Shekha Nassor Salim, (hereinafter referred to the applicant) has come to this court seeking orders that summary Judgment be entered for the Plaintiff against the Defendants jointly and severally in terms of prayers (g) and (h) of the Plaint to vacate and hand over vacant possession of the Plaintiffs property being Sub-Division Number 12881 (Original Number 5215/4) of Section I Mainland North registered as CR No. 37064 (hereinafter referred to as the suit premises) and in default an order of eviction be issued against the Defendants jointly and severally.
The applicant prays that an order be given in terms of prayer (e), (f) and (g) of the Plaint restraining the Defendants, by themselves, employees, servants and agents from remaining upon or entering the suit premises pending the hearing and determination of the rest of the Plaintiffs' suit. The plaintiff prays that the Court be pleased to restrain the 6th Defendant by himself and any of his officers from carrying out any further investigations of the Plaintiffs Attorney in relation to recovery of the suit premises from the Defendants.
The plaintiff ultimately prays for Mesne profits against the I st, 2 nd 3 rd and 4 th Defendants jointly and severally from 13.11.2015 up to 31.10.2023 and against the 1st 2nd 3rd 4th and 5th Defendants jointly and severally from 1.11.2023 up to 31.1.2026 in the aggregate sum of Kshs. 24,635,595.00 as particularized in paragraph 20 of the Plaint. Lastly, the plaintiff prays that the costs of this application be paid by the Defendants.
The application is based on grounds that the 2nd 3rd and 4th Defendants are directors of the Ist Defendant who had obtained possession of the suit premises under an unlawful and forged lease purportedly granted to it by Ayub Shero Hussen Baluchi on 1.8.2012. The monthly rent under that lease, according to the I st Defendant and its directors the 2nd ,3 rd and 4 th Defendants, was Kshs. 120,000.00 payable half yearly in advance with an escalation of 5% per year.
The 1st Defendant filed High Court Civil Suit No. 216 of 2012 against Ayub Shero Baluchi, Omar Mohsen Ahmed Mohammed and Mwakasa Limited claiming ownership of the suit premises and seeking an order of specific performance as well as an injunction. The suit was transferred to this Court under the same serial number and was dismissed with costs in the Judgment delivered on 13.4.2022. The Judgment in ELC Suit No. 216 of 2012 has not been set aside or varied. The 4th Defendant purported to grant a lease of the suit premises to the 5th Defendant on 1.11.2023 more than 1 year after the Ist Defendant's suit for ownership of the suit premises was dismissed by this Court.
The Plaintiff's claim for mesne profits as pleaded in paragraph 20 of the Plaint and prayed in prayer (i) of the Plaint in the sum of Kshs. 24,635,595.00 as at 31.1.2026 is calculated on the basis of the lease dated 1.8.2012 that the 1st, 2nd 3rd and 4th Defendants relied upon in Mombasa ELC Case No, 216 of 2012.
The lease of the suit premises by the 4th Defendant to the 5th Defendant was designed to defeat the said Judgment of this Court in ELC Case No. 216 of 2012 with impunity and continued possession of the suit premises by the Defendants is in gross contempt of that Judgment.
According to the applicant, the 1st 2nd 3rd 4th and 5th Plaintiffs are using the services of a GSU Officer under the command of the 6th Defendant so as to continue depriving the Plaintiff of her property in violation of Article 40 of the Constitution. The 6th Defendant having placed an officer in the suit premises in violation of the Plaintiffs right to property committed the offence of trespass and he cannot purport to investigate his own crimes to perpetuate impunity.
In view of the Judgement of this Court in ELC Case No. 216 of 2012 the Defendants have no arguable defence to this suit. The Plaintiff having waited for possession of the property from 2015 need not go through a full hearing after the Ist Defendant's claim was dismissed by this Court in the said Judgment.
The application is supported by the affidavit of Hassan Salim Hassan Mwinyi who states that the Plaintiff purchased a developed residential property in Shree Links Estate, Nyali from a company known as Mwakasa Limited being Sub-Division Number 12881 (Original Number 5215/4) of Section I Mainland North registered as CR No. 37064 (hereinafter referred to as the suit premises) and was registered as proprietor on 13.11.2015.
