1. The Court is called upon to deliver a consolidated ruling on four interlocutory applications. These applications strike at the very foundation of this commercial suit. They challenge the jurisdiction of the Court. They question the legal competence and locus standi of the Plaintiffs. The outcome of these applications dictates whether this litigation proceeds to a full trial or terminates forthwith.
2. Judicial efficiency dictates that matters sharing an identical factual matrix and overlapping legal principles be disposed of simultaneously. The Court invokes the overriding objective under Sections 1A and 1B of the Civil Procedure Act to determine these four applications in a single ruling.
3. The first matter is a Notice of Preliminary Objection dated 4th September, 2025, filed by the 11th Defendant. The second matter is a Notice of Preliminary Objection dated 19th September, 2025, filed by the 13th Defendant. The third matter is a Notice of Motion dated 9th December, 2024, filed by the 8th Defendant. The fourth matter is a further Notice of Motion dated 9th April, 2025, also filed by the 8th Defendant.
Background Facts
4. The factual matrix underpinning this dispute is extracted from the voluminous pleadings on record. The Plaintiffs instituted this suit seeking redress for alleged commercial breaches and fraudulent transactions involving charged property. The suit was originally filed as an Environment and Land Court matter before being transferred to the Commercial Division.
5. The Plaintiffs subsequently filed a Further Further Amended Plaint dated 11th March, 2025. The Defendants entered appearances and filed their respective defences. The Defendants denied any contractual or legal nexus with the Plaintiffs. They asserted that the suit constitutes a blatant abuse of the Court process, citing fatal procedural and jurisdictional defects.
6. The 13th Defendant, Paul Kariuki Muiruri, filed his Notice of Preliminary Objection dated 19th September, 2025. The orders sought in the said Notice of Preliminary Objection are set out as follows:
"TAKE NOTICE that the 13th Defendant herein shall at the earliest opportune time raise a Preliminary Objection to the Further Further Amended Plaint filed herein dated 11th March 2025 on the following points of law:
1. That this Honourable Court lacks jurisdiction to hear and/or entertain the Further Further Amended Plaint dated 11th March 2025 herein pursuant to the provisions of Article 162(2)(b) of the Constitution of Kenya as read together with Section 13 (2) of the Environment and Land Court Act, 2011.
2. The Further Further Amended Plaint is fatally defective for lack of jurisdiction and as such the same should be struck out or dismissed with costs to the 13th Defendant.
3. That the suit is incompetent, fatally defective and bad in law as the 1st Plaintiff has instituted the claim on behalf of the other Plaintiffs without any written express authority as required under Order 1 Rule 13(1) & (2) of the Civil Procedure Rules, 2010."
7. The 11th Defendant, Benjamin Gathiro Mburu, filed a Notice of Preliminary Objection dated 4th September, 2025. The grounds upon which this Notice of Preliminary Objection is raised are set out as follows:
"TAKE NOTICE that at the hearing of this suit, the 11th Defendant shall raise a Preliminary Objection on a point of law to have the suit struck out and/or dismissed with costs on the following grounds:
1. That the suit as filed is incompetent, fatally defective and bad in law to the extent that the 1st Plaintiff purports to institute and prosecute the claim on behalf of the other named Plaintiffs without express written authority as required under Order 1 Rule 13(1) & (2) of the Civil Procedure Rules, 2010.
2. That no such written authority signed by the other Plaintiffs and filed in court accompanies the pleadings, and in its absence, the 1st Plaintiff lacks the locus standi to represent or prosecute the case on their behalf.
3. That the suit is therefore incompetent as against the 2nd and subsequent Plaintiffs and cannot be sustained in law, and the same ought to be struck out with costs.
4. That this Honourable Court is devoid of jurisdiction to entertain claims advanced by parties who have not expressly authorized the institution of proceedings in their names.
5. That the Plaintiff(s) lack capacity and/or locus standi to file the suits on behalf of the Estates of the deceased person Ibrahim Asman (deceased).
6. The 1st Plaintiff is not a personal representative of the deceased person and therefore has no locus standi as only a person who has been issued a grant of letters of administration has capacity to represent the estate of a deceased person as set out under Section 82 of the Law of Succession Act, Cap 160 of the Laws of Kenya.
7. That the 1st Plaintiff's conduct amounts to an abuse of court process and the suit ought to be struck out with costs to the Respondents."
