https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9949

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL DIVISION** **CIVIL CASE NO. 544 OF 1994** **HEZEKIAH MWANGI** **MACHARIA………….……………..1ST PLAINTIFF/DECREE HOLDER** **TED JOSHUA MACHARIA……..2ND PLAINTIFF/DECREE HOLDER** **-VERSUS-** **JOSEPHAT NG’ANG’A KIHONGE………………………..DEFENDANTS** **-AND-** **VIRGINIA WANGARI NG’ANG’A…………..1ST INTERESTED PARTY** **LOISE WANGUI KIHONGE………….....….2ND INTERESTED PARTY** **-AND-** **TOTAL ENERGIES MARKETING KENYA PLC………….OBJECTOR** **RULING** 1. There are **three (3) motions** before the court for determination. The motion **dated 30/7/2025** isfiled by **Total Energies Marketing Kenya Plc** *(h**ereafter the Objector),* the motion **dated 04/08/2025** filed by **Virginia Wangari Ng’ang’a** & **Loise Wangui Kihonge** *(hereafter the Intended Defendants/Interested Parties)* and the motion **dated 22/09/2025** filed by **Jane Njeri Kihia** and **Rose Wanjiru Muchai** *(suing as legal representatives of the estate of the late)* **Zipporah Wamaitha Ng’ang’a**. 1. The **Objector’s** **motion dated 30/07/2025** is brought pursuant to **Order 22 Rule 51(1)** of the **Civil Procedure Rules (CPR)** and seeks *inter alia* the following orders; 2. *Spent* 3. *Spent.* 4. *That in recognition of the interests of the Objector, the Honorable Court be pleased to set aside the orders issued on 23/05/2025 as read with the orders issued on 07/10/2024.* 5. *That the Honorable Court be pleased to make such further orders as are necessary and or expedient for the ends of justice.* 6. *That Laura Waithira Ng’ang’a, Estate of Zippporah Wamaitha Ng’ang’a, Kihonge Ng’ang’a & Alice Mumbi Ng’ang’a (hereafter the 1st, 2nd, 3rd & 4th Defendant) debtors be condemned to pay the costs of the motion.* 7. The **motion** is premised on grounds found and amplified in the **supporting affidavit** dated **30/07/2025** and **further affidavit** dated **26/09/2025** both sworn by **Arthus Ombimha** who cites being the Network Development Manager of the Objector, duly authorized and competent to depose on behalf of the Objector. 8. **Hezekiah Mwangi Macharia** and **Ted Joshua Macharia** *(hereafter the 1st & 2nd Plaintiff/Plainitffs)* oppose the motion by way of a replying affidavit sworn by **Hezekiah Mwangi Macharia** dated **08/08/2025.** 9. **Jane Njeri Kihia** and **Rose Wanjiru Muchai** filed a joint response dated **24/10/2025** in support of the **motion.** 10. On their part, the **Intended Defendants/Interested Parties****motion** dated **04/08/2025** is brought pursuant to **Section 3** & **3A** of the **Civil Procedure Act (CPA),** **Order 10 Rule 11, Order 22 Rule 51** & **Order 45 Rule 1** of the **Civil Procedure Rules (CPR)** seeking *inter alia* the following orders-; 11. *Spent.* 12. *That the honorable Court be pleased to enjoin the Applicants as Defendants/Interested Parties as Defendants herein and subsequently they be granted leave to lodge pleadings including statement of defence or at all.* 13. *Spent.* 14. *That the honorable Court do order there be a stay of judgment herein dated 06/07/2005, 16/05/2018, decree dated 15/02/2011 or at all and subsequent execution order dated 09/10/2024 and the Plaintiffs, their agents, servants, associates or appointed auctioneers or any other be and are hereby barred, stopped and injuncted from attaching, proclaiming, selling, auctioning or at all property known as LR. No. 1144/1298 (IR 58280) pending hearing and determination of the suit.* 15. *That the Honorable Court do nullify, review, vacate, set aside its judgment dated 06/07/2005 and any execution related adverse advisement dated 11/07/2025 consequent orders due to emergent new facts and evidence particularly that the 2nd Defendant is deceased.* 16. *That equally the 2nd Defendant James Ng’ang’a had died at time of judgment and ruling in the year 17/10/1994 and the fact was not encompassed, towards substitution or at all.* 17. *That the attached property herein does not belong to James Ng’anga (deceased) but passed to the estate of Zipporah Wamaitha Ng’ang’a by operation of the law of succession cause hence not available for attachment or auction in subject suit herein.* 18. *That the amount of Kshs. 21,065,374.06/- is oppressive and embarrassing and is not based on any known bank rates or law and needs to be ascertained and proved.* 19. *Any other order or relief the honorable Court will deem fit and justifiable.* 20. *That cost of this motion be provided for.