Doorie Mohamed Mirza v Rogers Kaibunga & Others

h. Such other or further orders as the court may deem fit and just to grant. 2. In the body of the plant the plaintiff claimed that the estate of Mirza Shah Mazar Baluchi is the registered owner of an undivided share of the suit land while his late mother is registered owner of another undivided share. The land is said to have been owned by several persons in defined undivided shares. It is also stated that some of the original owners sold some of their shares which were bought by the applicant’s late father and that after his father died his mother purchased more shares; that each and every share on the ground was clearly surveyed and demarcated; every shareholder knows his or her boundaries and position of their parcel. The plaintiff averred that the portions comprising the shares he claims are contiguous thus forming one unitary portion on the ground. 3. In the plaint, it emerges that Jackson Kaibunga claimed a portion of the Land when the plaintiff's mother attempted to sell it to an Italian by the name Roberto Manganelli. Jackson's claims led to a report to the police and to a false charge of obtaining money by false pretences in 2013 against the plaintiff’s mother. The plaintiff claims that in 2014 the defendant (without specify which defendant) moved into portion of the suit land and demolished an old building and commenced construction of a structure that appeared to be a wall. It is claimed that the defendants have no right to the subject portion of the suit property. 4. The plaintiff asserts that after the judgment in Appeal Number 88 Of 2016 was delivered, he commissioned a forensic analysis of some documents and discovered that they were forgeries, and consequently Jackson was charged in court with forgery and uttering of forged documents in Malindi Criminal Case Number 209 Of 2019 and he was found guilty of, inter alia, forgery; that however ,Jackson passed away before judgment in that case and his son Rogers Kaibunga named as the first defendant herein, proceeded to sell the plot Jackson had claimed to the second defendant and the second defendant also sold the said portion to the third defendant. It is averred that the 1 st defendants has demonstrated an intention to remain on the portion by use of force thus denying the plaintiff use of the property hence the suit. Plaintiff’s Application Dated 22nd January 2026 5. Alongside the plaint was filed an application dated 22nd January 2026 seeking the following substantive orders: MLDELCCNOE040/26-RLG/DF-23.01.26/FH-23.03.26/LH-23.03.26/DR-23.09.26F. Page 2 of 9

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a. That pending the hearing and determination of this application the court be pleased to issue a stay of execution of the judgment and/or order of the court in Civil Appeal Number 88 of 2016 issued on 5th October 2017 unconditionally; b. That leave be granted for Doorie Mohamed Mirza the applicant to come on record; c. That the court do review the judgment and order issued in Civil Appeal Number 88 of 2016 dismissing the appeal with each party covering their own costs. 6. For grounds in support of the application, the plaintiff relied on all the contents of the plaint set out as herein above which he reiterated at the bottom of the application. The same grounds are reiterated in the Applicant's supporting affidavit dated 21st January 2026. Plaintiff’s Further Application Dated 30th January 2026 7. The plaintiff filed a further application dated 30th January 2026 which contained all the prayers set out in the plaint and also reiterated the prayers set out in the application dated 22 nd January 2026. The same is supported by an affidavit of the plaintiff sworn on 29th January 2026. Notice Of Preliminary Objection Against the Two Motions. 8. The second and third respondents filed a Notice of Preliminary Objection dated 30th January 2026 stating as follows: a. The plaintiff lacks locus standi to implead and suit all the defendants; b. The application dated 30th January 2026, 22nd January 2026 and the plaint dated 21st January 2026 are Res Judicata Malindi ELC Case Number 147 of 2014 Kurshed begum Mirza versus Jackson Kaibunga and Malindi Civil Appeal Number 88 Of 2016 Kurshed Begum Mirza Versus Jackson Kaibunga. c. The plaintiff lacks the locus standi to implead and suit all the defendants for lack of either a Grant of Probate or Letters of Administration to their state of the late Kurshed Begum Mirza and Mirza Shah; d. The plaintiff has no legal interest in Plot Number LR 670 Watamu and LR809 Watamu belonging to the second defendant; e. The pleadings of the plaintiff have not disclosed any reasonable cause of action against the first and the third defendants have no MLDELCCNOE040/26-RLG/DF-23.01.26/FH-23.03.26/LH-23.03.26/DR-23.09.26F. Page 3 of 9