8. The 8th Defendant HOUSING FINANCE COMPANY OF KENYA LTD (hereinafter referred to as ‘HFC’) filed two separate Notices of Motion. The first application, by way of a Notice of Motion dated 9th December, 2024, seeks the following reliefs:
1. THAT the Honourable Court be pleased to strike out the name of the 8th Defendant from the proceedings.
2. THAT the Plaintiffs bear the cost of this application and the suit.
9. The second application, by way of a Notice of Motion dated 9th April, 2025, seeks the following reliefs:
1. THAT the Honourable Court be pleased to award costs of defending the suit to the Housing Finance Company of Kenya Limited, who had been the 8th Defendant in this suit until 19th March 2025, when the suit was amended vide the Further Further Amended Plaint in which the Plaintiffs deleted the name of the Applicant from the proceedings.
2. THAT the Plaintiffs bear the cost of this application.
10. The grounds relied upon by the 11th and 13th Defendants in support of their respective Preliminary Objections are explicit. The Defendants aver that the suit is a clear abuse of the Court process. The 13th Defendant argues that the Commercial Division of the High Court lacks subject-matter jurisdiction. He posits that the suit ought to have been instituted before the Environment and Land Court, pursuant to Article 162(2)(b) of the Constitution.
11. Furthermore, both Defendants contend that the 1st Plaintiff lacks legal authority to institute this suit on behalf of the 2nd to 7th Plaintiffs. They rely on Order 1 Rule 13 of the Civil Procedure Rules. The 11th Defendant introduces a fatal capacity argument. He asserts that the 1st Plaintiff lacks locus standi to represent the estate of the deceased, Ibrahim Asman, without a valid grant of representation under Section 82 of the Law of Succession Act.
12. The 8th Defendant supports its twin motions on the premise of misjoinder. It argues that the Plaintiffs dragged it into protracted litigation without justifiable cause. Following the Plaintiffs' unilateral amendment of the Plaint on 11th March, 2025, to drop the 8th Defendant, the 8th Defendant claims absolute entitlement to the costs incurred defending the suit up to that point.
13. The Plaintiffs forcefully opposed the Preliminary Objections and the applications through written submissions and oral highlights. The Plaintiffs contend that the Preliminary Objections do not meet the strict legal threshold of pure points of law. They argue that the issue of locus standi requires the adduction of evidence and cannot be determined in limine.
14. On the jurisdictional challenge, the Plaintiffs submit that the dispute emanates from a commercial transaction, specifically a charge instrument. They aver that the High Court retains residual and substantive jurisdiction over commercial contracts, even if they tangentially involve land used as security.
15. Regarding the 8th Defendant's applications, the Plaintiffs concede that the 8th Defendant was dropped via the Further Further Amended Plaint. However, they argue that the 8th Defendant was at all times a necessary party to the suit prior to the amendment. They submit that the issue of costs is premature and should abide the final determination of the suit.
Issues for Determination
16. The Court has carefully considered the pleadings, the Notices of Preliminary Objections, the Applications, the responses, the rival submissions, and the relevant jurisprudence. The Court frames the following four (4) issues for determination:
(i) Whether the High Court lacks jurisdiction to entertain the suit pursuant to Article 162(2)(b) of the Constitution.
(ii) Whether the suit is fatally defective for want of locus standi under Order 1 Rule 13 of the Civil Procedure Rules and Section 82 of the Law of Succession Act.
(iii) Whether the 8th Defendant's name should be struck from the proceedings.
(iv) Whether the 8th Defendant is entitled to an award for costs upon being removed from the proceedings.
Analysis
17. The Court reminds itself that the reliefs sought in the two interlocutory applications call for exercise of discretion. They do not lie as of right. The Court in exercise of such discretion has a duty to act judicially and not whimsically or capriciously. See Attorney General v Chief Magistrate, Milimani Law Courts & 3 others Ex-parte Mohan Galot [2018] KEHC 8988 (KLR).
18. On the other hand, the law on preliminary objections is well-settled in Kenyan jurisprudence. A preliminary objection must consist of a pure point of law. It must not require the adduction of evidence. It must be apparent on the face of the pleadings.
19. The locus classicus on this subject is the Court of Appeal decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. In that case, Law, J.A. held:
"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. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion."
20. In the same Mukisa Biscuit decision, Sir Charles Newbold, P. elaborated further. He 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.