* 21. The **motion** is premised on grounds found and amplified in the supporting affidavit **dated 04/08/2024** sworn by **Virginia Wangari Ng’ang’a,** who cites being familiar with the matter and duly authorized to depose the affidavit on behalf of the 2nd Interested Party. 22. The Plaintiffs oppose the **motion** by way of **Grounds of Opposition dated 10/08/2025** and a **Replying affidavit** sworn by **Hezekiah Mwangi Macharia dated 11/08/2025.** 23. **Jane Njeri Kihia** and **Rose Wanjiru Muchai** filed a joint response dated **24/10/2025** in support of the **motion.** 24. Thereafter, **Jane Njeri Kihia** and **Rose Wanjiru Muchai** filedthe motion **dated 22/09/2025** brought pursuant to **Order 22 Rule 48, 50, 51, 52 & 59** of the **Civil Procedure Rules (CPR)** seeking *inter alia* the following orders; * 1. *Spent.* 2. *Spent.* 3. *That there be a stay of execution of the orders herein made on both 07/10/2024 and 23/05/2025 for the sale of LR. No. 1144/1298.* 4. *That the said order made on 07/10/2025 and 23/05/2025 respectively be set aside.* 5. *That the judgment entered on 2005 be set aside.* 6. *That the costs of the motion be provided for.* 25. The **motion** is premised on grounds found and amplified in the joint supporting affidavit and further affidavit sworn by **Jane Njeri Kihia** and **Rose Wanjiru Muchai** on 22/09/2025 and 24/10/2025, respectively. 26. The Plaintiffs oppose **the motion** by way of **Grounds of Opposition** and a **Replying affidavit** sworn by **Hezekiah Mwangi Macharia, both dated 13/10/2025.** 27. Directions were taken on disposal of the **three (3) motions** by way of written submissions. The parties duly complied. **Analysis and Determination** 1. Before I proceed to address the substantive issues, I wish to revisit in brief the events leading hereto as can be garnered from the record. Sometime in 1994 the Plaintiffs filed suit against Josephat Ng’ang’a Kihonge in respect of a cause of action founded on the tort of negligence arising out of a road traffic accident that occurred in 1992. 2. However, during pendency of the suit Josephat Ng’ang’a Kihonge passed on whereinafter thePlaintiffs revived the suit by dint of an order of court granted by **Rimita J** on 21/02 2002, to the effect that,Laura Waithira Ng’ang’a, Zipporah Wamaitha Ng’ang’a, Kihonge Ng’ang’a and Alice Mumbi Ng’ang’a were substituted as Defendants, in place of Josephat Ng’ang’a Kihonge (now Deceased), beingadministratorsof the estate of the late. 3. The suit thereafter proceeded to full hearing, and judgment was entered in favour of the Plaintiffsas against the Defendantson 14/09/2010. Consequently, in an effort to execute the decree of this Court, the Plaintiffs took out a Notice to Show Cause (NTSC) as against the Defendants. They successfully obtained warrants of arrest specifically as against Zipporah Wamaitha Ng’ang’a, Kihonge Ng’ang’a and Alice Mumbi Ng’ang’a, the latter having failed to efficaciously deflect the NTSC. 4. It would further seem that having been unable to successfully execute the warrants of arrest and committal to civil jail, the Plaintiffs applied for execution by way of attachment and sale of **LR No. 1144/1298 (IR) 58280** *(hereinafter property)* pursuantto **Order 22 Rule 6, 48 & 58** of the **CPR**, on the premise that it formed part of Josephat Ng’ang’a Kihonge estate. 5. On **07/10/2024**, **Hon. Wambo – Deputy Registrar (DR)** issued an order of prohibition against the Defendants from transferring or chargingthe property in any way or taking any benefit from such purported transfer or charge. He further directed that the property was attached in execution and would be sold by way of public auction in execution of the decree of this Court. 6. The Plaintiffs thereafter moved the Court via a **motion dated 09/12/2024** seeking among other orders that the property registered in the name of the Deceasedbe advertised and sold by way of public auction to recover the decretal sum. **Hon. Wambo**, in his ruling delivered on 23/05/2025, granted the aforestated motion in its entirety, save for the relief seeking to evict the tenants living and or operating businesses within the property 7. It would thus appear that on the premise of the latter ruling and ensuing efforts by the Plaintiffs towards execution, that now this Court finds itself presented with the three (3) motions. 8. To the foregoing end, I note that the respective motions seek a raft of prayers that quintessentially gyrate around objection to execution & attachment, joinder, stay of execution, setting aside the judgment of this Court and setting aside execution & attachment orders rendered on 07/10/2025 & 23/05/2025. 