https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3195

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAPSABET** **ELCL ORIGINATING SUMMONS NO. E013 OF 2025** **IN THE MATTER OF ORDER 37 RULES 1, 2, 8 AND 9 OF THE CIVIL PROCEUDRE RULES, 2010** **AND** **IN THE MATTER OF SECTIONS 24, 2525, 26, 28 AND 30 OF THE LAND REGISTRATION ACT NO. 3 OF 2012** **AND** **IN THE MATTER OF LAND PARCEL NUMBER NANDI/KAMOBO/3107** **AND** **IN THE MATTER OF THE ESTATE OF GEOFFREY GATHIGI KANYINGI (DECEASED)** **BETWEEN** **SUSAN NJERI GATHEGI……………………………………..1ST APPLICANT** **STEPHEN IRUNGU…………………………………………..2ND APPLICANT** **ALEX KARIUKI GITHIGI…………………...………………3RD APPLICANT** **ISAIYA MULLER IRAKO……………………….……………4TH APPLICANT** **RULING** 1. The instant ruling is in respect of the preliminary objection dated 3rd November 2025 by the respondent/Defendant through Duncan Tallam and Company Advocates on the application dated 21st October 2025 and the entire suit commenced by the applicants/plaintiffs represented by Cherono Jepkosgey and Company Advocates. 2. The preliminary objection is based on the following grounds; 3. That, the Respondent lacks locus standi/capacity to be sued by the Applicants herein. 4. That, the suit herein is res judicata as the issues raised in this suit were directly and substantially in issue in **Kapsabet Magistrates Court Succession Cause No. 24 of 1984** which was heard and finally determined by a court of competent jurisdiction and later in **Kapsabet High Court Civil Appeal No. E019 of 2023** which the court dismissed an appeal against the Ruling of **Magistrates Court in Succession Cause No. 24 of 1984.** 5. That the matter has already been adjudicated upon and determined in the previous suits, no appeal, review or setting aside of the Judgment has been made. 6. That the present suit offends ***Section 7 of the Civil Procedure Act Cap. 21 Laws of Kenya*** which bars the court from trying a matter that has already been decided between the same parties or parties claiming under them. 7. That the suit amounts to an abuse of court process and should be struck out with costs. 8. By a replying affidavit of 25 paragraphs sworn on 21st November 2025 by the 1st applicant, the preliminary objection is opposed. She averred in part, that the application is misconceived, premature and bad in law. That the late **Geoffrey Gathigi Kanyingi (**Deceased-1) originally owned the parent land reference number **Nandi/Kamobo/302** and the respondent is widow of **James Macharia Irungu (**Deceased-2) who was the registered proprietor of the suit land reference number **Nandi/Kamobo/3107**, a sub-division ofthe suit land through succession in respect of the estate ofDeceased-1. That the respondent commenced succession proceedings namely Kapsabet CMC Succession Cause No. 226 of 2020 as regards the estate of Deceased-2 as disclosed in a copy of the grant of letters of administration intestate marked as ‘SNG1’ annexed to the affidavit. That since the respondent holds the grant in the said cause, she cannot claim lack of capacity to be sued. That the claim is not against the estate of Deceased-2 for a personal debt but a claim that the parent land was held in trust for the wider family of Deceased-1. 9. The main prayers sought in the application are that; 10. This Honourable Court be pleased to issue an order for maintenance of the status quo in respect of the suit land, pending the hearing and determination of this application then after pending the hearing and determination of this suit. 11. The Respondent, her agents, servant or any other persons acting under authority be restrained from evicting, threatening, alienating, selling, charging, leasing, or otherwise interfering with the Applicant’s peaceful occupation and use of the suit land, pending the hearing and determination of this suit. 12. That costs of this application be in the cause. 13. In summary, it is the contention of the applicants that they are beneficiaries of the **estate of Deceased-1** who was the registered owner of the parent land which was later sub divided to create the suit land registered in the name of **Deceased-2,** a brother to the 1st applicant, who held the same in trust for the family of Deceased-1. That the applicants have continuously occupied and utilized the suit land since birth. That the respondent being widow of Deceased-2 has taken steps in Kapsabet PMC Succession Cause No. 226 of 2020 to claim ownership of the same and threatens to evict the applicants from their ancestral land. 14. The respondent opposed the application by way of her replying affidavit of nineteen paragraphs sworn on 3rd November 2025 and stated in part, that she lacks locus standi as she is not the right party to be sued herein. That whereas she is the widow of Deceased-2, she is not the legal representative of the estate of Deceased-1. That the claim is more about the estate of Deceased-1. 15. Also, the respondent stated that the suit is itself bad in law and res judicata as the matter had already been dealt with under **Kapsabet Magistrate’s Court Succession Cause No. 24 of 1984 and Kapsabet High Court Civil Appeal Case No. E019 of 2023 Susan Njeri Gathegi-vs-Jane Alemenya Alumasi** which appeal against the ruling on application for revocation of a grant was dismissed for lack of merits as revealed in copies of the ruling and judgment marked as ‘JEA 1’ and ‘JEA 2’ respectively annexed to the application. Moreover, that in the suit and the application, the applicants have only capitalised on the suit land without mentioning LR Nos. **Nandi/Kamobo/3105** and 3106 being the other subdivisions of LR No. **Nandi/Kamobo/302** which all form part of the estate of Deceased-1. That in interest of justice, the application be dismissed for being an abuse of the due process, frivolous and a waste of court’s precious time. 16. By the further affidavit of 17 paragraphs sworn on 21st November 2025, the 1st applicant stated that any person who threatens eviction has the capacity to be sued. That the applicants deserve the orders sought in the application to preserve the status quo as they face real and imminent danger of losing their ancestral home irreversibly. That there are legitimate grounds for intervention by the court and that the respondent’s replying affidavit contains falsehoods, misinterpretations and legal inaccuracies intended to defeat justice, thus, the orders sought in the application be granted. 