By a document purporting to be an agreement for sale dated 26.5.2012 between one Ayub Shero Baluchi as Vendor and the 1 st Defendant as Purchaser the 1 st Defendant purportedly agreed to purchase the suit premises from Ayub Shero Hussen Baluchi at Kshs. 50,000,000.00. Ayub Shero Hussen Baluchi was not the registered proprietor of the suit premises.
The 1st 2nd 3rd and/or 4th Defendants took possession of the suit premises under a document dated 1.8.2012 seemingly stamped on 26.9.2012 purporting to be a lease between the 1st Defendant as Lessee and one Ayub Shero Hussein Baluchi as Lessor at a monthly rent of Kshs. 120,000.00 payable semi-annually in advance for a term of 3 years. The said lease provided that monthly rent shall escalate by 5% per year.
Ayub Shero Hussein Baluchi was not the owner of the suit premises and did not acquire ownership of that property subsequently. The lease however confirms that the Ist Defendant and its directors acknowledge that monthly rental for the suit premises was Kshs. 120,000.00 to be increased annually by 5%.
The said purported lease referred to above expired on 31. 7.2015 and was not renewed or extended, the Lessor not having had capacity to extend it, but the 1st 2nd 3rd and/or 4th Defendants did not vacate the suit premises. The registered owner of the suit premises was Mwakasa Limited from 9.8.2006 to 13.11.2015 when it transferred the suit premises to the Plaintiff.
The Ist Defendant filed Mombasa High Court Civil Suit No. 216 of 2012 under a Plaint dated 7.12.2012 against Ayub Shero Hussein Baluchi, Omar Mohsen Ahmed Mohammed and Mwakasa Limited seeking specific performance of the said Agreement for Sale. The suit was subsequently transferred to this Court under the same serial number. The suit against Omar Mohsen Ahmed Mohammed was struck out pursuant to an interlocutory application for that purpose leaving Ayub Shero Hussein Baluchi and Mwakasa Limited as Defendants.
The 2nd Defendant swore a verifying affidavit in Mombasa HCCC No. 216 of 2012 drawn / by Mr. Paul O. Buti Advocate on 6.12.2012 in which she identified herself as one of the directors of the I SI Defendant. Her name was omitted from the jurat of that affidavit. Furthermore, those proceedings included a supporting affidavit and a Replying Affidavit drawn in the name of and sworn by the 3rd Defendant on 6.12.2012 and 16, 10.2015. Both were drawn and filed by Mr. Paul O. Buti Advocate. The name of the person that swore those affidavits was omitted from the jurat.
Judgement was delivered on 13.4,2022 in the said Mombasa ELC Case No. 216 of 2012 and this Court held that the Agreement between the 1st Defendant and Ayub Shero Hussein Baluchi dated 26.5.2012 was invalid as the Vendor was not the registered proprietor of the suit premises and that the Ist Defendant herein who was the Plaintiff in that suit had not paid the purchase price.
In the Judgment delivered by this Court on 13.4.2022 in ELC Case No, 216 of 2012, the person who testified for the Plaintiff in that suit was identified as Andrew Peter Ngirichi, the 4th Defendant in this suit and he adopted as his evidence in chief an affidavit he is said to have sworn on 6.12.2012. That Affidavit was drawn in the name of Francis Peter Ngirichi, the 3rd Defendant herein, and not in the name of Andrew Peter Ngirichi, PW l, the 4th Defendant herein. The Plaintiff is therefore in doubt as to the name of the person that swore those affidavits and testified in that suit and whether, based on those affidavits and that Judgment, the 3rd and 4th Defendants are one and the same person or whether they are distinct and separate individuals. That doubt is created by the use in those proceedings of the names of the 3rd and 4th Defendant interchangeably and the purported lease of the suit premises by the 4th Defendant to the 5th Defendant.
In the replying affidavit the 4th respondent Andrew Peter Ngirichi states that the title to the suit property to which now the Plaintiff lay claims and uses as a basis to institute this suit was acquired contrary the law and the doctrine of lis pendens as it is not in contention that the same was allegedly sold to the Plaintiff in the pendency of ELC Case no. 216 of 2012 and that even so, the Plaintiff herein has no locus standi to institute these proceedings and seems to be a stranger to the subject matter thereof because, whereas the Plaintiff as named in the Plaint is Shekha Nassor Salim, the documents purportedly evidencing ownership of the suit property herein as well as the donor of the power of attorney to the said salim Hassan Mwinyi are in the name of one Shekha Nassoro Salim thus clearly putting doubt as to the identity of the Plaintiff herein and as to whether they are one and the same person.