9. Therefore, upon *ex facie* consideration of the reliefs sought in the motions, the rival affidavit material and submissions by the parties, the Court postulates that the **issues for determination concern -;** 10. *Whether the Intended Defendant(s)/Interested Parties ought to be enjoined as Defendants/Interested Parties to these proceedings, with leave to lodge pleadings including a statement of defence?* 11. *Whether the Court ought to stay and or set aside the judgment dated 06/07/2005, 16/05/2018, the decree dated 09/10/2024?* 12. *Whether the Court ought to set aside and or lift the attachment, execution and intended sale by way of public auction of all property known as LR No. 1144/1298 (IR) 58280 pursuant to orders of this Court issued on 07/10/2024 and 23/05/2025?* 13. *Who ought to bear the costs of the respective motion(s)?* 14. *Whether the Intended Defendant(s)/Interested Parties ought to be enjoined as Defendants/Interested Parties to these proceedings, with leave to lodge pleadings including a statement of defence and whether the Court ought to stay and or set aside the judgment dated 06/07/2005, 16/05/2018, the decree dated 09/10/2024?* 15. In seeking joinder as Intended Defendants/Interested Parties, Virginia Wangari Ng’ang’a and Loise Wangui Kihongerely on among others **Section 3A** of the **CPA** which specifically reserves *“the inherent power of the court “to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court”*, to wit, this Court’s inherent powers was judiciously addressed by the Court of Appeal in **Rose Njoki Kingau & another v Shaba Trustees Limited & another [2010] KECA 87 (KLR)**. And, requires no restatement. 16. That said, relevant to the question of joinder is **Order 1 Rule 10(2)** of the **CPR** which provides that-; *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.* 1. Indubitably, the power of the Court to enjoin or strike out a party to proceedings is generally donated by the latter provision,which serves the purpose of enabling the Court to effectively and completely adjudicate upon all questions involved in the proceedings. Corollary to the latter provision, **Order 1 Rule 9 of** the **CPR** provides that no suit shall be defeated by a mis-joinder or non-joinder of any party. 2. To the foregoing end, in the case of **Departed Asians Property Custodian Board vs. Jaffer Brothers Ltd [1999] 1 EA 55** it was stated that -; *“A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involve in the cause or matter…For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown.* *Either it has to be shown that the orders, which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.”* 1. In **Civicon Limited v Kivuwatt Limited & 2 others [2015] KECA 588 (KLR)**the Court of Appeal observed that-; *“Again, the power given under the Rules is discretionary, which discretion must be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience and to avoid multiplicity of proceedings.* *Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined…from the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in Order 1 rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the practicability of the execution of the order sought in the suit, in the event that the plaintiff should succeed. We may add that all that a party needs to do is to demonstrate sufficient interest in the suit; and the interest need not be the kind that must succeed at the end of the trial.”* 1. The gist of the Intended Defendants/Interested Parties deposition is that they are children of the Zipporah Wamaitha Ng’ang’a (now deceased as at 17/11/2024) whom at all materials times relevant was a wife to the Josephat Ng’ang’a Kihonge (equally deceased as at 17/10/1994). Upon the passing away of the latter, who was their father, their mother alongside three (3) others, were appointed as administrators of the estate Josephat Ng’ang’a Kihonge. 2. They go on to depose that on conclusion of the probate process, in respect of their late father’s estate, the property was vested to the Zipporah Wamaitha Ng’ang’a, as a life interest in trust, to wit, the aforestated property cannot form part of the estate of the late Josephat Ng’ang’a Kihonge for execution purposes. 3. They contend that the property now being the subject of probate, in respect of the estate of Zipporah Wamaitha Ng’ang’a, has been advertised for sale in an unlawful and unprocedural manner. Therefore, it is imperative that the Intended Defendants/Interested Parties be enjoined, so as to represent Zipporah Wamaitha Ng’ang’a estate meanwhile seek a review of the judgment and emergent adverse orders. In conclusion, they depose that the decretal amount is disputed as the interest accrued therein is erroneous and excessive therefore it is in the interest of justice their motion is allowed as prayed. 