I. Introduction
1. Before the Honourable Court for its determination is the Notice of Preliminary Objection dated 17th March 2025. It was raised by the 1st, 2nd, 3rd and 4th Defendants/Applicants herein.
2. As a matter of relevant information, it’s instructive to note that this suit was instituted by a Plaint dated 23rd September 2024 filed by the Plaintiff/Respondent herein through the Law firm of M/s. Mongare & Co Advocate.
II. The objection by the 1st,2nd,3rd, and 4th Defendants/Applicants
3. The preliminary objection raised the following grounds:-
a) That the Estate of the late Mwanamkasi Ahamadi Mwakikanda (a muslim) long distributed and settled pursuant to Section 5 of the Kadhi Courts Act Cap aa Laws of Kenya in Succession Cause No. 149 of 2014.
b) That the Estate has no assets capable of administration and/or distribution.
c) That the Plaintiff secured a subsequent grant of representation over the same Estate by concealing material facts.
d) That the Plaintiff's Grant of Letters of Administration dated 21st January 2022 is irregular.
e) That the Plaintiff lacks the requisite locus standi to sustain the proceedings herein and the 1st,2nd, 3rd and 4th Defendants pray that the Plaintiff’s Suit be dismissed with costs.
III. Submissions
4. On 7th April 2025 while Mr. Mongare for the Plaintiff, Mr. Muchiri for the 1st – 4th Defendants were present but in the absence of the 5th Defendant, they were directed to have the preliminary objection disposed of by way of written submissions. The court reserved the 1st July 2025 for delivery of the ruling.
5. Pursuant to that, apart from the Plaintiff/Respondent herein who filed his submissions dated 29th May 2025, by time of penning down this Ruling, the Honourable Court had not been able to access the written submissions from neither the Judiciary CTS portal nor the ELC Registry from the 1st – 4th Defendants/Applicants and 5th Defendant herein. Thus, it proceeded to deliver its Ruling on merit on 1st July, 2025 accordingly.
A. The Written Submissions by the Plaintiff/Respondent
6. On behalf of the Plaintiff/Respondent, the Law firm of Messrs. Mongare & Co Advocates filed their written submissions dated 29th May 2025. Mr. Mongare Advocate commenced his submissions by simply outlining two ( 2) reasons why the preliminary objection by the Defendants had no legal basis. These were:
7. Firstly, the Estate of the late Mwanamkasi Ahamadi Mwakikanda was illegally, irregularly and/or fraudulently transferred and subsequently owned, trespassed, enriched, cultivated and alienated the said Estate known as KWALE/KINWENDOSHIRAZI/DALGUBE/1946 without any scintilla of legal justification hence raising the question how they came into the property hencing seeking the determination of the court.
8. Secondly, the issue of Locus standi is a fact that has to be ascertained and the Plaintiff's suit can't be dismissed by way of a Preliminary Objection.
IV. Analysis and Determination
9. I have keenly considered the objection raised through the Notice of Preliminary Objection dated 17th March 2025 by the Defendant herein, the written submissions, the cited authorities, the relevant provisions of the Constitution of Kenya, 2010 and statutes.
10. In order to reach at an informed, reasonable and fair decision on the matter, the Honorable Court wishes to be guided by the following three (3) salient issues for its determination. These are: -
a) Whether the objection raised by the Defendant through the Notice of Preliminary Objection dated 17th March 2025 meets the threshold founded in Law and precedents.
b) Whether the Defendant is entitled to the relief sought from filed Notice of Preliminary Objection dated 17th March 2025
c) Who will bear the Costs of the Objection?
ISSUE No. a). Whether the objection raised by the Defendant through the Notice of Preliminary Objection dated 17th March 2025 meets the threshold founded in Law and precedents.
11. Under this sub – heading, the Honourable Court 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…….”
12. Similarly, in the case of:- Nitin Properties Limited - Versus - Singh Kalsi & Another [1995] eKLR” where 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.”
13. 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), expounded 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.’
14. The court in the famous case of: ”Mukisa Biscuits Manufacturing Co Limited – Versus - West End Distributors Limited (1969) EA 696 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.'
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.'
