https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/223

Ogutu v Climax Sacco Ltd (Civil Cause 1 of 2024) [2026] KEMC 223 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEMC 223 (KLR) Republic of Kenya In the Port Victoria Law Courts Civil Cause 1 of 2024 AK Njeru, SRM June 11, 2026 Between Gabriel Ogutu Plaintiff and Climax Sacco Ltd Defendant Ruling 1.The defendant vide a notice of preliminary objection dated.14th April 2026 seeks that the entire suit be struck out as the plaintiff lacks the capacity to sue the defendant by dint of section 58 of the Law of Succession Act. 2.In its submissions, the defendant bases the P.O on Section 58 of the Law of Succession Act, which governs the appointment of administrators where a continuing trust arises. The Defendant argues that because the deceased was survived by a minor child, a continuing trust arose in respect of the estate. Consequently, under Section 58(1) and (2), no grant of letters of administration ought to have been issued to a sole administrator, except in circumstances expressly provided for under the Act.The Defendant relies heavily on the decision in Andrew So Onjoro & Wilbroda Onjoro Night Vs. David Obarasa Ekaka (Suing As The Administrators Of The Estate Of Edisa Nasirumbi, Deceased), Busia Civil Appeal No. E004 Of 2021; where the court held that Section 58 is couched in mandatory terms and that a grant issued to a sole administrator where a continuing trust exists is invalid and liable to revocation under Section 76 of the Law of Succession Act. The court further held that a suit founded on such an invalid grant is equally incompetent, as the administrator lacks the legal capacity to institute proceedings on behalf of the estate.The Defendant also cites Veronicah Mwikali Mwangangi v Daniel Kyalo Musyoka[2005] KLR (Ang’awa, J), in which a suit was struck out because the limited grant authorizing the administrator to sue had been issued in contravention of Section 58 of the Law of Succession Act.Further reliance is placed on the principles set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd(1969) EA 696 as affirmed in Samuel Waweru v Geoffrey Muhoro Mwangi,[2014] eKLR). for the proposition that a preliminary objection should raise a pure point of law capable of disposing of the suit.Applying the above authorities, the Defendant submits that the amended plaint dated 7th June 2024 reveals that the deceased was survived by, among others, a minor son. The Defendant therefore contends that a continuing trust arose, thereby making it mandatory to appoint at least two administrators. Since the grant was allegedly issued to only one administrator, the Defendant argues that the grant is invalid, the Plaintiff lacks the requisite capacity to sue, and the suit founded upon that grant is incompetent and should be struck out with costs. 3.The plaintiff did not file a replying affidavit but instead filed submissions dated 6th May 2026 to the said P.O. He submits that the Grant Ad-litem issued, giving the plaintiff herein locus to institute this suit on behalf of the deceased, was only for purposes of filing a suit and not for probate administration of the deceased’s estate. That upon conclusion of the suit herein, the proceeds awarded, if any, shall be formally integrated into the probate cause hence available for distribution as part of the deceased’s estate. According to the plaintiff, the P.O filed is a calculated move by the defendant to delay the conclusion of this case, having repeatedly prayed for adjournments. Furthermore, the defendant has delayed this matter until the conclusion of the plaintiff’s case to bring forth this P.O., a clear move to further stall the litigation. The grant Ad Litem issued to the plaintiff on 19th September 2022 conferred locus on the plaintiff to institute the suit. Section 58 of the LSA is couched in terms that, only in a probate cause, there is a demand for the appointment of more than one administrator where there is a continuing trust. This is a civil suit whose purpose is to file a suit on behalf of the estate and not the distribution of the estate. The plaintiff relied on the case of Re Estate of Jennifer Kusoro Musiwa(Deceased), where the court defined the meaning of a Grant Ad-litem as limited to the filing of a suit and nothing more instituted by a personal representative on behalf of the estate of a deceased. He further relied on the case of In Re Estate of Helena Wangechi Njoroge (Deceased) [2015] Eklr, where the court held that the grant is filed on the strength of a civil suit, not a probate or succession cause, or an interlocutory application within a probate cause. The grant is only necessary where one intends to file a civil suit to protect or defend the estate against third parties. He prayed that the instant P.O be dismissed with costs 4.I have considered the notice of preliminary objection filed by the defendant and the issues arising for determination are primarily whether the same meets the threshold of what constitutes a preliminary objection and whether the same has merit. 5.The case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd(1969) EA 696 .has been the watershed as to what constitutes preliminary objections. The Court of Appeal in Nitin Properties Ltd v Singh Kalsi & another [1995] eKLR also pellucidly captured the legal principle when it stated as follows:...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...” 6.In Hassan Ali Joho & another v Suleiman Said Shabal & 2 others SCK Petition No 10 of 2013 [2014] eKLR the Supreme Court stated that“.... 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” 7.The defendant has raised the issue of locus standi by the plaintiff in this suit to institute the proceedings on behalf of his deceased son’s estate in the absence of another representative, hence a violation of section 58 of the Law of Succession Act. According to the amended plaint, the deceased is survived by a son hence creating a continuing trust. 