4. **In response, the Plaintiffs** take issue with the Intended Defendants/Interested Parties joinder on grounds that they have failed to establish any legal or factual basis for being enjoined in these proceedings. That the Plaintiffs cannot confirm their relationship to the late Zipporah Wamaitha Nganga given the lack of credible documentary evidence being evinced in support of the motion to prove their alleged relationship and or that the property is registered in the name of Zipporah Wamaitha Nganga. 5. They go on to argue that the suit was instituted against Joseph Nganga Kihonge and following his death, his duly appointed administrators were sued. Meanwhile, the latter represented the estate throughout the entire proceedings and thus remain responsible for satisfying the decree of this Court. 6. That in any event, the estate of Zipporah Wamaitha Nganga is not a party to these proceedings whereas the property is still registered in the name of Joseph Nganga Kihonge and is therefore liable to execution. They equally point out that the Intended Defendants/Interested Parties previous attempts at joinder were abandoned or dismissed. Consequently, given that the issue(s) in the suit have already been determined and no appeal has been preferred, the Intended Defendants/Interested Parties have failed to justify their joinder. 7. As earlier captured elsewhere in this ruling, Jane Njeri Kihia and Rose Wanjiru Muchai, purportedly being daughters and administrators of the estate of Zipporah Wamaitha Ng’ang’a, filed a joint response dated 24/10/2025 in support of the Intended Defendants/Interested Parties motion. Essentially, while they confirm that indeed Zipporah Wamaitha Ng’ang’a was an administrator in the estate of Josephat Ng’ang’a Kihonge, they argue that as at when judgment in this matter was rendered in favour of the Plaintiffs in 2010, the estate did not have any assets to be attached, to wit, the said position still obtains. 8. Therefore, by dint of the rectified confirmed grant issue in 2016 and later in 2019, the property belongs to the estate of the late Zipporah Wamaitha Ng’ang’a, and not the estate of Josephat Ng’ang’a Kihonge having vested to the beneficiaries of the former by dint of probate proceedings. Therefore, the Plaintiffs are estopped from proceeding with execution in respect of the said property. 9. With the above in reserve, for good order, *I deem it particularly vital that the Court addresses the propriety of the responses filed by Jane Njeri Kihia and Rose Wanjiru Muchai dated 24/10/2025 and whether the same are properly before this Court?* 10. At the risk of repetition, Jane Njeri Kihia and Rose Wanjiru Muchai filed affidavits in support of **motions dated 30/07/2025** and **04/08/2025** alongside their own **motion dated 22/09/2025**, the latter of whichI will address later in this ruling. 11. Here, I must state that from the totality of the affidavit material presented before this Court I gather that Virginia Wangari Ng’ang’a, Loise Wangui Kihonge, Jane Njeri Kihia and Rose Wanjiru Muchai are beneficiaries of the estate of the late Zipporah Wamaitha Ng’ang’a who as earlier noted was sued as one of the administrators in the estate of Josephat Ng’ang’a Kihonge. 12. Meanwhile, as rightly pointed out by the Plaintiffs, a review of the record before this Court, by way of a **motion dated 14/01/2025,** Rose Wanjiru Muchai, Virginia Wangari Ng’ang’a and Jane Njeri Ng’ang’a sought to be substituted in this matter in place of Zipporah Wamaitha Ng’ang’a. This Court on 03/03/2025 dismissed the said application with costs to the Plaintiffs, the former having abandoned and or failed to prosecute the motion 13. Interestingly, Jane Njeri Kihia and Rose Wanjiru Muchai have now filed affidavits in the matter, which brings to fore the application of Order **1 Rule 10** of the **CPR.** My understanding of the provision is that participation of a party in proceedings in which they were previously not participants in, requires an order of the Court by way of joinder. 14. It is obvious that the question of joinder is restricted to the motion **dated 04/08/2025** and in particular to Virginia Wangari Ng’ang’a and Loise Wangui Kihonge. As is, Jane Njeri Kihia and Rose Wanjiru Muchai are strangers to these proceedings without a proper order for joinder as either Defendants or Interested Parties. 