15. The Supreme Court addressed its mind on this issue in the case of “Aviation & Allied Workers Union Kenya – Versus - Kenya Airways Limited & 3 Others [2015] eKLR” and stated:
“Thus, a Preliminary Objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.”
16. The Court has a duty to determine whether the objection raised by the 1st Respondent qualifies to be a Preliminary Objection as described in the aforementioned cases. The 1st Respondent has pleaded that the Plaintiff has no Locus Standi or capacity to sustain the proceedings. That due to the lack of the said capacity, the suit is incompetent and should be dismissed with costs. Locus standi is defined in Black’s Law Dictionary as: -“The right to bring an action or to be heard in a given forum.”
17. In the case of “Law Society of Kenya – Versus - Commissioner of Lands & Others, Nakuru High Court Civil Case No.464 of 2000,” the Court held that:-
“Locus Standi signifies a right to be heard; a person must have sufficiency of interest to sustain his standing to sue in Court of Law”. Further in the case of Alfred Njau and Others – Versus - City Council of Nairobi (1982) KAR 229”, the Court also held that:- -
“the term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings”.
18. It is therefore evident that locus standi is the right to appear and be heard in Court. Therefore, if a party is found to have no “locus standi”, then it means he/she cannot be heard even on whether or not he has a formidable case. It is further evident that if this Court was to find that the Plaintiff has no “locus standi”, then the Plaintiff cannot be heard and that point alone may dispose of the suit. In the case of: “Quick Enterprises Limited – Versus - Kenya Railways Corporation, Kisumu High Court Civil Case No.22 of 1999, the Court held that: -
“When preliminary points are raised, they should be capable of disposing the matter preliminarily without the court having to resort to ascertaining the facts from elsewhere apart from looking at the pleadings alone”.
19. Having now considered the objections raised by the 1st Respondent; the Court finds that lack of “Locus standi’ can dispose of the matter preliminarily without having to resort to ascertaining of facts. Therefore, the preliminary Objection raised by the 1st Respondent fits the description of Preliminary Objection as stated in myriads of authorities mentioned above.
ISSUE No. b). Whether the Defendant is entitled to the relief sought from filed Notice of Preliminary Objection dated 17th March 2025
20. Having satisfied myself that the preliminary objection on the point of locus standi is properly raised, I will embark on the merits of the said preliminary objection. The 1st to the 4th Defendants/Applicants state that the Estate of the late Mwanamkasi Ahamadi Mwakikanda (a muslim) long distributed and settled pursuant to Section 5 of the Kadhi Courts Act Cap Laws of Kenya in Succession Cause No. 149 of 2014, the Estate has no assets capable of administration and/or distribution, the Plaintiff secured a subsequent grant of representation over the same Estate by concealing material facts the Plaintiff's Grant of Letters of Administration dated 21st January 2022 is irregular.
21. On the other hand, the Plaintiff/Respondent claim that it is evident that the 1st, 2nd, 3rd, and 4th Respondents/Applicants are alleged to have commenced Succession Cause No. 149 of 2014 in the Kwale Kadhi’s Court before Hon. Hamisi Bedzenga in an illegal, irregular, and/or fraudulent manner in favour of one Salim Hamadi Maonde (now deceased). It is further alleged that the subject property, being Parcel No. KWALE/KINWENDO SHIRAZI/DALGUBE/1946, was thereafter transferred to the 3rd and 4th Defendants/Applicants with the assistance of the 5th Defendant. This is in relation to the Plaint re produced herein verbatim as follows:-
5. At material times to this suit on 27th Day of July 2007 and before 14th Day of May 2014 the Plaintiff's Aunt MWANAMKASI AHAMADI MWAKIKANDA (DECEASED) was absolutely the Registered Owner of all that parcel of land otherwise known as KWALE/KINGWEDE SHIRAZI/DALGUBE/946 where the Plaintiff resides.
6. On or about 2014 the 1st and 2nd Defendant's father and brother (Respectively) SALIM HAMADI MAONDO (DECEASED) filed a Succession Cause No. 149 of 2014 at Kwale before the Honourable Kadhi's Court Hon. SAID HAMISI BEDZENGA subsequently the Honourable Court, issued Certificate of Confirmation of Grant against the Estate of MWANAMKASI AHMADI MWAKIKANDA (DECEASED) erroneously dated 8th day of May 2014 depriving the Plaintiff and his siblings.
