https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4896

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT SIAYA** **ELC (OS)NO. E007 OF 2026** **JOHN OMOLO KALOO………………………. PLAINTIFF /APPLICANT** **AND** **MAURICE OTIENO OCHIENG…………… DEFENDANT/RESPONDENT (SUED AS LEGAL REPRESENTATIVE OF THE ESTATE OF THE LATE GEORGE OMONDI AWUONDO)** **RULING** 1 What is before this Court are two applications, Chamber Summons dated 20th April 2026 and Notice of Motion application dated 18th March, 2026. 2 The court on 21/5/2026 issued directions that the same be heard concurrently. 3 The court will deal with the application dated 18th March, 2026 later in this ruling as it is dependent upon the outcome of the application dated 20/4/2026. **APPLICATION DATED 20/4/2026** 4 The Chamber Summons application dated 20/4/2026 seeks the following orders; - 1. THAT the name of the Defendant/Applicant herein named MAURICE OTIENO OCHIENG (Defendant/Respondent) be struck out of the suit ELCLOS/E007/26. 2. THAT the costs of this Application be awarded to the Applicant. 5 The Defendant/Applicant vide his supporting affidavit sworn on 20th April,2026 avers that he was improperly sued as the Legal Representative of the Estate of the late George Omondi Awuondo. 6 That he lacks the capacity to represent the Estate of the Late, George Omondi Awuondo even though he occupies, farm and utilizes the Deceased Property SIAYA/KOYEYO/129. 7 The applicant further avers that there is no reasonable cause of action that has been disclosed against him and the orders sought against him cannot issue since he doesn’t have locus standi/ legal representation of the estate of the late, George Omondi Awuondo and that he can only represent the deceased’s estate after obtaining the grant of letters of administration intestate. 8 The Defendant/Applicant avers that he is not a necessary party to the suit and that his inclusion as a party is a misjoinder. **SUBMISSIONS** 9 The application was dispensed by way of written submissions pursuant to the directions of this court. The respondent in this application did not file submissions. **Applicant Submissions** 10 In opposition, the Plaintiff/Respondent submits that the Defendant/Applicant is an indispensable party under Order 1 Rule 10(2) of the Civil Procedure Rules, relying on the Defendant’s express admission of physical possession, cultivation and utilization of parcel **SIAYA/KOYEYO/129**. 11 The Plaintiff/Respondent contends that by asserting physical control over the deceased’s land without a grant, the Defendant has intermeddled with the estate contrary to Section 45 of the Law of Succession Act (Cap. 160) as an *executor de son tort*, making his joinder necessary. **ANALYSIS AND DETERMINATION** 12 I have carefully considered the application, affidavit in support thereto and the submissions on record. The following issues commend determination: - 1. Whether the defendant is properly sued in this suit. 2. Who bears the Costs of the application? 13 In the case of ***ALFRED NJAU-VS- 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 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".*** 14 Section 2 of the Civil Procedure Act defines legal representative as follows: - ***“Legal representative” means a person who in law represents the estate of a deceased person, and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued”.*** 15 A legal representative as defined in the Civil Procedure Act is equivalent to the definition of a personal representative as defined under the Succession Act Cap 160 Laws of Kenya. Section 3 of the Law of Succession Act defines “Personal representative” as “the executor or administrator as the case may be of a deceased person”. Administrator in the same section is defined as: - ***“a person to whom a grant of letters of administration has been made under this Act”. It is therefore clear that a legal representative is a person to whom a grant of letters of administration has been made under the Succession Act”*** 16 It is clear from the above definition of legal representative does not envisage any other person and therefore the position remains that it is only a legal representative who can be substituted in place of a deceased defendant or plaintiff as the case may be. An intermeddler is not recognized and as such cannot be substituted in place of a deceased person. 17 In ***Mary Nanjala Muhalya vs Ambrose Kipruto (2014) KEHC 2964 (KLR)*** the court stated thua; - ***“It would appear that in Kenya, intermeddlers in the estate of a deceased can only be punished for doing so for to intermeddle in the property of a deceased is a criminal offence which according to section 45 of the law of Succession Act Cap 160 Laws of Kenya an intermeddler may be fined 10,000/= or imprisoned for one year. The intermeddler may also be called upon to account to a person lawfully entitled to administer the estate of a deceased. There is no basis in law for an intermeddler to be substituted as a party. The only person recognized is a legal representative. This being the position, I find that the respondent herein cannot be substituted as a defendant in this suit.”*** 18 This Court answers the question of whether the Defendant has the locus standi to be sued in a representative capacity in the negative. The Defendant/Applicant is sued as the legal representative of the deceased’s estate, yet it is undisputed that he does not hold a grant of letters of administration. While the Plaintiff argues the Defendant is an intermeddler, an intermeddler has no locus standi to represent an estate in a civil suit. 19 Consequently, the Defendant lacks the legal capacity and locus standi to be sued in this representative character and his name must be struck out. **APPLICATION DATED 18TH MARCH, 2026** 20 The Plaintiff/Applicant filed a Notice of Motion dated 18th March, 2026 seeking the following orders: - 1. SPENT 2. A Temporary order of restriction restraining the Defendant/Respondent either by himself, agent, servants and employees from interfering with the Plaintiff’s/Applicant’s peaceful possession of the said portion of land Parcel No. SIAYA/KOYEYO/129 measuring 0.12Ha. 3. The Plaintiff/Applicant seeks to restrain the Defendant/Respondent, his agents, servants, representatives, or any other person authorized by him, from encroaching upon, cultivating, trespassing, alienating, developing, or in any other manner utilizing the said parcel of land known as **LR NO. SIAYA/KOYEYO/129**. 21 This Court notes from the record that directions were previously issued on the Plaintiff/Applicant’s Notice of Motion dated 18th March, 2026 to be canvassed and determined by way of written submissions. However, a review of the court file reveals that while the plaintiff filed submissions dated 29/5/2026 the same did not address the application dated 18th March, 2026 Additionally, this Court observes that the Defendant/Respondent did not file a response to the said Notice of Motion. 22 But having stated the above, I have earlier noted the resolution of this application was dependent upon a negative outcome of the application dated 20/4/2026 that is had it failed. Following this Court's determination that the Defendant lacks *locus standi* and the subsequent order striking out his name, this suit stands struck out. Since an interlocutory injunction under Order 40 Rule 1 of the Civil Procedure Rules cannot survive in the absence of a viable main action and a proper defendant, the Plaintiff's Notice of Motion dated 18th March 2026 is rendered moot and is hereby struck out as well. 23 The Court makes the following Order to dispose of both the application dated 20/4/2026 and 18/03/2026; - 1. The Defendant/Applicant application dated 20th April, 2026 is merited and is hereby allowed with no orders as to costs. 2. The Plaintiff/Applicant Application dated 18th March, 2026 is hereby struck out with no orders as to costs. 3. The entire suit is hereby struck out with no orders to costs. It is so ordered **Dated at Siaya this 29th Day of July 2026** **HON. JUSTICE A. E. DENA** **JUDGE** **29/07/2026** **Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of:** John Omolo Kaloo the Plaintiff/Applicant Mr. Otieno Obwanda for the Defendant/Respondent Court assistant: Abiud Wekesa