https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3843

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KERICHO** **ELC CASE NO. E019 OF 2024** **GILBERT KIPRONO SANG** **RICHARD KIPKEMOI SANG(Suing as legal representatives of the estate of JONAH KIPSANG NGENO(Deceased).……...PLAINTIFFS** **VERSUS** **ANDERSON KIPNGETICH YEGON…………………..1ST DEFENDANT** **CHEROTICH VIVILINE NGENO………………………2ND DEFENDANT** **BEATRICE CHEBET NGENO………………..………..3RD DEFENDANT** **IRENE CHEPKOECH ROTICH………………………..4TH DEFENDANT** **RONALD KETIENYA……..……………………………..5TH DEFENDANT** **VINCENT KIPLANGAT…………..……………………..6TH DEFENDANT** **ERICK KIPYEGON SANG………………………………7TH DEFENDANT** **AND** **KENNETH KIPROTICH SANG……………..1ST INTERESTED PARTY** **ROBERT KIBET SANG……………..……….2ND INTERESTED PARTY** **OCS CHEPSEON POLICE STATION……..3RD INTERESTED PARTY** **OFFICE OF THE** **DIRECTOR OF PUBLIC PROSECUTION..4TH INTERESTED PARTY** **INSPECTOR GENERAL OF POLICE……..5TH INTERESTED PARTY** **RULING.** **Introduction.** 1. This ruling is in respect of the Defendants/Applicants Notice of Motion application dated 9th October, 2024 which is expressed to be brought under **Section 26** of the **Land Registration Act,** **Sections 1A, 3A & 7** of the **Civil Procedure Act** and **Order 2 Rule 15** of the **Civil Procedure Rules.** 2. The application seeks the following orders; 1. ***That the Plaintiff’s (sic) suit be struck out as;*** * + 1. ***It is frivolous and vexatious.*** 2. ***It discloses no reasonable cause of action.*** 3. ***It is otherwise an abuse of the Court process.*** 2. ***That the costs of this suit be provided for.*** 3. The application is based on the grounds on its face and the supporting affidavit of **Erick Kipyegon Sang**, the 7th Defendant/Applicant. **Factual Background.** 1. The Plaintiffs/Respondents commenced the present proceedings vide the Plaint dated 1st August, 2024 where they seek the following prayers; 1. ***A Permanent order restraining/barring the 1st , 2nd , 3rd , 4th , 5th , 6th and 7th Defendants through their agents, servants, employees and any other person acting on their authority from causing eviction, demolishing of structures/buildings, leasing, erecting structures/buildings, tilling, entering destroying existing crops and trees, remaining, dealing and /or in any other way transacting on the portion customary in occupation by Plaintiffs, 1st Interested Party and 2nd Interested Party on the parcels of land known as L.R. No. Kericho/Kipkelion Block 4/123, L.R. No. Kericho/Molo South/Municipality Block No. 6/19, L.R. No. Kericho/Chepsir/52 L.R. No. Kericho/Chepsir/13, without a valid Court Order.*** 2. ***Declaration that the tea leaves, pasture and any other crop planted in Estate of the deceased by Plaintiffs, 7th Defendant, 1st Interested Party and 2nd Interested Party in the disputed Estate remains in possession of the said individuals pending distribution of the Estate.*** 3. ***Permanent order restraining Defendants from harvesting or destroying tea leaves planted in the Estate of the Deceased pending distribution of the Estate.*** 4. ***Defendants ordered with notice of 14 days to remove maize plants planted between tea bushes or alternatively the Plaintiffs to have liberty to treat the same maize crops as weeds in a tea bushes plantation after 14 days from the day of service with this orders. (sic)*** 5. ***Defendants to be condemned to pay incidental and general damages.*** 6. ***Cost of this suit.*** 7. ***Any other or further relief that may grant by the Court as it deems fit.*** 2. The Defendants/Applicants entered appearance but they are yet to filed their Statement of Defence. 3. The 1st and 2nd Interested Parties/Respondents have entered appearance but have not filed any documents. 4. The application under consideration first came up for hearing on 10th November, 2025 when the Court granted the 1st and 2nd Interested Parties/Respondents time to file their responses. 5. The Plaintiffs/Respondents initially filed the Notice of Motion application dated 1st August, 2024 which application was withdrawn on 7th April, 2025. 6. However, on 3rd February, 2026, parties inadvertently submitted that both the application i.e. the one dated 1st August, 2024 and the application under consideration were pending hearing and determination. The Court then gave directions that the Defendants/Applicants application dated 9th October, 2024 and the Plaintiffs/Respondents application dated 1st August, 2024 be heard together and by way of written submissions. 