I. Introduction
1. Before this Honorable Court for its determination is the Notice of Preliminary Objection dated 31st October 2025 raised by the Defendants herein. The objection challenges the Notice of Motion application dated 14th October 2025 and the entire suit by the Plaintiff/Applicant.
2. For good order and expeditious sake, the court elected to deal with both the preliminary objection and the Notice of motion application simultaneously but distinctly in the interest of time and in realising the principle of expeditious exposal of matters.
II. The Notice of Motion application dated 14th October, 2025 by the Plaintiffs/Applicants
3. The Notice of Motion application was premised upon the provisions of Articles 50 (1) & 159 (2) (d) of the Constitution, Sections 1A,1B & 3A of the Civil Procedure Act, Cap. 21, Order 51 Rule 1, of the Civil Procedure Rules, 2010, Sections 4,5 and 7 of the Trustee Act, Cap. 167 and the ruling of this Honourable Court dated 9th July 2025.
4. The Plaintiff/Applicant sought for the following orders:-
a). That this Honourable Court be pleased to appoint the Plaintiff/Applicant Colin Stuart as interim rent collection agent in conjunction with professional rent collection agent pending final trustee substitution at the family court for the suit properties namely;
i. Kwale/Diani Beach Block/683.
ii. Kwale/Diani Beach Block/684.
iii. Kwale/Ukunda/397.
b). That the Plaintiff/Applicant [on an interim basis pending substitution of the public trustee and/or hearing and determination of this suit] and the professional estate agent be authorised to:-
i. Collect rent from all tenants and occupants on the suit property.
ii. Open and operate a dedicated estate rent collection account.
iii. Account quarterly to the beneficiaries of the estate of Rolf Robert Meier[deceased] and/or Honourable Court.
c). That the Kenya Power and Lighting Company (KPLC) do terminate and/or transfer any unauthorised or illegally operated electricity accounts associated with the suit properties currently held in the names other than the Plaintiff/Applicant or the estate of Rolf Robert Meier[Deceased] pending further orders of this court.
d). That the Officer Commanding Station (OCS) Diani Police Station do provide security and enforcement assistance to the Plaintiff/Applicant and his appointed management team in taking over, securing and managing the suit properties, including the enforcement of all lawful court orders and eviction of trespassers if necessary.
e). That once the Plaintiff, professional estate agent and their security team have access and control of the suit properties that the Plaintiff/Applicant be allowed to negotiate new tenancy agreements with the existing tenants and start rent collection on behalf of the estate.
f). That this honourable court do recognise and take judicial notice of criminal investigations currently underway before the directorate of criminal investigations and Kirega for intermeddling with estate property and order that any interference with the Applicant’s management of the suit properties shall amount to contempt of court.
g). That the Plaintiff/Applicant and /or professional estate agent be allowed to manage the properties exclusively and without interference by any party pending the full determination of this suit.
h). That this honourable court be pleased to issue any other orders it may deem fit in the circumstances.
i). That the costs of this application be in the cause.
5. The application was premised upon the grounds, testimonial facts and the averments made out under an 18 Paragraphed supporting affidavit sworn by COLIN STUART together with annextures marked as “CS – 1” annexed hereto. He averred as follows that:-
a). He was a male adult of sound mind and holder of the British Passport bearing numbers 533698194 and resident of Msambweni Sub County in the County of Kwale.
b). He was the Plaintiff/Applicant herein and hence the authority and competence to swear this Affidavit.
c). He filed this application seeking to be appointed the Estate Agent for the purposes of managing and collecting rent from the suit properties herein.
d). He was lawfully appointed by one Nick Stephen Omondi Odongo the estate administrator appointed by the lawful beneficiaries of the estate of the late Rolf Robert Meier and was subsequently registered as trustee and legal representative of the estate in respect of the parcels known as:-
i. Kwale/Diani Beach Block/683.
ii. Kwale/Diani Beach Block/684.
iii. Kwale/Ukunda/397.
e). In the alternative but in line with the court orders issued on 9th July 2025, the deponent was the suitable and qualified person to act as an agent on an interim basis along with the court appointed professional estate agent in accordance with the courts directive having a vested fiduciary and legal responsibility over the properties and the estate.
f). He had attempted to change the management and take over collection of rents through notices dated 3rd January 2025 or thereabouts addressed to the 3rd and 4th Defendants/Respondents which were all resisted by all the Respondents.