21. This position was further fortified by Ojwang J. (as he then was) in the persuasive High Court decision of Oraro v Mbaja [2005] KEHC 3182 (KLR). In Oraro, the learned Judge stated the following:
"A preliminary objection is now well identified as and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection and yet it bears factual aspects calling for proof or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed."
(i) Whether the High Court lacks jurisdiction to entertain the suit pursuant to Article 162(2)(b) of the Constitution .
22. The 13th Defendant argues that this suit belongs exclusively to the Environment and Land Court (ELC). He relies on Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act. The Plaintiffs maintain that the High Court has jurisdiction because the core dispute involves a commercial charge instrument.
23. The Court must ascertain the true nature of the dispute from the pleadings. The suit revolves around the realization of a security—a charge over land—used to secure commercial credit facilities. Does the creation and realization of a charge constitute "use and occupation of land" such that it falls under the exclusive purview of the ELC?
24. To resolve this, the Court refers to the binding Court of Appeal decision in Co-operative Bank of Kenya Limited v Njuguna & 5 others [2017] KECA 79 (KLR). In this seminal case, the Court of Appeal drew a sharp distinction between disputes over the "use and occupation" of land and disputes arising from commercial lending secured by land. The Court of Appeal held that a charge is a disposition in land, a security instrument, rather than the "use" of land itself. Consequently, disputes centring on mortgages, charges, and commercial lending fall outside the specialized mandate of the ELC.
25. It is also not lost to this Court that this suit was initiated in the ELC Court where a Judge of concurrent jurisdiction transferred this case to the High Court for hearing and disposal. This was on 10th March, 2022 and the orders were by my brother M.D Mwangi J. There was no appeal against that order of transfer. This Court remains alive to its responsibilities and duties to down its tools once it is persuaded that it lacks jurisdiction to hear this case. The Preliminary Objection as raised fails to convince this Court that it lacks jurisdiction to inquire into this case at this point in time.
26. The Patrick Kang'ethe decision remains good law and binds this Court.
27. Therefore, the High Court, specifically the Commercial Division, possesses the requisite jurisdiction to hear and determine disputes arising from commercial charges and credit facilities. The 13th Defendant's preliminary objection on the ground of jurisdiction must, and does, fail.
(ii) Whether the suit is fatally defective for want of locus standi under Order 1 Rule 13 of the Civil Procedure Rules and Section 82 of the Law of Succession Act.
28. Having survived the jurisdictional hurdle, the Plaintiffs face the locus standi hurdle. The 11th and 13th Defendants aver that the 1st Plaintiff lacks the locus standi to institute the suit on behalf of the 2nd to 7th Plaintiffs and the estate of the deceased, Ibrahim Asman.
29. Order 1 Rule 13 of the Civil Procedure Rules governs the appearance of one of several Plaintiffs. It explicitly requires that where one Plaintiff sues on behalf of others, written authority must be filed in Court. The Court has meticulously perused the record. There is no written authority, signed by the 2nd to 7th Plaintiffs, granting the 1st Plaintiff the mandate to institute and prosecute this suit on their behalf. The absence of this statutory requirement does not render the entire suit as incompetent. It merely means that the Court cannot competently grant any reliefs to the Plaintiffs who have not formally given their authority to be represented in this suit.
30. To this Court, such failure does not render the suit a nullity. It is not a fatal mistake. It can be remedied by the filing of the authority. The Court has considered the persuasive opinion of Angote J. on this issue in Nzioka & 2 others (Suing on Their Behalf as Officials of Crescent Self Help Group) v Tropical Blooms Limited [2020] KEELC 3995 (KLR).
31. As to the challenge under Section 82 of the Law of Succession Act. The 1st Plaintiff allegedly purports to sue on behalf of the estate of the late Ibrahim Asman. Section 82 restricts the capacity to represent a deceased's estate strictly to persons who have been issued a valid grant of letters of administration.
32. The Court notes that the Plaintiffs plead their case as heirs and beneficiaries of the Estate who are entitled to benefit from their shares in the Estate. They submit that the succession process is complete and they do not claim as legal representatives of the Estate of Ibrahim Asman. The Preliminary Objection as raised seems to this Court to be calling upon the Plaintiffs to a premature mini-trial. This is by having them explain away their case at this preliminary stage. The Court agrees with the submissions by the Plaintiffs. The Preliminary Objection calls upon the Court to prematurely evaluate the evidence of the Plaintiffs in support of their case. The Court is being called upon to weigh in on the strength of the Plaintiffs’ case. It is clearly based on facts that are in dispute. It is not enough to say that the Plaintiffs do not have a Grant of representation. The Plaintiffs are heard to be saying that they do not require such a Grant of representation to sustain their claims. Such contested positions call for more submissions and presentations and do not render themselves for determination by way of a Preliminary Objection.