The 4th defendant contends that whereas the Plaintiff claims for mesne profits against the Defendants herein, it has not been demonstrated that the 2nd Defendant, the deponent herein and the 5th Defendant were ever in possession of the suit property let alone wrongful possession to warrant an inquiry as to whether mesne profits are due.
The Plaintiffs have only laid out preposterous allegations of forcible detainer, use of police and harassment by the 6th Defendant without laying out any cogent evidence in regard the veracity of whose ought to be tested at full trial yet neither of them are police officers or have power to direct police officers as on how their duties are to be performed and it is trite that the Plaintiff produces cogent evidence in that regard to enable them get a chance to test the veracity of the same at trial. The basis of the joinder of the 2nd and 4th Defendants in this suit is based on alleged affidavits which admittedly had no names on the jurat section and even the Plaintiff admits that she is unsure of who she has sued. It is evident from the foregoing that the Plaintiff's suit raises numerous significant issues, makes baseless preposterous allegations for which we believe our intended defence addresses and similarly raises trial issues and it is in the interest of justice that parties are afforded an opportunity to adduce and challenge evidence at full trial.
Granting of the orders sought at this stage of the suit and without affording the parties an opportunity to be heard will curtail their rights to fair hearing and they urge this Honourable Court to act in the doctrine of natural justice of the right to be heard and afford them an opportunity to be heard. That it is therefore in the interest of justice that the application dated the 16th February, 2026 be dismissed, the parties herein be granted leave to defend the suit and the court directs that the matter proceeds to full hearing.
I have considered the application, replying affidavit and rival written submissions and do find that though the 1st defendant has not opposed the application by filing an affidavit, the issues raised in the pleadings are triable. The defense by the defendants was filed though out of time but the same is on record. The triable issues such as whether the 1st defendant is a fictitious or sham company cannot be tried by a summary process that leads to a summary judgment.
The issue of the viability of the lease to the 1st defendant is contention despite the determination of this court in MSA ELC NO 216 of 2012 that the 1st defendant did not pay full purchase price. The plaintiff, the defendants number 2 to 6 were not parties to the said suit. The issues raised by the plaintiff in the application revolve on fraudulent activities and this court observes that fraud cannot be resolved by way of summary judgment.
The issue of placing the G.S.U on the suit premises has not been admitted by the defendants and therefore evidence should be called to demonstrate the same and this cannot determine the same through a summary trial.
On the issue of the ownership of the property this court observes that though the plaintiff is a registered owner of the property, the title to the property is under challenge and therefore the legal owner cannot be determined through a summary procedure.
The 4th and 5th defendants are not the registered owners of the suit property but claims rights to the property that can only be determined after hearing the parties’ evidence in a full trial.
The amount claimed by the plaintiff is not ascertained but involves figure that require verification and determination by the court. The amount of 24,600,595 is alleged to be rent between 13.11.2015 to 31.1.2026. there is no evidence of landlord tenant relating between the plaintiff and defendants.
I do agree with the defendants that the reliefs sought by the plaintiff cannot be granted by way of summary judgment under order 36 of the CPR 2010. The claims by the plaintiff are not specific in nature and therefore summary judgment cannot issue. The amount claimed by the plaintiff are not liquidated damages. Moreover, the relationship between the plaintiff and the defendants is not Landlord and tenant. The mere fact that the plaintiff has given a figure of claim that has to be ascertained by the court does not justify the grant of summary judgment.
The plaintiff seeks various declarations and in injunctive reliefs that cannot be granted under summary judgment. Summary judgment should be issued in plain and obvious claims. The court should be very careful not to deny the defendant a hearing.
Moreover, the doctrine of lis pendens is at test in this case and that the court cannot determine whether it is applicable by way of summary judgment. The plaintiff herein purchased the property for Mwakasa Co Limited in 2015 when the suit s MSA ELC NO 216 OF 2012 was pending which was a dispute on ownership.
The principle of Lis Pendens bars a party from deposing of and transferring property when a suit is pending in court. The defendants Nos 2-6 and plaintiff were not parties to the earlier suit and the issues in the two suits are different and therefore the judgment in the suit no 216 of 2012 does not divest the defendants of their right to be heard. Lastly it is alleged that the 6th defendant is in occupation of the land. It is not clear under which circumstances and therefore this court cannot determine the dispute summarily. Ultimately the application is dismissed with costs.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 21st DAY OF APRIL 2026.