7. The 1st and 2nd Defendants father/brother SALIM HAMADI MAONDO (DECEASED) while armed with the said Order issued by Hon. SAID HAMISI BEDZENGA visited the 5th Defendant's Office Kwale Land Registry, made a Transmission through L.R.A 17 and 19 to the name of SALIM HAMADI MAONDO now DECEASED depriving the Plaintiff parcel of land KWALE/KINGWEDE SHIRAZI/DALGUBE/946.
8. THE 1st and 2nd Defendants Father and Brother SALIM HAMADI MAONDO (DECEASED) and the 3rd and 4th Defendant's father SIMON RITHO JAIRO MACHARIA (DECEASED) Transferred Parcel of land KWALE/KINGWEDE SHIRAZI/DALGUBE/946 while the Original Title was in Possession of the Plaintiff's Custody.
9. The 5th Defendant didn't make any appropriate inquiries as to the existence of the Original Title Deed No. KWALE/KINGWEDE SHIRAZI/DALGUBE/946 which the Plaintiff was to
22. The Plaintiff/Respondent asserts that the said Defendants/Applicants have since taken possession of the estate, trespassed upon it, cultivated, alienated, and unjustly enriched themselves without any legal justification, despite several pleas to vacate and surrender the land.
23. The Plaintiff further states that the Applicants are not related to the deceased's estate, raising the pertinent issue of how they came into possession of the aforementioned parcel of land. This is a fundamental question that must be addressed and determined on merit by this Court. Clearly, there are numerous issues that this Court needs to further interrogate and the best opportunity is during the full trial.
24. Therefore, based on the fore – going, it is the considered view of this Honourable Court that the Preliminary Objection does not resolve the core issues in dispute. It does not assist the Court at all in justifiably resolving the matter at hand. Instead, it merely opens the door for further investigation by relevant agencies. Accordingly, I discern that the Preliminary Objection lacks merit and is hereby dismissed. In all fairness, the matter shall proceed to full hearing for substantive determination.
ISSUE No. c). Who will bear the Costs of the Objection?
25. It is now well established that the issue of Costs is the discretion of Courts. According to the Black Law Dictionary, “Cost” is defined to mean, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”. The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. By the events, it means the results or outcome of any legal action or proceedings thereafter.
26. Further, these legal principles were upheld in the Supreme Court case of “Jasbir Rai Singh – Versus – Tarchalans Singh, (2014) eKLR” and the Court of Appeal cases of “Cecilia Karuru Ngayu – Versus – Barclays Bank of Kenya & Ano. (2016) eKLR” the Courts held:-
“……… The basic rule on attribution of costs is that costs follow the event…..it is well recognized that the principles costs follow the event is not to be used to penalize the losing party; rather, it is for compensating the successful party for the trouble taken in presenting or defending the case”.
27. In the instant case, the Preliminary objection raised by the Defendant has failed to sustain the fundamental threshold of such an objection in law. Thus, it has been defeated. It follows that the Plaintiff is entitled to the costs thereof.
V. Conclusions & Disposition
28. Consequently, upon causing an in-depth analysis to the framed issues herein, the Honourable Court, on the Preponderance of Probabilities and the balance of convenience, reaches at the following findings. These are: -
a) THAT the Notice of Preliminary Objection dated 17th March, 2025, be and is hereby found to lack merit and thus it is dismissed entirely.
b) THAT for expediency’s sake, there be a mention on 30th September, 2025, for purposes of conducting a Pre–Trial Conference pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010. There should be a hearing date of the matter on 18th December, 2025 through physical means.
c) THAT the costs of the Preliminary objection be awarded to the Plaintiff to be borne by the 1st, 2nd, 3rd & 4th Defendants herein jointly and severally.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICRO–SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS…………1ST ………. DAY OF ………..JULY ………….2025
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
b) Mr. Mongare for the Plaintiff/Respondent.
c) Mr. Muchiri Advocate for the 1st , 2nd, 3rd & 4th Defendants/Applicants.
d) No appearance for the 5th Defendant.
