https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5316

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KWALE** **CIVIL APPEAL NO E004 OF 2025** **THE TRUSTEE, INDEPENDENT FAITH BAPTIST CHURCHES OF KENYA** **VINCENT LUVUTSI MUNYOBI……………………….. APPELLANTS** * **VERSUS -** **NEW MABRIVER HOME ACADEMY** **ONESMUS M MATHENGE………………………..……………………RESPONDENTS** **JUDGEMENT** 1. **Preliminaries** 2. The Judgement of this Honourable Court emanates from an appeal lodged by *THE TRUSTEE, INDEPENDENT FAITH BAPTIST CHURCHES OF KENYA and VINCENT LUVUTSI MUNYOBI* the 1st and 2nd Appellants herein. It is in form of a Memorandum of appeal dated 14th April, 2025 and three ( 3 ) Volumes of 600 Pages Record of Appeal dated 18th July, 2025 thereof. 1. The appeal revolves around two rulings dated 5th March 2025 and 2nd April 2025 respectively delivered from the trial court by the Honourable L. T. Lewa [Principal Magistrate[as she then was] in the Civil Case “***Kwale Chief Magistrate’s Court Environment and Land Case No 84 of 2019”***. 2. Being aggrieved by the said decisions, the 1st and 2nd Appellants lodged the Appeal herein through the Law firm of Messrs. Matoke & Company Advocates. 3. **The Appeal** 4. The Appeal was anchored on fifteen [15] grounds as set out on the face of the same and these include: 1. ***That the Honourable Trial court erred in both law and fact by basing her ruling on a non-existent preliminary objection purported to be dated on 7/5/2025 while leaving out the real preliminary objection dated 7/5/2024 as was filed by the Appellants.*** 2. ***That the Honourable Court erred in both law and fact in finding that the Appellants notice of preliminary objection dated 7/5/2024 never met the threshold required for grant of preliminary objection as observed in Mukisa Biscuits Manufacturing Co Limited - Versus - West End Distributors Ltd [1969] EA 696.*** 3. ***That the Honourable Court erred in both law and fact in failing to appreciate that Section 9 of the Education Act applies to private schools as registration of the said schools are done under the Act.*** 4. ***That the Honourable Court erred in both law and fact in finding that the Appellants never quoted the law that was contravened by the Respondents in filing the suit in the trial court even when the appellants pleaded that Section 9 of the Education Act and the Cooperatives Societies Act were contravened by the Respondents*** 5. ***That the Honourable trial court erred in both law and fact in failing to appreciate that even in cases where provisions of law were not cited the court has inherent powers to apply the law suo moto and find that a law and /or equity has been infringed by the Respondents in instituting the claim in the trial court*** 6. ***That the Honourable Court erred in both law and fact by failing to find that there was no authority given by the 1st Respondent herein to the 2nd Respondent to institute the claim in the lower court on its behalf and for avoidance of doubt the 2nd Respondent purported to grant such leave to himself which is not admissible in law.*** 7. ***That the Honourable trial court erred in both law and fact in dismissing the Appellant’s preliminary objection dated 7/5/2024 with costs to the Respondents without providing any legal framework allowing her to do so.*** 8. ***That the Honourable trial court erred in both law and fact in upholding the Respondent’s preliminary objection dated 2/04/2024 with costs even when the same was devoid of merit.*** 9. ***That the Honourable court trial erred in both law and fact in failing to appreciate that the Respondents preliminary objection dated 2/04/2024 never met the mandatory threshold required for grant of preliminary objection.*** 10. ***That the Honourable trial court erred in both law and fact by raising her ruling on a non-existent preliminary objection in which ruling was based on the preliminary objection dated 2/5/2024 while leaving out the real preliminary objection as was filed by the Respondents dated 2/04/2024.*** 11. ***That the Honourable Court erred in both law and fact by relying on an application that was purportedly dated 29/2/2024 whereas the real application as filed by the Appellants herein was dated 26/02/2024.*** 12. ***That the Honourable Court erred in both law and fact by finding that the Appellants witness one Samuel Mwangi Mburu had no authority to swear affidavit on behalf of the Appellants when in real sense, the Appellants had filed documentary evidence proving that the said Samuel Mwangi Mburu was a trustee of the 1st Appellant and therefore had authority to swear affidavits and/or handle proceedings in the trial case on behalf of the 1st Appellant*** 13. ***That the Honourable trial court erred in both law and fact in failing to find that it was within the 1st Appellants authority to appoint a witness of their choice who was to handle the court proceedings on their behalf and that the said role never at any point in time shifts to the Respondents.