https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4308

Mwakivonje (On his behalf and on behalf of the Estate of Kassima Ali Nzimu, Salim Mwatenga, Jumaa Vwinyu and Mwamoyo Moyo (All Deceased) v Mwakaonje (Environment and Land Case E013 of 2023) [2026] KEELC 4308 (KLR) (29 June 2026) (Ruling) Neutral citation: [2026] KEELC 4308 (KLR) Republic of Kenya In the Environment and Land Court at Kwale Environment and Land Case E013 of 2023 LL Naikuni, J June 29, 2026 Between Said Mwakivonje (On his behalf and on behalf of the Estate of Kassima Ali Nzimu, Salim Mwatenga, Jumaa Vwinyu and Mwamoyo Moyo (All Deceased) Plaintiff and Ramadhani Kaonje Mwakaonje Defendant Ruling I. Introduction 1.This Ruling by the Honourable Court relates to a Preliminary objection and two (2) applications by the Defendant and the Plaintiff respectively. For clarity sake, both the Notice of Preliminary Objection dated 8th June, 2025 and a Notice of Motion application dated 17th March, 2025 were filed by Ramadhan Kaonje Mwakaonje, the Defendant/Applicant herein. Generally, the Defendant/Applicant sought to strike out the suit and Plaint for failure to take out summons. 2.At the same time, Said Mwakivonje (On his Behalf and on Behalf of the Estate of Kassimu Ali Nzimu, Salim Mwatenga, Jumaa Vwinyu and Mwamoyo Moyo (All Deceased), the Plaintiff also filed a Notice of Motion application dated 3rd March, 2026. The application was brought under the provision of Article 159 of the Constitution, Sections 1A, 1B (a) and 3A of the Civil Procedure Act, Cap. 21 and Order 51 Rule 1 of the Civil Procedure Rules, 2010. 3.It sought to be granted orders of substitution of the Plaintiff with a duly appointed Legal Representative. 4.Upon service of the objections and the applications, there were responses elicited as follows:-a.While opposing the application dated 17th March, 2025, the Plaintiff/Respondent filed a Replying Affidavit dated 19th April, 2025.b.Similarly, in opposition of the application dated 3rd March, 2026 by the Plaintiff;c.The Defendant filed a Replying Affidavit dated 29th April, 2026. 5.Subsequently, for expediency sake, the Honourable directed that both the Preliminary Objection and the application be delt with simultaneously by way of written submissions. The Honourable Court would render an omnibus Ruling thereof. II. The Preliminary Objection by the Defendant 6.The Preliminary Objection is grounded on: -“The suit is a non-starter, as the Plaintiff does not have the locus standi to exclusively institute this suit, for the land in Kwale/Golini/1304, measuring 380.147 acres, without the consent or approval of the other Co-Proprietors or the consent or approval of the legal Administrators/Executors of the other Co-Proprietors." III. The Notice of Motion application dated 17th March 2025 7.The Defendant/Applicant sought for the following orders:a.That this Honourable Court, do hereby order that the suit and the Plaint be struck off, for failure to take out summons by the Plaintiff/Respondent in this matter.b.That the cost of the suit and application be borne by the Plaintiff/ Respondent. 8.The application by the Applicant herein was premised on the grounds, testimonial facts and averments made out under the 12 Paragraphed Supporting Affidavit of RAMADHANI KAONJE MWAKAONJE, the Applicant sworn and dated 17th March, 2025 where he averred that:-a.He was a male adult of sound mind and disposition, the Defendant/Applicant in this matter, well versed with the facts of this matter, hence competent to swear this affidavit.b.The Plaintiff/Respondent instituted a case, in “ELC CASE NO. E013 OF 2023 in Said Mwakivonje – Versus - Ramadhani Kaonje Mwakaonje”, on 8th September, 2023.c.The claim was one of trespass and he was served with the Plaint.d.However, he was not served with any summons and his Advocate thought it was an oversight on the Plaintiff's/Respondent's side.e.Upon quick scrutiny of the Court file, his Advocate noticed that there were no Summons to Enter Apperance in the file and thus the suit is improperly brought before the Court.f.He was advised by his Advocate on record that the law holds as per the provision of Order 5 Rule 1(5) of the Civil Procedures Rules, 2010 the Summons SHALL accompany a Plaint.g.The failure to take out summons rendered the suit to be defective, not ripe and incomplete and thus wrongly before this Court.h.He now moved this Honourable Court to strike out the suit and the Plaint filled for failure to take out summons in the matter.i.There would be no prejudice suffered if the application was allowed as prayed.j.It would be in the interest of justice that the same application be allowed.k.There was neither collusion between any party nor any irregular, fraudulent or illegal transaction in bringing this application.l.What he had stated above was true to the best of my knowledge, belief and information sources where otherwise have herein been disclosed. IV. The Responses by the Plaintiff/Respondent 9.While opposing the application, the Plaintiff/Respondent filed a 15 Paragraphed Replying Affidavit sworn by SAID MWAKIVONJE dated on 19th April, 2025. He deposed as follows that:-a.He was the Plaintiff/Respondent herein, well seized of the facts and issues arising in the matter, therefore competent to swear this affidavit in response and in opposition to the Application dated 17th March, 2025.b.He had read and understood the contents of the Application dated 17th March, 2025. I have had the nature and intent of the same fully explained to him by his Advocates on record.c.He noted that the Application sought that the suit and the Plaint dated 8th September, 2023 be struck out for failure of the Plaintiff to take out summons.d.From the onset, he would wish to state that the Plaintiff/Respondent had participated in the proceedings and therefore acknowledged the existence of the suit for the last 1 and a 1/2 years, to wit, a Memorandum of Appearance dated 22nd September, 2023 was filed and served and subsequently a Statement of Defence dated 29th September, 2023 was also filed and served.e.In furtherance to the above, the Defendant/Respondent filed a Notice of Preliminary Objection dated 3rd October, 2023 which was canvassed via written submissions and consequently the Ruling dated 26th April, 2024 was delivered.f.His Advocates on record filed the Application dated 4th March, 2025 seeking to amend the Plaint dated 8th September, 2023 which was still pending before this Honourable Court.g.He verily believed to be true that the purpose of Summons to Enter Appearance was to notify the Defendant and or invite them to defend a suit and by virtue of the Defendant/Respondent herein filing a Memorandum of Appearance, Pleadings and a Preliminary Objection, they acquiesced to the suit being properly before this Honourable Court.h.Additionally, the Defendant/Respondent herein having filed a Memorandum of Appearance and Statement of Defence both, not filed under protest, and close to 2 years having elapsed since this suit was instituted, it would be a travesty of justice to dismiss the suit for want of summons when the Defendant/Respondent herein had actively been participating in the suit.i.He was advised by his Advocates on record that the word used in the Civil Procedure Rules is "shall" and that the word is directory as opposed to mandatory, that every case carries with it a different circumstance as compared to another and that there are instances where a suit would survive the rigour of the rules.j.Further that, the Defendant/Respondent herein having actively defended his position in this matter, scored some success in the Ruling dated 26th April, 2024.k.In robustly defending himself, he had argued against the strength of the Plaintiff's case and therefore the Defendant was fully aware of the suit and the contents of the Plaint dated 8th September, 2023.l.The present suit carried a different circumstance to wit, the Defendant had indeed scored some success in prosecuting this matter and there was a pending Application before this Honourable Court seeking to amend the Plaint dated 8th September, 2023 and that after the Orders sought in the Application were granted, Summons to Enter Appearance would be taken out.m.The Defendant/Respondent herein had and would not suffer any prejudice or hardship from failure of service of the Summons to Enter Appearance. Further, that the Defendant/Respondent herein had not demonstrated that the non-adherence to the rules has prejudiced or caused him hardship which could not be compensated in costs.n.He had been advised by his Advocates on record that it would not be in tandem with the tenets of justice to allow the Defendant to now turn round and sought the dismissal of the Plaintiff's suit only because the Plaintiff did not take out summons to enter appearance.o.In the upshot, he verily believed that every case carried with it a different circumstance as compared to another and there were instances where a suit would survive the rigour of the rules and the present suit carried itself such circumstances.p.He urged Court to dismiss the application with costs.q.What was deponed to herein above was true to the best of his knowledge, information and beliefs save for facts deponed to or information, sources. V. Notice of Motion Application Dated 3rd March 2026 for Substitution of Plaintiff 10.The Plaintiff sought for the following orders:-a.That this Honourable Court be pleased to grant leave to substitute the Plaintiff who is elderly and incoherent, with Hamisi Mwijaka Moyo for purposes of prosecuting this suit;b.That pending the hearing and determination of this Suit, the Honourable Court be pleased to order status quo to be maintainedc.That the costs of this Application be in the cause; andd.That any other Order the Court deems fit and just in the circumstance. 