Kimuri Housing Company Ltd v Margaret Mwihaki Mburu & 510 Others

3. In the said affidavit he deposes that the Applicants purchased portions of land known as L.R No.100090/27 (I.R23761) from the plaintiff more than 20 years ago and they have developed the said parcels. 4. Their requests to Margaret Wangui Ngugi, the director of the plaintiff to process their title documents have fallen on deaf ears. They are concerned that the suit herein seeking to compel the 8 th to 10th defendants to release the title documents in respect of the subdivisions of the suit property to the plaintiffs will frustrate the plaintiffs’ efforts to acquire title deeds for their individual plots. 5. He complains that the Amended Plaint fails to disclose salient information in regards to the claims raised making it difficult for them to defend the suit. This prompted them to file a Request for Particulars dated 19th August 2025 which has not yielded any response. 6. He is of the view that the particulars are necessary to clarify the plaintiff’s cause of action as failure to provide the said particulars may lead to the conclusion that the Plaintiffs filed a frivolous suit or they are deliberately withholding the said information. 7. The application was opposed by the Plaintiff through the Replying Affidavit of Margaret Wambui Ngugi sworn on 29 th October 2025. In THIKA ELC CASE NO E071 OF 2023 (RULING) Page 2

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the said affidavit she deposes that Order 11 Rule 3 of the Civil procedure Rules was neither meant to assist a party improve on their defence nor require parties to plead evidence. 8. She deposes that they have provided the list of purchasers, their ID numbers, parcel numbers and size of the sub-division and it is not necessary to provide them afresh. Regarding the dates of approval of the sub-division, she states that the said information is public information which is readily available at the offices of the 8 th, 9th and 10th Defendants. 9. As relates to particulars in respect of outstanding costs for the subdivision, she avers that the same affect a third party and further that the Defendants have not produced any sale agreement between them and the plaintiffs in order for the court to determine the issue of sub-division costs. She maintains that the Plaintiffs have a legitimate cause of action which should not be dismissed. 10. In the application dated 24th July 2025 the 1st Defendant seeks order that the 4th and 5th defendants be compelled to release the original title in respect of the suit property to the 1 st defendant to facilitate excision and titling of the 1st Defendant’s 10 acres from the 50 acres. 11. She further prays that the plaintiff and the other 510 Defendants be restrained from interfering with the excision and THIKA ELC CASE NO E071 OF 2023 (RULING) Page 3

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titling of the 1st Defendant’s 10 -acre share. Once this is done, she prays that her name be struck off the suit. In the meantime, she prays that pending the hearing of the application the proceedings be stayed. 12. The application is premised on the supporting affidavit of Margaret Mwihaki Mburu in which she essentially avers that there is no dispute between herself and the plaintiff over ownership of the suit property as each of them is aware of the portion they occupy on the ground and none of them owes the other any money. She therefore sees no justification for the plaintiff to continue denying her the opportunity to complete the process of sub-division and titling. She is of the view that the issues between the plaintiff and the 11th- 511 Defendants ought not to affect her. 13. The 11th -511th Defendants are in support of the 1st Defendant’s application. 14. The 2 applications were canvassed by way of written submissions and both parties filed their submissions which I have considered. ANALYSIS AND DETERMINATION THIKA ELC CASE NO E071 OF 2023 (RULING) Page 4

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15. Having considered the applications, replying affidavits and submissions as well as the applicable law, the following issues arise for determination; i) Whether the plaintiffs should be compelled to provide the particulars sought in the Request for Particulars. ii) Whether the 4th and 5th defendants should be compelled to release the original title in respect of the suit property to the 1st defendant to facilitate excision and titling of the 1 st Defendant’s 10 acres from the 50 acre parcel of land iii) Whether the plaintiff should be restrained from interfering with the excision and titling of the 1t defendant’s 10 acre share. 16. Order 2 rule 10 of the Civil Procedure Rules provides that every pleading shall contain the necessary particulars of any claim defence or other matter pleaded. 17. A party may request for further particulars and the court may order a party to serve on any other party particulars of any claim. 18. The above provision ensures that trials are not conducted by ambush. 19. The 11th -511th Defendants sought the following particulars from the Plaintiff: “Of paragraph 13 of the Amended Plaint: THIKA ELC CASE NO E071 OF 2023 (RULING) Page 5

