SIC Investment Co - operative Society Limited (Formerly Safaricom Investment Co - operative Society Limited) v Jao & 12 others (Environment and Land Case E077 of 2024) [2026] KEELC 2945 (KLR)

RULING I. Introduction 1. Before this Honourable Court for its determination is the Notice of Motion application dated 5th August 2025 filed by Sadik Ramadhan, Alfani Rama, Salim Mwakutsuma, Batuli Rama, Ibrahim Rama, Halima Rama, Rama Said, Ali Salim Nzaria, Machapati Shibe Suleiman, Mejumaa Salim Gaone, and Salimu Salimu Mbwingoma the 2nd – 12th Defendants/Applicants herein. It sought to strike out the Plaintifi/Respondent’s suit in its entirety. The Motion was supported by the afidavit of Sadik Ramadhan, the 2nd Defendant/Applicant. 2. Upon service of the Application, the Plaintifi/Respondent filed a Replying Afidavit sworn by Jared Nyagwoka on 14th October 2025 opposing the application. Further the 1st Defendant filed grounds of opposition dated 27th October, 2025 to the Notice of Motion application dated 5th August, 2025 seeking to have the application dismissed. II. The case by the 2nd to 12th Defendants 3. The Application was brought under the provision of Articles 162(2)(b) and 165 of the Constitution of Kenya, Sections 1A, 1B and 3A of the Civil Procedure Act, Sections 6 and 7 of the Civil Procedure Act, Order 2 Rule 15 of the Civil Procedure Rules 2010, Section 6 of the Environment and Land Court Act 2011, Section 86 of the Kadhi’s Court (Procedure and Practice) Rules, and all other enabling provisions of the law. 4. The Applicants sought for the following orders: - 5. a. That the Honourable court be pleased to strike out the Plaintifi/ Respondent's suit herein. b. That such other relief the Honourable Court may deem just and fit to grant in the circumstances. c. That costs of this Application be provided for. The application was premised on the grounds, facts and testimony on the face of the application and further supported by the 8 Paragraphed annexed afidavit of SADIK RAMADHAN, the 2nd Defendant/Applicant, wherein it was averred as follows that: a. This statement was made in support of the application to persuade the Court to grant the reliefs sought herein. b. On or about 13th November 2024, the Plaintifi/Respondent filed the instant suit seeking to quash the judgments delivered by the Kadhi’s Court in KCSUCC/E085/2024 and KCSUCC/ E112/2024, both relating to succession in the estates of Mwavungo Ramadhani Khalifani and Salim Omari (both deceased). Copies of the said judgments were annexed and marked as “SR‑1A” and “SR ‑ 1B”. c. The Kadhi's Court in presiding over the said matter regarding the impugned decision was exercising special jurisdiction related to family matters and /or inheritance. d. This Honourable Court lacks competent jurisdiction to quash the decision made by the Kadhi’s Court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2945/eng@2026-05-08 2

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e. Therefore suit filed by the Plaintifi/Respondent was defective, having been instituted in a Court lacking the requisite jurisdiction to determine the matters raised therein. f. It was in the interest of justice that they filed this Application for the Plaintifi/ Respondent’s suit to be struck out by this Honourable Court. III. The responses by the Plaintifi/Respondent 6. The Plaintifi, SIC Investment Co‑operative Society Limited, responded to the Application through an 18 Paragraphed Replying Afidavit sworn on 14th October 2025 by Jared Nyagwoka, wherein the Afiant averred as follows that: a. He was a Project Oficer of the Plaintifi/Respondent herein with the authority to swear the Further Afidavit on behalf of the Plaintifi/Respondent. The Afiant was fully conversant with the facts in this matter and hence competent to swear the afidavit. b. He had read the contents of the Supporting Afidavit of the 2nd – 12th Defendants/Applicants dated 5th August 2025, and their contents had been explained to the Afiant by the Plaintifi’s Advocates on record, and hence wished to respond. c. The Application was a non‑starter, frivolous, and an abuse of the Court process. d. The Plaintifi’s/Respondent’s suit as filed not only sought to quash the orders of the Kadhi’s Court in “Kwale KCSUCC/E085/2024” and “KCSUCC/E112/2024”, but also sought other incidental orders which squarely fell within this Honourable Court’s jurisdiction and could only be granted in this forum.(Annexed to the afidavit and marked as “JN ‑ 01” was a copy of the Plaint duly filed by the Plaintifi/Respondent showing the orders sought). e. It was trite that the jurisdiction of the Kadhi’s Court was limited to the determination of questions of Muslim law relating to personal status, marriage, divorce, or inheritance in proceedings in which all the parties professed the Muslim religion and submitted to the jurisdiction of the Kadhi’s Court. f. The Applicant herein was not a natural person capable of professing any religion including Islam, thus it was not in a position to approach the Kadhi’s Court for any reliefs related to ownership of the suit property following the decisions in Kwale KCSUCC/E085/2024 and KCSUCC/E112/2024. g. This Honourable Court, being a Superior Court of equal status to the High Court, had supervisory jurisdiction over subordinate courts including the Kadhi’s Court. Thus, the Honourable Court could review orders made by the subordinate courts. h. The Kadhi’s Court matters in Kwale KCSUCC/E085/2024 and KCSUCC/E112/2024 had since been concluded, and the Plaintifi/Respondent herein was never a party to the said matters. Accordingly, the Plaintifi/Respondent was condemned unheard and therefore sought this Court’s intervention.(Attached to the afidavit and marked “JN‑02” was a copy of a screenshot from the Judiciary Case Tracking System showing that the two Kadhi’s Court matters had been concluded/closed). i. The Plaintifi/Respondent filed the present suit since the decisions of the two Kadhi’s Court matters aforesaid had an efiect on its proprietary rights in the suit property LR No. Kwale/ Ng’ombeni/1426, which had since been subdivided into Kwale/Ng’ombeni/3264–3358 (the “Suit Property”). https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2945/eng@2026-05-08 3