g). The suit properties were currently registered in his name and in the event that any legal issues arose within the suit properties he was to be sued in his capacity as a registered owner and the trustees to resolve any disputes.
h). Currently, the leasehold properties had arrears in rates payment and should the county government seek to follow up on payment then it would be upon the registered owner or trustee to pay up.
i). Apart from the rate arrears the Respondents had piled up electricity bills payment arrears and which also eventually be piled on him.
k). He was also a creditor to the Estate of Rolf Meier following the losses he had incurred after the 1st Defendant/Respondent unlawfully evicted him from his butchery business and that placing him as a trustee to manage and collect rent on behalf of the estate in order to give him a chance to recover and leave the estate in the care of the lawful beneficiaries and/or public trustee.
l). In the process of filing an application at the family court to be appointed as a trustee in the estate of Rolf Meier in substitution of the public trustee.
m). He was ready and willing to manage the estate transparently, efficiently and in compliance with all applicable laws and that his interim appointment would prevent unnecessary third party fees and accelerate restitution of the estate.
n). He undertook to manage the Estate transparently, efficiently and in compliance with all applicable laws.
o). The illegal electricity accounts had been opened by persons claiming to act on behalf of the estate and prayed that the KPLC is ordered to terminate or regularise the same.
p). The Directorate of Criminal Investigations in Kwale had commenced investigations against the 1st and 2nd Respondents for intermeddling with the estate of the deceased.
q). The application and the prayers sought to be allowed accordingly.
III. The response by the Defendants/Respondents to the application
6. In opposing the application, the Defendants/Respondents filed a 15 Paragraphs Replying Affidavit sworn by JAPHETH LUMERENI MWALIMO. He averred that:-
a) He was the 1st Defendant/Respondent, competent to swear this Affidavit on his behalf and that of all the Defendants/Respondents herein.
b) The application was misconceived, legally untenable and intended to unlawfully dispossess the Defendants of control and income from the suit properties.
c) The Plaintiff being a litigant with adverse interests could not lawfully or equitably be appointed as a rent collection agent in his own cause.
d) Such appointment would amount to conflict of interest, violate the principles of natural justice and irreparably prejudice the Defendants.
e) The Plaintiff had not been appointed a Trustee by any competent Court. This Honourable Court lacked jurisdiction to pre – empt the Family Court on Trusteeship matters.
f) Further that the Plaintiff was a foreign national on a tourist visa and lacked a valid work permit to engage in any rent collection or property management.
g) Granting the orders sought would amount to sanctioning an illegality contrary to statutes.
h) It was stated that there was no evidence of wastage or mismanagement had been tendered by the Applicant and that no urgency had been demonstrated to justify drastic orders sought.
i) The allegations of interfering with the KPLC accounts were speculative and unsupported by any evidence and thus the drastic orders sought were not justified.
j) The application was an abuse of the court process aimed at acquiring financial control of income generating property through interlocutory means.
k) The court was urged to disallow the application.
7. As indicated above, the Defendants/Respondents further filed a notice of preliminary objection dated 31st October 2025. The preliminary objection was on the following grounds:-
a) That the Plaintiff was non-suited as he lacked the requisite legal capacity to institute and maintain these proceedings in Kenya, being a foreign national in the country on a tourist visa and without a work permit or residence certificate contrary to the provisions of the Kenya Citizenship and Immigration Act 2011.
b) That the Plaintiff had no legal right or capacity to own or claim an interest in land in Kenya, the same being contrary to the provisions of Article 65 of the constitution of Kenya 2010 which restricts non-citizens to leasehold interests not exceeding ninety-nine [99] years and subject to the approval of the national land commission
c) That the suit as filed was incompetent, misconceived and bad in law and offends the mandatory provisions of the Civil Procedure Act, Cap. 21 and the Civil Procedure Rules, 2010 having been instituted by a person without legal capacity.
d) The Plaintiff, being non - suited and lacking locus standi could not sustain this claim. Therefore, the entire suit was a nullity ab initio and ought to be struck out with costs to the Defendants.
IV. Submissions
8. On 6th November 2025 while Counsels for the Parties were present in Court, they were directed to have the application and the preliminary objection disposed of by way of written submissions.
9. Pursuant to that they all obliged accordingly and the Honourable Court reserved to delivered it’s ruling on notice. It was eventually issued on 17th March, 2026 thereof.