A.O.OMBWAYO
JUDGE
The applicant prays that an order be given in terms of prayer (e), (f) and (g) of the Plaint restraining the Defendants, by themselves, employees, servants and agents from remaining upon or entering the suit premises pending the hearing and determination of the rest of the Plaintiffs' suit. The plaintiff prays that the Court be pleased to restrain the 6th Defendant by himself and any of his officers from carrying out any further investigations of the Plaintiffs Attorney in relation to recovery of the suit premises from the Defendants.
The plaintiff ultimately prays for Mesne profits against the I st, 2 nd 3 rd and 4 th Defendants jointly and severally from 13.11.2015 up to 31.10.2023 and against the 1st 2nd 3rd 4th and 5th Defendants jointly and severally from 1.11.2023 up to 31.1.2026 in the aggregate sum of Kshs. 24,635,595.00 as particularized in paragraph 20 of the Plaint. Lastly, the plaintiff prays that the costs of this application be paid by the Defendants.
The application is based on grounds that the 2nd 3rd and 4th Defendants are directors of the Ist Defendant who had obtained possession of the suit premises under an unlawful and forged lease purportedly granted to it by Ayub Shero Hussen Baluchi on 1.8.2012. The monthly rent under that lease, according to the I st Defendant and its directors the 2nd ,3 rd and 4 th Defendants, was Kshs. 120,000.00 payable half yearly in advance with an escalation of 5% per year.
The 1st Defendant filed High Court Civil Suit No. 216 of 2012 against Ayub Shero Baluchi, Omar Mohsen Ahmed Mohammed and Mwakasa Limited claiming ownership of the suit premises and seeking an order of specific performance as well as an injunction. The suit was transferred to this Court under the same serial number and was dismissed with costs in the Judgment delivered on 13.4.2022. The Judgment in ELC Suit No. 216 of 2012 has not been set aside or varied. The 4th Defendant purported to grant a lease of the suit premises to the 5th Defendant on 1.11.2023 more than 1 year after the Ist Defendant's suit for ownership of the suit premises was dismissed by this Court.
The Plaintiff's claim for mesne profits as pleaded in paragraph 20 of the Plaint and prayed in prayer (i) of the Plaint in the sum of Kshs. 24,635,595.00 as at 31.1.2026 is calculated on the basis of the lease dated 1.8.2012 that the 1st, 2nd 3rd and 4th Defendants relied upon in Mombasa ELC Case No, 216 of 2012.
The lease of the suit premises by the 4th Defendant to the 5th Defendant was designed to defeat the said Judgment of this Court in ELC Case No. 216 of 2012 with impunity and continued possession of the suit premises by the Defendants is in gross contempt of that Judgment.
According to the applicant, the 1st 2nd 3rd 4th and 5th Plaintiffs are using the services of a GSU Officer under the command of the 6th Defendant so as to continue depriving the Plaintiff of her property in violation of Article 40 of the Constitution. The 6th Defendant having placed an officer in the suit premises in violation of the Plaintiffs right to property committed the offence of trespass and he cannot purport to investigate his own crimes to perpetuate impunity.
In view of the Judgement of this Court in ELC Case No. 216 of 2012 the Defendants have no arguable defence to this suit. The Plaintiff having waited for possession of the property from 2015 need not go through a full hearing after the Ist Defendant's claim was dismissed by this Court in the said Judgment.
The application is supported by the affidavit of Hassan Salim Hassan Mwinyi who states that the Plaintiff purchased a developed residential property in Shree Links Estate, Nyali from a company known as Mwakasa Limited being Sub-Division Number 12881 (Original Number 5215/4) of Section I Mainland North registered as CR No. 37064 (hereinafter referred to as the suit premises) and was registered as proprietor on 13.11.2015.
By a document purporting to be an agreement for sale dated 26.5.2012 between one Ayub Shero Baluchi as Vendor and the 1 st Defendant as Purchaser the 1 st Defendant purportedly agreed to purchase the suit premises from Ayub Shero Hussen Baluchi at Kshs. 50,000,000.00. Ayub Shero Hussen Baluchi was not the registered proprietor of the suit premises.