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j. Given that the Plaintifi/Respondent’s property rights were at stake following the decisions of the two subordinate courts, this Honourable Court’s position on the issue was of necessity, given that the value of the suit property fell within the ambit of this Court’s jurisdiction. k. Only this Court had the original civil jurisdiction from both the Constitution and legislation to make a determination on the ownership rights of the suit property, which the two Kadhi’s Court decisions ostensibly made. l. The Afiant was advised by the Plaintifi’s Advocates on record, whose advice the Afiant verily believed to be true and sound, that striking out of pleadings or a suit filed was a draconian act, which could only be resorted to in plain cases and ought to be a remedy of last resort. m. In any event, the prayers of the Plaintifi/Respondent in the Plaint included other incidental orders, thus an amendment to the pleadings in the suit could cure any defects in the pleadings. Therefore, the 2nd –12th Defendants/Applicants were not entitled to the orders sought. n. The Afiant was further advised by the Plaintifi’s Advocates on record, whose advice the Afiant verily believed to be true, that if the 2nd –12th Defendants/Applicants wished to contest this Honourable Court’s jurisdiction, they ought to have raised a preliminary objection on a pure point of law. o. If the Application by the 2nd –12th Defendants/Applicants herein was allowed, the Plaintifi/ Respondent would have been driven from the seat of justice, would have lacked a forum to safeguard its right to property, and would have stood highly prejudiced. p. If the Application herein was allowed, the Plaintifi/Respondent would have been denied its right to access justice as enshrined under the Constitution. q. It was in the interest of justice and fairness that this Honourable Court disallowed the Application herein, as it had been made in bad faith. IV. The Grounds of Opposition by the 1st Defendant 7. The 1st Defendant filed grounds of oppositions dated 27th October, 2025 to the Notice of Motion application dated 5th August, 2025 opposing it entirely based on the following grounds: a. The said Application was bad in law, mischievous, frivolous and totally incompetent thus amenable to be struck out. b. The issues raised by the Plaintifi/ Applicant were better ofi addressed at a full hearing. c. The Application should therefore be dismissed with costs. V. Submissions 8. On the 8th December, 2025, while the Parties were present in Court, they were directed to have the Notice of Motion application dated 5th August 2025 filed by the 2nd to 12th Defendants/Applicants disposed of by way of written submissions. All the parties complied with the Court’s directions. Pursuant thereto, a ruling date was reserved on notice. Eventually, it was delivered on 8th May, 2026 by the Court accordingly. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2945/eng@2026-05-08 4

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A. The Written Submissions by the 2nd – 12th Defendant to the Notice of Motion application dated 5th August, 2025 9. The 2nd – 12th Defendants through the Law firm of Messrs. Okwiri & Company Advocates filed their written submissions dated 1st December, 2025. Mr. Olieti Advocate commenced his submissions by stating that before the Honourable Court was the 2nd – 12th Defendants/ Applicants’ application dated 5th August 2025. From the application, they sought to strike out of the Plaintifi/Respondent’s suit herein. The gravamen of the 2nd – 12th Defendants/Applicants’ contention was that the suit by the Plaintifi/Respondent was incompetent and bad in law. The 2nd – 12th Defendants/Applicants’ held the view that the suit by the Plaintifi/Respondent was a non starter at best. 10. According to the Learned Counsel, there were two central facts to the 2nd - 12th Defendants/Applicants’ application herein that are uncontested; i. that the Plaintifi/Respondent’s grievances emanate from the two decisions from the Kadhis Court, to wit, KCSUCC/E085/2024 and KCSUCC E112/2024 and that; ii. the Plaintifi/Respondent seeks that the Honourable Court to overturn these two said decisions from the Kadhis Court. 11. According to the Learned Counsel, the Honourable Court could not adjudicate over the Plaintifi/ Respondent’s grievances hereinabove stated. Hence the assertion of incompetency. According to the Learned Counsel, the Plaintifi/ Respondent had admitted in its replying afidavit that indeed the Kadhis Court did give propriety rights over the suit premises to the 1st – 12th Defendants inKCSUCC/ E085/2024 and KCSUCC E112/2024. Indeed, the Plaintifi/Respondent that it was aggrieved by these very decisions by the Kadhis Court and therefore profiered the present suit. 12. It was the Learned Counsel’s submission that the present suit by the Plaintifi/Respondent could not be heard by this Honourable Court as it is not the appropriate forum and in any case, it’s jurisdiction has not been properly invoked. 13. On whether or not the Plaintifi/ Respondent’s suit was properly before this Court, the Learned Counsel relied on the case of “Republic – Versus - Karisa Chengo & 2 Others S.C. Petition No. 5 of 2015 [2017] KESC 15 (KLR) (26th May, 2017)”, where the Supreme Court held that:“ It follows from the above analysis that, although the High Court and the specialized Courts are of the same status, as stated, they are difierent Courts. It also follows that the Judges appointed to those Courts exercise varying jurisdictions, depending upon the particular Courts to which they were appointed. From a reading of the statutes regulating the specialized Courts, it is a logical inference, in our view, that their jurisdictions are limited to the matters provided for in those statutes. Such an inference is reinforced by and fiows from article 165(5) of the Constitution, which prohibits the High Court from exercising jurisdiction in respect of matters “ reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; or (b) falling within the jurisdiction of the Courts contemplated in article 162(2)”. In this case, it therefore also follows that Angote, J., appointed as a Judge of the Environment and Land Court, and not of the High Court, had no jurisdiction to determine criminal appeals. [Emphasis added] https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2945/eng@2026-05-08 5