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legal interest in the second defendant's plot numbers LR 670 and 809 Watamu. 9. They prayed that entire application and the suit be struck out with costs on those grounds. Replying Affidavits Dated 2nd February 2026 and 25th February 2026 Respectively 10. The second and third respondents filed their two responses to the two applications vide their 2 replying affidavits dated 2 nd February 2026 and 25th February 2026 respectively sworn by the second respondent. He leveled accusations of non-disclosure and misrepresentation against the plaintiff. He stated that he is the registered proprietor of LR number 670 Watamu CR 24159 and 809 CR 27630 and annexed copies of certificates of title and certificates of search thereof to the affidavit. He maintained that Plot Numbers 670 and 809 were excised from the Original Plot Number 21 Watamu out of undivided shares of ownership attributable to the previous owner Jackson Kaibunga. Those plots were reflected in entries 21, 35 and 40 of the mother title which copy was exhibited in the affidavit. The defendant asserted that all due process was followed in the survey and subdivision of Plot Number 21 Watamu to create Plot Number 670 and 809 and exhibited several documents including letters from the Municipal County of Malindi to his Surveyors and to the Land Registrar, a letter from the District Physical Planning Officer to the Kilifi Land Registrar, a letter from Malindi Municipal Council to Kilifi Land Officer and a letter from District Plans Office to Arch Surveyors. He also asserted that the plaintiff has failed to disclose that his applications are res judicata Case Number 147 Of 2014 and Appeal Number 88 Of 2016. 11. According to the second defendant Jackson Kaibunga was the proprietor of Plot Numbers 670 and 809 Watamu and he sold and transferred the same to one Ruggero Sciomeri vide a sale agreement dated 3rd April 2014. 12. His further affidavit evidence is that whereas the plaintiff’s late father had undefined and undivided shares in Plot Number 21 Watamu, other shareholders thereof have had their shares defined by subdivision survey and excision and becoming of the exercise portions of land. The applicant lacks the locus standi to implead and suit all the MLDELCCNOE040/26-RLG/DF-23.01.26/FH-23.03.26/LH-23.03.26/DR-23.09.26F. Page 4 of 9

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respondents for lack of a Grant of Probate the estates of his late parents. The Plaintiff’s Application Dated 10th February 2026 13. Another application dated 10th February 2026 which is identical to the application dated 30th January 2026 was also filed by the plaintiff and in the opinion of this court, there is no need to reiterate its contents here. Notice Of Preliminary Objection Against the Notice of Motion Dated 10th February 2026 14. The second and third defendants file the above notice dated 25 th February 2026 stating as follows: a. The plaintiff has no locus standi to implead and suit all the defendants; b. The application dated 10th February 2026 is res judicata Malindi ELC Case Number 147 Of 2014 and Civil Appeal 88 Of 2016; c. The plaintiff lacks the locus standing to implead and suit all the defendants for lack of either a grant of probate or letters of administration to the estate of the late Kurshed Begum Mirza and Mirza Shah; d. The plaintiff has no legal interest in plot number LR670 Watamu and 809 Watamu belonging to the second defendant; e. The pleadings of the plaintiff have not disclosed any reasonable cause of action against the first and third defendants have no (sic) legal interest in the second defendant brought numbers 670 and 809 Watamu; f. That the application dated 10th February 2026 is bad in law and defective for contravening Order 51 Rule 4 of the Civil Procedure Rules 2010 as the application is not grounded on facts in an affidavit notwithstanding the factual grounds addressed in the said application. 15. On those grounds the second and third defendants prayed that the entire application and the suit be struck out with costs. Affidavit Dated 31st January 2026. MLDELCCNOE040/26-RLG/DF-23.01.26/FH-23.03.26/LH-23.03.26/DR-23.09.26F. Page 5 of 9

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16. The said affidavit is expressed to be sworn in opposition to the Preliminary Objection against the Notice of Motion dated the 30 th January 2026. The applicant’s Supplementary Affidavit dated 3 rd February 2026 17. In the said affidavit it was stated that Jackson Kaibunga passed away in the year 2019 after he had been charged in court with Criminal Case Number 29 Of 2019 for forgery; that the second defendant was deceived by the first and the third defendants into acquiring the disputed land and he never did his due diligence; that the plaintiff's parents managed the first Cinema Hall and later a nightclub on the premises in the 1990s while Jackson Kaibunga had no structure on the said premises; that when the plaintiff’s parents closed their nightclub business owing to religious beliefs, the first respondent demolished the structures on the suit property. Photographs said to be of the structures before they were demolished were exhibited in the affidavit. The Plaintiff maintained that his parents had peacefully occupied the suit land and even dug a freshwater hole named ‘Water Tamu’ which allegedly led to the area being baptized “Watamu” in 1980s, and that evidence of the existence of that well featured in Case Number 147 Of 2014. Attached to that affidavit is an application for registration of “Happy Nightclub” with Registrar of Societies in which Mirza Shah, Mrs Kurshid and Debin Muhammad are named as proposed officials, followed by a Certificate of Registration dated 16 th January 1996, and another one dated 14th November 1997 for “Happy Nightclub”. A copy of a letter dated 27th May 1987 from the Municipal Council of Malindi is addressed to Mirza Shah, permitting him to pull down the existing Cinema Hall and reconstruct the building. A copy of a letter from the Municipal Council of Malindi dated 14th November 1984 appears to certify that the Plot No 21 belonged To Mirza Shah. A copy of a laundry payment receipt for Plot Number 21 in the name of Mirza Shah dated 14th April 2008 was also annexed. The First Defendant’s Memorandum of Appearance 18. The advocate for the second and third defendants filed and Memorandum of Appearance dated 17th February 2026 on behalf of the first defendant. MLDELCCNOE040/26-RLG/DF-23.01.26/FH-23.03.26/LH-23.03.26/DR-23.09.26F. Page 6 of 9