11.The application by the Applicant was premised on the grounds, testimonial facts and averments made out under the 7 Paragraphed Supporting Affidavit of HAMISI MWIJAKA MOYO, the Applicant herein with one (1) annexture of a picture of the construction sworn and dated 3rd March, 2026, He averred as follows that:-a.He was the cousin and close relative of the Plaintiff herein and competent to swear this affidavit.b.The Plaintiff was currently 99 years old and due to his advanced age had become frail and incoherent and unable to attend Court or actively prosecute this matter.c.Owing to the said circumstances, it was necessary that he be substituted in this suit to act on his behalf and ensure that his interests in the suit property were protected.d.He was conversant with the facts of this matter and had the authority of the Plaintiff and family to pursue this claim.e.Recently the Defendant had entered the suit property and commenced construction thereon. Annexed hereto was a picture of the said construction.f.Unless this Honourable Court intervened and orders that the status quo be maintained, the Defendant would continue with the construction thereby altering the nature of the property and prejudicing the Plaintiff's claim.g.The continued construction may render the outcome of this suit nugatory.h.Therefore, it was fair, just and necessary that the Plaintiff be substituted and that status quo orders be maintained pending the hearing and determination of this case.i.What was deponed herein was true to the best of my knowledge, understanding and belief. VI. Replying Affidavit in Opposition to the Notice of Motion Application Dated 3rd March 2026 for Substitution of Plaintiff 12.The Defendant filed a 12 Paragraphed Replying Affidavit sworn by RAMADHANI KAONJE MWAKAONJE on 29th April 2026 raising the following substantive objections:a.He was a male adult of sound mind and disposition, well versed with the facts of this matter hence competent to swear this affidavit.b.The application dated 3rd March, 2026 had been read out to him and he had understood its import.c.The application had not been initiated by the Plaintiff, rather one Hamisi Mwijaka Moyo, without filling an authority from the Plaintiff and thus he had no “locus standi” to be heard.d.He had been advised by his Advocate that Hanisi Mwijaka Moyo lacked the locus standi as he was not a proprietor to land in LR No. Kwale/Golini/1304 and did not reside on the property and there was no nexus between him and the cause of action.e.He had been advised by his Advocate that the law does not envisage a substitution of a living litigant and the only way this could be achieved was by filling of a Power of Attorney to be registered against the title, giving the general or specific functions the donee would perform.f.The instant application had been brought without any evidence from a medical doctor or specialist to proof or show that the Plaintiff had become senile and could not communicate.g.The Plot LR No. Kwale/Golini/1304 had five proprietors and there being no defined boundary, the Plaintiff could not claim any trespass or cultivation on the land.h.The Plaintiff had not attached a Certificate of Electronic evidence to support their picture showing alleged construction and this violated the provision of Section 106B of the Evidence Act, Cap. 80.i.He had not done any construction on land in the land known as LR No. Kwale/Golini/1304 and the same prayer ought to suffer the fate of dismissal.j.The Plaintiff had not shown any prejudice he would face if the application was not granted. On his part he would face great prejudice by being sued by parties who were not parties to the suit and also it would be very difficult to enforce orders of status quo for the property measuring 380 acres, taking into consideration that there were four ( 4 ) other proprietors to that land. The four ( 4 ) were deceased but still their family members resided on it who would be stopped from cultivating their father's lands.k.The Plaintiff application was frivolous, vexatious, anchored in the wrong principles of law and ought to suffer the fate of a dismissal.l.What he had stated above is true to the best of his knowledge, belief and information sources where otherwise have herein been disclosed VII. The Submissions. 13.When the parties appeared before the Court, direction were granted to have both the Preliminary Objection dated 8th June, 2925 and the Application dated 17th March, 2025 respectively be disposed oof by way of written submission. 14.Pursuant to that, all parties obliged and the Court reserved 29th June, 2026 as the date to deliver its Ruling thereof. A. The Written Submissions by the Defendant/Objector 15.Through the Law firm of Messrs. Rono and Donald & Company Advocates filed their written submissions. In his written submissions dated 4th July, 2025, Mr. Rono Advocate for the Defendant clarified that the current Preliminary Objection was distinct from the earlier one filed on 3rd October, 2023. The previous one succeeded on the ground that the Plaintiff lacked authority to bring the suit on behalf of the deceased estates without Grand Letters of Administration or Probate. Nonetheless, the Learned Counsel informed the Court that the current objection specifically focused on the land measuring 380.147 acres with five proprietors, making it impossible for one person to sue for trespass exclusively. 16.Specifically, the Defendant advanced that: the Plaintiff could not by himself sue for trespass over land measuring 380.147 acres. The land had five proprietors; the sons of one deceased proprietor (Jumaa Vwinyu), namely Mwarandu Juma Rangombe and Abdala Juma Kushindwa — one being the administrator of Jumaa Vwinyu's estate — had by witness statements consented to the Defendant being on the property; there was no defined or marked boundaries to ascertain which portion among the five proprietors had been trespassed upon; and the other co-proprietors or their beneficiaries may had consented to the Defendant's occupation, thereby negating any claim of trespass. 17.To buttress on this point, the Learned Counsel relied on the provision of Order 1 Rule 8 of the Civil Procedure Rules, 2010 on representative suits. To him, the cases of: Mukisa Biscuit Manufacturing Co. Limited – Versus - West End Distributors Limited [1969] EA 696, Andu Akuru A Twiga CBO – Versus - Chief Land Registrar [2023] KEELC 20419 (KLR), and the definition of “Locus Standi” in the case of:- “Law Society of Kenya – Versus - Commissioner of Lands, Nakuru HCCC No. 464 of 2000”. 18.With regard to the Notice of Motion application dated 17th March 2025. The Defendant's advocate, in the Submissions filed on 4th July 2025, contended that the word "shall" as used in Order 5 Rule 1 sub-Rules (1), (3) and (5) is peremptory and mandatory, not directory. The Learned Counsel relied on the case of:- “King'ola – Versus - Wambugu & 2 others [2023] KECA 840 (KLR)”, in which the Court of Appeal discussed the word "shall" with reference to Wessels J.A. in the case of:- “Sutter – Versus - Scheepers 1932 AD 165” ("The word 'shall' when used in a statute was rather to be construed as peremptory than as directory unless there were other circumstances which negative this construction"), the Supreme Court of Nigeria in the case of:- “Dr. Arthur Nwankwo & Anor – Versus - Alhaji Umaru Yaradua & Ors [2010] LPELR 2109 (SC)” ("The word 'shall' when used in a statutory provision imports a form of command or mandate. It is not permissive, it is mandatory"), and Black's Law Dictionary (6th Edition). 19.The Defendant argued that a Plaint missing its accompanying summons was like a Bible missing Genesis — incomplete and of no legal effect. He further cites the case of: “Salat – Versus - Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR)” for the principle that courts have a duty to correct errors of law and that Advocates who were aware of laid down procedures could not plead ignorance. 20.The Defendant submitted that the Plaintiff's advocates, being aware of the mandatory procedural requirement, had no excuse for failing to take out summons, and that the suit ought therefore to be struck out. B. The Written Submissions by Plaintiff/Respondent 21.The Law firm of the Plaintiff submitted through the Law firm of Messrs. Chimera, Kamotho & Company Advocates LLP on the Preliminary Objection dated 29th September, 2025. M/s. Kimani Advocate contended that the Preliminary Objection did not raise a pure point of law as required by the Mukisa Biscuit standard. 22.The Plaintiff contended that: he was the surviving registered proprietor of Kwale/Golini/1304. He was personally affected by the Defendant's trespass acts. He had a right of access to justice under the provision of Article 48 of the Constitution of Kenya 2010; the Defendant's reliance on witness statements from sons of a deceased proprietor who have allegedly consented to his occupation calls upon the court to draw inferences from material outside the pleadings, which defeats the purpose of a preliminary objection; and where the court is required to investigate facts, the matter cannot be raised as a preliminary point. 