7. Having established that the Notice of Motion application dated 1st August, 2024 was withdrawn, I will proceed to only determine the application dated 9th October, 2024. 8. On 5th March, 2026, the 1st and 2nd Interested Parties/Respondents informed the Court that they will be relying on the submissions filed by the Plaintiffs/Respondents. 9. The matter was mentioned severally to confirm filing of submissions before 23rd April, 2026 when it was reserved for ruling. **The Defendants/Applicants Contention.** 1. The affidavit in support of the application is sworn on 9th October, 2024 by **Erick Kipyegon Sang**. 1. He contends that the present suit is frivolous, vexatious and an abuse of the Court process. 2. He also contends that the suit raises no reasonable cause of action as the acts complained of were done in execution of the orders that were issued in Kericho HC Succession Cause No. E053 of 2021. 3. He further contends that in the said succession cause, land parcel No’s **Kericho/Kipkelion Block 4/123, Kericho/Molo South/ Municipality Block No. 6/19, Kericho/Chepsir/52** and **Kericho/Chepsir/32** were distributed as per the Certificate of Confirmation of Grant. 4. It is his contention that the Plaintiffs/Respondents averments in the Plaint show that they are intending to retain possession of the suit parcels of land despite their distribution in Kericho HC Succession Cause No. E053 of 2021. 5. It is also his contention that on 11th March, 2022, letters of administration intestate in respect of the estate of **Jonah Kipsang Ngeno** (Deceased) were issued to him and the Plaintiffs/Respondents. 6. It is further his contention that the Court in Kericho HC Succession Cause No. E053 of 2021 considered the modes of distribution that were proposed and delivered a ruling on 12th October, 2023 and thereafter issued a Certificate of Confirmation of Grant. 7. He contends that they initiated steps to implement the said Certificate of Confirmation of Grant which efforts were rebuffed by the Plaintiffs/Respondents who were uncooperative. 8. He also contends that owing to the Plaintiffs/Respondents recalcitrance, they filed an application seeking for further orders to aid in the implementation of the Confirmed Grant and goes on to state that the said orders were granted by the Court on 19th December, 2023. 9. He further contends that on 19th December, 2023, the Court in Kericho HC Succession Cause No. E053 of 2021 issued orders directing the County Land Surveyor to visit, survey and subdivide the suit parcels of land as per the Certificate of Confirmation of Grant and adds that the OCS Chepseon Police Station was directed to oversee the exercise. 10. It is his contention that pursuant to the said orders, the County Land Surveyor visited the suit parcels of land and demarcated each of the beneficiaries portions of land. 1. It is also his contention that some of the beneficiaries elected to clear their respective portions and fell trees in order to provide fencing posts. 2. It is further his contention that it was imperative for access roads to be created to the portions of land for each of the beneficiaries and they therefore cut down trees and uprooted tea bushes to pave way for the access roads. He goes on to state that all the parties including the Plaintiffs/Respondents were informed. 3. He contends that the Plaintiffs/Respondents claims of destruction of trees is not only absurd but a distortion of facts and further contends that the Plaintiffs/Respondents were informed that the trees were cut down in order to facilitate access and provide fencing posts. 4. He also contends that shortly after the said order was implemented, the Plaintiffs/Respondents filed a similar application in the High Court seeking to set aside the orders issued on 19th December, 2023 and leave to file a response out of time. 5. He further contends that on 20th June, 2024, the Court in Kericho HC Succession Cause No. E053 of 2021 re-issued its initial orders and directed that the mutation and transfer forms be executed. He adds that the said documents remain unexecuted to date. 6. It is his contention that the Plaintiffs/Respondents having not succeeded to thwart the distribution of the estate of the deceased in the High Court, now approached this Court in an effort to further delay the distribution of the estate of the deceased. 