https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2958

Kirema & another v Stanley & another (Enviromental and Land Originating Summons 9 of 2020) [2026] KEELC 2958 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 2958 (KLR) Republic of Kenya In the Environment and Land Court at Meru Enviromental and Land Originating Summons 9 of 2020 BM Eboso, J May 14, 2026 Between Peter Kiambi Kirema 1st Applicant Morris Muguna Kirema 2nd Applicant and Ann Makena Stanley 1st Respondent Chris Langat Rono 2nd Respondent Ruling 1.This originating summons was taken out on 19/2/2020 by Peter Kiambi Kirema and Morris Muguna Kirema under Order 37 of the Civil Procedure Rules. The duo invited the court to determine the following questions:i.Whether the appropriation of Plot No. 1109 Nyayo Sirimon Settlement Scheme by the 1st respondent was lawful;ii.Whether the sub division of Plot No. 1109 Nyayo Sirimon Settlement Scheme into portions was lawful;iii.Whether the 1st respondent offered or sold the sub divided portions or any of them to the 2nd respondent and whether such sale or offer is valid;iv.Whether the respondent or either of them is entitled to possess Plot Number 1109 Nyayo Sirimon Settlement Scheme or the subdivisions thereof or any of the portions;v.Whether the respondents acted fraudulently and otherwise illegally to the prejudice of the applicants and;vi.Whether or not the respondents, their agents or any persons claiming under them ought to be evicted from Plot Number 1109 Nyayo Sirimon Settlement Scheme or the subdivisions thereof including Plot Numbers 5747,5750 and 5751. 2.No final positive reliefs/orders were specifically sought in the originating summons by the applicants. The originating summons was partly heard on 29/4/2025. 3.Early this year, the originating summons attracted a notice of preliminary objection dated 22/1/2026, in which the respondents invited the court to strike out the suit in limine on the ground that the two applicants who took out the originating summons lacked the locus standi to initiate and maintain the suit. The preliminary objection was canvassed through oral submissions tendered by Mr Makaka on 17/2/2026. The applicant, through Mr A K Mwangi, opposed the preliminary objection and urged the court to reject it. The key issue falling for determination in the preliminary objection is whether this suit is fatally defective for want of locus standi on part of the two applicants who initiated the suit. 4.The gist of the preliminary objection is that the applicants lacked locus standi to institute or maintain this suit which seeks recovery of land which they claim belongs to the late Mary Kooru Kirema. The objectors contend that because the applicants did not obtain a grant under the law of succession, relating to the estate of the late Kirema, they did not have the locus standi to initiate or maintain a suit on behalf of the late deceased or on behalf of her estate. Citing Sections 79 and 82(a) of the Law of Succession Act, the objectors urge the court to strike out the suit. They argue that absence of a grant is an incurable defect. 5.Opposing the preliminary objection, the claimants/applicants argue that they took out the originating summons in their capacity as beneficiaries of the estate of the late Mary Kooru Kirema, adding that as beneficiaries, they had a right to bring the suit. The applicants further argue that Section 82 of the Law of Succession Act only applies when a claimant initiates a suit on behalf of an estate. The applicants contend that the originating summons was anchored on Order 37 of the Civil Procedure Rules. 6.The court has considered the preliminary objection together with the rival submissions tendered on the preliminary objection. The court has also considered the relevant legal frameworks and the prevailing jurisprudence relevant to the issue at hand. As pointed out in the opening paragraph of this ruling, the single issue raised in the preliminary objection is whether this suit is fatally defective for want of locus standi on part of the applicants. For convenience, I will refer to the late Mary Kooru Kirema simply as “the deceased”. 7.This suit was initiated through an originating summons dated 14/2/2020. The applicants stated in the opening paragraph of the originating summons that they were taking out the originating summons as heirs of the estate of Mary Kooru Kirema. In the supporting affidavit that accompanied the originating summons, the 1st applicant deposed that they were children of the late Mary Kooru Kirema who died on 10/3/2010. He added that at the time of her demise, the deceased (the late Mary Kooru Kirema) was the lawful owner of the suit land. He further deposed that to the best of his knowledge, the heirs of the late Mary Kooru Kirema had never undertaken succession proceedings in respect of the estate of their late mother. He added that it had come to their attention that the 1st respondent had fraudulently caused their late mother’s property [the suit land] to be registered in her name and had subdivided it and obtained titles to the subdivisions. He described the above actions as surreptitious and intended to disinherit the children of the deceased. 