23.To buttress on this point, the Counsel relied on the several cases of:- “Oraro – Versus - Mbaja [2005] eKLR, Muntet & another v. Muntet & another [2024] KEELC 4934 (KLR), Avtar Singh Bhamra & another v. Oriental Commercial Bank, Kisumu HCCC No. 53 of 2004, and David Karobia Kiiru v. Charles Nderitu Gitoi & another [2018] eKLR. The Plaintiff's position was that he, as the sole surviving registered proprietor personally affected by the trespass, has sufficient interest and locus standi to institute the suit. The Plaintiff urges that the Preliminary Objection be dismissed with costs. 24.With regard to the application. The Plaintiff elaborated the legal position through reference to several authorities. The Learned Counsel submitted that the provision of Order 5 Rule 1(5) and (6) must be read in context: while the word "shall" is used, the courts have recognised that its character — whether peremptory or directory — depended on the circumstances of each case. To support her case, the Learned Counsel cited the following authorities.a.“Fredrick Kibet Chesire – Versus - Raymond W. Bomet [2006] eKLR”, where the court held that whether summons to enter appearance were served was an issue taken up "rather late on the day" where the Defendant had filed a defence and been represented throughout proceedings.b.“Diamond Trust Bank Kenya Limited – Versus - Maingi & another [2023] KECA 712 (KLR)”, where the Court of Appeal held that where a Defendant had entered appearance or appointed Counsel and proceeded to file a defence without protest, the purpose of the summons was spent or considerably diminished, any defect in the summons must be considered as having been waived or acquiesced, and the Defendant could not thereafter complain of failure to serve summons — calling such complaints "vain pedantry."c.“Duckworth – Versus - Duckworth & 2 others [2022] KEHC 14597 (KLR)”, where the Court held that where a Defendant throughout participated in proceedings and was fully aware of the suit — indeed obtaining orders in its favour — declaring the suit abated would be in breach of Article 159 (2)(d) of the Constitution.d.“Flightsource International – Versus - Nation Media Group Limited [2022] KEHC 11947 (KLR)”, where the court held that where a Defendant enters appearance or filed Defence or otherwise actively participated without protesting non-service, it would be taken to have waived its right to challenge the validity of the suit on that ground, unless it could demonstrate that non - adherence had prejudiced it or caused hardship not compensable in costs. 25.Hence, it as the Counsel’s contention that the present suit carried exactly such circumstances — the Defendant had participated, scored a partial success at the Ruling of 26th April 2024 and had not demonstrated any prejudice. The Counsel urged the court to dismiss the application with costs. VIII. Analysis and Determination 26.I have carefully considered the pleadings, the affidavits, the written submissions by the parties, the myriad of authorities cited, and the relevant provisions of the Constitution of Kenya, 2010 and statures. 27.To reach an informed, fair and reasonable decision, this Honourable Court identifies the following six ( 6 ) issues for its determination:a.Whether the Defendant's Notice of Preliminary Objection dated 8th June, 2025 raises a pure point of law capable of disposing of the suit at the preliminary stage;b.Whether the Plaintiff has locus standi to institute and maintain the present suit over Land Parcel No. Kwale/Golini/1304;c.Whether the Defendant's Notice of Motion application dated 17th March 2025 seeking to strike out the suit for failure to take out summons is merited;d.Whether the Plaintiff's Notice of Motion application dated 3rd March, 2026 seeking substitution of the Plaintiff with Hamisi Mwijaka Moyo is legally sustainable;e.Whether this Honourable Court should issue orders maintaining status quo over the suit property pending hearing and determination of the suit; andf.Who should bear the costs of the Preliminary Objection and the two ( 2 ) applications. Issue No. a). Whether the Defendant's Notice of Preliminary Objection dated 8th June 2025 raises a pure point of law capable of disposing of the suit at the preliminary stage; 28.Under this sub – heading, the Honourable Court shall be examining the concept of a Preliminary objection and whether this suit should be struck out as prayed by the Defendant. Further, the Court will also be assessing the justification for granting orders for substitution of parties as urged by the Plaintiff herein. 29.But first and more most, the Honourable Court wishes to extrapolate on the brief facts of the case prior to proceeding on. Primarily, it is intended to demonstrate that a lot of litigation activities in this suit have been taking place over the subject matter in this suit. The Plaintiff instituted on 8th September, 2023 seeking, inter alia: a permanent injunction restraining the Defendant from trespassing, encroaching and conducting burial activities on Land Parcel No. Kwale/Golini/1304; an order for exhumation of a body allegedly buried by the Defendant on the suit property; and related reliefs. The suit was brought in a representative capacity, on the Plaintiff's own behalf and on behalf of the estates of four deceased co-proprietors. The subject land has five registered proprietors, four of whom are now deceased. 30.Upon service, the Defendant entered appearance by filing a Memorandum of Appearance on 22nd September, 2023 and a Statement of Defence on 29th September 2023. It will be noted that neither of these pleadings were filed under protest. On 3rd October, 2023 the Defendant filed the first Preliminary Objection which was canvassed by written submissions, and a Ruling thereon was delivered on 26th April, 2024. Thereafter, the Plaintiff filed an application on 4th March, 2025 to amend the Plaint which is still pending determination before this Court. The Defendant then filed the Notice of Motion application dated 17th March, 2025 seeking to strike out the suit for failure to take out summons. Thereafter, the Defendant on 8th June. 2025 filed the current Preliminary Objection on the ground that the Plaintiff lacked “locus standi” to institute this suit. 31.As the proceedings progressed, it emerged that the Plaintiff is now 99 years old, frail, and medically incapacitated. His advocates filed the Notice of Motion dated 3rd March, 2026 seeking to substitute him with his cousin Hamisi Mwijaka Moyo as duly appointed legal representative, and to obtain status quo orders restraining the Defendant from constructing or developing the suit property pending the hearing scheduled for 16th July, 2026. That is adequate on facts. 32.Now turning to the analysis of the issue under this sub – heading. In so doing, the Honourable Court will be examining the meaning, scope and nature of preliminary objection. According to the Black Law Dictionary a preliminary objection is defined as:“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….” 33.To begin with, the court in “the Classicus Locus” case of:- “Mukisa Biscuits Manufacturing Co. Limited – Versus - West End Distributors Limited (1969) EA 696” described a preliminary objection as hereunder: --'So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.' 34.Sir Charles Newbold, JA in the same case stated that: -'A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.' 35.Additionally, in the course of time, the High Court has deliberated extensively on this legal issue. From instance, the case of:- “Nitin Properties Limited – Versus - Singh Kalsi & Another [1995] eKLR” the court stated thus: --'A Preliminary Objection raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.' 36.Similarly, the Tanzanian Court of Appeal sitting in Dar es Salaam, in the case of:- “Karata Ernest & Others – Versus – the Attorney General (Civil Revision No. 10 of 2020 (2010) TZCA 30 (29th December, 2010), (Luanda, JA, Ramadhani, CJ, Rutakangwa, JJA), expounded the issue of preliminary objections in a more exhaustive manner as follows: -“At the outset we showed that it is trite law that a point of preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it. It only "consists o f a point of law which has been pleaded, or which arises by dear implication out of the pleading obvious examples include: objection to the jurisdiction of the court; a plea of limitation; when the court has been wrongly moved either by non-citation or wrong citation of the enabling provisions of the law; where an appeal is lodged when there is no right of appeal; where an appeal is instituted without a valid notice of appeal or without leave or a certificate where one is statutorily required; where the appeal is supported by a patently incurably defective copy of the decree appealed from; etc. All these are clear pure points of law. All the same, where a taken point of objection is premised on issues of mixed facts and law that point does not deserve consideration at all as a preliminary point of objection. It ought to be argued in the "normal manner" when deliberating on the merits or otherwise of the concerned legal proceedings.’ 