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14. The Learned Counsel averred that as had been stated herein the root of the Plaintifi/Respondent’s suit was the Kadhi’s decision in KCSUCC/E085/2024 and KCSUCC E112/2024. The Plaintifi/ Respondent being aggrieved with the Kadhi’s Court decision approached this Court with a view of having the same being quashed vide a Plaint dated the 13th November, 2024. Indeed, under Paragraphs 8, 9 and 10 of the Plaintifi/Respondent’s Replying Afidavit attest to this fact. The Plaintifi/Respondent states that:“ the Kadhi's Court matters in Kwale KCSUCC/E085/2024 and KCSUCC/E112/2024 have since been concluded and the Plaintifi/Respondent herein was never a party to the said matters. Accordingly, the Plaintifi/Respondent was condemned unheard and now therefore seeks this court's intervention”, “the Plaintifi/Respondent filed this suit since the decisions of the two Kadhi's Court matters aforesaid have an efiect on its proprietary rights in the suit property LR No. Kwale/ Ng'ombeni/1426 that has since been subdivided into Kwale/Ng'ombeni/3264- 3358( the "Suit Property")”, and “given that the Plaintifi/ Respondent's property rights are at stake following the decisions of the two Subordinate courts, this Honourable court's position on the issue shall be of necessity given that the value of the suit property falls within the ambit of this court's jurisdiction.” 15. He asserted that there was no room for doubt that the Plaintifi/Respondent’s suit herein challenges the decisions of the Kadhis Court. 16. The Learned Counsel informed Court that it is trite that the Kadhis Court do sit as a specialized sub - ordinate family court in matters of Islamic law. The Plaintifi/Respondent had acceded to this fact.The question, therefore under this head was, is this Honourable Court the appropriate Court to adjudicate over an inheritance dispute emanating from the Kadhis Court? The Kadhis Court in exercising its constitutional mandate distributed the estate of the deceased Mwavungo Ramdhani Khalifani (deceased) and Salim Omari (deceased). The estate of the deceased comprised of the suit property. 17. The Plaintifi/Respondent was aggrieved by the decisions by the Kadhis Court that distributed the estate of the two deceased hereinabove stated to the 1st -12th Defendants. Hence, the present suit. Was it right for the Plaintifi/Respondent to approach this Honourable Court in the manner stated? It was the Learned Counsel’s humble submission it was not right. This Honourable Court could not sit to adjudicated over a dispute whose nature was a family law dispute or rather was an inheritance dispute under Islamic law. The Honourable Court did not have jurisdiction contemplated under the law and the constitution to handle such disputes. The appropriate forum is the High Court and more particularly, its family division, if one be so established. 18. It was the Learned Counsel’s contention that the Plaintifi/Respondent ought to have approached the High Court for the quashing of the Kadhis Court decision and not the Environment & Land Court. This submission was buttressed by the Supreme Court’s holding in the case of:- “Republic – Versus - Karisa Chengo & 2 Others [Supra]”.The Environment and Land Court and the High Court were two distinct Courts although of the same status. Issues regarding inheritance were a preserve of the High Court. The Environment & Land Court could not adjudicate upon a dispute emanating from a decision rendered by Court (sub - ordinate) regarding distribution of an estate of a deceased person. Thus, in a nutshell, the Environment & Land Court could not quash a decision by the Kadhis Court or ofier ancillary reliefs thereunto. 19. Paragraphs 17, 18, 19, 25 and 26 of the Plaintifi/Respondent’s Plaint further gave evidence to the fact that the Plaintifi/Respondent’s suit was entirely a grievance against the Kadhis Court holding. In fact, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2945/eng@2026-05-08 6

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the Plaintifi/Respondent confirmed under Paragraph 17 ofits Plaint that the Kadhis Court decision emanated from “succession proceedings” before it. 20. The Learned Counsel submitted that parties aggrieved by decisions from succession proceedings did not approach this Court in seeking to have such proceedings annulled or otherwise dealt with by law. A party could not come from a succession court to challenge the succession court’s decision or proceedings to the Environment & Land Court. The Plaintifi/Respondent had a right as an Interested Party in succession proceedings before the succession court. The Plaintifi/Respondent had a right to challenge the outcome of succession proceedings before the High Court. Thus, the Plaintifi/ Respondent’s suit herein which was improperly before the Honourable Court ought to be struck out. 21. On whether the Plaintifi/ Respondent had properly approached the Court. It was the contention by the Learned Counsel that even if the Honourable Court was deemed to be the appropriate forum, it had not been approached in the correct manner. The Plaintifi/ Respondent could not file an “original” suit to challenge the decision of a lower court. The correct procedure was to file an appeal when one was aggrieved with the decision of the lower court or even file for judicial review.The Plaintifi/Respondent being aggrieved by the Kadhis Court decision, if at all the Honourable Court was the appropriate forum, the Plaintifi/Respondent ought to have filed either an appeal or judicial review 22. The Learned Counsel made the humble submission that the net efiect of this misstep by the Plaintifi/ Respondent was that the suit by it was defective and hence ought to be struck out. B. The Written Submissions by the Plaintifi/Respondent 23. The Plaintifi/ Respondent through the Law firm of Messrs. Mulondo & Company Advocates LLP filed their written submissions dated 2nd February, 2026. Mr. Ndegwa Advocate recounted that what was before the Honourable Court was an application by the Plaintifi/Respondent dated 5th August, 2025 seeking the above stated orders. 24. The Learned Counsel informed Court that the Plaintifi/Respondent was the registered owner of property previously known as Kwale/Ng’ombeni/1426 that had been sub - divided into 96 sub parcels being title LR Nos. Kwale/Ng’ombeni/3264 - 3358. The Plaintifi/Respondent became the registered owner of the suit property following a transfer of ownership from the 1st Defendant/Respondent on 3rd September, 2021. The 2nd – 12th Defendants’ application was premised on the fact that the Plaintifi's/ Respondent's main suit herein sought to quash the decisions delivered by the Kadhi's court in Kwale KCSUCC/E085/2024 and Kwale KCSUCC/E112/2024 - In the Estate of Mwavungo Ramadhani Khalifani and in the Estate of Salim Omari (Both Deceased) respectively. Therefore, the 2nd -12th Applicants’ contend that this Honourable Court was divested ofi jurisdiction. 25. According to the Learned Counsel, the 2nd and 12th Applicants/Defendants further contended that the Kadhi’s court while presiding over the aforesaid matters was exercising special jurisdiction related to family matters and/or family matters. Accordingly, the Applicants argued that the Honourable Court lacks jurisdiction to entertain the Plaintifi'/Respondent's suit. The Application was opposed through the Replying Afidavit dated 14th October, 2025, sworn by one Jared Nyagwoka a Project Oficer of the Plaintifi/Respondent. Primarily, the Plaintifi/Respondent held that the suit not only sought quashing of the Kadhi's Courts’ decisions but other Court orders that could only be issued by this court. 26. The Learned Counsel argued that the decisions in Kwale KCSUCC/E085/2024 and Kwale KCSUCC/E112/2024 had an efiect on the Plaintifi's/Respondent's proprietary rights in the suit property. Accordingly, it has moved this court which under Article 162(2) of the Constitution, it is https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2945/eng@2026-05-08 7