*** 14. ***That the Honourable trial court erred in both law and fact in stopping a lawful investigation that was to be conducted by the director of education Kwale County into establishing how the 1st Respondent was registered as a school and who between the 2nd Appellant and the 2nd Respondent is the legitimate owner of the same*** 15. ***That the Honourable court erred in both law and fact in taking too long to decide the preliminary objections before it hence contravening the provisions of Article 159[2][b] of the Constitution of Kenya 2010.*** 5. The Appellant sought for the following orders before this court:- 6. That the appeal be allowed. 7. That the Appellants Preliminary Objection dated 7th May, 2024 be upheld 8. That the Respondents Preliminary Objection dated 2nd April, 2024 be dismissed with costs to the Appellants. 9. That the ruling dated 5th March, 2025 be set aside with costs to the Appellants 10. That the ruling dated 2nd April, 2025 be set aside with costs to the Appellants. 11. In the alternative:- 12. The Appellants application dated 26th February, 2024 be allowed and the Director of Education Kwale County be ordered and/or allowed to conduct investigations on the registration of New Mabriver Home Academy and file a report on the same within a period of time as may be provided by this honourable court as prayed for in the said application 13. The orders issued by trial court on 11th January, 2024 and 23rd May, 2023 be set aside. 14. The costs of this appeal be granted to the Appellants. 1. **Submissions** 2. On 23rd September, 2025, while in the presence of all the parties and the appeal having been served, it was admitted and directions on the disposal of the appeal pursuant to the provision of Section 79B of the Civil Procedure Act, Cap. 21 and Order 42 Rules, 11, 13 and 16 of the Civil procedure Rules, 2010 accordingly. 3. Subsequently, parties were directed to have the appeal heard by way of written Submissions on a given timeframe. Pursuant to that all parties fully complied with the said directions. 4. The Honourable Court reserved the delivery of Judgement on Notice. Eventually, it was delivered on 30th June, 2026 accordingly. 5. **The Written Submission by the Appellants** 6. The Appellants through the Law firm of Messrs. Matoke & Company Advocates filed their written submissions dated 21st October, 2025. It was on behalf of the Appellants. Mr. Rono Advocate commenced his submissions by providing a brief background of the case. The Counsel for the Appellants highlighted and discussed the following issued for determination:- 7. **Whether the Respondents had *“the Locus Standi”* to institute the requisite suit.** 8. **Whether the suit instituted by the Respondents was redeemable by way of amendment.** 9. **Whether the trial court had jurisdiction to entertain the suit.** 10. **Whether the Notice of Motion application dated 26th February, 2024 by Appellants but erroneously recorded as 29th February, 2024 by the trial court contravenes the provisions of Order 19 Rule 3 of the Civil Procedure Rules, 2010.** 11. **Whether the trial court was proper in striking out the Appellants’ Notice of Preliminary Objection dated 7th May, 2024.** 12. **Whether the trial court was proper in upholding the Respondents Notice of Preliminary Objection dated 2nd April, 2024 but erroneously recorded as 2nd May, 2024 by the trial court.** 13. **Who bears the costs of the suit?** 14. On issue no [a] for determination. The Learned Counsel submitted that the Respondents lacked the requisite ***“Locus Standi”*** to institute the present suit. The 1st Respondent being a private school and unincorporated body that could not sue or be sued in its own names. Reference was made to the provisions of Order 4 Rule 4 of the Civil Procedure Rules, 2010. The Learned Counsel averred that the school had purported to confer authority on itself to sue and the said document was defective and could not be relied upon. The court was urged to strike out the Amended Plaint instituting the suit as lack of capacity was a weighty issued that went to the root of validity of the proceedings before court. 15. On issue no [b] for determination. The Learned Counsel contended that a nullity could not be redeemed by an amendment. He placed reliance in the case of ***“The Executive Committee of Ngei Estate Phase II Versus Waweru ELC Case no E013 of 2020[2022] KEELC 3962[KLR]”***. 16. Learned Counsel further submitted on the jurisdiction of the court to handle the dispute before it and stated that the trial court lacked jurisdiction. The party instituting the suit was non-existent in law and could therefore not move the court. 