1. Before the Honourable Court for its determination is the Notice of Preliminary Objection dated 17th March 2025. It was raised by the 1st, 2nd, 3rd and 4th Defendants/Applicants herein.
2. As a matter of relevant information, it’s instructive to note that this suit was instituted by a Plaint dated 23rd September 2024 filed by the Plaintiff/Respondent herein through the Law firm of M/s. Mongare & Co Advocate.
II. The objection by the 1st,2nd,3rd, and 4th Defendants/Applicants
3. The preliminary objection raised the following grounds:-
a) That the Estate of the late Mwanamkasi Ahamadi Mwakikanda (a muslim) long distributed and settled pursuant to Section 5 of the Kadhi Courts Act Cap aa Laws of Kenya in Succession Cause No. 149 of 2014.
b) That the Estate has no assets capable of administration and/or distribution.
c) That the Plaintiff secured a subsequent grant of representation over the same Estate by concealing material facts.
d) That the Plaintiff's Grant of Letters of Administration dated 21st January 2022 is irregular.
e) That the Plaintiff lacks the requisite locus standi to sustain the proceedings herein and the 1st,2nd, 3rd and 4th Defendants pray that the Plaintiff’s Suit be dismissed with costs.
III. Submissions
4. On 7th April 2025 while Mr. Mongare for the Plaintiff, Mr. Muchiri for the 1st – 4th Defendants were present but in the absence of the 5th Defendant, they were directed to have the preliminary objection disposed of by way of written submissions. The court reserved the 1st July 2025 for delivery of the ruling.
5. Pursuant to that, apart from the Plaintiff/Respondent herein who filed his submissions dated 29th May 2025, by time of penning down this Ruling, the Honourable Court had not been able to access the written submissions from neither the Judiciary CTS portal nor the ELC Registry from the 1st – 4th Defendants/Applicants and 5th Defendant herein. Thus, it proceeded to deliver its Ruling on merit on 1st July, 2025 accordingly.
A. The Written Submissions by the Plaintiff/Respondent
6. On behalf of the Plaintiff/Respondent, the Law firm of Messrs. Mongare & Co Advocates filed their written submissions dated 29th May 2025. Mr. Mongare Advocate commenced his submissions by simply outlining two ( 2) reasons why the preliminary objection by the Defendants had no legal basis. These were:
7. Firstly, the Estate of the late Mwanamkasi Ahamadi Mwakikanda was illegally, irregularly and/or fraudulently transferred and subsequently owned, trespassed, enriched, cultivated and alienated the said Estate known as KWALE/KINWENDOSHIRAZI/DALGUBE/1946 without any scintilla of legal justification hence raising the question how they came into the property hencing seeking the determination of the court.
8. Secondly, the issue of Locus standi is a fact that has to be ascertained and the Plaintiff's suit can't be dismissed by way of a Preliminary Objection.
IV. Analysis and Determination
9. I have keenly considered the objection raised through the Notice of Preliminary Objection dated 17th March 2025 by the Defendant herein, the written submissions, the cited authorities, the relevant provisions of the Constitution of Kenya, 2010 and statutes.
10. In order to reach at an informed, reasonable and fair decision on the matter, the Honorable Court wishes to be guided by the following three (3) salient issues for its determination. These are: -
a) Whether the objection raised by the Defendant through the Notice of Preliminary Objection dated 17th March 2025 meets the threshold founded in Law and precedents.
b) Whether the Defendant is entitled to the relief sought from filed Notice of Preliminary Objection dated 17th March 2025
c) Who will bear the Costs of the Objection?
ISSUE No. a). Whether the objection raised by the Defendant through the Notice of Preliminary Objection dated 17th March 2025 meets the threshold founded in Law and precedents.
11. Under this sub – heading, the Honourable Court 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…….”
12. Similarly, in the case of:- Nitin Properties Limited - Versus - Singh Kalsi & Another [1995] eKLR” where 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.”
13. 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), expounded 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.’
14. The court in the famous case of: ”Mukisa Biscuits Manufacturing Co Limited – Versus - West End Distributors Limited (1969) EA 696 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.'
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.'