33. Once the Court has to delve into facts or evidence, then it has departed from the confines of what constitutes a pure point of law. The Preliminary Objection cannot be sustained in the circumstance.
34. The matter is yet to proceed for trial where evidence will be presented and testimonies be subjected to cross examination. Should the Plaintiffs fail to prove their claim, the Court will not hesitate to rule in favour of the Respondents. Once again, the Court is of the considered view that the Preliminary Objection raised on this issue can only be determined from examination of testimonies and documentary evidence.
(iii) Whether the 8th Defendant's name should be struck from the proceedings.
35. The Court turns to the 8th Defendant’s Notice of Motion dated 9th December, 2024, which prayed for its name to be struck from the proceedings.
36. The record reflects that the Plaintiffs subsequently filed a Further Further Amended Plaint on 11th March, 2025. Through this amendment, the Plaintiffs voluntarily deleted the name of the 8th Defendant. A party is at liberty to amend their pleadings to remove a misjoined Defendant prior to the close of pleadings.
37. By amending the Plaint and removing the 8th Defendant, the orders sought in the application dated 9th December, 2024, have been overtaken by events. The application is rendered moot. The Court cannot issue an order to strike out a party who is no longer named in the operative pleadings.
(iv) Whether the 8th Defendant is entitled to an award for costs upon being removed from the proceedings.
38. The 8th Defendant’s subsequent Notice of Motion dated 9th April, 2025, seeks an award of costs. The 8th Defendant was compelled to enter an appearance, instruct Counsel, and defend a suit from which it was eventually dropped.
39. Litigation is not a sport. It demands the expenditure of time, intellect, and financial resources. When a Plaintiff institutes a suit against a Defendant and later unilaterally withdraws or amends the pleadings to remove that Defendant, the removed party has suffered undeniable prejudice.
40. The Plaintiffs' act of amending the suit on 11th March, 2025, does not erase the financial burden improperly imposed on the 8th Defendant prior to that date. The 8th Defendant is entirely justified in seeking costs. The application dated 9th April, 2025, merits success.
41. This brings the Court to the final question as to who should bear the costs. Section 27 of the Civil Procedure Act dictates that costs follow the event. A successful party should not be deprived of costs unless for good cause shown.
42. The 11th and 13th Defendants have failed in their attempts to have the suit terminated at this point. They should bear the costs arising out of their respective Preliminary Objections.
43. The 8th Defendant has successfully demonstrated an entitlement to costs following its removal from the suit. The Plaintiffs have offered no compelling legal justification to depart from the general rule. The Plaintiffs shall bear the costs of the suit as well as the application dated 9th April, 2025. There will be no orders as to costs on the Application dated 9th December, 2024.
Determination
44. The Court makes the following orders in respect to the Notices of Preliminary Objection dated 19th September, 2025 and 4th September, 2025 and the Notices of Motion dated 9th December, 2024 and 9th April, 2025:
(i) THAT the Notice of Preliminary Objection dated 19th September, 2025 by the 13th Defendant is HEREBY overruled and struck out with costs.
(ii) THAT the Notice of Preliminary Objection dated 4th September, 2025 by the 11th Defendant is HEREBY overruled and struck out with costs.
(iii) THAT the 8th Defendant's application by way of a Notice of Motion dated 9th December, 2024 is HEREBY marked as overtaken by events, with no orders as to costs.
(iv) THAT the 8th Defendant's application by way of a Notice of Motion dated 9th April, 2025 is HEREBY allowed with costs. The 8th Defendant is awarded the costs of defending the suit.
45. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 16TH DAY OF SEPTEMBER 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Abdi for the Plaintiff.
Mr. Githinji for the 3rd Defendant.
Miss Onsembe for the 5th Defendant.
Miss Onsembe holding brief for Miss Makori for the 6th Defendant.
Mr. Nyboma for HFC the original 8th Defendants.
Mr. Kipkoech for the 8th Defendant.
Mr. Mwaura for the 10th & 11th Defendant.