17. On issue no [d] of the highlighted issues for determination, it was submitted that Mr Samuel Mwangi Mburu was a duly appointed official of the Appellant and trustee having been appointed in accordance with the provisions of the constitution of the said organisation. Thus, the court erred in law and fact by striking out the application dated 26th February, 2024 yet Mr Samuel Mwangi Mburu was a trustee of the Appellant. 18. The Learned Counsel asserted on whether the trial court was proper in striking out the Appellants Preliminary Objection dated 7th May, 2024. He stated that the Respondents had not brought out any evidence to confirm that Mr Samuel Mwangi Mburu was not a party to the suit. Hence it was incumbent upon the Respondents to cement their allegations that Mr Mburu was not a trustee by giving evidence which they failed to do. That the dismissal of the affidavit sworn by the said Mr Mburu on the basis of unsubstantiated assertions was without any legal justification. 19. The above argument was joined in discussion of issue no [f] whereby it was submitted that the trial court erred in upholding the Respondent’s preliminary objection dated 7th May, 2024 and which spoke to Mr Samuel Mburu not being a trustee or a party to the suit. Lastly, the Appellant sought for appeal to be allowed with the costs. * + 1. **The Written Submissions by the Respondents** 20. The Law firm of Messrs. Mutisya & Associates Advocates filed their written submissions on behalf of the Respondent. The Learned Counsel stated that it was with regard to the ruling delivered on 5th March, 2025. 21. In a brief submission, the Learned Counsel submitted that the appeal pertained to the preliminary objection dated 7th May 2024 which objection was dismissed by the lower court. According to the Counsel, the dismissal was based on the fact that the preliminary objection never raised pure points of law. Thus, it did not meet the set threshold required by law and precedents. 22. On the ruling delivered on 2nd April 2024. The Learned Counsel submitted that the a preliminary objection dated 2nd May 2024 seeking to strike out the Appellants’ Notice of Motion application dated 29th February 2024 taking that it was based on a supporting affidavit sworn by John Mburu who was not a party/official/trustee of the Appellant thereby offending the provisions of Order 19 Rule 3[1] of the Civil Procedure Rules, 2010. That the preliminary objection was allowed as it was on a pure point of law. The court was urged to dismiss the appeal. 23. **Analysis and Determination** 24. The Honourable Court has keenly assessed the appeal preferred before by the Appellants herein, the written submissions and the cited authorities, the relevant provisions of the Constitution of Kenya, 2010 and the statutes. 25. In order to reach an informed, reasonable and just decision in the subject matter and in light of the above, the issues for determination herein are as contained in the grounds of appeal and condensed as follows: 26. ***Whether the appeal is tenable?*** 27. ***The orders to be made in this appeal to meet the best ends of justice*** 28. ***Who bears the costs of the appeal?*** ***ISSUE No. a). Whether the appeal is tenable?*** 1. Under this sub – heading, the Honourable Court will be examining keenly whether the appeal lodged by the Appellants is tenable in law or not. In so doing, the duty of this court in the appeal is to reconsider the evidence, evaluate it itself and draw its own conclusions. The Honourable Court will rely on several High Court decisions over the said subject matter. In the case of:- “***Selle & Another – Versus - Associated Motor Boat Co. Ltd & Others [1968] EA 123”,*** this principle was enunciated thus: ***“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."*** 1. Similarly, the said legal ratio was held in the case of:- “***Kenya Ports Authority - Versus - Kuston (Kenya) Limited (2009) 2EA 212”*** wherein the Court of Appeal held inter alia that: - ***“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence”*** 1. It is noted that the grounds of appeal as listed in the Memorandum of Appeal dated 14th April, 2025 and the three ( 3 ) Volumes of the 600 pages Record of Appeal dated 18th July, 2025 condense into two issues. Firstly, the dismissal of the Appellant’s preliminary objection dated 7th May, 2024 and secondly, the conceding of the preliminary objection dated 2nd May 2024 which sought to strike out the Appellants’ Notice of Motion application dated 29th February 2024. The court will focus on the two preliminary objections and the rulings on the said objection by the trial lower court concurrently but separately for clarity sake in making a finding on the prayers sought in the appeal. 