7. It is also his contention that the Plaintiffs/Respondents have also destroyed the fences erected by the Defendants/Applicants after the survey process and goes on to state that the beacons placed by the County Land Surveyor have also been destroyed. 8. It is further his contention that they made reports of the said incidents to the police and they were given OB numbers. 9. He contends that if there was any complaint with regard to the distribution of the estate of the deceased, then it ought to have been raised before the High Court. 10. He also contends that as such, the Plaintiffs/Respondents allegations that the properties of the estate of the deceased were destroyed is an attempt to mislead this Court. 11. He reiterates that each of the beneficiaries of the estate of the deceased freely used their apportioned property as they deemed appropriate. 12. He further contends that the Plaintiffs/Respondents contentions on destruction of property are mere fabrications that are meant to paint them (Defendants/Applicants) in bad light and prejudice them before the Court. 13. It is his contention that the Plaintiffs/Respondents suit has been filed in bad faith and it in no way advances the interests of the estate of **Jonah Kipsang Ngeno** (Deceased). 14. He ends his deposition by urging the Court to strike out the Plaintiffs/Respondents suit with costs. **The Plaintiffs/Respondents response.** 1. In response to the Defendants/Applicants application, the Plaintiffs/Respondents filed Grounds of Opposition dated 15th January, 2026. 2. They are as follows; 1. ***The Applicants/Defendants’ application is an abuse of the Court process, since, it invites this Honourable Court legitimize Court orders dated 20th December, 2023 which was annulled by set aside by High Court on 9th May, 2024. (sic)*** 2. ***Respondents/Plaintiffs submit that this Honourable Court has jurisdiction and competence to determine this matter in accordance with the provisions of Section 13 of Environment and Land Act 2012. (sic) Furthermore, the Probate and Administration Court orders dated 30th July, 2024 confirmed the same position.*** 3. ***The Applicants/Defendants’ asserts (sic) that this suit is res judicata. However, the Applicants/Defendants’ assertion is unfounded. There is no pending or determined suit of the same nature. The averment of Supporting Affidavit sworn by Erick Kipyegon Sang dated 9th October, 2024 in 13 paragraph (sic) is misleading. Since the annexed copy marked EKS 4 is not a copy of application seeking setting aside of Court orders dated 20th December 2023 as alleged. (sic)*** 4. ***The Applicants/Defendants admitted that probate and administration Court orders dated 20th June, 2024 which directed as hereunder below (sic);*** * + 1. ***An order issued directing District Surveyor Kericho and the District Surveyor Nakuru to visit, survey and cause the subdivision of the properties known as LR No. Kericho/Kipkelion Block 4/123, LR No. Kericho/Molo South/Municipality Block No. 6/19, Kericho/Chepsir/52, LR No. Kericho Municipality Block No. 1/126 and Chepsir Cooperative Society Plot respectively; in line with the terms of the certificate of confirmation of Grant dated 12th October, 2023.*** 2. ***The O.C.S Chepseon Police Station and the OCS Kuresoi Police Station to provide security and/ or otherwise ensure maintenance of the Law and order during the survey and subdivision of the Estate properties.*** 3. ***Gilbert Kiprono Sang (3rd Administrator) and Richard Kipkemoi Sang (4th Administrator) are ordered and directed to execute the mutation and transfer forms for the purpose of effecting final distribution of the Estate in compliance with certificate of confirmation of grant dated 12th October, 2023.*** 4. ***The Estate to meet costs of survey and legal fees.*** 5. ***There is no legal basis or factual basics on record which supports the allegations of Applicants/Defendants in respect of referring probate and Administration Court orders dated 20th June 2024 (referred in above paragraph) as a re issue of the Orders which was annulled by the aforesaid Court on 9th May 2024. (sic)*** 6. ***The Applicants/Defendants admitted in there (sic) averments that the purported portion of land they alleged they have right to use the way they wish was not acquired pursuant to probate and Administration Court orders dated 20th June 2024. Therefore the said alleged acquisition is not protected in law as provided by Article 40(6) of Constitution of Kenya.