17. Notably, the plaintiffs/applicants sued the defendant/respondent who is the widow and legal representative of Deceased-2 by way of an originating summons dated 2nd October 2025 for determination of questions, inter alia; 18. Whether Deceased-2, the husband of the Respondent, was registered as proprietor of the suit land in trust for himself and his siblings, being the children of **Deceased-1.** 19. Whether the said registration was obtained fraudulently and/or in breach of trust and equity by excluding the deceased’s daughters or their lawful heirs. 20. The application and the preliminary objection were heard by written submissions further to the directions of the court given on 25th November 2025. 21. In the submissions dated 23rd March 2026 on the preliminary objection, learned counsel for the respondent referred to the institution of the suit by originating summons and the application both dated 21st October 2025 with the prayers therein, the replying affidavit and the preliminary objection both dated 21st October 2025, the replying affidavit to the preliminary objection with a further affidavit dated 21st November 2025. It was submitted that the suit is fatally defective, ab initio, for want of locus standi on the part of the respondent who had not been issued with a grant of letters of administration hence, not clothed with the legal capacity to represent the estate of the **Deceased-1** at the time of filing the suit. Counsel relied on **section 45 (1) of the Law of Succession Act Chapter 160 of the Laws of Kenya** and the case of **Anne Wanjeke Gathiaga vs Florence Karuana (2015) eKLR, Otieno vs Ougo (1987) eKLR** on locus standi to fortify the submissions. 22. Further, counsel submitted the matter is res judicata as it is based on same set of facts and prayers that were conclusively determined in Kapsabet Magistrates’ court Succession Cause No. 24 of 1984 and Kapsabet High Court Civil Appeal No. E019 OF 2023. That there must be an end to litigation or not to retry any suit that has already been finally decided by a court of competent jurisdiction between the same parties or their predecessors litigating under the same title. That finality in litigation prevents multiplicity of suits and protects parties from being vexed twice for the same cause as held in **Henderson vs Henderson (1983) 67 ER 313 and Oduor & another vs Odero 2024 (KLR).** 23. By the submissions dated 23rd January 2026, learned counsel for the applicants made reference to the preliminary objection, the replying affidavit thereto and delineated four issues for determination including whether the respondent has the legal capacity to be sued in respect of the suit land and whether the matters raised in the application are barred by the doctrine of res judicata. It was submitted that the earlier succession proceedings where the applicants were not parties, dealt with the distribution of estate of the deceased registered proprietor and did not consider or determine overriding or beneficial interests inclusive of trust thus, the issues in the instant suit are materially different. Reliance was made on **Njiru vs Muirungi & 4 others {2023} KEELC 17506 (KLR) and Michuki vs Mutahi & another {2024} KEELC 425 (KLR),** among other authoritative pronouncements, to reinforce the submissions. 24. In addition, counsel submitted that it is well established that a preliminary objection should not be used as a ‘sword’ to defeat a case on the basis of factual disputes that require evidence as in the present allegations involving trust, beneficial ownership, control, exercise of rights over and interference with occupation thereon. That this court has jurisdiction over this dispute pursuant to **Article 162 (2) of the Constitution of Kenya 2010** and that denying the applicants a hearing in this suit would defeat the purpose of the court’s mandate and contrary to justice. That therefore, the preliminary objection is premature as it raises facts which require full hearing of the suit hence, the same be dismissed accordingly as held in, inter alia, the case of **Aswa Developers Limited vs Capital Square Limited & another {2025} KEHC 9919 (KLR).** 25. Further, by the submissions dated 23rd January 2026 on the application, learned counsel for the applicant made reference made to, inter alia, the orders for maintenance of status quo over the suit land and to restrain the respondent from evicting the applicants from the same as sought in the application. That the dispute arises from ancestral land originally owned by Deceased -1 which was subdivided into the suit land and others. That the applicants have continuously and peacefully occupied the suit land which has served as their homestead for generations. That the respondent, widow of Deceased-2 has initiated succession proceedings concerning the suit land and has threatened to evict the applicants from it hence, the court is urged to intervene in the circumstances. 