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vested with the jurisdiction to deal with the environment and the use and occupation of, and title to land. 27. 28. On the issues for determination, the Learned Counsel relied in the following:i. Whether the Honourable court should strike out the Plaintifi's/Respondent's suit herein ii. Whether the Honourable court should strike out the Plaintifi's/Respondent's suit herein The Learned Counsel opined that it is trite that jurisdiction stems from the constitution or legislation as was held in the case of Supreme Court of Kenya in the case of:- “Samuel Kamau Macharia & Another – Versus - Kenya Commercial Bank Limited & others (2012) eKLR” where the court stated as follows: “ A Court's jurisdiction fiows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 29. This Honourable Court's jurisdiction over land matters stems from the provision of Article 162(2) (b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act, 2011. In particular the legislation at Section 13(2) provides the jurisdiction of the ELC Court as: Court shall have power to hear and determine disputes(a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; 30. The main suit by Plaintifi seeks for the following final orders as shown above ( Refer to the Annexture marked as “JN-01” Replying Afidavit dated 14th October 2025.) 31. The Learned Counsel submitted that its clear from the orders sought for the Plaint that the Plaintifi/ Respondent seeks several reliefs other than the quashing of the decisions of the subordinate courts in Kwale KCSUCC/E085/2024 and Kwale KCSUCC/E112/2024.The said reliefs squarely fit into this Honourable court's jurisdiction under the Constitution and the Environment and Land Court Act, 2011. The Plaintifi's application was premised on the notion that the Plaintifi/Respondent's suit only wanted to challenge the lower court's decisions thus, the same was improper before this Honourable Court. On the contrary, the Plaintifi mainly seeks that the sanctity of its title of the suit property be upheld by the Honourable court. They submitted that there are triable issues have been raised in the Plaint by the Plaintifi/Respondent that warrant this court’s determination. 32. The Learned Counsel submitted that the Order of striking out sought in the Application herein was a draconian order which the Honourable Court was always required to exercise a great degree of caution before allowing it. From the Procedural Law, being the Civil Procedure Rules, 2010 at Order 2 Rule 15 provide that grounds which a court may strike out pleadings, which are where the pleadings. 33. They submitted that the 2nd – 12th Defendants’ application did not in any way bring out the succinct ground(s) through which they seek striking out of the main suit from the grounds provide for in law. The only ground raised by the 2nd -12th Applicants were that the Plaintifi/Respondent's suit was rooted in contesting the Sub - ordinate courts decisions on family matters and succession. This was not a ground for striking out of pleadings but would rather form a subject of a preliminary Objection in law. They submitted that the 2nd -12th Applicants’/Defendants’ application therefore falls short of the grounds under the provision Order 2 Rule 15 of the Civil Procedure Rules, 2010 and accordingly lacked merit thus should be dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2945/eng@2026-05-08 8

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34. Further, striking out of pleadings and/or suit was at the court's discretion hence the use of the word “may” in the Civil Procedure Rules, 2010. The court in the case of:- “Kivanga Estates Limited – Versus - National Bank of Kenya Limited [2017] eKLR” held that: “ The language as highlighted demonstrates that, as a drastic measure in litigation, the remedy must be resorted to sparingly. It is only where a pleading cannot be salvaged by an amendment that the court will utilize this procedure, hence the use of the word “may”. Order 2 Rule 15 which retains word for word” 35. As submitted herein above striking out of pleadings ought to be a remedy of last resort. It should only be exercised where the pleadings were entirely hopeless and could not be cured by any amendment. This was the holding of the court in the case of:- “Bernard Maina Kamau – Versus - Sunripe (1976) Limited [2014] eKLR” where the court held that: “ At any given time, the main aim is to sustain rather than to terminate a suit. Striking out a suit is a draconian step which must be used as a last resort. An act of striking out of pleadings by the court should therefore be exercised cautiously and with a lot of restraint. This was a conclusion that was arrivedat in the case of Geminia Insurance Co Limited – Versus - Kennedy Otieno Onyango [2005] eKLR where Musinga J (as he then was) had the following to say:“It is trite law that striking out pleadings is a draconian step which ought to be employed in the clearest of cases and particularly where it is evident that the suit is beyond redemption.” 36. Further, the Court in the case of:- “Law Society of Kenya – Versus - Martin Day & 3 others [2015] eKLR” held that: “ .......the power to strike out suits or pleadings is espoused in Order 2 rule 15 of the Civil Procedure Rules. It is a discretionary power. That discretion, nonetheless, must be exercised very judiciously and not capriciously. The yardstick for striking out pleadings was settled in the celebrated case of D. T. Dobie & Co (Kenya) Limited – Versus - Muchina (1982) KLR 1,where the Court of Appeal pointed out that the power to strike out is a discretionary one but ought to be applied very sparingly. It would be exercisable in very plain cases.” 37. The Plaintifi's/Respondent's suit was still at its early stages as the pleadings in the matter are yet to close. Any defects in the pleadings by the Plaintifi/Respondent may be cured by a reasonable amendment hence, striking out completely the pleadings herein is unnecessary. Accordingly, the orders sought in the Application herein should not be granted. The incidental orders sought by the Plaintifi/ Respondent in the main suit relate to acquisition, use, occupation of the suit property. This are issues within the ambit the Honourable court's jurisdiction which require determination of this Honourable court. If the 2nd - 12th Applicant's Application is allowed at this stage, the Plaintifi/Respondent shall be driven from the seat of justice and shall lack a forum to ventilate its claim over the suit property. 38. According it is trite that Equity will not sufier a wrong to be without a remedy. The Plaintifi/ Respondent approached this Honourable court alleging that its proprietary rights over the suit property had been infringed and/or threatened to be infringed. These were triable issues and it would be proper that this suit was allowed to proceed to trial on merit and the court renders its decision on the issues raised. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2945/eng@2026-05-08 9

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39. In conclusion, the Learned Counsel asserted that the grounds necessary for this court to strike out the suit herein in law have not been suficiently proved. Striking out this suit ought to be remedy of the last resort. The Plaintifi's/Respondent’s Plaint raised triable issues besides contesting the decisions of the sub - ordinate courts in Kwale KCSUCC/E085/2024 and Kwale KCSUCC/E112/2024. Accordingly, amendments may be made to the pleadings at any time before the pleadings close. They submitted that it would be utterly unfair and unjust for the Plaintifi’s/Respondent’s suit to be struck at this early stage. 40. They prayed that the 2nd – 12th Applicant’s application dated 5th August, 2025 be dismissed with costs and that the matter herein be allowed to proceed for a Pre - Trial conference management. VI. Analysis and Determination 41. I have considered the Notice of Motion application dated 5th August 2025 by the 2nd to 12th Defendants/Applicants, the Replying Afidavit sworn by the Plaintifi/Respondent, and the written submissions, myriad authorities filed by both parties, relevant provision of the Constitution of Kenya, 2010 and the statures. 42. From the pleadings and arguments placed before this Honourable Court, the following five (5) issues fall for determination in relation to the instant application: a. Whether this Honourable Court has jurisdiction to entertain the Plaintifi’s suit seeking to quash the decisions of the Kadhi’s Court in KCSUCC/E085/2024 and KCSUCC/ E112/2024. b. Whether the Plaintifi’s suit as filed is defective for having been instituted in a forum lacking jurisdiction. c. Whether the Plaintifi, being a corporate entity, could lawfully seek reliefs in respect of proprietary rights afiected by Kadhi’s Court decisions to which it was not a party. d. Whether striking out of the Plaintifi’s suit is merited in the circumstances of this case. e. What orders should issue as to costs of the Notice of Motion application dated 5th August, 2025. Issue No. a). Whether this Honourable Court has jurisdiction to entertain the Plaintifi ’s suit seeking to quash the decisions of the Kadhi’s Court in KCSUCC/E085/2024 and KCSUCC/ E112/2024 43. Under this sub‑heading the Honourable Court will decipher whether the Environment and Land Court has jurisdiction to hear and determine the Plaintifi’s claim, which seeks to quash the decisions of the Kadhi’s Court in succession matters, and whether such jurisdiction extends to proprietary rights allegedly afiected by those decisions. 44. It is trite law that Jurisdiction is the cornerstone of judicial authority. The Court of Appeal in “Owners of Motor Vessel “Lillian S” – Versus - Caltex Oil (Kenya) Ltd [1989] eKLR” held that: “ I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2945/eng@2026-05-08 10