*** 7. ***If the Applicants/Defendants never appealed or seek for the review against directions of Probate and Administration Court dated 20th June 2024 and therefore the said directions is binding. (sic) The attempt to misinterpret the said orders is unjust.*** 8. ***It is a fact that 1st ,5th and 6th Applicant/Defendant (sic) are not dependents of Jonah Kipsang Ngeno (Deceased), hence they are strangers to the Estate and they do not have legal basics to take possession of the Estate of the Deceased without valid Court order or after final distribution of the Estate with the consent of beneficiary. (sic)*** 9. ***The rights of Jonah Kipsang Ngeno (Deceased) to sue in respect of an interest in or right over the land registered in his names, is only through the legal representatives. The power to access to information on legality of deforestation, occupation, eviction, burning charcoal, leasing and praying pasture (sic) using harmful chemicals is vested to legal representatives so long as the land is still registered in the names of Deceased.*** 10. ***The Applicants/Defendants appear to be tactic (sic) to mislead this honorable Court or to delay the hearing of the substantive issues and therefore their Application should be dismissed in the interest of justice.*** 11. ***The Applicants/Defendants Application failed to prove the allegations on whether Respondents/Plaintiffs’ suit is frivolous and vexatious is without merit, lacks legal basics and should be dismissed.*** **The 1st and 2nd Interested Parties/Respondents Response.** 1. The 1st and 2nd Interested Parties/Respondents filed a Replying Affidavit sworn on 5th February, 2026 by **Kenneth Kiprotich Sang.** 2. The Replying Affidavit is filed in response to the applications dated 1st August, 2024 which application was withdrawn and the application under consideration. 3. He deposes that he has the authority of the 2nd Interested Party/Respondent to swear the affidavit. 4. He also deposes that he is the brother to the Plaintiffs/Respondents, the 2nd, 3rd, 4th and 7th Defendants/Applicants and the 2nd Interested Party/Respondent. 5. He further deposes that the present suit is neither frivolous nor vexatious as alleged in the application dated 9th October, 2024. 6. It is his deposition that this Court has the mandate to protect the estate of their deceased father and adds that he does not understand why the Defendants/Applicants maliciously damaged the property of their deceased father. 7. It is also his deposition that the Plaintiffs/Respondents filed an application dated 25th July, 2024 in Kericho HC Succession Cause No. E053 of 2021 seeking for orders of temporary injunction pending the distribution of the estate of their deceased father. 8. It is further his deposition that the said application was dismissed on 30th July, 2024 for lack of jurisdiction. 9. He deposes that this Court has no jurisdiction to determine a point of law which was previously determined by a Court of competent jurisdiction. 1. He also deposes that the application dated 9th October, 2024 was filed with *dirty hands* as it moved the Court with misleading information. 2. He ends his deposition by urging the Court to dismiss the Defendants/Applicants application with costs. **Issues for Determination.** 1. The Plaintiffs/Respondents filed submissions dated 2nd March, 2026 while the Defendants/Applicants filed submissions dated 20th April, 2026. 2. It is important to point out that both the Defendants/Applicants and the Plaintiffs/Respondents submitted on the application dated 1st August, 2024 which application was withdrawn on 7th April, 2025. I will therefore disregard the said submissions. 3. On the application dated 9th October, 2024, the Defendants/Applicants rely on the judicial decision of **D.T Dobie & Company (Kenya) Ltd v Muchina** (citation not given) and while reiterating the averments in the affidavit in support of the application submit that the Plaintiffs/Respondents cause of action is based on acts done after the issuance of a Court order. 