15. To the above end, this Court concurs without adding more, with the rendition in Sammy M. Makove, Commissioner of Insurance & Another v Kiragu Holdings Limited [2013] KEHC 3868 (KLR) wherein it was observed that-: *“26. Though appearing as an Interested Party, is the application by the 1st Interested Party competent in the absence of any leave to join the proceedings? I note from Order 1 of the Civil Procedure Rules that under Rule 10 thereof, a party can join or be joined in any proceedings at any stage of such proceedings. However, a closer look at that rule shows that an order of the court is required for such joinder. A court must be convinced either by way of an application or on its own motion that a party is necessary before making an order of joinder. It is only after a party has been joined in a proceeding that it can purport to participate and seek relief in such a proceeding. There is no dispute that the 1st Interested Party did not seek leave to be joined in these proceedings. No order of joinder was ever made. To that extent the 1st Interested Party is a stranger to these proceedings. It cannot properly agitate any cause before this court. Whilst I appreciate that the 1st Interested Party has a serious legal standing in this matter having raised very serious issues of law and fact, I am afraid it did not approach the court in accordance with the law. A party who approaches a court of law through a window or backdoor cannot expect to be entertained howsoever serious his interest may be. In this case, there having been no leave sought and/or granted, the 1st Interested Party’s application is incompetent.* 1. Consequently, it goes without saying, that Jane Njeri Kihia and Rose Wanjiru Muchai responses dated 24/10/2025 are incompetently before this Court for want of *locus standi* having been filed by parties who are strangers to the instant proceedings. Accordingly, the said responses are struck out. ***On the question whether Virginia Wangari Ng’ang’a and Loise Wangui Kihonge ought to be enjoined to these proceedings, with leave to lodge pleadings including a statement of defence?*** 1. Reviewing the rival positions taken on the issue of joinder, firstly Virginia Wangari Ng’ang’a had earlier sought joinder to the instant proceedings by way of substitution, yet abandoned the said quest with no explanation whatsoever. She now seeks joinder as either a Defendant or an Interested Party vide the **motion dated 04/08/2025.** 2. Secondly, it is apparent that the dispute in the suit was specifically between the Plaintiffs and the administrators of the estate of Josephat Ng’ang’a Kihonge. As earlier captured in this ruling, the suit was founded on negligence in respect of a road traffic accident that occurred in 1992. To wit, the suit survived Josephat Ng’ang’a Kihonge by dint of **Rimita J’s** orders on 21/02/2002 reviving the suit and substituting him with administrators of his estate. 3. As is, there is no record of any judgment of this Court delivered on 06/07/2005, 16/05/2018, the decree dated 09/10/2024 that can be stayed and or set aside. Meanwhile, given that the main issues in controversy in the instant suit had since been settled vide the judgment and decree of this Court rendered on 14/09/2010, joinder of Virginia Wangari Ng’ang’a and Loise Wangui Kihonge, at this stage, post judgment serves no beneficial purpose this Court has since effectively and completely adjudicated upon questions in the controversy in the suit. 4. Thirdly, while it is noted that the issue presently in contention concerns execution of the decree of this Court, the same now remains a preserve of the living administrators of the estate of Josephat Ng’ang’a Kihonge. They are the proper parties who can move the Court, in any event, regarding any issue(s) about the decree of this Court rendered on 14/09/2010 or its execution thereof, by dint of the grant of representation issued to them. 5. Fourthly, before this Court are civil proceedings in respect of the estate Josephat Ng’ang’a Kihonge and not probate. Thus, I reasonably believe that an order for joinder of the above persons, as may concern canvassing issues over Josephat Ng’ang’a Kihonge estate in the present suit despite a confirmed grant of representation having already issued in respect of the latter estate, would perceptibly be a usurpation of the probate Court’s jurisdiction. 