15. The Supreme Court addressed its mind on this issue in the case of “Aviation & Allied Workers Union Kenya – Versus - Kenya Airways Limited & 3 Others [2015] eKLR” and stated:
“Thus, a Preliminary Objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.”
16. The Court has a duty to determine whether the objection raised by the 1st Respondent qualifies to be a Preliminary Objection as described in the aforementioned cases. The 1st Respondent has pleaded that the Plaintiff has no Locus Standi or capacity to sustain the proceedings. That due to the lack of the said capacity, the suit is incompetent and should be dismissed with costs. Locus standi is defined in Black’s Law Dictionary as: -“The right to bring an action or to be heard in a given forum.”
17. In the case of “Law Society of Kenya – Versus - Commissioner of Lands & Others, Nakuru High Court Civil Case No.464 of 2000,” the Court held that:-
“Locus Standi signifies a right to be heard; a person must have sufficiency of interest to sustain his standing to sue in Court of Law”. Further in the case of Alfred Njau and Others – Versus - City Council of Nairobi (1982) KAR 229”, the Court also held that:- -
“the term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings”.
18. It is therefore evident that locus standi is the right to appear and be heard in Court. Therefore, if a party is found to have no “locus standi”, then it means he/she cannot be heard even on whether or not he has a formidable case. It is further evident that if this Court was to find that the Plaintiff has no “locus standi”, then the Plaintiff cannot be heard and that point alone may dispose of the suit. In the case of: “Quick Enterprises Limited – Versus - Kenya Railways Corporation, Kisumu High Court Civil Case No.22 of 1999, the Court held that: -
“When preliminary points are raised, they should be capable of disposing the matter preliminarily without the court having to resort to ascertaining the facts from elsewhere apart from looking at the pleadings alone”.
19. Having now considered the objections raised by the 1st Respondent; the Court finds that lack of “Locus standi’ can dispose of the matter preliminarily without having to resort to ascertaining of facts. Therefore, the preliminary Objection raised by the 1st Respondent fits the description of Preliminary Objection as stated in myriads of authorities mentioned above.
ISSUE No. b). Whether the Defendant is entitled to the relief sought from filed Notice of Preliminary Objection dated 17th March 2025
20. Having satisfied myself that the preliminary objection on the point of locus standi is properly raised, I will embark on the merits of the said preliminary objection. The 1st to the 4th Defendants/Applicants state that the Estate of the late Mwanamkasi Ahamadi Mwakikanda (a muslim) long distributed and settled pursuant to Section 5 of the Kadhi Courts Act Cap Laws of Kenya in Succession Cause No. 149 of 2014, the Estate has no assets capable of administration and/or distribution, the Plaintiff secured a subsequent grant of representation over the same Estate by concealing material facts the Plaintiff's Grant of Letters of Administration dated 21st January 2022 is irregular.
21. On the other hand, the Plaintiff/Respondent claim that it is evident that the 1st, 2nd, 3rd, and 4th Respondents/Applicants are alleged to have commenced Succession Cause No. 149 of 2014 in the Kwale Kadhi’s Court before Hon. Hamisi Bedzenga in an illegal, irregular, and/or fraudulent manner in favour of one Salim Hamadi Maonde (now deceased). It is further alleged that the subject property, being Parcel No. KWALE/KINWENDO SHIRAZI/DALGUBE/1946, was thereafter transferred to the 3rd and 4th Defendants/Applicants with the assistance of the 5th Defendant. This is in relation to the Plaint re produced herein verbatim as follows:-
5. At material times to this suit on 27th Day of July 2007 and before 14th Day of May 2014 the Plaintiff's Aunt MWANAMKASI AHAMADI MWAKIKANDA (DECEASED) was absolutely the Registered Owner of all that parcel of land otherwise known as KWALE/KINGWEDE SHIRAZI/DALGUBE/946 where the Plaintiff resides.
6. On or about 2014 the 1st and 2nd Defendant's father and brother (Respectively) SALIM HAMADI MAONDO (DECEASED) filed a Succession Cause No. 149 of 2014 at Kwale before the Honourable Kadhi's Court Hon. SAID HAMISI BEDZENGA subsequently the Honourable Court, issued Certificate of Confirmation of Grant against the Estate of MWANAMKASI AHMADI MWAKIKANDA (DECEASED) erroneously dated 8th day of May 2014 depriving the Plaintiff and his siblings.