4. On whether the suit is scandalous, vexatious and an abuse of the Court process, the Defendants/Applicants rely on the judicial decision of **Trust Bank Limited vs Amin Company Limited & another** (citation not given) and submit that the Plaintiffs/Respondents ignored the existence of binding Court orders. 5. The Defendants/Applicants also submit that the Plaintiffs/Respondents have framed the acts undertaken pursuant to Court orders as wrongful conduct and they therefore seek to open issues that were settled in the succession proceedings. 6. The Defendants/Applicants further submit that the Plaintiffs/Respondents have filed multiple applications before the succession Court that are founded on the same factual matrix notwithstanding the respective interests of all the beneficiaries which has already been determined. 7. It is the Defendants/Applicants submissions that the Plaintiffs/Respondents applications were dismissed and relitigating of the same issues is a clear abuse of the Court process. 8. It is also the Defendants/Applicants submissions that the Plaintiffs/Respondents participated in the succession proceedings and were fully aware of the mode of distribution of the estate including the subdivision and the creation of access roads. 9. It is further the Defendants/Applicants submissions that the present suit is vexatious and calculated to indirectly undermine the implementation of the orders issued in the succession cause. 10. The Defendants/Applicants submit that rather than appeal and/or review the orders issued in the succession cause, the Plaintiffs/Respondents have opted to file the present suit thereby inviting the Court to sit on appeal over decisions made by the Probate Court. 11. The Defendants/Applicants also submit that the Plaintiffs/Respondents actions amount to forum shopping, multiplicity of proceedings and an attempt to circumvent the proper appellate framework. 12. The Defendants/Applicants conclude their submissions by urging the Court to strike out the suit for being an abuse of the Court process. 13. The Plaintiffs/Respondents set out their Grounds of Opposition to the application dated 9th October, 2024 and then submit on the following issue; 1. ***Whether the Defendants/Applicants have a right to cause evictions and destroy the properties of the estate of the deceased the way they wish, before execution of Court orders dated 20th June, 2024. (sic)*** 14. The Plaintiffs/Respondents refer to paragraphs 4, 14 and 19of the affidavit in support of the application dated 9th October, 2024 and submit that the Court should consider the averments in the affidavit in support of the application dated 1st August, 2024 which application was withdrawn. 15. The Plaintiffs/Respondents submit that threatening notices were issued after the Court in the succession cause set aside the orders issued on 20th December, 2023 and issued the orders of 20th June, 2024. 16. The Plaintiffs/Respondents also submit that the 1st, 5th and 6th Defendants/Applicants are not dependents of the deceased and neither are their names listed in the Certificate of Confirmation of Grant that was issued on 12th October, 2023. 17. The Plaintiffs/Respondents also submit that it is unjust for the estate of the deceased to be destroyed as set out in the affidavit in support of the application under consideration. 18. It is the Plaintiffs/Respondents submissions that the Defendants/Applicants contend that they were executing orders issued on 20th December, 2023 which orders were set aside on 9th May, 2024. 19. It is also the Plaintiffs/Respondents submissions that no evidence has been availed to show that the orders issued on 20th June, 2024 in the succession cause have been executed. 20. It is further the Plaintiffs/Respondents submissions that the present suit is intended to preserve the estate of the deceased pending the execution of the orders of the Court issued on 20th June, 2024. 21. The Plaintiffs/Respondents rely on **Section 13** of the **Environment and Land Court Act** and submit that this Court has jurisdiction to hear and determine the suit. 22. The Plaintiffs/Respondents submit that the Court in the succession cause considered the issue of the execution of the orders issued on 20th December, 2023 in the ruling delivered on 20th June, 2024 and therefore the said issue is *res judicata*. 