2. To begin with, the Notice of Preliminary Objection dated 7th May, 2024 was raised on the following grounds that:- 3. The Plaintiffs did not have the requisite ***“Locus Standi”*** (the legal capacity) to institute these as they were not proper parties in this suit. 4. The Plaintiffs suit herein as constituted contravened the provisions of Section 9 of the Education Act, Cap. 211 read with the Co - operative Societies Act, Cap. 490. 5. In light of the contents of Paragraphs 1 and 2 above this Honourable Court had no jurisdiction to entertain this suit. 6. On the 5th March, 2025, the Lower Court delivered its 16 Paragraphed brief of seven ( 7 ) pages Ruling pertaining to the above preliminary objection (See Pages 562 to 568 of the Records of Appeal). In its findings as well captured under the contents of Paragraphs 8 to 16 of the Ruling, the trial court stated that the preliminary objection was mainly based on the provisions of Section 9 of the Education Act, Cap 211. Under the contents of Paragraphs 9 and 10 of the Ruling, it held that pursuant to the provisions of the said section, the Defendants had not demonstrated that the 1st Plaintiff was a primary school falling under the provision of Section 9 (1) of the said Act. Further, under the averments made under Paragraph 11 of the Ruling, it was of the view that where the Defendants would be called upon to ascertain the fact that ***“….the 1st Plaintiff was maintained and managed by the local authority as envisaged under the provision of Section 9 (1) of the Education Act, then the said objection would depart from being a point of law to an ascertainment of facts by way of evidence….”*** hence defeating the legal rationale for sustaining an objection as spelt. In the long run, therefore, the Lower trial Court found no merit in the preliminary objection and hence dismissed it. 7. Critically speaking, It is imperative to note that the trial court in its decision never addressed the legal issue of ***“locus standi’*** or that of an alleged contravention of the Co - operative Societies Act, Cap. 490. Under the contents of Paragraphs 13 and 14 of the ruling, the court stated, *‘inter alia”*:- ***“Additionally, I note that the Defendants did state the Plaint, contravenes the provisions of the Co – operative Act. However, these provisions were neither cited nor stated……this Court can not therefore make a finding on alleged contravene sections of law that the mover deemed not necessary to cite, or mention in her notice of objection……..”*** therefore, the court would not take it upon itself to highlight it. 1. Arising from the above brief analysis of facts, the Honourable Court now wishes to deliberate on the concept of a **“Preliminary Objection”** taking that it’s the main substratum – pith and substance - of this Appeal. According to the Black Law Dictionary a Preliminary Objection is defined as being:- ***“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”*** 1. The above legal preposition has been made graphically clear by the apex courts in several cases. To begin with, *“the Classicus Locus”* case of:- “***Mukisa Biscuits – Versus - West End Distributors Limited (1969) E.A 696”*** held as follows:- ***“A preliminary objection consists of a point of law which has been pleaded, or which arises out of clear implication out of the pleadings and which if argued as 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 …*** Justice Newbold in the said suit argues 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”*** 1. Also, the case of “***John Musakali vs. Speaker County of Bungoma & 4 others (2015) eKLR****,* it was held that: - ***“The position in law is that a preliminary objection should arise from the pleadings and on the basis that facts are agreed by both sides. Once raised the preliminary objection should have the potential to disposing of the suit at that point without the need to go for trial. If, however, facts are disputed and remain to be ascertained, that would not be a suitable preliminary objection on a point of law.”*** 1. Additionally, in the case of:- “***Independent Electoral & Boundaries Commission – Versus - Jane Cheperenger & 2 Others [2015] eKLR****”* as follows:- ***“……. The true Preliminary Objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.”*** 1. In the instant case, the preliminary objection is based on the allegations that the suit as filed contravened the provisions of Section 9 (1) of the Education Act, Cap. 211. It provides as follows:- **For every primary school maintained and managed by a local authority there shall be a school committee established by the local authority on matters relating to the management of the school**. 