37.Further, the Supreme Court addressed its mind on this issue in the case of:- “Aviation & Allied Workers Union Kenya – Versus - Kenya Airways Limited & 3 Others [2015] eKLR” and stated:-“Thus, a Preliminary Objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.” 38.The Court has also relied on the decision of:- “Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016] eKLR”: - as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection inter alia: -(i)A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.(ii)A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and(iii)The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute. 39.Finally, the Court cites the case of: “In the matter of Siaya Resident Magistrate Court Kisumu HCCMisc. App No. 247 of 2003” where the Court held that:-“A Preliminary Objection cannot be raised if any facts has to be ascertained.” 40.Therefore, from the above holdings of the Courts, it is clear that a preliminary Objection must be raised on a pure point of law and no fact should be ascertained from elsewhere. The Court must first determine, as a threshold matter, whether the three limbs of the Preliminary Objection satisfy the foundational requirement articulated in the “Mukisa Biscuit Manufacturing Co. Ltd (Supra)”, that a preliminary objection must consist of a pure point of law arising from the pleadings, arguable on the assumption that all facts pleaded by the other side are correct, and capable of disposing of the suit without any factual ascertainment. This Court is satisfied that all three limbs, as framed, do raise pure points of law on the face of the pleadings. 41.Applying this standard to the instant case, the Court now examines the ground advanced in the Defendant's Notice of Preliminary Objection dated 8th June, 2025. The single limb advanced is that - the suit is a non-starter, as the Plaintiff does not have the locus standi to exclusively institute this suit, for the land in Kwale/Golini/1304, measuring 380.147 acres, without the consent or approval of the other Co-Proprietors or the consent or approval of the legal Administrators/Executors of the other Co-Proprietors.' 42.In his supporting written submissions, the Defendant's advocate does not rest this objection on any single identifiable statutory provision or constitutional article that expressly bars a registered co-proprietor from suing for trespass without the consent of all other co-proprietors. Instead, the objection is built on a factual scaffold: that the sons of the late Jumaa Vwinyu — one being the administrator of his estate — have by witness statements consented to the Defendant's occupation; that there are no defined or marked boundaries to ascertain which portion has been trespassed upon; and that other co-proprietors or their beneficiaries may have consented to the Defendant's presence. By and large, all these are matters of fact and evidence. 43.The Defendant relies on the provision of Order 1 Rule 8 of the Civil Procedure Rules, 2010 on representative suits. However, that provision does not, on its face, bar a co-proprietor from suing in his own right to protect his proprietary interest. Its application and effect in any given case depends upon the nature of the claim, the interests of the parties, and the relief sought — all of which require factual inquiry. 44.Therefore, in view of the fore going, the Honourable Court finds that the Preliminary Objection dated 8th June, 2025 unattenable. The objection fails to raise a pure point of law capable of disposing of the suit at the preliminary stage. Its resolution necessarily requires the Court to interrogate and ascertain whether and to what extent the other co-proprietors or their estates have consented to the Defendant's presence on the land; determine whether the portion allegedly encroached upon falls within any definable share of the Plaintiff; assess the legal validity of any alleged consent; and evaluate the practical effect of the absence of defined boundaries on the right to sue. All these are questions of mixed fact and law that cannot be resolved on the face of the pleadings. 45.Additionally, the Defendant's reliance on witness statements from the sons of the deceased proprietor to support the objection confirms that the objection requires the Court to go beyond the pleadings and investigate facts. This is precisely the situation that the principles in the case of “Mukisa Biscuit” prohibits. As held in the case of:- “Avtar Singh Bhamra & another – Versus - Oriental Commercial Bank, Kisumu HCCC No. 53 of 2004, and David Karobia Kiiru v. Charles Nderitu Gitoi & another [2018] eKLR, where a preliminary objection cannot be resolved without examining evidence placed before the Court, it is not a proper preliminary objection and must fail. 46.For these reasons, therefore, I discern that the Preliminary Objection does not raise a pure point of law capable of disposing of the suit at the preliminary stage. It must fail. ISSUE No. b). Whether the Plaintiff Has Locus Standi to Institute and Maintain the Present Suit Over Land Parcel No. Kwale/Golini/1304 47.The Under this Sub – heading the Court will be assessing whether the Plaintiff lacked “Locus Standi” to institute this suit ostensibly on grounds that it is a representative one. To make progress onto this legal concept, the Honourable Court wishes to refer to the case of:- “Law Society of Kenya – Versus - Commissioner of Lands & Others, Nakuru High Court Civil Case No.464 of 2000”, as follows:-“Locus Standi signifies a right to be heard, a person must have sufficiency of interest to sustain his standing to sue in Court of Law”. Further in the case of Alfred Njau and Others -Versus- City Council of Nairobi [1982] KAR 229, the Court also held that:-“the term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings” 48.Therefore, locus standi means the right to appear before and be heard in a court of law. Without it, even when a party has a meritorious case, he cannot be heard because of that. Locus standi is so important that in its absence, party has no basis to claim anything before the Court. 49.Further, in the case of: “Alfred Njau – Versus - City Council of Nairobi [1983] KLR 625” the Court of Appeal, held “inter alia” that:-“…….Locus standi” literally means a place of standing and refers to the right to appear or be heard in Court or other proceedings and to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding”. 50.The legal standing on the issue of “Representative Suit” and “Joint Suit” by parties are governed under the provision of Order 1 Rules 8 (1) & 13 ( 1 ) & ( 2 ) of the Civil Procedure Rules, 2010. It provides as follows:“Where there are numerous persons having the same interest in a suit, one or more of such persons may, with the permission of the court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. The court shall, in every case, give notice of the institution of the suit to all such persons either by personal service or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the court in each case may direct." 51.Order 1 Rule 13(1) and (2) of the Civil Procedure Rules, 2010, on the other hand, provides as follows:“(1)Where there are more Plaintiffs than one, any one or more of them may be authorised by any other of them to appear, plead or act for such other in any proceeding. (2) The authority shall be in writing signed by the party giving it and shall be filed in the case." 52.The distinction between a representative suit under Order 1 Rule 8 and a joint suit by Co - Plaintiffs under the provision of Order 1 Rule 1 and Rule 13 of the Rules is fundamental. A representative suit is one brought by one or more persons on behalf of a larger body of persons, typically unnamed, who share the same interest but are not individually named as parties. The hallmark of such a suit is that the named Plaintiff purports to represent and bind persons who are not before the court. Order 1 Rule 8 of the Rule is designed to protect those unnamed, absent persons by requiring court sanction and appropriate notice to them. 53.A joint suit by multiple Co - Plaintiffs is entirely different. It is a suit filed by numerous persons, each named and joined individually, each pursuing their own interest in the same subject matter, in a single suit to avoid multiplicity of proceedings. Order 1 Rule 1 expressly permits this, and Order 1 Rule 13 merely facilitates the practical management of such suits by allowing one co-plaintiff to be authorised to sign documents on behalf of the others. 54.The question is whether the Plaintiff, as one of five registered co-proprietors of land parcel Kwale/Golini/1304, four of whom are deceased, has the requisite interest to institute and maintain this suit. 55.The provision of Article 48 of the Constitution of Kenya 2010 commands that the State shall ensure access to justice for all persons, and that no fee or requirement shall be imposed that would effectively prevent a person from obtaining justice. This constitutional guarantee demands a broad and liberal approach to locus standi, particularly where a person asserts a direct, tangible and registered proprietary interest. 