23. The Plaintiffs/Respondents rely on the judicial decision of **Republic vs Principal Secretary, Ministry of Defence Ex-parte George Kariuki Waithaka [2018] eKLR** and urge the Court to dismiss the Defendants/Applicants application. **Analysis and Determination.** 1. I have considered the Defendants/Applicants application, the responses thereto and the rival submissions. 2. It is my view that the following issues arise for determination; 1. ***Whether the Plaintiffs/Respondents suit should be struck out.*** 2. ***Who should bear costs of the application.*** **A. Whether the Plaintiffs/Respondents suit should be struck out.** 1. The Defendants/Applicants are seeking that the Court strikes out the Plaintiffs/Respondents suit on the grounds that it is frivolous, vexatious, an abuse of the Court process and it discloses no reasonable cause of action. 2. The Defendants/Applicants contend that the suit parcels of land belong to the estate of **Jonah Kipsang Ngeno** (Deceased). 3. The Defendants/Applicants also contend that Kericho HC Succession Cause No. E053 of 2021 was filed with respect to the said estate. 4. The Defendants/Applicants further contend that the Plaintiffs/Respondents and the 7th Defendant/Applicant were appointed as administrators of the estate of **Jonah Kipsang Ngeno** (Deceased). 5. It is the Defendants/Applicants contention that the Court issued a Certificate of Confirmation of Grant dated 12th October, 2023. 6. It is also the Defendants/Applicants contention that subsequently, the Court in Kericho HC Succession Cause No. E053 of 2021 issued orders for the County Surveyor to visit the suit parcels of land and demarcate each of the beneficiaries portions. 7. It is further the Defendants/Applicants contention that the County Surveyor conducted the survey and since each beneficiary needed an access road, trees were cut down and tea bushes uprooted. 8. The Defendants/Applicants contend that some of the trees that were cut down were used to fence the demarcated portions and the Plaintiffs/Respondents were informed. 9. The Defendants/Applicants also contend that the trees were therefore not destroyed as alleged by the Plaintiffs/Respondents. 10. The Defendants/Applicants further contend that the Plaintiffs/Respondents filed an application in Kericho HC Succession Cause No. E053 of 2021 seeking to set aside the orders issued on 19th December, 2023. 11. It is the Defendants/Applicants contention that the Court delivered a ruling on the said application and the Plaintiffs/Respondents thereafter filed the present suit. 12. It is Defendants/Applicants contention that the Plaintiffs/Respondents are intending to forcefully retain ownership of the suit parcels of land and therefore the present suit is frivolous, vexatious and an abuse of the Court process. 13. The Plaintiffs/Respondents on the other hand contend that the Court in Kericho HC Succession Cause No. E053 of 2021 set aside the orders issued on 20th December, 2023 on 9th May, 2024, which orders the Defendants/Applicants allege to be executing and yet they are destroying the estate of the deceased. 14. The Plaintiffs/Respondents submit that the 1st, 5th and 6th Defendants/Applicants are not dependents of the estate of their deceased father and it was therefore unjust for them to destroy his estate. 15. **Order 2 Rule 15(1)** of the **Civil Procedure Rules** provides as follows; ***“(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.”*** 1. In the judicial decision of **Anthony Bundotich Cheboiywo v Reuben Wahome Wanjohi & 2 others [2022] KEELC 1398 (KLR)** the Court held as follows; ***“15. The striking out of a party’s pleadings before the case is heard and determined on merits is a draconian step that must only be taken as a last step and even then, when it is evident that the suit is so hopeless that it cannot be resuscitated even by an amendment. The Court of Appeal in the case of DT Dobie & Company (Kenya) Ltd -vs- Muchina (1982) KLR 1 at page 9 expressing the powers that a Court wields in striking out or dismissing a suit summarily stated thus:-*** ***“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. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a Court of justice ought not to act in darkness without the full facts of a case before it.”