The 1st 2nd 3rd and/or 4th Defendants took possession of the suit premises under a document dated 1.8.2012 seemingly stamped on 26.9.2012 purporting to be a lease between the 1st Defendant as Lessee and one Ayub Shero Hussein Baluchi as Lessor at a monthly rent of Kshs. 120,000.00 payable semi-annually in advance for a term of 3 years. The said lease provided that monthly rent shall escalate by 5% per year.
Ayub Shero Hussein Baluchi was not the owner of the suit premises and did not acquire ownership of that property subsequently. The lease however confirms that the Ist Defendant and its directors acknowledge that monthly rental for the suit premises was Kshs. 120,000.00 to be increased annually by 5%.
The said purported lease referred to above expired on 31. 7.2015 and was not renewed or extended, the Lessor not having had capacity to extend it, but the 1st 2nd 3rd and/or 4th Defendants did not vacate the suit premises. The registered owner of the suit premises was Mwakasa Limited from 9.8.2006 to 13.11.2015 when it transferred the suit premises to the Plaintiff.
The Ist Defendant filed Mombasa High Court Civil Suit No. 216 of 2012 under a Plaint dated 7.12.2012 against Ayub Shero Hussein Baluchi, Omar Mohsen Ahmed Mohammed and Mwakasa Limited seeking specific performance of the said Agreement for Sale. The suit was subsequently transferred to this Court under the same serial number. The suit against Omar Mohsen Ahmed Mohammed was struck out pursuant to an interlocutory application for that purpose leaving Ayub Shero Hussein Baluchi and Mwakasa Limited as Defendants.
The 2nd Defendant swore a verifying affidavit in Mombasa HCCC No. 216 of 2012 drawn / by Mr. Paul O. Buti Advocate on 6.12.2012 in which she identified herself as one of the directors of the I SI Defendant. Her name was omitted from the jurat of that affidavit. Furthermore, those proceedings included a supporting affidavit and a Replying Affidavit drawn in the name of and sworn by the 3rd Defendant on 6.12.2012 and 16, 10.2015. Both were drawn and filed by Mr. Paul O. Buti Advocate. The name of the person that swore those affidavits was omitted from the jurat.
Judgement was delivered on 13.4,2022 in the said Mombasa ELC Case No. 216 of 2012 and this Court held that the Agreement between the 1st Defendant and Ayub Shero Hussein Baluchi dated 26.5.2012 was invalid as the Vendor was not the registered proprietor of the suit premises and that the Ist Defendant herein who was the Plaintiff in that suit had not paid the purchase price.
In the Judgment delivered by this Court on 13.4.2022 in ELC Case No, 216 of 2012, the person who testified for the Plaintiff in that suit was identified as Andrew Peter Ngirichi, the 4th Defendant in this suit and he adopted as his evidence in chief an affidavit he is said to have sworn on 6.12.2012. That Affidavit was drawn in the name of Francis Peter Ngirichi, the 3rd Defendant herein, and not in the name of Andrew Peter Ngirichi, PW l, the 4th Defendant herein. The Plaintiff is therefore in doubt as to the name of the person that swore those affidavits and testified in that suit and whether, based on those affidavits and that Judgment, the 3rd and 4th Defendants are one and the same person or whether they are distinct and separate individuals. That doubt is created by the use in those proceedings of the names of the 3rd and 4th Defendant interchangeably and the purported lease of the suit premises by the 4th Defendant to the 5th Defendant.
In the replying affidavit the 4th respondent Andrew Peter Ngirichi states that the title to the suit property to which now the Plaintiff lay claims and uses as a basis to institute this suit was acquired contrary the law and the doctrine of lis pendens as it is not in contention that the same was allegedly sold to the Plaintiff in the pendency of ELC Case no. 216 of 2012 and that even so, the Plaintiff herein has no locus standi to institute these proceedings and seems to be a stranger to the subject matter thereof because, whereas the Plaintiff as named in the Plaint is Shekha Nassor Salim, the documents purportedly evidencing ownership of the suit property herein as well as the donor of the power of attorney to the said salim Hassan Mwinyi are in the name of one Shekha Nassoro Salim thus clearly putting doubt as to the identity of the Plaintiff herein and as to whether they are one and the same person.