6. Fifthly, I note with reservation the manner in which the **motion** **dated 04/08/2025** was presented and or drafted. On one hand, it appears to present as objector proceeding alongside seeking stay of execution and setting aside the judgment of this Court dated 06/07/2005, 16/05/2018 & the decree dated 09/10/2024 while equally seeking leave to file pleadings and defend the suit. 7. Had Virginia Wangari Ng’ang’a and Loise Wangui Kihonge purposefully opted to pursue objector proceedings, their motion ought to have been restricted to the issue. The omnibus presentation of reliefs convolutes their intention before this Court. And this Court has often insisted on the necessity of properly drafted pleadings while reiterating the exhortation by the Court of Appeal in **JTG Enterprises Limited v China Gezhouba Group & Another [2024] KECA 596 (KLR)** wherein it was put that- *13…. The way this application and the prayers are drafted shows the need for proper drafting and consideration of the issues before filing an omnibus application which is confusing, to say the least.* *14.This Court will not tire to remind parties that proper drafting of pleadings is so paramount that it goes to the kernel of administration of justice. Where pleadings create incertitude to a fact finder, it will be impossible to understand the remedies being sought. As a result of this, a would-be good case is butchered because of poorly drafted pleadings. Parties are encouraged to draft painstakingly while bearing in mind that the very draft of that pleading could lead to its actual success or failure.* 1. Penultimately, the motion does not meet the muster for joinder, setting aside the judgment of this Court and or leave towards filing pleadings, for reasons earlier stated. Whereas, if the Court were to construe the motion as an objector application, it is apparent that the same is non-compliant with mandatory requirement of notice as provided for in **Order 22 Rule 51(2)** of the **CPR**. To contextualize the above provision, I reproduce as hereunder **Rule 51 of Order 22** for the benefit of the parties-: *(1) Any person claiming to be entitled to or to have a legal or equitable interest in the whole of or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of sale of such property give notice in writing to the court and to all the parties and to the decree-holder of his objection to the attachment of such property.* *(2) Such notice shall be accompanied by an application supported by affidavit and shall set out in brief the nature of the claim which such objector or person makes to the whole or portion of the property attached.* *(3) Such notice of objection and application shall be served within seven days from the date of filing on all the parties***.** 1. In the end, the motion dated 04/08/2024 is struck out for reasons earlier illuminated. ***Whether the Court ought to set aside and or lift the attachment, execution and intended sale by way of public auction of all property known as LR No. 1144/1298 (IR) 58280 pursuant to orders of this Court issued on 07/10/2024 and 23/05/2025?*** 1. As can be garnered from the pleadings before this Court, objection towards attachment of the property has materially been canvassed vide the **motions dated 30/07/2025** and the **one dated 22/09/2025**. 2. Concerning the latter application, I iterate my earlier sentiments on proper drafting of pleadings. This Court has repeatedly observed that pleading facts alongside case law in an application essentially muddles the flow of such pleadings. It is a practice that I now gained traction, of which must be frowned upon as it has been held time without number within our jurisdiction that pleadings are not submissions, and vice versa. 3. That said, it is apparent on the face of the said application that Jane Njeri Kihia and Rose Wanjiru Muchai have approached this Court as representative and by extension beneficiaries of the estate of the late Zipporah Wamaitha Ng’ang’a and not strictly as Objectors. While they contemporaneously seek stay of execution alongside setting aside of the orders of this Court issued on 07/10/2024 and 23/05/2025. They also seek the setting aside of judgment entered in 2005, of which is non-existent. 4. Nevertheless, as earlier pointed out, the judgment and decree in favour of the Plaintiffs in the instant matter was rendered on 14/09/2010. The Court is not aware of any decision rendered in 2005. Further, to the best of the Court’s recollection, neither Jane Njeri Kihia nor Rose Wanjiru Muchai is party in these proceedings either by way of joinder as Defendant or Interested Party. As is, they are strangers to these proceedings, for reasons earlier stated, and thus lack the requisite *locus standi* to appropriately move the Court to have the judgment of this Court set aside. 