https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4914

**+** **** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KABARNET** **ELCLC NO. EO11 OF 2025** **KIPKEBUT CHEBET (Legal Representative of KABON CHEPSERGON) …….……..…………………….………….…..… PLAINTIFF** **VERSUS** **SALINA KIPSOTO (Administrator and Representative** **of Charles Kiptorus Ngabo)………..………...…….……. 1ST DEFENDANT** **THE CHAIRMAN, TREASURER, SECRETARY OF KAPCHOMUSWO LAND ADJUDICATION COMMITTEE ………….……… 2ND DEFENDANT** **THE DISTRICT LAND ADJUDICATION OFFICER,** **KABARNET ……………..…………..………………….…… 3RD DEFENDANT** **THE DISTRICT LAND REGISTRAR** **BARINGO COUNTY …………...…………………………… 4TH DEFENDANT** **THE HONOURABLE ATTORNEY GENERAL ….….…. 5TH DEFENDANT** **RULING** 1. **KIPKEBUT CHEBET** (the Plaintiff herein and suing as the legal representative to the estate of **KABON CHEPSERGON**) filed the plaint herein on 7th August 2025. He is armed with a Power of Attorney donated to him on 26th August 2016 by **KABON CHEPSERGON.** 2. The Plaintiff’s suit against **SALINA KIPSOTO** (sued as the Administrator and legal Representative to the estate of **CHARLES KIPTORUS NGABO), THE CHAIRMAN, TREASURER and SECRETARY OF KAPCHOMUSWO LAND ADJUDICATION COMMITTEE, THE DISTRICT LAND ADJUDICATION OFFICER KABARNET, THE DISTRICT LAND REGISTRAR BARINGO COUNTY** and **THE ATTORNEY GENERAL** (the 1st to 5th Defendants respectively). The crux of his claim is that he is the registered proprietor of the land parcel **NO.** **BARINGO/KAPSHOMUSWO A/1324** and should be re-issued with the title deed thereto instead of the 1st Defendant to whom it was issued fraudulently. The basis of the Plaintiff’s claim is not relevant for purposes of this ruling and I shall therefore not delve into the pleadings. 3. Suffice it to state that the 1st Defendant filed a defence under protest dated 18th November 2025 in which he pleaded, inter alia, that this suit should be struck out because **KABON CHEPSERGON** on whose behalf the suit is purportedly instituted on the basis of a Power of Attorney dated 23rd August 2016 was already deceased. Besides, the Power of Attorney is neither stamped nor registered. The 1st Defendant therefore sought an order striking off the suit with costs. 4. The 2nd to 5th Defendants filed a joint defence dated 20th August 2025. They pleaded that they are strangers to the allegations of fraud levelled against them and sought the dismissal of the suit with costs. 5. Although previously represented by the firm of J**. J. CHESARO & COMPANY ADVOCATES** who filed this suit on his behalf, the Plaintiff filed a Notice to Act in person on 18th February 2026. 6. Prior to that Notice, the 1st Defendant had on 29th November 2025 filed a Notice of Motion dated 18th November 2025 premised under **Order 2 Rule 15 (I) (b) (c)** and **(2)** of the Civil Procedure Act. He seeks the following orders: 7. **The plaint dated 5th August 2025 be struck out.** 8. **Costs of the suit be awarded to the 1st Defendant.** 9. The motion is anchored on the grounds set out therein and supported by the 1st Defendant’s affidavit of even dated. 10. The gist of the Motion is that **KABON CHEPSERGON** on whose behalf the suit is purportedly instituted is deceased and could not give instructions for the suit to be filed. Further the Power of Attorney dated 23rd August 2016 purported to have been signed by a person who is deceased is neither registered nor stamped as required in law. And even if this suit is properly instituted, it is statute barred because the Plaintiff has admitted that the matter came to the knowledge of **KABON CHEPSERGON** in 2008 which is over 17 years ago. 11. The Plaintiff filed a replying affidavit dated 29th January 2026 in which he describes the Motion as bad in law, misconceived and an abuse of the process of this court. That the Motion is based on imagination, allegations and non-disclosure of facts in a desperate attempt to misguide the court. 12. That no evidence has been provided to support the allegation of the death of **KABON CHEPSERGON** in the nature of a death certificate. That the Power of Attorney dated 23rd August 2016 is duly thumb stamped by the said **KABON CHEPSERGON** and duly registered as No. 18 by the Land Registrar. 