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a continuation of proceedings pending other evidence. A Court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 45. This principle has become the cornerstone of Kenyan jurisprudence on jurisdiction. It emphasizes that jurisdiction is conferred by the Constitution and statute, not by the parties, and that once a court finds it lacks jurisdiction, it must immediately terminate proceedings. 46. Primarily, the jurisdiction of the ELC to hear and determine this suit fiows from the Constitution and the law. The jurisdiction of court is not conferred upon it by parties nor can the court confer upon itself jurisdiction. The Supreme Court in the case of:- “Samuel Kamau Macharia and Another – Versus - Kenya Commercial Bank Limited & 2 others (2012)eKLR” held that:“ A court’s jurisdiction fiows from either the constitution of legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.” 47. Subsequently, the Environment and Land Court is established under the provision of Article 162(2) (b) of the Constitution of Kenya, which provides: “ Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to— (b) 48. the environment and the use and occupation of, and title to, land.” Pursuant to this constitutional provision, Parliament enacted the Environment and Land Court Act, 2011. It’s Preamble holds as follows:“ An Act of Parliament to give efiect to Article 162 ( 2 ) ( b ) of the Constitution to establish a superior Court to hear and determine disputes relating to the environment and the Use and Occupation of, and title to, land, and to make provision for its jurisdiction functions and powers, and for connected purposes. 49. 50. The provision of Section 13 of the Act elaborates the jurisdiction of the Court as follows: a. relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; b. relating to compulsory acquisition of land; c. relating to land administration and management; d. relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and e. any other dispute relating to environment and land The Environment and Land Court (ELC) has jurisdiction over disputes relating to land ownership, use, occupation, and title, while the Kadhi’s Court is limited to succession matters under Muslim law where all parties profess Islam and submit to its jurisdiction. This means that while the Kadhi’s Court can determine inheritance among Muslim families, the ELC is the proper forum when proprietary https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2945/eng@2026-05-08 11

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rights in land are contested, especially where corporate entities or non-Muslims are involved.The Environment and Land Court (ELC) is a specialized court established under Article 162(2)(b) of the Constitution and operationalized by the Environment and Land Court Act, 2011. Its jurisdiction is confined to disputes relating to the environment, land use, occupation, and title to land. It does not extend to matters of succession, family law, or inheritance unless such issues are incidental to a land dispute. 51. The Plaintifi’s suit is two-pronged. On one hand, it seeks to quash the decisions of the Kadhi’s Court in succession matters concerning the estates of Mwavungo Ramadhani Khalifani and Salim Omari. On the other hand, it seeks substantive reliefs relating to ownership of LR No. Kwale/Ng’ombeni/1426 (sub - divided into Kwale/Ng’ombeni/3264–3358), including declarations of title, injunctive relief against trespass, and recognition as a bona fide purchaser for value.The Kadhi’s Court, under the provision Article 170 of the Constitution, has jurisdiction over questions of Muslim law relating to personal law and status being on marriage, divorce, or inheritance where all parties profess the Muslim faith. The Plaintifi, being a corporate entity, does not fall within the category of parties contemplated under Article 170. It therefore argues that the Kadhi’s Court decisions, though succession-related, directly impacted its proprietary rights, thereby necessitating intervention by this Court. 52. The Court of Appeal case of:- “Co - operative Bank of Kenya Limited – Versus - Patrick Kangethe Njuguna & 5 others (2017) eKLR” went into great length in addressing the issue of jurisdiction of the ELC court when it comes to matters such as the one herein. Though the Plaintifi’s decry that the same is not a blanket decision of the jurisdiction of this court, the same is binding to this court by virtue of the stare decisis doctrine. The court in that case found that: 53. a. Land use involves the application of land, air above it, or ground below it for its adapted purpose. Charging land (securing a loan with land as collateral) is not considered land use b. A charge is an interest in land securing payment of money or fulfillment of conditions. It creates a limited relationship where the chargee (lender) has rights over the land for security, not for using the land. c. A charge is a disposition (legal arrangement) in land, not land use. Dispositions create relationships but do not alter environmental conditions of the land, unlike land use. d. If a disposition were land use, absentee landlords with a charge would not face adverse possession claims, which contradicts legal principles. e. The ELC does not have jurisdiction over charges as land use under Article 162 of the Constitution. The main issue in the case was accounting for amounts due, not the validity of the charge itself. f. The ELC's jurisdiction over contracts relates to land use, not financial instruments like mortgages or charges, which fall under the civil jurisdiction of the High Court. g. The High Court has jurisdiction over accounting disputes per Article 165(3) of the Constitution, which provides unlimited original jurisdiction in civil matters Thus, the ELC has both original and appellate jurisdiction in all matters concerning land and proprietary rights. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2945/eng@2026-05-08 12