Mr. Abed for the 12th Defendant.
Mr. Abed holding brief for Mr. Chris Oeri for the 13th Defendant.
Mr. John Paul - Court Assistant.
2. Judicial efficiency dictates that matters sharing an identical factual matrix and overlapping legal principles be disposed of simultaneously. The Court invokes the overriding objective under Sections 1A and 1B of the Civil Procedure Act to determine these four applications in a single ruling.
3. The first matter is a Notice of Preliminary Objection dated 4th September, 2025, filed by the 11th Defendant. The second matter is a Notice of Preliminary Objection dated 19th September, 2025, filed by the 13th Defendant. The third matter is a Notice of Motion dated 9th December, 2024, filed by the 8th Defendant. The fourth matter is a further Notice of Motion dated 9th April, 2025, also filed by the 8th Defendant.
Background Facts
4. The factual matrix underpinning this dispute is extracted from the voluminous pleadings on record. The Plaintiffs instituted this suit seeking redress for alleged commercial breaches and fraudulent transactions involving charged property. The suit was originally filed as an Environment and Land Court matter before being transferred to the Commercial Division.
5. The Plaintiffs subsequently filed a Further Further Amended Plaint dated 11th March, 2025. The Defendants entered appearances and filed their respective defences. The Defendants denied any contractual or legal nexus with the Plaintiffs. They asserted that the suit constitutes a blatant abuse of the Court process, citing fatal procedural and jurisdictional defects.
6. The 13th Defendant, Paul Kariuki Muiruri, filed his Notice of Preliminary Objection dated 19th September, 2025. The orders sought in the said Notice of Preliminary Objection are set out as follows:
"TAKE NOTICE that the 13th Defendant herein shall at the earliest opportune time raise a Preliminary Objection to the Further Further Amended Plaint filed herein dated 11th March 2025 on the following points of law:
1. That this Honourable Court lacks jurisdiction to hear and/or entertain the Further Further Amended Plaint dated 11th March 2025 herein pursuant to the provisions of Article 162(2)(b) of the Constitution of Kenya as read together with Section 13 (2) of the Environment and Land Court Act, 2011.
2. The Further Further Amended Plaint is fatally defective for lack of jurisdiction and as such the same should be struck out or dismissed with costs to the 13th Defendant.
3. That the suit is incompetent, fatally defective and bad in law as the 1st Plaintiff has instituted the claim on behalf of the other Plaintiffs without any written express authority as required under Order 1 Rule 13(1) & (2) of the Civil Procedure Rules, 2010."
7. The 11th Defendant, Benjamin Gathiro Mburu, filed a Notice of Preliminary Objection dated 4th September, 2025. The grounds upon which this Notice of Preliminary Objection is raised are set out as follows:
"TAKE NOTICE that at the hearing of this suit, the 11th Defendant shall raise a Preliminary Objection on a point of law to have the suit struck out and/or dismissed with costs on the following grounds:
1. That the suit as filed is incompetent, fatally defective and bad in law to the extent that the 1st Plaintiff purports to institute and prosecute the claim on behalf of the other named Plaintiffs without express written authority as required under Order 1 Rule 13(1) & (2) of the Civil Procedure Rules, 2010.
2. That no such written authority signed by the other Plaintiffs and filed in court accompanies the pleadings, and in its absence, the 1st Plaintiff lacks the locus standi to represent or prosecute the case on their behalf.
3. That the suit is therefore incompetent as against the 2nd and subsequent Plaintiffs and cannot be sustained in law, and the same ought to be struck out with costs.
4. That this Honourable Court is devoid of jurisdiction to entertain claims advanced by parties who have not expressly authorized the institution of proceedings in their names.
5. That the Plaintiff(s) lack capacity and/or locus standi to file the suits on behalf of the Estates of the deceased person Ibrahim Asman (deceased).
6. The 1st Plaintiff is not a personal representative of the deceased person and therefore has no locus standi as only a person who has been issued a grant of letters of administration has capacity to represent the estate of a deceased person as set out under Section 82 of the Law of Succession Act, Cap 160 of the Laws of Kenya.
7. That the 1st Plaintiff's conduct amounts to an abuse of court process and the suit ought to be struck out with costs to the Respondents."