26. Further, counsel delineated five issues for determination inclusive of whether the respondent has locus standi in this suit and whether the court has jurisdiction over the same. In analysing the issues, counsel submitted that whereas a grant is not a prerequisite in cases of trust over land, the respondent has obtained a grant in respect of the estate of Deceased-2 thus, she is a proper party in these proceedings. That this court has jurisdiction to determine issues of trust and adverse possession raised herein. That the matter is not res judicata as the said issues had not been previously heard and concluded and that the orders sought are for the preservation of the suit land. To buttress the submissions, counsel cited case law including **Isack M’Inanga Kiebia vs Isaaya Theuri M’Lintari & another (2018) eKLR,** **IEBC vs Maina Kiai & 5 others (2017) eKLR and Willy Kimutai Kitilit vs Michael Kibet (2018) eKLR**. 27. In the foregone, the issues for determination relate to the principal grounds of the preliminary objection namely locus standi/capacity, res judicata and abuse of the court process alongside the orders sought in the application. So, is the Preliminary objection to the application and the suit sustainable in view of the nature of the prayers in the application? What orders can the court grant in the interest of justice? 28. The application is seeking status quo orders, among others, over the suit land pending the hearing and determination of the suit; see **Ogada vs Mollin (2009) eKLR.** 29. The grounds of the preliminary objection pertain to, inter alia, the respondent’s capacity to be sued herein. By the **Black’s Law Dictionary 10th Edition at page 1084,** the term ‘Locus standi’ means; *‘ The right to bring an action or to be heard in a given forum.’* 1. Additionally, this court is guided by decision in the case of **Alfred Njau and others-vs-City Council of Nairobi (1982-88) 1 KAR 229** where the Court of Appeal remarked; *‘……locus standi is the right to appear or be heard in court or other proceedings………..’* 1. The respondent contends that she has no capacity to be sued. On the other hand, the applicants contend otherwise. They implored the court to allow the suit to go for full trial as they relied on **Aswa case** (supra) and others. 2. What constitutes a valid preliminary objection has the foundational test that it must be based strictly on a point of law capable of entirely disposing of the suit; see **Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd (1969) EA 696.** 3. In the case of **Oraro vs Mbaja (2005) eKLR**, it was held that a preliminary objection cannot hold where facts need to be ascertained, investigated or proven by evidence. So, the issue of locus standi highly contested in the suit calls for ascertainment by hearing of the same on merit. 4. Regarding the application of ‘Res Judicata’ principle herein, the **Concise Oxford English 12th Edition** at page 1224, defines the said principle as a matter that has been adjudicated by a competent court and may not be pursued further by the same parties. 5. The principle of *Res Judicata*is rooted in **Section 7 of the Civil Procedure Act Chapter 21 Laws of Kenya** which stipulates; *“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court* *competent to try such* *subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”* 1. Clearly, the issues in the previous matter related to succession. The instant suit touches on ownership by trust and fraud allegations on title to the suit land which need to be addressed at the main hearing of the suit. 2. In addition, it is important to note that the parties in this suit have unlimited right to fair hearing in the spirit of **Articles 50 (1) and 25 (C) of the Constitution of Kenya 2010.** 3. Moreover, it is established law that the right to be heard is fundamental and permeates our entire justice system; **see James Kanyiita Nderitu & another vs Marios Philotas Ghikas and another (2016) eKLR.** 4. No doubt, the cardinal principle is that litigation has to come to an end; see **Henderson and Oduor cases (supra)** and **Halsbury’s Laws of England 4th Edition, Volume 22 page 273**. 5. This court has wide discretion to make necessary orders for the ends of justice as stated in **Patel vs EA Cargo Handling Services Company Ltd (1974) E.A 75, sections 3 and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya and section 3 of the Environment and Land Court Act 2015 (2011).** 6. It would be wrong and unjust to shut out the applicants from unlimited fair hearing of their case focused on trust, fraud and other questions; see **Philip Keipto Chemwolo & another vs Augustine Kubende (1986) eKLR.** 7. To this end, it is the considered view of this court that the integrity of the subject matter would be kept by the interim preservation orders sought in the application in line with, inter alia, **Ogada case (supra) and section 13 (7) of the Environment and Land Court Act, 2015 (2011).** Plainly, the contested points of law captured in the preliminary objection require to be ascertained at the trial. 8. Thus, the preliminary objection dated 3rd November 2025 is unsustainable and the same is hereby disallowed. 9. Furthermore, the application dated 21st October 2025, be and is hereby allowed in terms of an order for maintenance of the status quo in respect of the suit land, pending the hearing and determination of this suit. 10. Costs of the preliminary objection and the application be in the cause. 11. It is so ordered. **Dated** and **Delivered** at **KAPSABET** this **20th Day of May 2026.** **HON. G M A ONGONDO** **JUDGE** **In the presence of;** 1. Mr. D. Tallam learned counsel for Respondent/Defendant. 2. M/s Jeruto instructed by M/s Koech learned counsel for the applicants/plaintiffs 3. Walter, court assistant