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54. While on the one hand, the Kadhi’s Court is established under the provision Article 170 of the Constitution of Kenya. Article 170(5) provides: “ The jurisdiction of a Kadhi’s court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.” 55. Therefore, the jurisdiction is special and limited. It applies only where: a. The dispute concerns Muslim law on personal status, marriage, divorce, or inheritance. b. All parties profess the Muslim faith. c. All parties voluntarily submit to the jurisdiction of the Kadhi’s Court 56. Legally speaking, and by all means, the Kadhi’s Court does not have jurisdiction to determine disputes involving land use, occupation, title – on ownership or proprietary rights where one of the parties is a corporate entity or a non‑Muslim. 57. Additionally, succession in Kenya is generally governed by the Law of Succession Act, Cap. 160. However, the provision of Section 2(3) of the Act recognizes that Muslim law applies in cases of succession where the deceased was a Muslim. In such cases, the Kadhi’s Court may determine inheritance among Muslims. Nevertheless, where succession decisions afiect third‑party proprietary rights in land, particularly those of corporate entities or non‑Muslims, jurisdiction shifts to the ELC. This ensures that land disputes are resolved by the specialized court established under Article 162(2) (b). 58. Under the provision of Article 165(6) of the Constitution, the High Court and courts of equal status (including the ELC) have supervisory jurisdiction over subordinate courts, including the Kadhi’s Court. This supervisory jurisdiction empowers the ELC to review decisions of subordinate courts where such decisions afiect rights beyond the scope of their jurisdiction. 59. The Applicants argued that the Kadhi’s Court was properly seized of the succession disputes in the estates of Mwavungo Ramadhani Khalifani and Salim Omari, and that in presiding over those matters, the Kadhi’s Court exercised its special jurisdiction under the provision of Article 170(5) of the Constitution, which limits its mandate to questions of Muslim law relating to personal status, marriage, divorce, or inheritance. They contended that this Honourable Court cannot quash or interfere with such decisions, and that the Plaintifi’s suit is therefore defective for want of jurisdiction. 60. However, the Plaintifi contended that its suit is not limited to challenging the Kadhi’s Court orders, but also seeks incidental reliefs relating to proprietary rights in LR No. Kwale/Ng’ombeni/1426, now sub - divided into LR. No. Kwale/Ng’ombeni/3264 – 3358. The Plaintifi emphasized that it was not a party to the Kadhi’s Court proceedings, being a corporate entity incapable of professing religion, and was condemned unheard. It argued that the Kadhi’s Court has no jurisdiction to determine proprietary rights of a co‑operative society, and that only this Court, under the provision Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, has jurisdiction to determine disputes relating to ownership of land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2945/eng@2026-05-08 13

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61. Thus, this Court reiterates and notes that jurisdiction is everything, and without it, the Court must down its tools. The Kadhi’s Court derives its jurisdiction from the provision of Article 170(5) of the Constitution, which provides that: “ The jurisdiction of a Kadhi’s court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.” 62. It is clear that the Kadhi’s Court jurisdiction is personal and religious in nature, and does not extend to proprietary rights in land where one of the parties is a corporate entity incapable of professing religion. The Plaintifi herein is a Co ‑ operative Society, and therefore could not have submitted to the jurisdiction of the Kadhi’s Court. 63. On the other hand, the Environment and Land Court is established under the provision of Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, No. 19 of 2011 with jurisdiction to hear and determine disputes relating to the environment and the use, occupation, and title to land. Where proprietary rights are implicated, this Court is the proper forum. 64. Further, under the provision of Article 165(6) of the Constitution, the High Court and courts of equal status have supervisory jurisdiction over subordinate courts, including the Kadhi’s Court. This supervisory jurisdiction empowers this Court to review decisions of subordinate courts where such decisions afiect rights beyond the scope of their jurisdiction. 65. The Plaintifi has urged that the ELC, being a superior court of equal status to the High Court, can exercise supervisory jurisdiction over subordinate courts, including the Kadhi’s Court. This argument is misplaced. Supervisory jurisdiction is expressly vested in the High Court under Article 165(6) of the Constitution. The ELC, while equal in status to the High Court, is a specialized court with jurisdiction limited to its statutory remit. It cannot arrogate to itself supervisory powers over sub- ordinate courts outside its mandate. 66. Accordingly, while the Kadhi’s Court was properly seized of succession matters among Muslims, its decisions cannot oust the jurisdiction of the ELC where proprietary rights of a non‑party corporate entity are implicated. The Plaintifi’s claim raises legitimate questions of ownership and title to land, which fall squarely within the jurisdiction of this Court under Article 162(2)(b) and Section 13 of the ELC Act. 67. Therefore, the Honourable Court holds that it has jurisdiction to entertain the Plaintifi’s suit, notwithstanding that the impugned decisions emanated from the Kadhi’s Court, since the Plaintifi’s proprietary rights in land are at stake and only this Court has the constitutional and statutory mandate to adjudicate such disputes. Issue No. b). Whether the Plaintifi ’s suit as filed is defective for having been instituted in a forum lacking jurisdiction. 68. Under this sub‑heading the Honourable Court will decipher whether the Plaintifi’s suit, as filed before the Environment and Land Court, was defective for want of jurisdiction, given that the impugned decisions emanated from the Kadhi’s Court in succession matters. 69. The Applicants argued that the Plaintifi’s suit was incurably defective because it sought to quash judgments delivered by the Kadhi’s Court in KCSUCC/E085/2024 and KCSUCC/E112/2024, both succession matters. They contended that the Kadhi’s Court was properly seized of jurisdiction under https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2945/eng@2026-05-08 14

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the provision of Article 170(5) of the Constitution, and that this Honourable Court lacked jurisdiction to interfere with or overturn decisions made in exercise of that special jurisdiction. 70. The Plaintifi/Respondent, through the afidavit of Jared Nyagwoka, maintained that its suit was properly before this Court. It argued that: i. The suit did not merely seek to quash the Kadhi’s Court orders but also sought incidental reliefs relating to proprietary rights in LR No. Kwale/Ng’ombeni/1426, now subdivided into Kwale/Ng’ombeni/3264–3358. ii. The Plaintifi was not a party to the Kadhi’s Court proceedings and, being a corporate entity, could not have submitted to the jurisdiction of the Kadhi’s Court. iii. The Kadhi’s Court has no jurisdiction to determine proprietary rights of a co‑operative society. iv. Only the Environment and Land Court, under Article 162(2)(b) and Section 13 of the Environment and Land Court Act, has jurisdiction to determine disputes relating to ownership and title to land. v. Striking out is a draconian remedy, only to be resorted to in plain cases, and any defects in pleadings could be cured by amendment. 71. This Court notes that jurisdiction is conferred by the Constitution and statute, not by the parties. The Kadhi’s Court jurisdiction is limited to questions of Muslim law relating to personal status, marriage, divorce, or inheritance, and only where all parties profess Islam and submit to its jurisdiction. 72. The Plaintifi herein is a co‑operative society, a corporate entity incapable of professing religion. It was not a party to the Kadhi’s Court proceedings. Yet, the decisions of the Kadhi’s Court directly afiected its proprietary rights in land. This raises a fundamental question of jurisdiction. 73. The Environment and Land Court, under Article 162(2)(b) and Section 13 of the ELC Act, has original jurisdiction to hear and determine disputes relating to land and proprietary rights. Further, under Article 165(6), this Court has supervisory jurisdiction over subordinate courts, including the Kadhi’s Court. 74. Therefore, while the Kadhi’s Court was properly seized of succession matters among Muslims, its decisions cannot bind or oust the rights of a non‑party corporate entity. The Plaintifi’s suit, insofar as it seeks to protect proprietary rights in land, is properly before this Court. 75. The Honourable Court finds that the Plaintifi’s suit is not defective for having been instituted in this forum. On the contrary, the Environment and Land Court is the proper forum to adjudicate disputes where proprietary rights in land are implicated, even if such rights are afiected by succession decisions of the Kadhi’s Court. Issue No. c). Whether the Plaintifi, being a corporate entity, could lawfully seek reliefs in respect of proprietary rights afiected by Kadhi’s Court decisions to which it was not a party. 76. Under this sub‑heading the Honourable Court will decipher whether the Plaintifi, a co‑operative society, has the legal standing to challenge decisions of the Kadhi’s Court that were made in succession matters, and whether its proprietary rights in land can be protected in this forum despite not being a party to the succession proceedings. 77. The 2nd to 12th Defendants/Applicants argued that the Plaintifi’s suit was incompetent because it sought to quash judgments of the Kadhi’s Court in succession matters. They contended that the Kadhi’s Court was properly seized of jurisdiction under Article 170(5) of the Constitution, and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2945/eng@2026-05-08 15