8. The 8th Defendant HOUSING FINANCE COMPANY OF KENYA LTD (hereinafter referred to as ‘HFC’) filed two separate Notices of Motion. The first application, by way of a Notice of Motion dated 9th December, 2024, seeks the following reliefs:
1. THAT the Honourable Court be pleased to strike out the name of the 8th Defendant from the proceedings.
2. THAT the Plaintiffs bear the cost of this application and the suit.
9. The second application, by way of a Notice of Motion dated 9th April, 2025, seeks the following reliefs:
1. THAT the Honourable Court be pleased to award costs of defending the suit to the Housing Finance Company of Kenya Limited, who had been the 8th Defendant in this suit until 19th March 2025, when the suit was amended vide the Further Further Amended Plaint in which the Plaintiffs deleted the name of the Applicant from the proceedings.
2. THAT the Plaintiffs bear the cost of this application.
10. The grounds relied upon by the 11th and 13th Defendants in support of their respective Preliminary Objections are explicit. The Defendants aver that the suit is a clear abuse of the Court process. The 13th Defendant argues that the Commercial Division of the High Court lacks subject-matter jurisdiction. He posits that the suit ought to have been instituted before the Environment and Land Court, pursuant to Article 162(2)(b) of the Constitution.
11. Furthermore, both Defendants contend that the 1st Plaintiff lacks legal authority to institute this suit on behalf of the 2nd to 7th Plaintiffs. They rely on Order 1 Rule 13 of the Civil Procedure Rules. The 11th Defendant introduces a fatal capacity argument. He asserts that the 1st Plaintiff lacks locus standi to represent the estate of the deceased, Ibrahim Asman, without a valid grant of representation under Section 82 of the Law of Succession Act.
12. The 8th Defendant supports its twin motions on the premise of misjoinder. It argues that the Plaintiffs dragged it into protracted litigation without justifiable cause. Following the Plaintiffs' unilateral amendment of the Plaint on 11th March, 2025, to drop the 8th Defendant, the 8th Defendant claims absolute entitlement to the costs incurred defending the suit up to that point.
13. The Plaintiffs forcefully opposed the Preliminary Objections and the applications through written submissions and oral highlights. The Plaintiffs contend that the Preliminary Objections do not meet the strict legal threshold of pure points of law. They argue that the issue of locus standi requires the adduction of evidence and cannot be determined in limine.
14. On the jurisdictional challenge, the Plaintiffs submit that the dispute emanates from a commercial transaction, specifically a charge instrument. They aver that the High Court retains residual and substantive jurisdiction over commercial contracts, even if they tangentially involve land used as security.
15. Regarding the 8th Defendant's applications, the Plaintiffs concede that the 8th Defendant was dropped via the Further Further Amended Plaint. However, they argue that the 8th Defendant was at all times a necessary party to the suit prior to the amendment. They submit that the issue of costs is premature and should abide the final determination of the suit.
Issues for Determination
16. The Court has carefully considered the pleadings, the Notices of Preliminary Objections, the Applications, the responses, the rival submissions, and the relevant jurisprudence. The Court frames the following four (4) issues for determination:
(i) Whether the High Court lacks jurisdiction to entertain the suit pursuant to Article 162(2)(b) of the Constitution.
(ii) Whether the suit is fatally defective for want of locus standi under Order 1 Rule 13 of the Civil Procedure Rules and Section 82 of the Law of Succession Act.
(iii) Whether the 8th Defendant's name should be struck from the proceedings.
(iv) Whether the 8th Defendant is entitled to an award for costs upon being removed from the proceedings.
Analysis
17. The Court reminds itself that the reliefs sought in the two interlocutory applications call for exercise of discretion. They do not lie as of right. The Court in exercise of such discretion has a duty to act judicially and not whimsically or capriciously. See Attorney General v Chief Magistrate, Milimani Law Courts & 3 others Ex-parte Mohan Galot [2018] KEHC 8988 (KLR).
18. On the other hand, the law on preliminary objections is well-settled in Kenyan jurisprudence. A preliminary objection must consist of a pure point of law. It must not require the adduction of evidence. It must be apparent on the face of the pleadings.
19. The locus classicus on this subject is the Court of Appeal decision in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. In that case, Law, J.A. held:
"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. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion."
20. In the same Mukisa Biscuit decision, Sir Charles Newbold, P. elaborated further. He 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.
21. This position was further fortified by Ojwang J. (as he then was) in the persuasive High Court decision of Oraro v Mbaja [2005] KEHC 3182 (KLR). In Oraro, the learned Judge stated the following:
"A preliminary objection is now well identified as and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection and yet it bears factual aspects calling for proof or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed."