7. The 1st and 2nd Defendants father/brother SALIM HAMADI MAONDO (DECEASED) while armed with the said Order issued by Hon. SAID HAMISI BEDZENGA visited the 5th Defendant's Office Kwale Land Registry, made a Transmission through L.R.A 17 and 19 to the name of SALIM HAMADI MAONDO now DECEASED depriving the Plaintiff parcel of land KWALE/KINGWEDE SHIRAZI/DALGUBE/946.
8. THE 1st and 2nd Defendants Father and Brother SALIM HAMADI MAONDO (DECEASED) and the 3rd and 4th Defendant's father SIMON RITHO JAIRO MACHARIA (DECEASED) Transferred Parcel of land KWALE/KINGWEDE SHIRAZI/DALGUBE/946 while the Original Title was in Possession of the Plaintiff's Custody.
9. The 5th Defendant didn't make any appropriate inquiries as to the existence of the Original Title Deed No. KWALE/KINGWEDE SHIRAZI/DALGUBE/946 which the Plaintiff was to
22. The Plaintiff/Respondent asserts that the said Defendants/Applicants have since taken possession of the estate, trespassed upon it, cultivated, alienated, and unjustly enriched themselves without any legal justification, despite several pleas to vacate and surrender the land.
23. The Plaintiff further states that the Applicants are not related to the deceased's estate, raising the pertinent issue of how they came into possession of the aforementioned parcel of land. This is a fundamental question that must be addressed and determined on merit by this Court. Clearly, there are numerous issues that this Court needs to further interrogate and the best opportunity is during the full trial.
24. Therefore, based on the fore – going, it is the considered view of this Honourable Court that the Preliminary Objection does not resolve the core issues in dispute. It does not assist the Court at all in justifiably resolving the matter at hand. Instead, it merely opens the door for further investigation by relevant agencies. Accordingly, I discern that the Preliminary Objection lacks merit and is hereby dismissed. In all fairness, the matter shall proceed to full hearing for substantive determination.
ISSUE No. c). Who will bear the Costs of the Objection?
25. It is now well established that the issue of Costs is the discretion of Courts. According to the Black Law Dictionary, “Cost” is defined to mean, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”. The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. By the events, it means the results or outcome of any legal action or proceedings thereafter.
26. Further, these legal principles were upheld in the Supreme Court case of “Jasbir Rai Singh – Versus – Tarchalans Singh, (2014) eKLR” and the Court of Appeal cases of “Cecilia Karuru Ngayu – Versus – Barclays Bank of Kenya & Ano. (2016) eKLR” the Courts held:-
“……… The basic rule on attribution of costs is that costs follow the event…..it is well recognized that the principles costs follow the event is not to be used to penalize the losing party; rather, it is for compensating the successful party for the trouble taken in presenting or defending the case”.
27. In the instant case, the Preliminary objection raised by the Defendant has failed to sustain the fundamental threshold of such an objection in law. Thus, it has been defeated. It follows that the Plaintiff is entitled to the costs thereof.
V. Conclusions & Disposition
28. Consequently, upon causing an in-depth analysis to the framed issues herein, the Honourable Court, on the Preponderance of Probabilities and the balance of convenience, reaches at the following findings. These are: -
a) THAT the Notice of Preliminary Objection dated 17th March, 2025, be and is hereby found to lack merit and thus it is dismissed entirely.
b) THAT for expediency’s sake, there be a mention on 30th September, 2025, for purposes of conducting a Pre–Trial Conference pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010. There should be a hearing date of the matter on 18th December, 2025 through physical means.
c) THAT the costs of the Preliminary objection be awarded to the Plaintiff to be borne by the 1st, 2nd, 3rd & 4th Defendants herein jointly and severally.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICRO–SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS…………1ST ………. DAY OF ………..JULY ………….2025
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
b) Mr. Mongare for the Plaintiff/Respondent.
c) Mr. Muchiri Advocate for the 1st , 2nd, 3rd & 4th Defendants/Applicants.
d) No appearance for the 5th Defendant.