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that the Plaintifi, not being a party to those proceedings, lacked standing to challenge them. They further argued that the Plaintifi, as a corporate entity, could not invoke Muslim law or submit to the jurisdiction of the Kadhi’s Court, and therefore had no basis to interfere with succession decisions. 78. The Plaintifi/Respondent maintained that it had the right to approach this Court for relief because: - The Kadhi’s Court decisions directly afiected its proprietary rights in LR No. Kwale/ Ng’ombeni/1426, now subdivided into LR. No. Kwale/Ng’ombeni/3264–3358. - The Plaintifi was not a party to the succession proceedings and was condemned unheard, contrary to the principles of natural justice and the constitutional right to a fair hearing under the provision of Article 50 of the Constitution. - As a corporate entity, the Plaintifi could not profess religion and therefore could not submit to the jurisdiction of the Kadhi’s Court. - Only the Environment and Land Court, under the provision of Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, has jurisdiction to determine disputes relating to ownership and title to land. - The Plaintifi’s claim was therefore properly before this Court, as it sought to protect proprietary rights rather than to litigate succession issues under Muslim law. 79. This Court notes that the Kadhi’s Court jurisdiction is limited to questions of Muslim law relating to personal status, marriage, divorce, or inheritance, and only where all parties profess Islam and submit to its jurisdiction. The Plaintifi herein is a co‑operative society, a corporate entity incapable of professing religion. It could not have submitted to the jurisdiction of the Kadhi’s Court. 80. Nevertheless, the decisions of the Kadhi’s Court in KCSUCC/E085/2024 and KCSUCC/E112/2024 had a direct impact on the Plaintifi’s proprietary rights in land. The Plaintifi therefore has standing to approach this Court to safeguard its property rights. 81. As already indicated, the Environment and Land Court, under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, has jurisdiction to hear and determine disputes relating to land and proprietary rights. Further, under Article 165(6) of the Constitution, this Court has supervisory jurisdiction over subordinate courts, including the Kadhi’s Court, to ensure that their decisions do not unlawfully afiect rights beyond their jurisdiction. 82. Accordingly, while the Kadhi’s Court was properly seized of succession matters among Muslims, its decisions cannot bind or oust the rights of a non‑party corporate entity. The Plaintifi, being directly afiected, is entitled to seek relief in this Court. 83. The Honourable Court finds that the Plaintifi, though a corporate entity, has the legal standing to seek reliefs in respect of proprietary rights afiected by Kadhi’s Court decisions to which it was not a party. This Court therefore has jurisdiction to entertain the Plaintifi’s claim insofar as it relates to ownership and title to land. Issue No. d). Whether striking out of the Plaintifi ’s suit is merited in the circumstances of this case. 84. Under this sub ‑ heading the Honourable Court will decipher whether the drastic remedy of striking out the Plaintifi’s suit is justified, considering the pleadings, the nature of the dispute, and the competing claims of the parties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2945/eng@2026-05-08 16

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85. In the case of “Kivanga Estates Limited – Versus - National Bank of Kenya Limited [2017] KECA 591 (KLR)”, Justice Havelock J (as he was then) held that: It is not for nothing that the jurisdiction of the court to strike out pleadings has been described variously as draconian, drastic, discretionary, a guillotine process, summary and an order of last resort. It is a powerful jurisdiction, capable of bringing a suit to an end before it has even been heard on merit, yet a party to civil litigation is not to be deprived lightly of his right to have his suit determined in a full trial. The rules of natural justice require that the court must not drive away any litigant from the seat of justice, without a hearing, however weak his or her case may be. The fiip side is that it is also unfair to drag a person to the seat of justice when the case brought against him is clearly a non-starter. The exercise of the power to strike out pleadings must balance these two rival considerations. 86. Although the court exercises discretionary powers in striking out pleadings, because of its far reaching consequences, the provision of Order 2 Rule 15 of the Civil Procedure Rules, 2010 has established clear principles which guide the court in the exercise of that power in the following terms; “ 15. (1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that— a) it discloses no reasonable cause of action or defence in law; or b) it is scandalous, frivolous or vexatious; or c) it may prejudice, embarrass or delay the fair trial of the action; or d) it is otherwise an abuse of the process of the court....and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.” (My emphasis). 87. The wording employed underscores that striking out is a drastic remedy in litigation, one that must be invoked sparingly. It is only in circumstances where a pleading is incapable of being salvaged through amendment that the Court will resort to this procedure. This is why the provision deliberately uses the permissive term “may.” Indeed, the provision of Order 2 Rule 15 of the Civil Procedure Rules, 2010 preserves this language verbatim, reinforcing the discretionary and exceptional nature of the remedy. 88. The provision of Order VI rule 13 of the repealed Civil Procedure Rules has been construed over the years in a long line of cases, both by this Court and the courts below. For instance in the case of:- “Co - Operative Merchant Bank Limited – Versus - George Fredrick Wekesa Civil Appeal No. 54 of 1999” the Court summarized the principles as follows:“ The power of the Court to strike out a pleading under Order 6 Rule 13(1) (b) (c) and (d) is discretionary and an appellate Court will not interfere with the exercise of the power unless it is clear that there was either an error on principle or that the trial Judge was plainly wrong.....Striking out a pleading is a draconian act, which may only be resorted to, in plain cases...Whether or not a case is plain is a matter of fact....A Court may only strike out pleadings where they disclose no semblance of a cause of action or defence and are incurable by amendment.” 89. The Applicants position was that the Plaintifi’s suit was incompetent and ought to be struck out. They argued that the suit sought to quash Judgments of the Kadhi’s Court in succession matters, which were properly within the jurisdiction of that Court under the provision of Article 170(5) of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2945/eng@2026-05-08 17