1. Based on the above legal position, what comes to mind are two basic critical but significant concerns. Firstly, whether the Appellant/Plaintiff is a primary school. Secondly, whether the institution is managed and maintained by the local authority. To respond to these fundamental issues, it would lead to the interrogation of whether there has been a school, its legal standing and whether a school committee has been established as provided for in the Act. Logically speaking, to undertake that exercise, it would call for the ascertainment of facts by Court clearly making them evidential to be adduced through oral and documentary facts. Certainly, in that case, they will not be issues of pure law any more but facts. For this primary reason, I am in full agreement with the trial court that the Defendants in the preliminary objection failed to cite which particular section of the Co - operative Societies Act was being contravened and the court is therefore not to push water uphill on this. 2. From the above, therefore, I am satisfied that the preliminary objection is merited as it not raised on a pure point of law. It would need evidence to establish the facts. 3. The second preliminary objection was dated 2nd April 2024 but was erroneously recorded as 2nd May, 2024. The objection was based on the following grounds that:- 4. The Notice of Motion application dated 29th February 2024 by the Defendants is incompetent and bad in law It should be struck out with costs because the deponent Mr Samuel Mwangi Mburu who had sworn the supporting affidavit was not a party in this matter. 5. No proof had been availed that he was a trustee of the 1st Defendant as alleged or at all hence the affidavit [and indeed all other pleadings sworn/filed by him]. 6. Should be struck out with costs accordingly. 7. On 2nd April, 2025, the trial Lower Court rendered it’s 16 Paragraphed ruling to the above preliminary objection (See Pages 569 to 573 of the Records of Appeal). Fundamentally, the issue of legal capacity (***“locus standi***”) formed the basis of the objection raised herein. To buttress on this legal preposition, the Trial Court made reference upon the provisions of Order 19 Rule 3 ( 1 ) of the Civil Procedure Rules, 2010 which provides as follows:- **Affidavits shall be confined to such facts as the deponent is able of his own, knowledge to prove provided that in the interlocutory proceedings or by leave of the Court an affidavit may contain statement of information and belief showing the sources and grounds thereof.** 1. In direct application of the above legal provision, under the contents of Paragraphs 12 & 13 of the ruling, the court stated “*inter alia:*- ***“In the proceedings, I note that the Plaintiff sued the trustees of the Independent Faith Baptist Church but Mr. Mburu has not proffered anything to suggest he was a trustee of the church hence not a party to the suit. Equally, he was neither the 2nd nor 3rd Defendant. Based on the provision of Order 19 Rule 3 ( 1 ) it is obvious that he has deponed on facts not withstanding his knowledge and belief to which he can prove as he is non party to the claim……”*** 1. Subsequently, based on the above facts, the court found merit in the preliminary objection and struck out the application dated 26th February, 2024. Evidently, the application found on pages 440 to 445of the Record of Appeal) and the 15 Paragraphed Supporting Affidavit dated even date together with annextures marked as “SMM - 1, 2, 3, 4, 5 & 6” annexed thereto was sworn by one Samuel Mwangi Mburu. Under Paragraph 1 of the Affidavit has depones as follows:- **“That I am a male adult of sound mind, a Trustee of the 1st Defendant herein having full authority from the 1st and 2nd Defendants to handle these proceedings on their behalf . I am therefore competent to swear this affidavit. I annex hereto a copy of the authority to handle these proceedings marked as “SMM – 1”** 1. I will first start off this discussion by determining whether the preliminary objection dated 2nd April 2024 is on a pure point of law as per the set threshold. As already discussed above, the legal threshold for a preliminary objection is well settled. Gikonyo J in “***Catherine Kawira – Versus - Muriungi Kirigia [2016] eKLR”*** put it succinctly thus:- ***“(5) I do not want to reinvent the wheel on the legal threshold for Preliminary Objection. It is now well-settled principle that a preliminary objection should be a point of law that is straight-forward and not obscured in factual details for it to be proved. Again, it must be potent enough to decimate the entire suit or application. On this I am content to cite the case of Mukisa Biscuit Manufacturing Company Limited – Versus - West End Distributors Limited (1969) EA 696 where it was stated as follows: “So far as I’m 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”.