and replaced with the fresh plaint.
28. Having determined that the grounds taken up in support of the preliminary objection cannot, in the circumstances of this case, form the basis of striking out the suit, I direct the parties to address me on the prayer by the plaintiff made on 20th January, 2025 (the plaint filed on 3rd February 2025 dated 30th January 2025, be expunged from the court record and be replaced with the plaint dated 21st January 2025) before I make a decision on it.
29. In that regard, I direct the plaintiff to within seven days from the date of delivery of this ruling to file and serve submissions on that issue. Upon service, the defendants shall have seven days to file and serve submissions on the issue.
30. The upshot of the foregoing is that the preliminary objection is found to be lacking in merit, at least in the manner crafted, and is dismissed with costs to the plaintiff.
31. The matter is set down for mention on 9th October 2025 to confirm filing of submissions and for further directions.
Dated, signed and delivered virtually at Iten this 23rd day of September, 2025.
Ruling read virtually in the presence of;-
Mr. Oduor for the applicant
Mr. Kenei for the respondent
Mr. Kwame for the 6th & 7th respondents
Court Asst.: Christine.
'