13. On the issue of the suit being statute barred, the Plaintiff depones that the fraudulent acts were discovered on 26th February 2018 when a search was conducted and the Plaintiff immediately filed an originating summons No. 75 of 2018 at Eldoret and which was later transferred to Kabarnet as ELC Case No. 1 of 2024. 14. Upon realizing that the 1st Defendant had not filed for letters of Administration, he withdrew the suit and filed succession cause NO. CITATION NO. E022 OF 2022 to compel the 1st Defendant to obtain Letters of Administration who then filed succession cause No. E014 of 2024 and obtained Letters of Administration. It was then that the Plaintiff filed this suit. 15. That this case was heard and determined in the Land Dispute Tribunal being case **NO. 117 of 2008** between **JOSEPH KIPKEBUT CHEBET, DANIEL CHEPKONGA KIYAI** and **CHARLES KIPTARUS NGABO**. An award was issued in favour of the Plaintiff. That while the award was bing confirmed as a Judgment of the Court, the Land Dispute Tribunal was disbanded. That the Plaintiff filed at Eldoret Case No. 75 of 2018 (OS) when it came to his knowledge that the 1st Defendant had fraudulently registered the suit land in his name before he died. 16. This application is an attempt to further frustrate the Plaintiff in having this case heard yet he is now a Senior Citizen. The Motion should be dismissed. 17. The following documents are annexed to the replying affidavit: 18. **Power of Attorney dated 23rd August 2016.** 19. **Proceedings in Land Tribunal Case No. 117 of 2005 (the same are incomplete).** 20. **Certificate of Search for the land parcel No. BARINGO/KAPCHOMUSWO/‘A’ 1324 showing it is registered in the name of CHARLES KIPTARUS NGABO since 15th November 2001.** 21. The Plaintiff filed a further replying affidavit dated 25th March 2026 in response to the Motion. He deposed, inter alia, that the Power of Attorney was duly registered at the Lands Registry and it is misleading for the 1st Defendant to claim that it was not registered. That this suit was instituted in 2018 when the owner was alive and capable of conferring authority. Therefore, by virtue of the Power of Attorney, the Plaintiff has full capacity to commence these proceedings. He added however that the owner unfortunately passed away on 16th September 2024. 22. The court directed that the Motion be canvassed by way of written submissions. The same were filed by the Plaintiff now acting in person and by **MR. BUNDOTICH** instructed by the firm of **KALE** **MAINA & BUNDOTICH LL.P ADVOCATES** for the 1st Defendant. The A.G for the 2nd, 3rd and 4th Defendants did not respond to the Motion nor file any submissions. 23. I have considered the motion, the rival affidavits and annextures as well as the submissions by the Plaintiff and counsel for the 1st Defendant. 24. The Plaintiff moved to this court on the platform of a Power of Attorney donated to him by **KABON CHEPSERGON** and dated 26th August 2016. The 1st Defendant filed a Notice of Motion dated 18th November 2025 seeking the main order that **KABON CHEPSERGON** the owner of the Power of Attorney being passed on, the suit should be struck out. And although the Plaintiff filed a replying affidavit dated 29th January 2026 in which he deponed, inter alia, that there was no documentary evidence in the nature of a death certificate to support the allegations that **KABON CHEPSERGON** had died, he later filed a further replying affidavit dated 25th March 2026 in which he has deponed at paragraph 10 thus: **10: “That the donor unfortunately passed away on 16th September 2024 a fact confirmed by the annexed certificate of death.”** 1. He then goes on to add in paragraph 11: **11:** “**That the subsequent demise of the donor does not invalidate actions lawfully undertaken during his life time.”** 1. The copy of the death certificate was not annexed to the affidavit. However, the fact of the demise of **KABON CHEPSERGON** was first raised by the 1st Defendant and has been confirmed by the Plaintiff who is the donee of the Power of Attorney. It is therefore not in doubt that the donor of the Power of Attorney is deceased and specifically that he died on 16th September 2024. 