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Respondents’ Affidavit Dated 25th February 2026 19. The Respondents’ affidavit dated 25th February 2026 in response to the application dated 10th February 2026 addresses the similar defenses raised in the earlier defence affidavits while adding that the application is omnibus, belated, and overtaken by the applicant’s exercise of his rights of appeal in The Superior court and lacking in merit. Supplementary Affidavit Dated 25th February 2026 20. The plaintiff filed the above affidavit which reiterates much of what has been said in his earlier affidavits with the addition that the court should review Criminal Case Number 29 Of 2019, ELC number 147 of 2014 and Civil Appeal Number 88 Of 2014 to establish that Jackson used forged documents to defraud the plaintiffs’ parents of their land. 21. The plaintiff filed submissions dated 26 th February 2026. The defendants filed their submissions dated 3rd March 2026. Analysis And Determination. 22. This court will first of all deal with the Preliminary Objection raised by the first -third respondents. In summary, the issues raised by the Preliminary Objection are as follows: a. Whether the plaintiff has locus standi to bring the present suit; b. Whether the suit is res judicata Malindi ELC Case 147 Of 2014 and Civil Appeal Number 88 Of 2016. c. Who ought to bear the costs. 23. On the issue of locus standi this court notes that the plaintiff has admitted that the suit land does not belong to him but to his parents and therefore he is expected to be suing on behalf of their respective estates since they are both deceased. The reliefs sought in the plaint are indicative that they are sought for the benefit of the estate of Mirza Shah Mazar Baluchi; interest in plot number 21 Watamu never passed to the plaintiff to clothe him with the requisite locus standi to sustain the suit. All the foregoing facts must be viewed in the light of the fact that he has however not exhibited a Grant of Letters of Administration in respect of those estates to enable him file the suit despite the objection having been raised and hm being granted an opportunity to do so. An Administrator is not entitled to bring an action before taking out a Grant of Letters of Administration (See the case of Trouistic Union MLDELCCNOE040/26-RLG/DF-23.01.26/FH-23.03.26/LH-23.03.26/DR-23.09.26F. Page 7 of 9

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International & Another Vs Mbeyu & Another 2008 1 K.L.R 730) The Plaintiff/Applicant has therefore not established that he has locus standi to institute and maintain the suit on behalf of those estates and it must be struck out for that reason. 24. As to the whether the case is res judicata Malindi ELC 147 Of 2014 and Malindi Civil Appeal Number 88 of 2016, this court notes that is not a Preliminary Objection properly so called as it calls for a scrutiny of documents outside of the court record for the present case in order to arrive at the appropriate determination. 25. In the case of Mukisa Biscuit Manufacturing Co Ltd Vs West End Distributors Limited (1969) E.A 696 the court stated as follows regarding the essential succinct nature of preliminary objections: “A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is exercise of judicial discretion.” 26. The court in the Mukisa case (supra) also stated as follows: “…a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings and which if argued as a preliminary point may dispose of the suit.” 27. In the present case, therefore find that the issue of res judicata is not a proper preliminary objection since it requires this court to examine other documents outside the pleadings filed in this case. That objection is hereby dismissed on that ground. 28. However, for the reason that the court has found that the plaintiff lacks a grant of letters of administration and hence lacks locus standi, the present suit and all the applications filed are incompetent from inception and they are hereby struck out with costs to only the 2 nd and 3rd defendants. 29. The present case demonstrates clearly the challenges faced by litigants when they commence litigation by themselves only to face adversaries who have legal representation. Without legal insight from experienced counsel, they may not be able to present their facts with brevity and clarity, or to dissect the complex issues involved and may make omissions that are fatal to their cases. Dated, signed and delivered at Malindi on this 23 rd September 2026. MLDELCCNOE040/26-RLG/DF-23.01.26/FH-23.03.26/LH-23.03.26/DR-23.09.26F. Page 8 of 9

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MWANGI NJOROGE JUDGE, ELC MALINDI. MLDELCCNOE040/26-RLG/DF-23.01.26/FH-23.03.26/LH-23.03.26/DR-23.09.26F. Page 9 of 9

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