*** 1. Fundamentally, the objection is based on the legal capacity of the deponent of the supporting affidavit accompanying the application dated 26th February, 2024 to swear the said affidavit. The issue of a party’s capacity to swear an affidavit goes to the root of trying to identify who the said deponent is. It is noted that a church is a corporate legal entity that cannot swear an affidavit on its own but through authorised representatives who may include office holders, registered trustees or an authorised agent through a board resolution. 2. Embracing the basic arguments advanced herein from the objection, it will compel the Court to intensely undertake an investigation and interrogation of these allegations. Clearly, this will be a process that would call for a full trial where both oral and documentary evidence would have to be adduced. In other words, will take an inquiry into who Mr. Samuel Mburu is in order to establish whether he was indeed authorised by the 1st Defendant to proceed with the suit on its behalf. These are matters of facts and not pure issues of law. Therefore, the preliminary objection has to fail. If anything, it is noted that a letter attached to the affidavit of the application in question indicated that Mr. Samwel Mwangi Mburu was a trustee of the 1st Defendant and was authorised to oversee litigation matters concerning the 1st Defendant. The letter was dated 18th November, 2011 and was signed by one Rev Samson K Nzuki. With no one from the 1st Defendant disputing this authority, I believe the said Mr. Samwel Mwangi Mburu is a representative of the Appellants. ***ISSUE No. b). The orders to be made in this appeal to meet the best ends of justice*** 1. From the above analysis, the Honourable Court has already established that the trial court was justified in dismissing the preliminary objection by the Appellants dated 7th May 2024. However, this court opines that the preliminary objection dated 2nd May, 2024 lacked in merit and being improper. The deponent to the affidavit had capacity and the authority to depone to the averments in the impugned affidavit. 2. Therefore, I discern that the appeal thus partly succeeds. ***ISSUE No. c). Who will bear the costs of the Appeal?*** 1. It is trite law that costs is at the discretion of the Court. Costs is the award that a party is granted at the conclusion of legal action or proceedings in any litigation. The proviso of Section 27 ( 1 ) of the Civil Procedure Act, Cap. 21 held that costs follow the events. It provides: - **“(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”** 1. By the event it means the result or outcome of any legal action or proceedings. In the case of:- *“****Rai & 3 others – Versus - Rai & 4 others [2014] KESC 31 (KLR)”***, the Supreme Court emphasized that while costs normally follow the event, courts have the discretion to depart from this principle for compelling reasons, including the conduct of the parties and the stage at which the withdrawal occurs. 2. In the instant appeal, the Appellants have in my view successfully argued their appeal and are entitled to half the costs thereto. 3. **Conclusion and Final Disposition** 4. In the circumstances, and upon causing an indepth analysis of the framed issues in this Appeal, the Honourable Court based on the principles of Preponderance of Probabilities and the balance of convenience, is persuaded that this is a proper case for the exercise of its discretion in favour of the Appellants. Accordingly, it makes the following specific orders:- 5. **THAT Judgement be and is hereby entered partially allowing the Appeal being Memorandum of Appeal dated 14th April, 2025 and a three ( 3 ) Volumes 600 pages Record of Appeal dated 18th July, 2025 under the following terms:-** * + - 1. **The Director of Education Kwale County is hereby ordered and/or allowed to conduct investigations on the registration of New Mabriver Home Academy;** 2. **The Director of Education, Kwale to file a report on the same WITHIN THE NEXT 90 DAYS as prayed for in the said appeal.** 6. **THAT there be a Mention on 27th October, 2026 to ascertain compliance, progress made and further direction leading to the closure of this matter before this Honourable Court thereof.** 7. **THAT the Appellants to be awarded half of the costs of the appeal to be borne by the Respondents.** **IT IS ORDERED ACCORDINGLY.** **JUDGEMENT DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS……30TH ... DAY OF ……JUNE………….2026** **………………………………** **HON. MR. JUSTICE L.L NAIKUNI,** **ENVIRONMENT & LAND COURT** **AT** **KWALE.** 1. **Ruling delivered in the presence of: -** 2. Mr. Daniel Disii, the Court Assistant. 3. Mr. Rono Advocate for the Appellants. 4. No appearance for the 1st & 2nd Respondents.