5. Arguably, if this Court were to construe that the Jane Njeri Kihia and Rose Wanjiru Muchai motion dated 22/09/2025 presents as Objector proceedings, there is the palpable issue on the motions compliance with in **Order 22 Rule 51(2)** of the **CPR,** as no notice has been filed alongside the application in question. Therefore, it would be moot to consider the said motion given this Court’s earlier determination on mandatory requirement of **Rule 51(2)** as pertained to Objector proceedings. 6. Moving on to the **motion dated 30/07/2025,** as to the nature of objector proceedings, I draw guidance from the rendition of the Court of Appeal in **Southern Bell Limited v National Social Security Fund Board of Trustees & 4 others [2023] KECA 1170 (KLR)** wherein it was pithily observed that-; **“***30. On the merits of the issue that we have identified for determination, it is certain that in objection proceedings such as those before the trial court, the court does not and cannot make findings as to ownership of the suit property the subject of the objection proceedings. The court simply decides whether or not the objector has interest, legal or equitable, in the attached property.* *31.In the persuasive High Court case of Stephen Kiprotich Koech v Edwin K. Barchilei; Joel Sitienei (Objector) [2019] eKLR, the court held that: “The core of objection proceedings, the objector must adduce evidence to show that at the date of the attachment there was a legal or equitable interest in the property(s) attached. For this purpose, he may raise an objection on the ground, inter alia, that he has some beneficial interest in the property. A beneficial interest is as much an interest within the meaning of the Rules as a legal interest in the property attached***.”** See also-; **Arun C Sharma v Ashana Raikundalia t/a A Raikundalia & Co Advocates & 2 others [2014] KEHC 2430 (KLR)** 1. The Court of Appeal in **Southern Bell Limited** (supra) went on to render that once the Objector discharges the burden of proving that it has a legal or equitable interest on the whole or part of the attached property, the Court is obligated to make such order raising attachment as to the whole or a portion of the property subjected to attachment. 2. By the Objector’s affidavit material, it contends that it only became aware of the orders issued on 07/10/2024 and 23/05/2025 through a notice published in the *Daily Nation* on 11/07/2025, having neither been served with nor notified of the application or proceedings that culminated in those orders 3. It asserts that it holds a valid and subsisting leasehold interest over the property**,** originating from a lease granted to its predecessor, Caltex Oil (Kenya) Limited, in 1993 and subsequently extended after the expiry of the initial term in 2023. 4. The Objector states that it has remained in continuous and uninterrupted possession of the property, has consistently paid rent, and has developed the premises into the Total Energies Naivasha Highway service station comprising a fuel station, restaurant, convenience store and service bay. 5. The Objector further contends that it has invested in excess of Kshs. 55,000,000/- in the suit property and stands to suffer irreparable loss of its business, property and investment, if the intended public auction proceeds. It argues that the Plaintiffs failed to disclose to the Court the existence of its leasehold interest and developments on the property, with the result that the impugned orders were obtained without material disclosure. 6. It therefore maintains that the intended sale, undertaken without due regard to its lawful leasehold interest, would unlawfully interfere with its proprietary rights, occasion a grave miscarriage of justice, and unjustly dispossess it of its protected leasehold estate. On that basis, the Objector urges the Court to set aside the orders of 07/10/2024and 23/05/2025, asserting that the application has been brought without unreasonable delay, is meritorious, and is necessary to safeguard its legal and commercial interests. 7. In response, the Plaintiffs assail the Objector’s deposition by arguing that it has failed to establish a legally recognizable interest capable of defeating execution. That the Objector was not a party to the original proceedings arising from the 1992 road traffic accident meanwhile the purported lease relied upon expired in 2023 and was never lawfully renewed or extended. They further argue that no legal relationship has been established between Total Marketing Kenya Ltd and Objector whereas the alleged lease extension was not executed by the estate administrators, to wit, there is no valid legal agreement governing the Objector's continued occupation of the property. 