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The Plaintifi, not being a party to those proceedings, lacked standing to challenge them. The suit was therefore defective, frivolous, and an abuse of the Court process.Striking out was necessary to prevent the Plaintifi from vexing the Defendants with litigation in a forum lacking jurisdiction. 90. The Plaintifi on the other hand opposed the application contending that its suit was properly before this Court because it raised questions of proprietary rights in LR No. Kwale/Ng’ombeni/1426, now sub - divided into LR. No. Kwale/Ng’ombeni/3264–3358.The Kadhi’s Court decisions directly afiected its proprietary rights, yet it was not a party to those proceedings and was condemned unheard.Striking out is a draconian remedy, only to be resorted to in plain and obvious cases.Any defects in pleadings could be cured by amendment, and the Court should allow the matter to proceed to full trial on merits. Dismissing the suit at this stage would deny the Plaintifi access to justice and a forum to safeguard its property rights. 91. This Court notes that striking out of pleadings is a drastic judicial action, which terminates a party’s claim without a hearing on merits. It is only to be resorted to in plain and obvious cases where the pleadings are hopeless, frivolous, or an abuse of the Court process.The jurisprudence is settled that courts should lean towards sustaining suits rather than striking them out, unless the defects are incurable. In the case of:- “DT Dobie & Company (Kenya) Ltd – Versus - Muchina [1982] KLR 1”, the Court of Appeal held that:“ No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment.” 92. In the present case, the Plaintifi’s suit raises substantive questions of proprietary rights in land. The Plaintifi has demonstrated that it was not a party to the Kadhi’s Court proceedings, yet its property rights were directly afiected. These are not frivolous issues but matters deserving full ventilation at trial. 93. While the Kadhi’s Court was properly seized of succession matters among Muslims, its jurisdiction does not extend to proprietary rights of a corporate entity. The Plaintifi’s claim therefore falls within the jurisdiction of this Court under the provision of Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. 94. Accordingly, striking out the suit would unjustly deny the Plaintifi access to justice and a forum to safeguard its property rights. Any defects in pleadings can be cured by amendment, and the matter should proceed to full trial. 95. The Honourable Court finds that striking out of the Plaintifi’s suit is not merited in the circumstances of this case. The suit raises legitimate questions of proprietary rights in land, which fall within the jurisdiction of this Court, and should therefore proceed to hearing on merits. Issue No. e). What orders should issue as to costs of the Notice of Motion application dated 5th August, 2025. 96. Under this sub ‑ heading the Honourable Court will decipher whether costs should be awarded to the Applicants or the Plaintifi/Respondent, and the principles guiding such determination. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR” and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR”, the court reafirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2945/eng@2026-05-08 18

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the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 97. The 2nd to 12th Defendants/Applicants prayed that the costs of the application be awarded to them, arguing that the Plaintifi’s suit was incompetent, frivolous, and an abuse of the Court process. They contended that they had been dragged into unnecessary litigation and had incurred expenses in defending the application, and therefore costs should follow the event. 98. The Plaintifi/Respondent opposed the prayer for costs, contending that the application was a delaying tactic brought in bad faith. It argued that the application lacked merit and was intended to derail the hearing of the substantive suit. The Plaintifi urged the Court to dismiss the application with costs to the Defendants/Applicants. 99. The Honourable Court notes that in the present case, the Court has found that it has jurisdiction to entertain the Plaintifi’s suit. The Plaintifi’s suit is not defective for want of jurisdiction. The Plaintifi, though a corporate entity, has standing to seek reliefs in respect of proprietary rights afiected by Kadhi’s Court decisions. Striking out of the Plaintifi’s suit is not merited. 100. Accordingly, the Notice of Motion application dated 5th August 2025 fails in its entirety. The Applicants have not demonstrated suficient grounds to warrant the orders sought. The application was therefore unmerited and occasioned unnecessary delay in the prosecution of the Plaintifi’s claim. The Honourable Court finds that the Notice of Motion application dated 5th August 2025 is dismissed with costs to the Plaintifi/Respondent. VII. Conclusion and Disposition. 101. Ultimately, in view of the foregoing detailed and expansive analysis of the framed issues on the Notice of Motion application dated 5th August, 2025, the Replying Afidavit sworn by the Plaintifi, and the written submissions filed herein, the Honourable Court arrives at the following decision and makes the orders below:a. That the Notice of Motion application dated 5th August, 2025 filed by the 2nd to 12th Defendants/Applicants seeking to strike out the Plaintifi’s suit be and is hereby found to be without merit hence it is dismissed. b. That the Honourable Court holds that while the Kadhi’s Court was properly seized of succession matters among Muslims, its jurisdiction does not extend to proprietary rights of a corporate entity incapable of professing religion. The Plaintifi’s claim, insofar as it relates to ownership and title to land, is properly before this Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. c. That the Honourable Court further finds that striking out of pleadings is a draconian remedy only to be resorted to in plain and obvious cases, and that the Plaintifi’s suit raises substantive questions of proprietary rights deserving full ventilation at trial. d. That the Plaintifi’s suit shall therefore proceed to hearing on merits as scheduled. e. That for expediency sake, there be a mention on 6th October, 2026 for purposes of conducting a Pre – Trial Conference pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010. There shall be hearing on 25th January, 2027 preferably through Physical Means. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2945/eng@2026-05-08 19

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f. That the costs of the Notice of Motion dated 5th August, 2025 shall be borne by the 2nd to 12th Defendants/Applicants. It is so ordered accordingly. RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 8TH DAY OF MAY 2026. HON. MR. JUSTICE L. L. NAIKUNI, ENVIRONMENT AND LAND COURT AT KWALE Ruling delivered in the presence of: a. Mr. Daniel Disii, the Court Assistant; b. Mr. Ndegwa Advocate for the Plaintifi/Respondent. c. M/s. Wako Advocate holding brief for Mr. Olieti Advocate for 2nd to 12th Defendants/Applicants. d. No appearance for the 1st & 13th Defendants/Respondents https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2945/eng@2026-05-08 20

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