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Particulars of the title number or sub-division numbers of the land parcels sold to the 11th-511th defendants. Of Paragraph 19 of the Amended Plaint: The date when the sub-divisions were approved by the 8 th, 9th and 10th defendants. Of paragraph 20 of the Amended Plaint: Provide a breakdown of the costs of sub-division of each of the 11 th511th defendants and a copy of the sale agreement outlining the agreed costs as referred thereto.” 20. The 11th to 511th defendants are of the view that failure to disclose the above information frustrates their ability to defend the suit. 21. In the case of Pevans East Africa Limited v Paul Wanderi Ndungu & Another Commercial Case E002 of 2023[2025] KEHC 2842KLR in a ruling delivered on 31st July 2025 Justice Gikonyo stated as follows: “Suffice is to say that he who requests for particulars must state and/or stipulate the kind or nature of particulars sought for and in respect of what paragraph of the pleading. However, that is not the case in respect of the instant matter. Secondly, it is also important for the claimant to also delineate how the omitted particulars if any, have incapacitated the claimant from rendering his/her statement of response and/or occasioned prejudice on him or herself. THIKA ELC CASE NO E071 OF 2023 (RULING) Page 6

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Thirdly, the claimant must also ensure that what is being sought for does not fall in the bracket of what amounts to and/or constitutes a fishing expedition” From my evaluation the request for particulars under (2), (8) and (10) above have been provided in the plaint. Paragraphs (1), (3), (5), (9), (12), (13) and (14) relate to evidence, not particulars of fact. Evidence must not be set out in pleadings. The 1st Defendant has not shown how the particulars sought under paragraphs (4), (5), (6), (7) and (11) above are necessary and relevant or how they have handicapped him form rendering his response. The request for particulars in a real fishing expedition in its perfect form” 22. In the instant case, the plaintiffs have provided the names of the purchasers, ID Number, parcel numbers and size of the subdivisions in their trial bundle. The plaintiffs have indicated that the dates of approval and sub-division constitutes public information which is available in the offices of the 8 th, 9th and 10th defendants while the information relating to costs affects a third party, the surveyors. 23. The plaintiffs have also pointed out that the defendants have not produced any sale agreements between them and the plaintiff in order for the court to determine the issue of sub-division costs. THIKA ELC CASE NO E071 OF 2023 (RULING) Page 7

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24. I am of the view that the 11 th-511th Defendants would like to be supplied with evidence to beef up their defence. In the circumstances, the request for particulars is not merited. 25. I will now turn to the issue as to whether the 4th and 5th defendants should be compelled to release the original title in respect of the suit property to the 1st defendant to facilitate excision and titling of the 1st Defendant’s 10 acres from the 50 acre parcel of land. 26. In his ruling dated 18th December 2024, Justice Eboso declined to grant an interlocutory mandatory injunction directing the Defendants to release all the title documents relating to the subdivisions falling within the plaintiff’s 40 acre portion of the suit land and directed that the parties agree on a coordinated approach to processing the titles in the co-owned sub-division scheme failing which the matter would go for trial. Instead of fixing the case for hearing the 1st Defendant has now filed an application seeking similar orders in respect of their 10-are portion. 27. Issuing an order for the release of the original title as this stage would amount to issuing final orders in the suit without hearing the parties. Granted that this matter has unnecessarily been delayed through filing of several applications, the interests of justice THIKA ELC CASE NO E071 OF 2023 (RULING) Page 8

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would best be served if all the issues were heard and determined once and for all. 28. Having declined to grant the order for release of the title, it follows that the order for injunction cannot be granted. 29. The upshot is that both applications are dismissed. The costs of the applications shall be in the cause. Dated signed and delivered virtually this 7thday of October 2026. J. M ONYANGO JUDGE In the presence of: 1. Mr. Mwendwa for the 1st Defendant 2. Ms Kiiru for th 11th -511th Defendants Court Assistant: Happy THIKA ELC CASE NO E071 OF 2023 (RULING) Page 9

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