A. The Written Submissions by the Plaintiffs/Applicants
10. The Law firm of Messrs. Joram Wang’ombe & Associate Advocates acting on behalf of the Plaintiffs filed written submissions dated 3rd November 2025. Mr. Wang’ombe Advocate commenced his submissions was on the application dated 18th November, 2025 and the objections raided by the Defendants/Respondents. The Learned Counsel recounted to Court that the Defendants had challenged the Plaintiff’s locus standi and capacity to institute these proceedings on grounds that he was a foreigner allegedly in Kenya on tourist visa. Therefore, he was incapable of owning or claiming an interest in (freehold) land under the provision of Article 65 of the Constitution of Kenya, 2010.
11. According to the Learned Counsel the objections were misconceived, premature and contrary to the Court’s Ruling delivered on 9th July, 2025, which already determined the Plaintiff’s capacity in this very matter.
12. The Plaintiff identified three ( 3 ) issues for determination. and which were:-
a. Whether the Plaintiff has locus standi to institute and maintain the present suit.
b. Whether the preliminary objection meets the Mukisa Biscuit Case for pure points of law.
c. Whether the issues raised are res judicata or otherwise barred by the courts earlier ruling of 9th July 2025.
13. Reference was made to the applicable law and principles and which include the provision of Articles 22[1], Article 65[1] Section 13 of the Environmental and Land Court Act, No. 19 of 2011 and Section 79 of the Law of Succession Act, Cap. 160 and Sections 4,5 and 7 of the Trustee Act. That a preliminary objection must raise a pure point of law on the assumption that all facts were undisputed.
14. The Plaintiff submitted that the court had in its ruling on 9th July 2025 which provided that the issue of the Plaintiffs standing in the estate had already been established and would not be re litigated upon as suggested by the preliminary objection. It was submitted that the Plaintiff holds the legal capacity to the estate as a trustee and creditor. That the allegations on his immigration status were issues of evidence and were not legal.
15. On public policy and constitutional consideration sit was submitted that the court ought to administer justice without undue regard to procedural technicalities. Reference was made to several authorities where the courts have protected legal rights through trusteeship and which include the case of:- “Re Estate of Fredrick Kagio Kinyua [Deceased] 2015 KEHC 436. The court was asked to find the preliminary objection as being unmerited.
B. The Written Submissions by the 1st Defendants/Respondents.
16. While opposing the application dated 14th October 2025, the Law firm of Messrs. Wambo Munyala & Company Advocates filed submissions on behalf of the 1st Defendant. Mr. Munyala Advocate commenced by stating that the submissions was dated 12th January 2026. The Counsel stated that the Preliminary Objection was based on legal ration as founded in the Classicus locus case of “Mukisa Biscuit Manufacturing Company Limited – Versus – West End Distributors Limited (1969) EA 696”. To wit that the objection were on pure law as it challenged on the legal capacity of the Plaintiff based on mandatory statutory and constitutional provisions. Thus, making the entire suit a nullity as was held in the case of “MacFoy – Versus – United Company Limited (1961) 3 All ER 1169” .
17. It was submitted that the Plaintiff could not be appointed as an agent in rent collection as the same would confer unilateral control over the income and tenants. It would irreversibly prejudice the Defendants and render the suit nugatory.
18. On the issue of jurisdiction. The Learned Counsel submitted that trusteeship and substitution fall under the jurisdiction of the family division. Therefore, this court lacked jurisdiction to determine the said issues. It was further submitted that the Plaintiff lacks the legal capacity to collect rent and manage gainful property as he was in the country on a tourist visa. Granting the orders sought would amount to judicial endorsement of an illegality. Also that the Plaintiff had failed to satisfy the interlocutory threshold on being granted any injunctive orders.
19. The Learned Counsel asserted that on alleged criminal investigations and stated that they were unsupported by evidence. There was no charge sheet or investigation reports had been annexed. The court could also not issue orders to KPLC who were third parties and not parties in the suit.
20. The court was urged to dismiss the application for being an abuse of the court process.
C. The Written Submissions by the 1st Defendants Submissions in support of the preliminary objection dated 31st October 2025.
21. The 1st Defendant filed submissions in support of the Preliminary objection dated 31st October 2025. It was dated 12th January 2026. Reference was made to the holding in “Mukisa Biscuit Manufacturing Company Limited (Supra”) on what constitutes a preliminary objection. On the lack of legal capacity and non-suit, it was submitted that the Plaintiff is a foreign national present in Kenya on a tourist visa and therefore lacks a work permit.