(i) Whether the High Court lacks jurisdiction to entertain the suit pursuant to Article 162(2)(b) of the Constitution .
22. The 13th Defendant argues that this suit belongs exclusively to the Environment and Land Court (ELC). He relies on Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act. The Plaintiffs maintain that the High Court has jurisdiction because the core dispute involves a commercial charge instrument.
23. The Court must ascertain the true nature of the dispute from the pleadings. The suit revolves around the realization of a security—a charge over land—used to secure commercial credit facilities. Does the creation and realization of a charge constitute "use and occupation of land" such that it falls under the exclusive purview of the ELC?
24. To resolve this, the Court refers to the binding Court of Appeal decision in Co-operative Bank of Kenya Limited v Njuguna & 5 others [2017] KECA 79 (KLR). In this seminal case, the Court of Appeal drew a sharp distinction between disputes over the "use and occupation" of land and disputes arising from commercial lending secured by land. The Court of Appeal held that a charge is a disposition in land, a security instrument, rather than the "use" of land itself. Consequently, disputes centring on mortgages, charges, and commercial lending fall outside the specialized mandate of the ELC.
25. It is also not lost to this Court that this suit was initiated in the ELC Court where a Judge of concurrent jurisdiction transferred this case to the High Court for hearing and disposal. This was on 10th March, 2022 and the orders were by my brother M.D Mwangi J. There was no appeal against that order of transfer. This Court remains alive to its responsibilities and duties to down its tools once it is persuaded that it lacks jurisdiction to hear this case. The Preliminary Objection as raised fails to convince this Court that it lacks jurisdiction to inquire into this case at this point in time.
26. The Patrick Kang'ethe decision remains good law and binds this Court.
27. Therefore, the High Court, specifically the Commercial Division, possesses the requisite jurisdiction to hear and determine disputes arising from commercial charges and credit facilities. The 13th Defendant's preliminary objection on the ground of jurisdiction must, and does, fail.
(ii) Whether the suit is fatally defective for want of locus standi under Order 1 Rule 13 of the Civil Procedure Rules and Section 82 of the Law of Succession Act.
28. Having survived the jurisdictional hurdle, the Plaintiffs face the locus standi hurdle. The 11th and 13th Defendants aver that the 1st Plaintiff lacks the locus standi to institute the suit on behalf of the 2nd to 7th Plaintiffs and the estate of the deceased, Ibrahim Asman.
29. Order 1 Rule 13 of the Civil Procedure Rules governs the appearance of one of several Plaintiffs. It explicitly requires that where one Plaintiff sues on behalf of others, written authority must be filed in Court. The Court has meticulously perused the record. There is no written authority, signed by the 2nd to 7th Plaintiffs, granting the 1st Plaintiff the mandate to institute and prosecute this suit on their behalf. The absence of this statutory requirement does not render the entire suit as incompetent. It merely means that the Court cannot competently grant any reliefs to the Plaintiffs who have not formally given their authority to be represented in this suit.
30. To this Court, such failure does not render the suit a nullity. It is not a fatal mistake. It can be remedied by the filing of the authority. The Court has considered the persuasive opinion of Angote J. on this issue in Nzioka & 2 others (Suing on Their Behalf as Officials of Crescent Self Help Group) v Tropical Blooms Limited [2020] KEELC 3995 (KLR).
31. As to the challenge under Section 82 of the Law of Succession Act. The 1st Plaintiff allegedly purports to sue on behalf of the estate of the late Ibrahim Asman. Section 82 restricts the capacity to represent a deceased's estate strictly to persons who have been issued a valid grant of letters of administration.
32. The Court notes that the Plaintiffs plead their case as heirs and beneficiaries of the Estate who are entitled to benefit from their shares in the Estate. They submit that the succession process is complete and they do not claim as legal representatives of the Estate of Ibrahim Asman. The Preliminary Objection as raised seems to this Court to be calling upon the Plaintiffs to a premature mini-trial. This is by having them explain away their case at this preliminary stage. The Court agrees with the submissions by the Plaintiffs. The Preliminary Objection calls upon the Court to prematurely evaluate the evidence of the Plaintiffs in support of their case. The Court is being called upon to weigh in on the strength of the Plaintiffs’ case. It is clearly based on facts that are in dispute. It is not enough to say that the Plaintiffs do not have a Grant of representation. The Plaintiffs are heard to be saying that they do not require such a Grant of representation to sustain their claims. Such contested positions call for more submissions and presentations and do not render themselves for determination by way of a Preliminary Objection.