56.The provision 26 ( 1 ) ( 2 ) of the Land Registration Act, No. 3 of 2012, a certificate of title is conclusive “prima facie” evidence that the person named as proprietor is the absolute and legal registered owner of the land with all the indefeasible rights, interest and title vested in him by law. The provision of Sections 24 & 25 of the Act provides that the registration of a person as proprietor of land vests in that person the absolute ownership of that land together with all rights, privileges and appurtenances belonging or appurtenant thereto. A co-proprietor holds an undivided share of the land and his interest is real, legally recognised and fully protected. 57.The Plaintiff is a surviving registered co-proprietor of Kwale/Golini/1304. This is not in dispute. The Plaintiff alleges that the Defendant has trespassed on the suit land by burying a body thereon and conducting burial activities, and more recently by constructing structures on the property. These are direct interferences with the Plaintiff's proprietary rights. The right to sue to protect one's registered land from trespass is an incident of ownership that inures to each individual co-proprietor, not merely to the collective body of co-proprietors acting jointly. 58.The Defendant's argument that the sons of one deceased proprietor have allegedly consented to his presence on the land does not negate the Plaintiff's locus standi. If anything, it underscores the importance of the suit: the Plaintiff, as the sole surviving registered proprietor, is entitled to resist what he characterizes as an unauthorized encroachment regardless of what other interested parties may have said or done. Any consent given by persons who are not registered proprietors — or who are mere beneficiaries of estates without formal letters of administration — is of questionable legal validity and does not bind the Plaintiff. 59.The Defendant's reliance on the provision of Order 1 Rule 8 of the Civil Procedure Rule, 2010 is misconceived in this context. Order 1 Rule 8 permits representative suits where numerous persons share a common interest, it does not create a mandatory requirement that a registered proprietor must first obtain the consent of all co-proprietors before suing to protect his own registered interest. The provision is a procedural device that facilitates representation; it is not a substantive bar on individual suits by co-proprietors. 60.Further, the Defendant argues that the earlier Ruling delivered on 26th April 2024 regarding the first Preliminary Objection, established that the Plaintiff lacked authority to represent the estates of the deceased co-proprietors without letters of administration or probate. This Court agrees with that reasoning insofar as it goes, the Plaintiff cannot purport to sue on behalf of the estates of the deceased co-proprietors without the requisite authority. However, that finding does not deprive the Plaintiff of his own personal and individual locus standi to sue in his own capacity as a surviving registered proprietor aggrieved by the alleged trespass. These are distinct legal questions. 61.Thus, the Honourable Court holds that the Plaintiff, as a surviving registered co-proprietor of Kwale/Golini/1304, has sufficient locus standi to institute and maintain the present suit to protect his own proprietary interest in the suit land. His claim, in his personal capacity as a registered proprietor, is properly before this Court. The suit shall therefore proceed on the basis of the Plaintiff's personal interest as a registered proprietor, and not as a representative of the estates of the deceased co-proprietors. ISSUE No. c). Whether the Defendant's Notice of Motion application dated 17th March, 2025 seeking to strike out the suit for failure to take out summons is merited; 62.Under this Sub – heading, there is only a single issue for the consideration by this Court. Essentially, that is on striking the entire Plaint as instituted by the Plaintiff herein for failure to take out summons by the Plaintiff/Respondent in this matter. The striking out of the suits are governed under the provision of Order 2 Rule 15 of the Civil Procedure Rules, 2010. It does allow a party to apply for the striking out of a suit. It is drawn as follows: -Striking out pleadings [Order 2, rule 15.](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. 63.From the myriads of authorities by the High Court, it is settled law that the power and Jurisdiction of the Court to strike out pleadings is discretionary. It must be exercised judicially and be used sparingly and cautiously. That is the case as it is exercised without the court being fully informed on the merits of the case through discovery and oral evidence. The leading and still very relevant case on this front was that of:- “D.T. Dobie & Company (Kenya) Limited – Versus - Muchina [1982] KLR 1”. Madan JA, stated:“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.” 64.Further to that, in the case of: - “Co - Operative Merchant Bank Limited – Versus - George Fredrick Wekesa (Civil Appeal No. 54 of 1999)” the Court of Appeal stated:“Striking out a pleading is a draconian act, which may only be resorted to, in plain cases...Whether or not a case is plain is a matter of fact...Since oral evidence would be necessary to disprove what either of the parties says, the appellant’s defence cannot be said to present a plain case of a frivolous, scandalous, vexatious defence, or one likely to prejudice, embarrass or delay the expeditious disposal of the Respondent’s action or which is otherwise an abuse of the process of the court.” 65.Additionally, in the case of: - “Yaya Towers Limited – Versus - Trade Bank Limited (In Liquidation) (Civil Appeal No. 35 of 2000)” the same court expressed itself thus: -“A Plaintiff (Defendant) is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the Defendant (Plaintiff) can demonstrate shortly and conclusively that the Plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial..........It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was difficult to believe, could be proved.” 66.The main reason why the applicants have sought for this suit to be struck out is for failure to take out summons by the Plaintiff/Respondent in this matter. The provision of Order 5 Rule 1 of the Civil Procedure Rules, 2010 provides in the material parts as follows:Rule 1(1): Subject to the provisions of these Rules, every suit shall be instituted by presenting a plaint to the court. Rule 1(3): After a Plaint is filed, the court shall issue summons directed to the Defendant to appear and answer the claim on a date set by the court. Rule 1(5): On the institution of a suit, summons shall accompany the Plaint. 67.The Defendant contends that the word 'shall' in Rule 1(5) is peremptory and mandatory, and that the failure to take out summons renders the entire suit defective, incomplete and incompetent before this Court. He relies on the case of:- King'ola – Versus - Wambugu & 2 others [2023] KECA 840 (KLR)”, the principle in “Sutter – Versus - Scheepers 1932 AD 165”, and authorities from the Supreme Court of Nigeria, all of which affirm that the word 'shall' ordinarily imports a mandatory and not a directory meaning. 68.The Court accepts the general proposition that the word 'shall' in a procedural rule is prima facie peremptory. However, the law is equally well settled that the peremptory or directory character of a provision is not determined solely by the word used but also by the purpose and context of the provision, the consequences of non-compliance, and whether the interests of justice are served by rigidly enforcing the provision regardless of the circumstances. As the Court of Appeal itself recognised in “King'ola – Versus – Wambugu”, the enquiry is purposive: the question is whether the legislature intended non-compliance to be fatal, or whether the provision was designed as a procedural safeguard whose purpose may be otherwise fulfilled. 69.The purpose of summons to enter appearance is unmistakably and exclusively to notify the Defendant of the existence of the suit against him and to invite him to enter appearance and defend his interests. This is a foundational manifestation of the audi alteram partem principle — no party shall be condemned unheard. When that purpose is fully achieved by other means, the mandatory character of the rule yields to the overriding interests of justice. 70.The undisputed facts, as disclosed by the pleadings and affidavits, paint a clear picture: The Defendant was personally served with the Plaint on or about 8th September, 2023; On 22nd September, 2023, the Defendant filed a Memorandum of Appearance through his Advocates, without any protest or reservation whatsoever. On 29th September, 2023, the Defendant filed a full Statement of Defence engaging the substance and merits of the Plaintiff's claim again without any protest; On 3rd October, 2023, the Defendant filed a first Preliminary Objection which was fully canvassed through written submissions and resulted in a substantive Ruling of 26th April, 2024, a Ruling in which the Defendant himself succeeded; and The Defendant first raised the issue of want of summons in the Notice of Motion application dated 17th March, 2025 approximately eighteen months after the institution of the suit. 71.These facts admit of only one conclusion: the Defendant had full, actual and comprehensive notice of the suit from its very inception. He was not in any way prejudiced by the absence of formal summons. He engaged the proceedings with vigour, advanced legal arguments, and secured a substantive judicial outcome in his favour. The entire purpose of the summons was achieved in fact, even if not by strict procedural form. 72.In the case of: “Diamond Trust Bank Kenya Limited – Versus - Maingi & another [2023] KECA 712 (KLR)” the Court of Appeal addressed this precise situation in unambiguous terms. The Court held that where a defendant has entered appearance or appointed counsel and proceeded to file a defence without protest, the purpose of the summons is spent or considerably diminished. The Court went further and dismissed such complaints in strong language, describing them as 'vain pedantry.' The Court held that any defect in the summons must be considered as having been waived or acquiesced by the defendant, who cannot thereafter complain of failure to serve summons. 