8.In a suit initiated by way of an originating summons, the originating summons together with the accompanying affidavit constitute the claimant’s pleadings and evidence. It is therefore clear from the above examination of the applicants’ pleadings and evidence that the applicants instituted this suit to recover land that they contended belonged to their late mother, Mary Kooru Kirema. Put differently, they instituted the suit on behalf of the estate of the late Mary Kooru Kirema. 9.Did the applicants have locus standi to institute the suit on behalf of the late Mary Kooru Kirema? The Law of Succession Act vests all the property of a deceased person solely in the deceased person’s personal representative(s). Section 79 of the Act provides as follows:“The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.” 10.Section 82 (a) of the Law of Succession vests in the personal representative(s) the power to institute or defend a suit on behalf of a deceased person in the following terms: -“Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers:a.to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative.” 11.Our courts have stated umpteen times that a grant under the law of succession is a prerequisite for instituting a claim in a court of law on behalf of a deceased person. A suit instituted on behalf of a deceased person by a person who does not have a grant issued under the succession law is incurably defective. 12.In Kihanya & 4 others v Gichuri & another (Civil Appeal 15 of 2019) [2024] KECA 852 (KLR) (12 July 2024) (Judgment), the court stated as follows:“Section 82 of the Law of Succession Act gives the personal representatives of a deceased person’s estate the power to “enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death of his personal representative”. It is evident from the above provision that one can only institute or enforce a suit on behalf of the estate of a deceased person once they have been appointed personal representatives to the estate. Such appointment under the Succession Act can only be by way of obtaining a full grant or a grant limited for purposes of instituting or defending a suit, which would in this case be ad-litem. Decided cases are in agreement that where a suit is filed relating to a deceased’s estate without a grant of representation, the proceedings are null and void for want of locus standi. (See Virginia Edith Wamboi v Joash Ochieng Ougo & Another [1982-88] 1 KAR and Teouistik Union International & Another vs Jane Mbeyu & Another, Civil Appeal No. 145 of 1990). It follows that for a party to have locus standi to institute or defend a case for and on behalf of a deceased person, he or she must first obtain a grant of letters of administration empowering him or her to administer the deceased’s estate or limited for the purpose of filing or defending the suit.” 13.As early as 1993, the Court of Appeal emphasized the above principle in Trouistik Union International & another v Jane Mbeyu & another (Nairobi Civil Appeal No 145 of 1990). The Court of Appeal stated as follows:“The administrator is not entitled to bring an action as administrator before he has taken letters of administration. If he does, the action is incompetent at the date of its inception.” 14.The Supreme Court of Kenya emphasized the above legal position last year in Kinuthia [Through the Administrators of His Estate] v Anyanga & 6 others [2025] KESC 60 [KLR]. 15.For the above reasons, this court finds that this originating summons (suit) is incurably defective because it was instituted by the applicants on behalf of the late Mary Kooru Kirema yet the said applicants did not have a grant under the Law of Succession Act appointing them as personal representatives of the deceased. Consequently, the suit cannot be salvaged. It stands to be struck out. 16.On costs, the general principle under Section 27 of the Civil Procedure Act is that, costs follow the event. No proper grounds have been demonstrated to justify a departure from the general principle. 17.In the end, the preliminary objection dated 22/1/2026 is upheld. This suit is hereby struck out on the ground that the applicants/claimants lacked the locus standi to initiate or maintain the suit at the time of instituting it. The applicants/claimants shall bear costs of the suit. DATED, SIGNED AND DELIVERED AT MERU THIS 14TH DAY OF MAY, 2026B M EBOSO [MR]ELC JUDGE