33. Once the Court has to delve into facts or evidence, then it has departed from the confines of what constitutes a pure point of law. The Preliminary Objection cannot be sustained in the circumstance.
34. The matter is yet to proceed for trial where evidence will be presented and testimonies be subjected to cross examination. Should the Plaintiffs fail to prove their claim, the Court will not hesitate to rule in favour of the Respondents. Once again, the Court is of the considered view that the Preliminary Objection raised on this issue can only be determined from examination of testimonies and documentary evidence.
(iii) Whether the 8th Defendant's name should be struck from the proceedings.
35. The Court turns to the 8th Defendant’s Notice of Motion dated 9th December, 2024, which prayed for its name to be struck from the proceedings.
36. The record reflects that the Plaintiffs subsequently filed a Further Further Amended Plaint on 11th March, 2025. Through this amendment, the Plaintiffs voluntarily deleted the name of the 8th Defendant. A party is at liberty to amend their pleadings to remove a misjoined Defendant prior to the close of pleadings.
37. By amending the Plaint and removing the 8th Defendant, the orders sought in the application dated 9th December, 2024, have been overtaken by events. The application is rendered moot. The Court cannot issue an order to strike out a party who is no longer named in the operative pleadings.
(iv) Whether the 8th Defendant is entitled to an award for costs upon being removed from the proceedings.
38. The 8th Defendant’s subsequent Notice of Motion dated 9th April, 2025, seeks an award of costs. The 8th Defendant was compelled to enter an appearance, instruct Counsel, and defend a suit from which it was eventually dropped.
39. Litigation is not a sport. It demands the expenditure of time, intellect, and financial resources. When a Plaintiff institutes a suit against a Defendant and later unilaterally withdraws or amends the pleadings to remove that Defendant, the removed party has suffered undeniable prejudice.
40. The Plaintiffs' act of amending the suit on 11th March, 2025, does not erase the financial burden improperly imposed on the 8th Defendant prior to that date. The 8th Defendant is entirely justified in seeking costs. The application dated 9th April, 2025, merits success.
41. This brings the Court to the final question as to who should bear the costs. Section 27 of the Civil Procedure Act dictates that costs follow the event. A successful party should not be deprived of costs unless for good cause shown.
42. The 11th and 13th Defendants have failed in their attempts to have the suit terminated at this point. They should bear the costs arising out of their respective Preliminary Objections.
43. The 8th Defendant has successfully demonstrated an entitlement to costs following its removal from the suit. The Plaintiffs have offered no compelling legal justification to depart from the general rule. The Plaintiffs shall bear the costs of the suit as well as the application dated 9th April, 2025. There will be no orders as to costs on the Application dated 9th December, 2024.
Determination
44. The Court makes the following orders in respect to the Notices of Preliminary Objection dated 19th September, 2025 and 4th September, 2025 and the Notices of Motion dated 9th December, 2024 and 9th April, 2025:
(i) THAT the Notice of Preliminary Objection dated 19th September, 2025 by the 13th Defendant is HEREBY overruled and struck out with costs.
(ii) THAT the Notice of Preliminary Objection dated 4th September, 2025 by the 11th Defendant is HEREBY overruled and struck out with costs.
(iii) THAT the 8th Defendant's application by way of a Notice of Motion dated 9th December, 2024 is HEREBY marked as overtaken by events, with no orders as to costs.
(iv) THAT the 8th Defendant's application by way of a Notice of Motion dated 9th April, 2025 is HEREBY allowed with costs. The 8th Defendant is awarded the costs of defending the suit.
45. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 16TH DAY OF SEPTEMBER 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Abdi for the Plaintiff.
Mr. Githinji for the 3rd Defendant.
Miss Onsembe for the 5th Defendant.
Miss Onsembe holding brief for Miss Makori for the 6th Defendant.
Mr. Nyboma for HFC the original 8th Defendants.
Mr. Kipkoech for the 8th Defendant.
Mr. Mwaura for the 10th & 11th Defendant.
Mr. Abed for the 12th Defendant.
Mr. Abed holding brief for Mr. Chris Oeri for the 13th Defendant.
Mr. John Paul - Court Assistant.