22. That under the Kenya Citizenship and Immigration Act 2011 a person on a tourist visa is authorised for visitation only and not for the purpose of engaging in long term litigation or business like activities regarding land interests. Reference was made to the holding in the case of:- “Peter M Leparakuo & 3 Others – Versus - Chief Land Registrar & 4 Others [2015] eKLR” where the court stated that the foundation of any judicial process is locus standi and without it the court is a vacuum. Further that under the provision of Article 65 of the Constitution, non-citizens could only hold land under leasehold interest and the plaintiff has not demonstrated any change of the interest to freehold.
23. Lastly, it was submitted that the suit offended mandatory provisions of the Civil Procedure Act, Cap. 21 and the Civil Procedure Rules, 2010 and hence ought to be struck out. The court was urged to uphold the preliminary objection.
D. Analysis and determination
24. The Honourable Court has keenly considered the pleadings in form of the Notice of Motion application, the reply and the Preliminary Objection raised by the Defendants herein, the written submissions, the cited myriad of authorities, the relevant provisions of the Constitution of Kenya, 2010 and the Statutes.
25. In order to arrive at an informed, reasonable and just decision, I have framed the following three (3) salient issues for determination:-
a). Whether the Preliminary objection raised by the Defendants herein meets the threshold for an objection based on Law and precedents.
b). Whether the Notice of Preliminary Objection dated 14th October, 2025 as taken is well founded, valid and merited.
c). Who will bear the costs of the Notice of Motion application and the Preliminary Objection?
ISSUE No. a). Whether the Notice of Preliminary Objection as taken is well founded, valid and merited;
26. Under this Sub – heading the Honourable Court will be examining the legal concept of a Preliminary Objection. To begin with, I will start by setting out what a proper preliminary objection is. According to the Black Law Dictionary a Preliminary Objection is defined as:
“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”
27. On this issue, judicial notice is taken to the effect that in the course of time, the High Court has extensively deliberated on it. Thus, there will be no need to re – invent the wheel. I am guided by various decisions of the courts for instance, the cases of:- “Nitin Properties Limited – Versus - Singh Kalsi & Another [1995] eKLR” the Court stated thus: -
'A Preliminary Objection raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.'
28. Additionally, the Tanzanian Court of Appeal sitting in Dar es Salaam, in the case of:- “Karata Ernest & others – Versus - Attorney General (Civil Revision No 10 of 2020) [2010] TZCA 30 (29 December 2010), (Luanda, JA, Ramadhani, CJ, Rutakangwa, JJA), put the issue of preliminary objections in a more exhaustive manner as follows: -
“At the outset we showed that it is trite law that a point of preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it. It only "consists o f a point of law which has been pleaded, or which arises by dear implication out of the pleading obvious examples include: objection to the jurisdiction of the court; a plea of limitation; when the court has been wrongly moved either by non-citation or wrong citation of the enabling provisions of the law; where an appeal is lodged when there is no right of appeal; where an appeal is instituted without a valid notice of appeal or without leave or a certificate where one is statutorily required; where the appeal is supported by a patently incurably defective copy of the decree appealed from; etc. All these are clear pure points of law. All the same, where a taken point of objection is premised on issues of mixed facts and law that point does not deserve consideration at all as a preliminary point of objection. It ought to be argued in the "normal manner" when deliberating on the merits or otherwise of the concerned legal proceedings.
29. The “Classicus locus” case of “Mukisa Biscuits Manufacturing Company Limited (Supra)” described a preliminary objection as hereunder:-
'So far as I am aware, 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. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.'
30. Sir Charles Newbold, JA in the same case stated that: -
'A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.'
31. A “demurrer” according to Black’s Law Dictionary has its roots in French law ‘demorer’ and Latin ‘demorari’ and is defined as follows:
“A pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the Plaintiff to state a claim for relief and for the Defendant.”
32. I further wish to rely on the decision of “Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR”: - as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection ‘inter alia: -
a. A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.
b. A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and
c. The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.