*** ***16. In considering an application for the striking out a suit, a Court of law must bear in mind that the summary process amounts to driving a party away from the seat of justice without the benefit of being heard on the merits of his/her case. It is a jurisdiction that ought to be exercised sparingly, and only in very exceptional cases. In the Court of Appeal case of Yaya Towers Ltd -vs- Trade Bank Ltd (In Liquidation) (2000) eKLR the Court stated:-*** ***“A plaintiff is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the defendant can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the Court, it must be allowed to proceed to trial”.*** (Emphasis mine) 1. In the Plaint, the Plaintiffs/Respondents aver that they, the 1st and 2nd Interested Parties/Respondents, the 7th Defendant/Applicant are in possession of the following parcels of land; 1. ***Kericho/Kipkelion Block/123*** 2. ***Kericho/Molo South/Municipality Block 6/19.*** 3. ***Kericho/Chepsir/52*** 4. ***Kericho/Chepsir/13.*** 2. The Plaintiffs/Respondents also aver that the said parcels of land are registered in the name of **Jonah Ngeno** their deceased father. 3. The Plaintiffs/Respondents further aver that **Jonah Ngeno** (Deceased) distributed his estate when he was alive but the issue about his wishes are subject of litigation in Kericho HC Succession Cause No. E053 of 2021. 4. The Plaintiffs/Respondents aver that they together with the 1st and 2nd Interested Parties/Respondents, the 7th Defendant/Applicant planted tea bushes on various portions of the suit parcels of land. 5. It is the Plaintiffs/Respondents averment that the Defendants/Applicants cut down trees on the portions of the suit parcels of land that they and the 1st and 2nd Interested Parties/Respondents occupy without their consent. 6. It is also the Plaintiffs/Respondents averment that the 1st Defendant/Applicant harvested and sold their tea bushes without their consent. 7. It is further the Plaintiffs/Respondents averment that the Defendants are attempting to take possession of the property of the estate of the deceased before distribution. 1. The Plaintiffs/Respondents then seek various prayers that have been set out in the preceding paragraphs. 2. In the application under consideration, the Defendants/Applicants seemingly concede that they cut down trees and uprooted tea bushes but contend that they did so in execution of the orders issued on 19th December, 2023 in Kericho HC Succession Cause No. E053 of 2021. 3. Essentially, the Defendants/Applicants contend that the actions complained of by the Plaintiffs/Respondents were undertaken in execution of a lawful Court order. This is the basis upon which the Defendants/Applicants are seeking that the suit be struck out. 4. It is my view that these issues go to the root of the dispute in the present suit. 5. Put differently, the issues raised in the application under consideration go into the merits or otherwise of the suit which issues the Court cannot make a determination on at this stage of the proceedings. 6. That being the case, the Defendants/Applicants have not made a case for the striking out of the Plaintiffs/Respondents suit and must add that this Court is careful not to make an order whose effect would be to drive the Plaintiff/Respondents away from the seat of justice without hearing their case on its merits. 7. Before penning off, I note that the Plaintiffs/Respondents have in their Grounds of opposition contended that the Defendants/Applicants submit that the present suit is *res judicata.* 8. It is important to point out that the Defendants/Applicants did not raise the issue of *res judicata* in the application under consideration. **B. Who should bear costs of the application.** 1. The general rule is that costs shall follow the event. This is in accordance with the provisions of **Section 27** of the **Civil Procedure Act (Cap. 21).** 2. A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. **Disposition.** 1. Taking the foregoing into consideration, I find that the Defendants/Applicants application dated 9th October, 2024 lacks merit and it is hereby dismissed with costs. 1. It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 18TH DAY OF JUNE, 2026.** **L. A. OMOLLO** **JUDGE.** **In the presence of: -** **Mr. Kipkorir for the 1st -7th Defendants/Applicants** **Gilbert Kiprono Sang –Acting in person** **Richard Kipkemoi Sang – Acting in person** **1st Interested Party - Absent** **2nd Interested Party - Absent** **Court Assistant: Mr. Joseph Makori**