Abdi Juma Abdalla v Mohamed Fowzi Hassan Yusuf & 5 Others

MOHAMED ABDI JAMA……….……………….…. …5TH DEFENDANT ABDULSWANAD OMAR…………………6TH HUSSEIN DEFENDANT MAASAI LODGE ROAD MOSQUE TRUST REGISTERED TRUSTEES………………. ….PROPOSED DEFENDANT RULING 1. There are two applications before the court for determination. The first one is the application dated 28th January 2026 by the 5th and 6th Defendants seeking striking out of their names from the suit and that instead Maasai Lodge Road Mosque Trust Registered Trustees be joined as a defendant. 2. This application is premised on the grounds that the 5 th and 6th Defendants and one Isa Keng’anya Honga are Trustees of Maasai Lodge Road Mosque Trust Registered Trustees which was incorporated in 2025 and that if it is not included in the suit, any orders against them will be unenforceable. They claim that the joinder will not RULING ELC E035 OF 2023 Page 2 of 15

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prejudice the parties who will have an opportunity to respond to any issues raised. 3. The Plaintiff opposes this application on the grounds that there is no evidence that the 6 th Defendant had authority to swear the supporting affidavit on behalf of the 5th Defendant- Mohamed Abdi Jama. The Plaintiff further argues that the said Maasai Lodge Road Mosque Trust was registered on 30th September 2025 in disregard of this Court’s order delivered on 20th March 2025 which restrained the Defendants from any interference with suit property Ngong/Ngong/10838. As such, the Defendants cannot claim to have been acting as Trustees of a company that was non-existent at the time the cause of action arose. He further states that in ECL OS E001 of 2023, the 5th and 6th Defendants in an attempt to dispossess him of the suit property averred that they were acting on behalf of Maasai Lodge Road Mosque Muslim Community/ Maasai Lodge Road Mosque and on 18 th July 2024, this Court through Komingoi J. dismissed the suit finding that the said body was non-existent. 4. The 2nd Application dated 2nd February 2026 by the Plaintiff seeks that the 5th and 6th Defendants be held in RULING ELC E035 OF 2023 Page 3 of 15

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contempt for disobeying court orders issued on 20 th March 2025, a fine of Kshs. 1,000,000 and for their arrest and/or committal in civil jail for six months. The Plaintiff also seeks that the Registrar of Companies be directed to deregister Maasai Lodge Road Mosque Trustees for being an illegal entity. 5. The application is premised on the grounds that the 5 th and 6th Defendant have continuously disobeyed the Court order delivered on 20th March 2025 which restrained interference of any manner with the suit property Ngong/Ngong/10838 and went ahead to incorporate Maasai Lodge Road Mosque Trust. The Plaintiff further deposes that in the 5th and 6th Defendants application dated 28th January 2026, they averred that the said entity was incorporated to hold, manage and protect the mosque which this Court had barred them against. He also claims that they misrepresented themselves as proprietors of the suit property with the power to hold, manage and protect the suit property. As such, the said Maasai Lodge Road Mosque Trust is an illegal entity which should be deregistered and the defendants cited with contempt to protect the dignity of judicial proceedings. RULING ELC E035 OF 2023 Page 4 of 15

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6. The applications were canvassed by way of written submissions. 7. Counsel for the Plaintiff opposing the Application dated 28th January 2026 submits that the Plaintiff has a cause of action against the 5 th and 6th Defendants as set out in the Plaint dated 25th October 2023. The Plaintiff however has no claim against the proposed defendant which was incorporated on 30 th September 2025 and is therefore not a necessary party to the suit. Reference is made to the case of Joseph Njau Kingori w Robert Maina Chege 3 Others [2002] eKLR to support the submission that the proposed defendant did not meet the threshold for joinder. 8. In supporting the application dated 2nd February 2026, Counsel for the Plaintiff submits that on 20th March 2025, Komingoi J. delivered a Ruling finding that the Plaintiff was the registered owner of the suit property and barring the defendants from interfering with its quiet possession. An attempt by the Defendants to set aside the Ruling was dismissed on 30th October 2025. However, despite there being a valid Court order, the 5 th and 6th Defendants continue to interfere, intimidate and interrupt RULING ELC E035 OF 2023 Page 5 of 15