2. What then is the effect of the demise of the donor of the Power of Attorney on the Plaintiff’s suit? The Plaintiff has submitted in paragraph 3 of his submission that; “**The donor’s death in 2024 does not retrospectively affect the acts done validly.”** 1. On his part, counsel for the 1st Defendant has submitted in paragraph 4 of his submissions that; “ **It is our considered submissions that the Power of Attorney donated to the Plaintiff is an instrument that cannot survive the donor (deceased) and accordingly this suit filed in the year 2025 could only be instituted upon the Plaintiff obtaining Limited Grant Ad Litem or full Letters of Administration.”** 1. Counsel has cited the case of **LOISE WANJIRU MERU & 3 OTHERS V. JOHN MIGUI MERU C.A CIVIL APPEAL NO. 9 OF 2018 [2025 KECA 1605 KLR].** The Court of Appeal actually cited its own decision in a court differently constituted being **LOICE WANJIRU MERU & 3 OTHERS V. JOHN KIGWI MERU C.A CIVIL APPEAL NO. 9 OF 2018 [2023 KECA 1600 KLR]** where at paragraph 14 it was held that: **14: “On whether the power of attorney survives the death of the donor, there is consensus by both courts below that the power of attorney is extinguished upon the death of the donor. We agree with that finding. In the present case, when the respondent’s mother died, the power of attorney that anchored him to file the suit on behalf of his mother was dislodged. The suit does not nonetheless sink and the respondent was able to take quick action to salvage it and put it back on course. The expiry of the power of attorney did not kill the suit as intimated by the appellants.”** 1. This is exactly what Counsel for the 1st Defendant had in mind when he submitted that this suit can “**only be instituted upon the Plaintiff obtaining Limited Grant Ad Litem or full Letters of Administration”.** 2. In the circumstances of this case, following the demise of **KABON CHEPSERGON** on 16th September 2024, the Power of Attorney donated to the Plaintiff on 23rd August 2026 was extinguished. There is therefore no proper suit before this court which the Plaintiff can prosecute. 3. I am alive to the fact that striking out of pleadings is a draconian remedy to be invoked only in the clearest of cases – **KENYA COMMERCIAL BANK LTD V. SUNTRA INVESTMENT BANK LTD 2015 eKLR**. I am also cognisant of the words of **OUKO JA** (**as he then was**) in the case of **NICHOLAS SALAT V IEBC & 6 OTHERS C. A CIVIL APPLICATION NO. 228 of 2013** that: **“Deviations from and lapses in form and procedures which do not got to the jurisdiction of the court, or to the root of the dispute or which do not at all occasion prejudice or miscarriage of justice to the opposite party ought not be elevated to the level of a criminal offence attracting such heavy punishment of the offending party, who may in many cases be innocent. Since the rules of procedure are complex and technical. Instead, in such instances the court should rise to its highest calling to do justice by sparing the parties the draconian approach of striking out pleadings. It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person, such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardship and unfairness.”** 1. I agree with those noble sentiments which are a reflection of the principles set out in **Article 159 (2)** of the Constitution. However, the situation here is that following the demise of **KABON CHEPSERGON,** the Plaintiff lacks the capacity or locus standi to prosecute this suit because the Power of Attorney which clothed him with that capacity died with the demise of the donor. That goes to the jurisdiction of this court and the lacus of the Plaintiff. As hinted by Counsel of the 1st Defendant, only a Limited Grant Ad Litem or full Grant can clothe the Plaintiff with the capacity to prosecute this suit on behalf of the estate of **KABON** **CHEPSERGON.** 2. The up-shot of all the above is that having considered the 1st Defendant’s Notice of Motion dated 18th November 2025, this court issues the following dispositive orders: 3. **This suit is struck out.** 4. **The Plaintiff shall meet the 1st Defendant’s costs.** **BOAZ N. OLAO** **JUDGE** **29TH JULY 2026** **Ruling dated, signed and delivered by way of electronic mail on this 29th day of July, 2026 with notice to the parties.** **BOAZ N. OLAO** **JUDGE** **29TH JULY 2026**