8. The Plaintiffs go on to state that the Objector has participated in a scheme to frustrate execution by diverting rental income thereby concealing estate assets from the Plaintiffs, and that any prejudice suffered by the Objector is self-inflicted because it remained in occupation without a lawful tenancy whereas its claims cannot override the Plaintiffs right to realize the fruits of a judgment that has remained unsatisfied for decades. They thus urge the Court to dismiss the application and allow execution to proceed. 9. In rejoinder, the objector asserts that it is the successor in title to Caltex Oil Kenya Limited, following successive changes of name, and maintains that the property was first leased to its predecessor on 06/04/1993, upon which it developed the property as earlier described. It further reaffirms that, upon the expiry of the initial lease in 2023, the lease terms were varied and the lease extended, following which the Objector has remained in uninterrupted occupation of the property and has continued paying annual rent, including remittances made to Ziwanga Limited, an entity it asserts is closely associated with the late Zipporah Wamaitha Ng’ang’a. 10. The Objector further denies any allegation or insinuation that it connived or acted in concert with any beneficiary of the deceased’s estate to defraud the estate. It concludes by stating that the Court ought to set aside the orders issued on 07/10/2024 & 23/05 2025 and the Objector's leasehold interest in the property be recognized and protected. 11. With the above facts in reserve, it is not in dispute that there exists a decree in favour of the Plaintiffs as against the estate of the late Josephat Ng’ang’a Kihonge. I equally note from annexure “**A04”, “A05”, “A06”** & **“A07”** appearing in the affidavit in support of the motion and annexure **“A02” & “A03”** appearing in the further affidavit in support of the motion, that indeed the property was first leased to the Objector’s predecessor and upon expire of the lease the same was renewed in favour of the Objector. 12. In my view the Plaintiff reservations concerning the expiry/extension of the lease and legal relationship between Caltex Oil (Kenya) Ltd, Chevron Kenya Ltd, Total Kenya PLC, Total Marketing Kenya Ltd & Objector, have been sufficiently deflected in the Objector’s affidavit material. 13. It is equally apparent from the material that was placed before this Court that by dint of a rectified certificate of confirmation of grant, that Zipporah Wamaitha Ng’ang’a, was to hold the property in trust for other third-party beneficiaries. I also gather that the variation of the lease terms in respect of the property was executed by the Zipporah Wamaitha Ng’ang’a, prior to her unfortunate demise. 14. While it would seem that the property in question is still registered in the name of the late Josephat Ng’ang’a Kihonge, transmission had yet to be effected in favour of Zipporah Wamaitha Ng’ang’a, who now is equally demised. 15. Ex facie it appears to me that the Objector has demonstrated a legal and equitable interest in the property attached in execution by dint of the orders of this Court issued on 07/10/2024 and 23/05/2025. In the result, the Court is persuaded that the Objector’s motion dated 30/09/2025 is merited. 16. However, in the grand scheme of things, I equally find it improbable that the Plaintiffs can successfully proceed with execution in respect of the property that has since already been adjudicated upon and conclusively distributed by a probate Court notwithstanding the fact the property is still in the name of the deceased Defendant. ***Final Disposition*** 1. Having reasonably addressed myself to the **three (3) motion**, the resultant outcome is as follows-; 2. **The motions dated 04/08/2025 and 22/09/2025 are hereby struck out.** 3. **The motion dated 03/07/2025 succeeds in the following terms;** 4. **An order hereby issues setting aside the orders of this Court granted on 07/10/2024 and 23/05/2025 attaching and subjecting LR No. 1144/1298 (IR) 58280 to be sold by way of public auction.** 5. **The parties are directed to bear their own costs of their respective motions.** **Orders Accordingly.** **Delivered Dated and Signed at Nairobi this 9th Day of July 2026.** **……………………….** **JANET MULWA.** **JUDGE**