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the Plaintiff’s quiet possession of the suit property and even went ahead to register an entity claiming to hold and manage a mosque and asserting that the said registered entity has a claim over the suit property. The 5 th and 6th Defendants are thus in contempt of court orders as held in Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR and should be cited as such. 9. Counsel for the 5th and 6th Respondents contests the application dated 2nd February 2026 arguing that the threshold for contempt as held in Gatharia K. Mutikika v Baharini Farm Ltd [1985] KLR 22 has not been proved. Counsel submits that the Court order in reference does not bar the Defendants from registering a Trust and that the Plaintiff did not demonstrate that the Defendants wilfully disobeyed the Court orders or were aware of the said order citing Samuel M. N. Mweru Others v National Land Commission & 2 Others [2020] eKLR. 10. Having considered the foregoing, the court distils the following issues for determination; i. Whether the 5th and 6th defendants should be struck RULING ELC E035 OF 2023 Page 6 of 15 out of the suit and the proposed

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defendant – Maasai Lodge Road Mosque Trust Registered Trustees enjoined as a defendant; ii. Whether the 5th and 6th Defendants are guilty of contempt of the orders issued on 20 th March 2025; iii. Whether the Court should order the deregistration of Maasai Lodge Road Mosque Trust Registered Trustees. 11. Before delving into the substantive issues, I note that the Plaintiff raised the 6 th Defendant’s authority to swear an affidavit on behalf of the 5th Defendant. While the Court also takes cognisance that there is no evidence of such authority, the Court will treat the lapse as a technicality considering that affidavit is duly sworn by the 6 th Defendant who is also a party in the matter. 12. On whether the 5th and 6th Defendants should be struck out and replaced by the proposed Maasai Lodge Road Mosque Trust, the 5th and 6th Defendants claim that were acting as Trustees of Maasai Lodge Road Mosque Trust and they should therefore be struck out as parties and replaced by the said Trust, which is the proper party to the suit. The Plaintiff has opposed this claim arguing RULING ELC E035 OF 2023 Page 7 of 15

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that the said Trust was registered on 30 th September 2025, way after the cause of action against the defendants arose. 13. Order 1 Rule 10(2) Civil Procedure Rules empowers court to strike out parties: Order 1 Rule 10 (2) The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added. 14. The Court has carefully considered the Defendants' contention that, following the incorporation of the Trust, they ought to be struck out of these proceedings and the Trust substituted in their place. The Court notes that the RULING ELC E035 OF 2023 Page 8 of 15

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Trust was incorporated after this suit was filed and after the acts that are complained of. At this interlocutory stage, the Court cannot, through an application for joinder, determine the substantive liability or otherwise, of the 5 th and 6th Defendants. The creation of the Trust cannot retrospectively extinguish any claims against the Defendants, nor can it relieve them of responsibility, if ultimately established, for acts undertaken while bound by orders of this Court. 15. I thus find that the 5th and 6th defendants have not demonstrated that they are improperly joined. The Court is consequently satisfied that there is no basis for striking out the existing Defendants. 16. The issue of whether Registered Trustees should be joined as a defendant to the suit will be discussed together with the issue of contempt since they are interlinked. 17. The Plaintiff’s application dated 2nd February 2026 is premised on this Court’s order made on 20th March 2025. The order reads: i. An Injunction be and is hereby issued restraining RULING ELC E035 OF 2023 Page 9 of 15 the Respondents by

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themselves, their servants, agents and / or employees harassing, from trespassing intimidating onto, and/or in any manner howsoever from interfering and / or interrupting with the Applicant/Plaintiff quiet possession, use and enjoyment of the suit located premises on being property NGONG/NGONG/10838 the mosque Title Number Located in the Maasai Lodge area within Kajiado County pending the hearing and final determination of this suit. ii. That the OCS of Ongata Rongai Police Station do enforce the Court Orders. 18. Trust It is during the subsistence of these orders that the was subsequently incorporated. Of particular significance is that the Trust Deed clothes the trustees, with powers to hold, manage and protect the suit property. 19. The Plaintiff accuses the 5 th and 6th Defendants of disobeying that order by incorporating Maasai Lodge Road Mosque Trust Registered Trustees on 30th September RULING ELC E035 OF 2023 Page 10 of 15