33. In view of the above, it is clear that a preliminary objection should raise pure points of law and which are argued on the assumption that all facts are correct. Be that as it may, in the instant case, the preliminary objection herein raises several issues as against the Plaintiff and the suit have been raised. These include the allegation that the Plaintiff being of a foreign national thus lacks the legal capacity to institute any suit mores so because he is in the country on a tourist visa. Further, it has been alleged that the land the Plaintiff purports to hold ownership of is a freehold and hence the Plaintiff being a foreigner lacks the capacity to hold land interest on freehold tenure. Without delving further into the rest of the grounds as raised in the preliminary objection, it is undoubtedly clear that all these are issues that need further interrogation by way of adducing both documentary and oral empirical evidence. Certainly, these will go into establishing the factual aspects of the allegations.
34. Therefore, I discern that the proper forum to make all these deliberations would be during a full trial. Based on the principles of natural Justice on the right to be heard, Equity and Conscience, all the parties need to be accorded access to justice, fair hearing and an opportunity to be heard as clearly spelt out under the provisions of the Kenyan constitution 2010. I strongly hold that the issues raised from the objection are mainly matters of facts to be ably deliberated during a full trial. Hence, by and large, the objection is not sustainable.
ISSUE No. b). Whether the Notice of Motion application herein dated 16th October 2025 is merited
35. Under this Sub – heading, the Honourable Court will be examining whether the application by the applicant is meritorious. To begin with, I wish to make reference to the ruling of this court by Judge Dena as delivered on 9th July 2025. From it, it is clear that an injunction was issued against the 1st and 2nd Defendants herein from any interference with the suit properties. The court was also clear on the issue of rent collection where it directed that there be appointed a registered real estate agent appointed by parties to collect rent from the tenants occupying the suit property and to deposit the same in court less the agents statutory commission pending hearing and determination of the suit.
36. From the history of the matter, it is clear that there is a dispute on the issues surrounding the ownership and use of the suit properties and which informed the ruling by the court to have the proceeds from the tenants collected and held by an impartial party awaiting the final determination of the matter. To revisit the issues and grant orders allowing the Plaintiff to act as a rent collection agent and engage in revising the tenancy terms will in my opinion be prejudicial to the rest of the parties given the nature of the dispute herein.
37. There is an evident existing animosity between the parties as evidenced by the ongoing criminal investigations and allegations of attacks to the Plaintiff. To allow the police to take over the management of the suit properties as suggested by the Plaintiff will in my opinion be an escalation of the tension already existing between the parties and brew unnecessary wrangles that might get out of hand. The injunctive orders in place have kept the peace as it is and the court cannot grant any orders that might lead to a breach of the said peace.
38. I find no tangible nor cogent reason to review the orders of the court granted on 9th July 2025 which in my view the application is a guise for a review. The court opines that it is proper for the orders to be implemented as they were and will therefore not allow the orders sought in the instant motion.
ISSUE No. c). Who will bear the costs of the Notice of Motion application and the preliminary objection?
39. It is now well established that the issue of costs is at the discretion of Court. Costs mean the award that a party is granted at the conclusion of a legal action or proceedings in any litigation. The proviso of Section 27 of the Civil Procedure Act, Cap. 21 provides that costs should follow the event unless the court for some good reason orders otherwise. By the event it means the results or outcome of the legal action.
40. In the instant case, both the notice of motion and the preliminary objection have failed. It will be prudent for each party to bear its own costs.
41. However, it is my humble advise to the parties to concentrate on the crystal ball – being the main suit. Let there be expeditious disposal of the suit and desist from instituting numerous interlocutory applications one after the other. They only contribute into further delaying the hearing and final determination of the main suit.
E. Conclusion & Disposition
42. Consequently, having caused an in-depth analysis of the framed issues herein, based on the Preponderance of Probabilities and the balance of convenience, the Honourable Court proceeds to make the following orders: -
a) THAT the Preliminary objection dated 31st October 2025 by the 1st, 2nd, 3rd & 4th Defendants herein be and is hereby found to be unmeritorious and hence it is dismissed.
b) THAT the Notice of Motion application dated 14th October 2025 be and is hereby found to lack merit and hence is dismissed.
c) THAT for expediency sake there be conducted a Pre – Trial Conference on 2nd July, 2026 in accordance with the provision of Order 11 of the Civil Procedure Rules, 2010. There be a hearing of this matter on 11th November, 2026 preferably through Physical means.
d) THAT each party to bear its own costs for both the Notice of Motion application and the preliminary objection.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS…….17TH ……. DAY OF…...MARCH….2026
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
b) Mr. Wang’ombe Advocate for the Plaintiffs/Applicants.
c) Mr. Muyala Advocate for the 1st, 2nd, 3rd & 4th Defendants/Respondents.