73.Furter, in the case of:- “Duckworth – Versus - Duckworth (Supra) & 2 others [2022] KEHC 14597 (KLR), the High Court held that where a Defendant throughout participated in proceedings and was fully aware of the suit — indeed obtaining orders in its favour — declaring the suit abated would be in breach of Article 159(2)(d) of the Constitution of Kenya 2010, which requires justice to be administered without undue regard to procedural technicalities. Additionally, in the case:- “Flightsource International (Supra), the court similarly held that where a Defendant enters appearance or files defence or otherwise actively participates without protesting non-service, it will be taken to have waived any right to challenge the validity of the suit on that ground, in the absence of demonstrable prejudice not compensable in costs. 74.Similarly, in the case of:- “Fredrick Kibet Chesire v. Raymond W. Bomet [2006] eKLR”, the court observed that the question of whether summons was served is one taken up 'rather late on the day' where the Defendant has filed a defence and been represented throughout. That observation applies with considerably greater force in the present case, where the Defendant not only participated throughout but actively and successfully litigated. 75.The provision of Article 159(2)(d) of the Constitution provides that in exercising judicial authority, courts shall be guided by the principle that justice shall be administered without undue regard to procedural technicalities. This constitutional command does not authorize courts to ignore procedure altogether, but it emphatically prohibits the use of procedure as an instrument of injustice, a sword rather than a shield. Likewise, the provision of Sections 1A and 1B of the Civil Procedure Act, Cap. 21 and Sections 3 of the Environment & Land Court Act. No, 19 of 2011 on “the Overriding Objectives” codify this principle in the context of civil proceedings, requiring the Court to deal with cases justly, expeditiously, proportionately and accessible resolution of disputes. Thus, striking out a suit that has been pending for nearly two years, in which a Defendant has fully participated and obtained substantive relief, purely on account of a technical non-service of summons that caused no prejudice whatsoever, would be the very antithesis of these principles. It will tantamount to travesty of justice. 76.The Defendant has not demonstrated, and indeed cannot demonstrate, any prejudice caused by the failure to issue formal summons. His affidavit in support of the application is notably silent on any actual hardship or prejudice suffered. This Court finds that the Defendant's application is, in the circumstances of this case, a classic instance of the 'vain pedantry' deprecated by the Court of Appeal in Diamond Trust Bank. 77.Based on the foregoing reasons, the Honourable Court holds that the Notice of Motion application dated 17th March, 2025 is not merited and is accordingly dismissed. The failure to take out summons is in these circumstances a curable procedural irregularity that has been unequivocally waived by the Defendant through his active, unconditional and substantively successful participation in the proceedings. However, for good order, the Plaintiff is advised and directed to take out and file a formal Summons to Enter Appearance within thirty (30) days of the date of this Ruling so as to regularize the proceedings in compliance with Order 5 Rule 1, without prejudice to any steps already taken.ISSUE No. d). Whether the Notice of Motion application by the Plaintiff's dated 3rd March 2026 seeking substitution of the Plaintiff with Hamisi Mwijaka Moyo is legally sustainable; 78.Under this Sub – tile, the Honourable Court will be dealing on matters of appointment of Legal Representatives. The Law governing legal representation upon death is under the provision of Order 24 of the Civil Procedure Rules, 2010 and the Laws of Succession, Cap. 160. It outlines what ought to happen if a party or parties to a suit dies; Order 24, Rule 3 provides for procedure in case of death of one of several Plaintiffs or of sole Plaintiff as follows:-“(1)Where one of two or more Plaintiffs dies and the cause of action does not survive or continue to the surviving Plaintiff or Plaintiffs alone, or a sole Plaintiff or sole surviving Plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased Plaintiff to be made a party and shall proceed with the suit. 2.Where within one year no application is made under sub rule (1), the suit shall abate so far as the deceased Plaintiff is concerned, and, on the application of the Defendant, the court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased Plaintiff: Provided the court may, for good reason on application, extend the time. 79.In the case of “Said Sweilem Gheithan Saanum – Versus - Commissioner of Lands (being sued through the Attorney General) & 5 Others (2015) eKLR, the Court of Appeal explained the provisions of Order 24 of the Civil Procedure as follows:“There are three stages according to these provisions. As a general rule the death of a Plaintiff does not cause the suit to abate if the cause of action survives. But within such time as the court may in its discretion for “good reason” determine, an application must be made for the legal representative of the deceased plaintiff to be made a party. The “good reason” therefore relates to application for extension of time to join the Plaintiff’s legal representative to the suit.Secondly, if no such application is made within one year or within the time extended by leave of the court, the suit shall abate. Where a suit abates no fresh suit can be brought on the same cause of action.Thirdly, the legal representative of the deceased Plaintiff may apply for the abated suit to be revived after satisfying the court he was prevented by “sufficient cause” from continuing with the suit. The effect of an abated suit is that it ceases to exist in the eye of the law. The abatement takes place on its own force by passage of time, a legal consequence which flows from the omission to take the necessary steps within one year to implead the legal representative of the deceased Plaintiff.” 80.Under Order 32 (15) of the Civil Procedure Rules, it provides that:15. Application of rules to persons of unsound mind [Order 32, rule 15]The provisions contained in rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind, and to persons who though not so adjudged are found by the court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued. 81.The Notice of Motion application dated 3rd March, 2026 seeks leave of this Honourable Court to substitute the Plaintiff, Said Mwakivonje, who is described as 99 years old, frail and incoherent, with one Hamisi Mwijaka Moyo, his cousin, for purposes of prosecuting this suit. 82.The said application is anchored on the contention that the Plaintiff, due to advanced age and alleged incapacity, is no longer able to attend Court, issue meaningful instructions or actively prosecute the matter. Hamisi Mwijaka Moyo avers that he is a close relative of the Plaintiff, is conversant with the facts of the case and has authority from the Plaintiff and the family to pursue the claim on the Plaintiff’s behalf. 83.The applicable procedural framework is found under the provision of Order 32 of the Civil Procedure Rules, 2010 which governs suits by or against minors and persons under disability. Under the said provisions, a person who is incapable of protecting his interests in litigation may sue through a next friend or defend through a duly appointed guardian ad litem. A next friend is expected to be a suitable person who acts bona fide, in the best interests of the incapacitated litigant and under the supervision of the Court. 84.The concept of a next friend is therefore distinct from ordinary substitution of parties. Substitution in the strict procedural sense usually arises where a party has died and a legal representative is brought on record. In the present case, the Plaintiff is alive. The real question, therefore, is not substitution upon death, but whether another person may lawfully be permitted to conduct proceedings on behalf of a living litigant who is alleged to be under disability. 85.A living litigant may prosecute proceedings personally, through an advocate, through a recognized agent, through a lawful attorney appointed under a power of attorney, or, where incapacity is properly established, through a next friend or guardian appointed in accordance with the provision of Order 32 of the Civil Procedure Rules, 2010. The appropriate mechanism depends on the facts and legal capacity of the litigant. 