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2025, an entity they argue was formed “to hold, manage and protect the mosque” erected on the suit land. As such, it is argued that the act of incorporation and the subsequent claim of proprietary interest over the mosque, constitutes blatant interference and contempt. 20. On this, it has been settled that, “the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt. The rationale for this standard is that if cited for contempt, and the prayer sought is for committal to jail, the liberty of the contemnor will be affected. As such, the standard of proof is higher than the standard in civil cases. This power, to commit a person to jail, must be exercised with utmost care, and exercised only as a last resort. It is of utmost importance, therefore, for the respondents to establish that the alleged contemnor’s conduct was deliberate, in the sense that he or she wilfully acted in a manner that flouted the Court Order…” see Republic v Mohammed [2018] KESC 51 (KLR). RULING ELC E035 OF 2023 Page 11 of 15 & another

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21. In the above Republic v Mohammed & another, the Supreme Court went on to hold that: the wilful disobedience or of a Judgment, decree Order properly constitutes contempt of Court. The Plaintif’'s principal complaint is that, after the order of 20 th March 2025, the 5th and 6th Defendants caused the incorporation of Maasai Lodge Road Mosque Trust Registered Trustees on 30th September 2025. The Plaintiff claims that this amounted to interference with the suit property and as such contempt of the Court order because the Defendants state that the Trust was incorporated to hold, manage and protect the mosque. 22. In the Court's view, the power to hold, manage and protect property is, at least prima facie, an assertion of authority and control over that property. Where possession of the same property is the subject of a subsisting injunction, such an instrument cannot be dismissed as wholly unrelated to the orders of the Court. 23. Whether the execution and implementation of the Trust Deed crossed the threshold into contempt must nevertheless be determined against the applicable standard of proof. Contempt is not established merely RULING ELC E035 OF 2023 Page 12 of 15

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because the Trust was incorporated during the pendency of the suit. The material question is whether, with knowledge of the order of 20th March 2025, the Defendants deliberately undertook or caused acts which amounted to trespass upon or interference with the Plaintiff's possession of the suit property. 24. the While the Court takes cognizance that the timing of incorporation raises legitimate questions, the injunctive order did not expressly prohibit the 5 th and 6th Defendants from incorporating a trust. More importantly, no evidence has been placed before court demonstrating that after incorporation of the said Trust, the 5 th and 6th Defendants have used it as a vehicle to carry out any physical or legal interference with parcel Ngong/Ngong/10838. 25. I emphasize, however, that this finding should not be understood as giving the 5th and 6th Defendants, the incorporated Trust, or any other person the licence to deal with the suit property in a manner prohibited by the order issued on 20th March 2025. 26. On the question of whether the Trust should be enjoined as a Defendant, I note that though incorporated RULING ELC E035 OF 2023 Page 13 of 15

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after the suit was instituted, it purports to have a claim over the suit property. It is essential that this claim be heard in the present suit so as to prevent a multiplicity of suits thereafter. Consequently the Trust is to be enjoined as a Defendant. 27. I reiterate that the earlier orders remain binding on all parties. I also urge all parties in this matter to prepare for the full hearing so that all the issues can be addressed substantively and a final determination reached. 28. The application dated 28th January 2026 is partially allowed as follows; a. Maasai Lodge Road Mosque Trust Registered Trustees is to be enjoined as a 7th Defendant. The 5th and 6th Defendant are to remain as parties. b. The application dated 2nd February 2026 for contempt fails c. Each party is to bear their own costs for the application Dated, Signed and Delivered virtually at Kajiado this 24 th day of September 2026. RULING ELC E035 OF 2023 Page 14 of 15

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JUDY OMANGE JUDGE. In the Presence of: Mr Ondari for Plaintiff. Mr Suud for Defendant. Peter – Court Assistant. RULING ELC E035 OF 2023 Page 15 of 15

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