8.Section 58 of the Law of Succession Act provides that 9.Number of administrators where there is a continuing trust(1)Where a continuing trust arises—(a)No grant of letters of administration in respect of an intestate estate shall be made to one person alone except where that person is the Public Trustee or a Trust Corporation;(b)No grant of letters of administration with the will annexed shall be made to one person alone except where—(i)that person is the Public Trustee or a Trust Corporation, or (ii) in the will, the testator has appointed one or more trustees for the continuing trust who are willing and able to act.(2)Where an application for a grant of letters of administration in respect of an intestate estate is made by one person alone and a continuing trust arises the court shall, subject to section 66, appoint as administrators the applicant and not less than one or more than three persons as proposed by the applicant which failing as chosen by the court of its own motion 10.The amended plaint dated 7th June 2024 paragraph 6(a) states among those survived by the deceased as“Belvin Otieno Odhiambo-sonCatherine Adhiambo- wife. “ 11.The age of the son is not indicated in the plaint. I have taken into consideration the list of documents filed on behalf of the deceased. None of them comprises the birth certificate of the son of the deceased to determine his age as to whether he is a minor or not. In his evidence, the plaintiff stated that he was aware his late son had a wife and son whom he could not trace as at the time of the hearing. 12.While that may be the case, the deceased, as per the death certificate and the plaint filed, indicated he was 25years at the time of his demise. Even in the absence of a birth certificate for the son, the son would not reasonably be above the age of 18 years. This is because their age difference would be only 7 years, which is a relatively impossible age to have a child. This means that the son is a minor, therefore creating a continuous trust within the meaning of section 58 of the Law of Succession Act. 13.Should the court strike out the entire suit on the basis of this violation? I find yes. Failure to include another person in obtaining a grant ad litem on behalf of the deceased, who had a minor son, thereby creating a continuing trust, invalidated the grant ab initio, and its only recourse is to have it revoked. The suit has been brought forth under the Law Reform Act as well as the Fatal Accidents Act which are for and on behalf of the estate of a deceased 14.The consequence is that the plaintiff lacks legal capacity to sue on behalf of his late son’s estate, rendering the entire suit void ab initio. 15.D.K Kimei, J, in the case of Oyugi (Suing as the Legal Administrator of the Estate of the Late Erick Omondi Otieno - Deceased) v Opondo [2025] KEHC 12784 (KLR) , , sitting on appeal over a similar matter held as follows,“I find Section 58 of the Law of Succession Act is clear that where there is a continuing Trust, no grant of letters of administration in respect of the estate shall be made to one person alone except where the administrator is the Public Trustee or a Trust corporation. The Appellant is not a Public Trustee or a Trust Corporation. The learned trial Magistrate correctly found the Appellant had no capacity to initiate the suit as pleaded since the grant was invalid for violating the provisions of Section 58 of the Law of Succession. 16.F.Gikonyo J, In re Estate of Mariko Nyamu M’ibiri (Deceased) [2017] eKLR stated as follows:“(3)This point does not require copious arguments before a court could settle it. Section 58 of the Law of Succession Act is clear that where there is a continuing Trust, no grant of letters of administration in respect of the estate shall be made to one person alone except where the administrator is the Public Trustee or a Trust corporation. The administratrix herein is not the Public or a Trust Corporation. But, such a situation is remediable by removing the festered waters; wherein, subject to S. 66 of the Law of Succession Act, the court appoints one or more persons to be joint administrators.” 17.Musinga J. (as he then was) stated In Re The Estate of Lameck Omwoyo (Deceased) [2008] eKLR that the underlying objective of this provision is to safeguard the interests of minor beneficiaries of the estate. 18.W.M Musyoka J, in Inyangala & another v Ogola (Suing as the personal representative of the Estate of the Late Jennipher Adhiambo Ouma) (Civil Appeal E034 of 2024) [2025] KEHC 15227 (KLR) (23 October 2025) (Judgment) held,“I should also cite section 81 of the Law of Succession Act, with respect to what happens where 1 of many administrators dies, in cases of a continuing trust. The provisions states:“81.Powers and duties of personal representatives to vest in survivor on death of one of them Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivor of them:Provided that, where there has been a grant of letters of administration which involve any continuing trust, a sole surviving administrator who is not a trust corporation shall have no power to do any act or thing in respect of such trust until the court has made a further grant to one or more persons jointly with him.” 19.That said, the notice of preliminary objection dated 14th April 2026 succeeds. The entire suit is struck out with costs to the defendant.Right of appeal within 30 days.It is so ordered. DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 11TH DAY OF JUNE 2026HON. ANNE NJERUSRMIn the presence ofMr Ouma for the plaintiff, andMr. Owino for the defendant,Mr. Victor is present as the Court Assistant.