86.The Defendant opposes the application on four principal grounds. First, that the application was not initiated by the Plaintiff himself and that Hamisi Mwijaka Moyo lacks locus standi. Secondly, that the law does not envisage substitution of a living litigant and that the proper mechanism would be a power of attorney registered against the title. Thirdly, that no medical evidence has been produced to prove the Plaintiff’s alleged incapacity. Fourthly, that the photograph annexed to show alleged construction is unsupported by a certificate of electronic evidence under Section 106B of the Evidence Act. 87.On the first objection, the Court is not persuaded that the application is incompetent merely because it was brought by the proposed next friend. The very nature of proceedings under Order 32 contemplates that where a party is incapable of acting for himself, a suitable person may move the Court to be permitted to act on his behalf. If the Plaintiff were fully capable of initiating the application personally, the need for appointment of a next friend would substantially diminish. 88.Accordingly, the fact that Hamisi Mwijaka Moyo, as a close relative, moved the Court does not, by itself, render the application incompetent. What the Court must determine is whether he is a suitable person and whether sufficient material has been placed before the Court to justify his appointment. 89.On the second objection, the Defendant’s argument that the only lawful mechanism is a Power of Attorney is, with respect, overstated. A power of attorney is indeed one lawful mechanism through which a person may authorize another to act on his behalf. However, it presupposes that the donor has the requisite mental capacity to understand and execute the instrument. 90.Where a litigant is alleged to be incapable of managing proceedings because of mental or serious physical incapacity, the appropriate mechanism may be the appointment of a next friend or guardian under the provision of Order 32. A power of attorney and a next friend serve different legal purposes. The former is suited to a capable principal who voluntarily delegates authority, while the latter is intended to protect a person who lacks capacity to personally conduct litigation. 91.The Court therefore rejects the broad proposition that a living litigant can only be represented through a registered power of attorney. The Court retains jurisdiction under the provision of Order 32, read together with Sections 1, 1A, 3 & 3A of the Civil Procedure Act, Cap. 21 to make appropriate orders to protect a litigant who is shown to be under disability. 92.However, the third objection, is not only more substantive, but in the view of this Court, determinative. The Supporting Affidavit of Hamisi Mwijaka Moyo states that the Plaintiff is 99 years old, frail, incoherent and unable to attend Court or actively prosecute the matter. Despite of this assertion, there has been no medical report, clinical assessment, doctor’s letter, treatment notes or mental evaluation report been annexed to verify the alleged incapacity. 93.The appointment of a next friend or litigation representative is a serious legal step. It effectively permits another person to take control of litigation in the name and interest of the affected party. The Court must therefore be satisfied, by credible and cogent evidence, that the alleged incapacity exists and that the proposed representative will act in the best interests of the litigant. 94.An uncorroborated assertion by the proposed next friend, however well-intentioned, is insufficient. This is especially so where the proposed representative is not a registered proprietor of the suit property and has no independent proprietary interest in the land. Although that fact does not automatically disqualify him from acting as next friend, it reinforces the need for strict proof that the arrangement is genuinely intended to protect the Plaintiff’s interests. 95.The Court is sympathetic to the Plaintiff’s alleged advanced age. It is possible that at 99 years old, he may face real practical difficulty attending Court, giving instructions or prosecuting the matter. But being advanced in age alone does not automatically amount to legal incapacity. Sympathy cannot replace proof. This is a Court of law. 96.The mere fact that Hamisi Mwijaka Moyo is a cousin or close relative of the Plaintiff does not, without more, confer legal authority to replace or represent the Plaintiff in these proceedings. The Court must be presented with lawful authority and satisfactory evidence that the Plaintiff is unable to act personally. 97.In this matter, no written authority signed by the Plaintiff, no Power of Attorney, no family resolution, no guardianship order and no medical evidence has been filed to demonstrate either the Plaintiff’s incapacity or Hamisi Mwijaka Moyo’s authority to take over the conduct of the suit. 98.The statement that Hamisi Mwijaka Moyo has the authority of the Plaintiff and the family, standing alone, is not enough. The Court must guard against the risk of proceedings being taken over by persons who are not parties to the suit without clear authority from the litigant whose rights are directly affected. 99.As regards the fourth objection, the Defendant raises a technical point under the provision of Section 106B of the Evidence Act, Cap. 80 concerning the photograph annexed to the Supporting Affidavit. The photograph is said to depict ongoing construction on the suit property, but it is not accompanied by a certificate of electronic evidence. 100.The Court finds that this objection goes primarily to the admissibility and evidential weight of the photograph rather than to the competence of the application as a whole. Nonetheless, the Plaintiff is put on notice that any photographic, digital or electronic evidence intended to be relied upon at the substantive hearing must comply with Section 106B of the Evidence Act, Cap. 80. 101.Having considered the application, the affidavit in support, the Replying Affidavit and the applicable law, the Court finds that the prayer seeking substitution of the Plaintiff with Hamisi Mwijaka Moyo is not legally sustainable in its present form. 102.Thus, the application fails principally because there is empirical evidence in form of medical or clinical evidence establishing the Plaintiff’s alleged incapacity, and no legal instrument or sufficient documentary authority demonstrating Hamisi Mwijaka Moyo’s authority to act in the Plaintiff’s place. 103.For avoidance of doubt, this finding does not bar the Plaintiff or any suitable person from filing a proper application under Order 32 of the Civil Procedure Rules, supported by appropriate medical evidence and lawful authority, including where necessary a Power of Attorney, Guardianship order, written authority, family resolution or any other legally recognized instrument. 104.Consequently, the prayer for substitution of Said Mwakivonje with Hamisi Mwijaka Moyo is hereby declined. ISSUE No. g). Whether this Honourable Court should issue orders maintaining status quo over the suit property pending hearing and determination of the suit; 105.The Black’s Law Dictionary, Butter Worth’s 9th Edition, defines status quo as a Latin word which means ‘the situation as it exists’. The purpose of an order of status quo has been reiterated in a number of decisions. In the case of “Republic – Versus - National Environment Tribunal, Ex - Parte Palm Homes Limited & Another [2013] e KLR, Odunga J. stated:-“When a court of law orders or a statute ordains that the status quo be maintained, it is expected that the circumstances as at the time when the order is made or the statute takes effect must be maintained. An order maintaining status quo is meant to preserve the existing state of affairs...Status quo must therefore be interpreted with respect to existing factual scenario...” 106.In the case of “Kenya Airline Pilots Association (KALPA) – Versus - Co-operative Bank of Kenya Limited & another [2020] e KLR, the purpose of a status quo order was explained as follows:“...... By maintaining the status quo, the court strives to safeguard the situation so that the substratum of the subject matter of the dispute before it is not so eroded or radically changed or that one of the parties before it is not so negatively prejudiced that the status quo ante cannot be restored thereby rendering nugatory its proposed decision.” 107.Apart from preserving the substratum of the subject matter, It is my view that an order of status quo is a case management strategy, where the court will be keen to prevent prejudice as between the parties to a matter pending the hearing and determination of the main suit. 108.Having discussed the definition and purpose of a status quo order, the next question is the nature of the order and whether it differs from an injunctive order. In the case of “Fatuma Abdi Jillo – Versus - Kuro Lengesen & another [2021] eKLR”, it was stated as follows:-“Murithi Jin Boabab Beach Resort as quoted by F. Tuiyot Saifudeen Abdullahi & 4 Others in Mombasa High Court Misc. Civil Cause No. 11 of 2012, described the nature of a status quo order as follows:“In my view, an order to Status quo to be maintained is different from an order of injunction both in terms of the principles for grant and the practical effect of each. While the latter is a substantive equitable remedy granted upon establishment of a right, or at interlocutory stage, a prima facie case, among other principles to be considered, the former is simply an ancillary order for the preservation of the situation as it exists in relation to pending proceedings before the hearing and determination thereof. It does not depend on proof of right or prima facie case. In its effect, an injunction may compel the doing or restrain the doing of a certain act, such as, respectively, the reinstatement of an evicted tenant or the eviction of the tenant in possession. An order for status quo merely leaves the situation or things as they stand pending the hearing of the reference or complaint.” 