The 4th defendant contends that whereas the Plaintiff claims for mesne profits against the Defendants herein, it has not been demonstrated that the 2nd Defendant, the deponent herein and the 5th Defendant were ever in possession of the suit property let alone wrongful possession to warrant an inquiry as to whether mesne profits are due.
The Plaintiffs have only laid out preposterous allegations of forcible detainer, use of police and harassment by the 6th Defendant without laying out any cogent evidence in regard the veracity of whose ought to be tested at full trial yet neither of them are police officers or have power to direct police officers as on how their duties are to be performed and it is trite that the Plaintiff produces cogent evidence in that regard to enable them get a chance to test the veracity of the same at trial. The basis of the joinder of the 2nd and 4th Defendants in this suit is based on alleged affidavits which admittedly had no names on the jurat section and even the Plaintiff admits that she is unsure of who she has sued. It is evident from the foregoing that the Plaintiff's suit raises numerous significant issues, makes baseless preposterous allegations for which we believe our intended defence addresses and similarly raises trial issues and it is in the interest of justice that parties are afforded an opportunity to adduce and challenge evidence at full trial.
Granting of the orders sought at this stage of the suit and without affording the parties an opportunity to be heard will curtail their rights to fair hearing and they urge this Honourable Court to act in the doctrine of natural justice of the right to be heard and afford them an opportunity to be heard. That it is therefore in the interest of justice that the application dated the 16th February, 2026 be dismissed, the parties herein be granted leave to defend the suit and the court directs that the matter proceeds to full hearing.
I have considered the application, replying affidavit and rival written submissions and do find that though the 1st defendant has not opposed the application by filing an affidavit, the issues raised in the pleadings are triable. The defense by the defendants was filed though out of time but the same is on record. The triable issues such as whether the 1st defendant is a fictitious or sham company cannot be tried by a summary process that leads to a summary judgment.
The issue of the viability of the lease to the 1st defendant is contention despite the determination of this court in MSA ELC NO 216 of 2012 that the 1st defendant did not pay full purchase price. The plaintiff, the defendants number 2 to 6 were not parties to the said suit. The issues raised by the plaintiff in the application revolve on fraudulent activities and this court observes that fraud cannot be resolved by way of summary judgment.
The issue of placing the G.S.U on the suit premises has not been admitted by the defendants and therefore evidence should be called to demonstrate the same and this cannot determine the same through a summary trial.
On the issue of the ownership of the property this court observes that though the plaintiff is a registered owner of the property, the title to the property is under challenge and therefore the legal owner cannot be determined through a summary procedure.
The 4th and 5th defendants are not the registered owners of the suit property but claims rights to the property that can only be determined after hearing the parties’ evidence in a full trial.
The amount claimed by the plaintiff is not ascertained but involves figure that require verification and determination by the court. The amount of 24,600,595 is alleged to be rent between 13.11.2015 to 31.1.2026. there is no evidence of landlord tenant relating between the plaintiff and defendants.
I do agree with the defendants that the reliefs sought by the plaintiff cannot be granted by way of summary judgment under order 36 of the CPR 2010. The claims by the plaintiff are not specific in nature and therefore summary judgment cannot issue. The amount claimed by the plaintiff are not liquidated damages. Moreover, the relationship between the plaintiff and the defendants is not Landlord and tenant. The mere fact that the plaintiff has given a figure of claim that has to be ascertained by the court does not justify the grant of summary judgment.
The plaintiff seeks various declarations and in injunctive reliefs that cannot be granted under summary judgment. Summary judgment should be issued in plain and obvious claims. The court should be very careful not to deny the defendant a hearing.
Moreover, the doctrine of lis pendens is at test in this case and that the court cannot determine whether it is applicable by way of summary judgment. The plaintiff herein purchased the property for Mwakasa Co Limited in 2015 when the suit s MSA ELC NO 216 OF 2012 was pending which was a dispute on ownership.
The principle of Lis Pendens bars a party from deposing of and transferring property when a suit is pending in court. The defendants Nos 2-6 and plaintiff were not parties to the earlier suit and the issues in the two suits are different and therefore the judgment in the suit no 216 of 2012 does not divest the defendants of their right to be heard. Lastly it is alleged that the 6th defendant is in occupation of the land. It is not clear under which circumstances and therefore this court cannot determine the dispute summarily. Ultimately the application is dismissed with costs.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 21st DAY OF APRIL 2026.
A.O.OMBWAYO
JUDGE