109.Further, in the case of “Thugi River Estate Limited & another – Versus - National Bank of Kenya Limited & 3 others [2015] eKLR, Onguto J. stated that an order of status quo can be given by the court exercising its general jurisdiction and that the order need not necessarily be prayed by the parties and in fact, can be originated by the court.“Firstly, an order of status quo will issue through a judicial process. Where the court in exercise of its general or statutory jurisdiction grants orders for maintenance in situ of a particular state or set of facts… the second or alternative order for status quo is the one issued by the court as a case management strategy. It is issued to provide assistance to the case. It also maintains a particular state of affairs or set of facts. Unlike a conservatory order or injunctive order, it is not descriptive. It is originated either by the court or by the consent of the parties. Often the court would not have been moved by either party. The court then expects an existing state of affairs or facts be preserved until a particular occurrence or until the courts’ further orders. It is intended to also freeze the state of affairs. State of affairs however do not always remain static, so it is always crucial for the court to be very specific and neat in its description of what state of affairs is to be preserved.” 110.Odunga J (as he then was) in the case of:- “Thugi River Estate Limited (Supra) goes further to set out the proper manner in which the court ought to frame a status quo order, especially where it is one that the court has originated. He stated that:-“…. Ordinarily where it is the court that has prompted a status quo order or has prompted the parties to it, it is more appropriate and exceedingly relevant to describe clearly the state of affairs at the time the order for status quo is issued. It is undesirable to simply make an order of status quo to be maintained without clearly describing the state of affairs then existing and being preserved. Assistance of the counsel should always be sought in such instances otherwise each party may walk away with its own state of affairs in mind.” 111.In summary from the above cases, the following matters relating to status quo orders are emergent; that status quo orders can be made by the court on its own motion in the exercise of its general jurisdiction; that status quo orders can be issued for the purpose of preserving the subject matter of the property, for case management reasons and in a bid to prevent prejudice from being visited against either party to the case; that status quo orders are different from injunctions, meaning that the considerations to be established for grant of injunctions are not necessary under status quo orders; and that a court originating status quo orders to explicitly frame the state of affairs to be preserved. 112.In the present case, the suit concerns allegations of trespass, encroachment, burial activities and construction on Land Parcel No. Kwale/Golini/1304. The Plaintiff alleges that the Defendant has recently commenced construction. The Defendant denies the allegation. 113.The Court notes the Defendant’s objection under the provision of:- Section 106B of the Evidence Act, Cap. 80. The evidentiary weight and admissibility of the photograph may be considered at the appropriate stage. However, at this interlocutory stage, the Court is not making a final finding that construction has occurred. The Court is only considering whether preservation is necessary pending trial. 114.Given the nature of the dispute, and considering that the land is said to be jointly owned and measures approximately 380.147 acres, an unqualified status quo order may create practical difficulties. It may affect non-parties, including families of deceased co-proprietors who may be residing on or cultivating portions of the land. 115.The Court must therefore craft a balanced order which preserves the subject matter without unnecessarily interfering with lawful occupation, cultivation or ordinary use by persons who are not parties to the suit. 116.The appropriate order is that no party to this suit, their agents, servants or persons acting under their instructions shall undertake new construction, burial, sale, transfer, alienation, subdivision, disposal, wastage or further development on the disputed portion of Land Parcel No. Kwale/Golini/1304 pending hearing and determination of the suit. 117.For avoidance of doubt, the order shall not be construed as evicting any person, stopping ordinary subsistence cultivation by persons already in occupation, or determining ownership rights before trial. Its purpose is purely preservation. 118.The Court is satisfied that such a limited status quo order is necessary to preserve the substratum of the suit and to ensure that the proceedings are not rendered nugatory. ISSUE No. c) Who should bear the costs of the Preliminary Objection and the two applications. 119.It is now well established that the issue of Costs is the discretion of Courts. Costs was an award which was granted to a party at the conclusion of any legal action and proceedings in any litigation. 120.According to the Black Law Dictionary, “Cost” is defined to mean:- “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”. The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. By the events, it means the results or outcome of any legal action or proceedings thereafter. 121.Further, these legal principles were upheld in the Supreme Court case of “Jasbir Rai Singh – Versus – Tarchalans Singh, (2014) eKLR” and the Court of Appeal cases of “Cecilia Karuru Ngayu – Versus – Barclays Bank of Kenya & Ano. (2016) eKLR” the Courts held: -“………. the basic rule on attribution of costs is that costs follow the event…...it is well recognized that the principles costs follow the event is not to be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in presenting or defending the case”. 122.In the instant case, the Defendant’s Notice of Motion application dated 17th March, 2025 and Preliminary Objection dated 8th June, 2025 have failed. The Plaintiff’s application dated 3rd March, 2026 has partly succeeded only to the extent of preservation orders, while the prayer for substitution has failed. 123.Given the mixed outcome and the fact that the main suit remains pending, the most appropriate order is that each party to bear its own costs. IX. Conclusion and final orders 124.Consequently, upon causing an in-depth analysis to the framed issues herein, the Honourable Court on Preponderance of Probabilities and the balance of convenience reaches at the following findings. These are: -a.That the Notice of Preliminary Objection dated 8th June, 2025 by the Defendant be and is hereby dismissed.b.That the Notice of Motion application dated 17th March, 2025 by the Defendant seeking to strike out the suit and Plaint for failure to take out summons be and is hereby dismissed.c.That the Plaintiff’s prayer in the Notice of Motion application dated 3rd March, 2026 seeking to substitute Said Mwakivonje with Hamisi Mwijaka Moyo be and is hereby declined.d.That the Plaintiff is at liberty to file a proper application for representation of the Plaintiff, if necessary, supported by appropriate legal authority and medical evidence.e.That pending hearing and determination of this suit, an order of status quo be and is hereby issued preserving Land Parcel No. Kwale/Golini/1304. For avoidance of doubt, no party to this suit, whether by themselves, their agents, servants, employees or persons acting under their instructions, shall undertake new construction, burial activities, sale, transfer, sub - division, alienation, disposal, wastage or further development on the disputed portion of Land Parcel No. Kwale/Golini/1304 pending hearing and determination of the suit.f.That the status quo order shall not be interpreted as an eviction order, nor shall it prevent ordinary subsistence use by persons already in occupation, provided that such use does not alter the character, ownership, possession or physical condition of the suit property.g.That for expediency sake, the matter be listed for further Pre – Trial conference to be conducted on 16th July, 2026 to ascertain compliance and further direction before ELC No. 2 Kwale.h.That each party to bear their own costs.It is ordered accordingly. RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 29TH DAY OF JUNE 2026………………………………HON. MR. JUSTICE L.L NAIKUNI,ENVIRONMENT & LAND COURTATKWALE.Ruling delivered in the presence of: -Mr. Daniel Disii, the Court Assistant.M/s. Kimani Advocate for the PlaintiffMr. Rono Advocate for the Defendant.