[2025] KEELC 19 (KLR)

Lokolinyang (Suing as the Legal Representative of the Late Lokolinyang Cheptipoch alias Lokoling’or Loyerik) & another v Rengono & 15 others (Environment & Land Case E029 of 2024) [2025] KEELC 19 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 19 (KLR)

Republic of Kenya

In the Environment and Land Court at Kitale

Environment & Land Case E029 of 2024

FO Nyagaka, J

January 16, 2025

Between

Kedi Longorok Lokolinyang (Suing as the Legal Representative of the Late Lokolinyang Cheptipoch alias Lokoling’or Loyerik)

1st Plaintiff

Lokwasia Cheptipoch (Suing as the Legal Representative of the Late Lokolinyang Cheptipoch alias Lokoling’or Loyerik)

2nd Plaintiff

and

Julius Todomuk Rengono

1st Defendant

Kangole Justus Rengono

2nd Defendant

Stephen Lodis Rengono

3rd Defendant

Josphat Ariongo Rengono

4th Defendant

Kedii Rewoo Rengono

5th Defendant

John Longolesia Rengono

6th Defendant

Paul Rotich Tirokamar

7th Defendant

Joseph Lonyangiro Rengono

8th Defendant

Michael Loywoton Kedi

9th Defendant

Lonyangiro Rengono

10th Defendant

Longolesia Rengono Madamosin

11th Defendant

Julius Longurokwang

12th Defendant

Philip Chemala Ruto

13th Defendant

Micah Ngelech

14th Defendant

The County Land Registrar West Pokot

15th Defendant

The Attorney General

16th Defendant

Ruling

1. This suit was filed on behalf of the Plaintiffs through the law firm of M/S Matui and Company Advocates on 08/08/2024. Together with the Plaint dated 06/08/2024 and verified by an Affidavit sworn by the 2nd Plaintiff, the Plaintiffs filed a Notice of Motion dated the same date as the Plaint. They brought it under Certificate of Urgency. Before the application could be heard or the suit fixed for directions the Defendants upon entering appearance on 27/08/2024 through a Memorandum of Appearance dated 24/08/024, filed together with it a Notice of Preliminary Objection dated the same date.

2. The Preliminary Objection was based on one ground, that the Plaintiffs do not have a grant or a legally proper ground to file and prosecute the suit herein. The Court, bearing in mind that a preliminary objection is a legal issue that may, if it succeeds, terminate a matter or pleading, decided to hear it first.

3. The Preliminary Objection was disposed of by way of written submissions. The defendants filed theirs dated 17/09/2024. They argued that Section 67 of the Law of Succession Act and Rule 36 of the Probate and Administration Rules, 1980 were applicable because the Plaintiffs did not have a proper grant and therefore had no locus standi to file and prosecute the instant suit, which offended the two provisions. They argued that the Limited Grant dated 05/04/2024 was “Limited only for the purpose of preserving the land title number West Pokot/ Kanyarkwat Group Ranch/195”.

4. They began arguing the Preliminary Objection dated 24/08/2024 is premised on the ground that the plaintiffs have no proper grant, and therefore no locus standi, to allow them to file and prosecute this suit. It was the applicant’s objection that the suit offended the provisions of Section 67 of the Law of Succession Act and Rule 36 of the Probate and Administration Rules 1980. It was the applicant’s preliminary objection that the grant Ad Litem presented to this honorable court dated 05/04/2024 is “limited only for the purpose of preserving land title no. West Pokot/Kanyarkwat Group Ranch/195. ” They argued that the plaint did not seek any orders in relation to the land quoted on the limited grant. Instead, they sought reliefs in relation to titles No. 60-77 and Nos. 168 & 196. They did not in any way allude to or even plead any interest over Title No. West Pokot/Kanyarkwat Group Ranch/195 as limited in the Grant. Thus, they had no grant or limited grant for instituting a suit over the parcels of land they referred to. They argued, without a valid grant of letters, the Plaintiffs had no locus in the matter.

5. They relied on a number of decisions. First was the case of Kiptoo & 3 Others V Kiptoo & 2 others; Makoha & 6 others (Interested Parties) [2022] KEHC 10188 (KLR) which held that locus standi signifies a right to be heard and a person must have sufficiency of interest to sustain his standing to sue in Court of Law. Also, in Alfred Njau and others Vs. City Council of Nairobi (1982) KAR 229, the Court held the same way. They submitted that if a party had no locus standi he/she could not be heard.

6. They relied on the case of Julian Adoyo Ongunga & Another V Francis Kiberenge Bondeva (suing As The Administrator of the Estate of Fanuel Evans Amudavi, Deceased) [2016] EKLR which held that a party without locus standi lacks the right to institute and/or maintain that suit even where a valid cause of action subsists. Further, it relates mainly to the legal capacity of a party. Also, in Elijah Nderitu Gachaga V Francis Gakuu Gachaga, Stephen Kariuki Gachaga & Samson James Gachaga [2019] KEELC 773 (KLR), the plaintiff who filed a suit using a Limited Grant for the collection and preservation of the estate, and not one allowing them to file a suit was found to lack capacity to file the suit because locus goes to the root of the case and it was struck out.

7. They also relied on Macfoy v United Africa Co. Ltd. [1961] 3 ALL ER 1169. Also, in the case of Elijah Chepkwony Chirchir V Joel Kipngeno Rop & 5 Others [2019] KEELC 4019 (KLR) which considered the effect of using a Grant Limited to the collection and preservation of assets was used in the case herein. It held that;“17. What emerges from the distinction in the two types of Limited Grant discussed above is that the Plaintiff obtained the wrong Limited Grant which is not meant for instituting a suit on behalf of the estate of the deceased. Since the correct type of limited grant is what would clothe the applicant with the locus standi to institute the suit it follows that relying on a wrong grant to file suit deprives him of the locus standi.18. Locus standi is the right to be heard or appear in court or other proceedings. This is a point of law that cannot be wished away as a technicality. In the case of Alfred Njau & Others v. City Council of Nairobi (1982-88) 1 Kar 229 cited with approval in the case of Beatrice Wambui Kiarie v Beatrice Wambui Kiarie & 9 Others (2018) eKLR the Court of Appeal stated as follows: “…to say he has no locus standi means he cannot be heard, even on whether or not he has a case worth listening to”.

8. The plaintiffs filed their written submission dated 04/08/2024. They argued that a Preliminary Objection must be anchored on the point of law as was pointed out in the case of Mikusa Biscuits Manufacturing Company Limited (sic). They stated that it should be a pure point of law. They argued that the Defendants’ contention about the capacity was not founded. Further, it is true in law that the legal capacity of parties to any pleadings or proceedings is critical and goes to the root of any suit. They averred that the plaintiffs were beneficiaries of the Estate of the late Lokolinyang Cheptipoch alias Lokoling’or Loyerik. They were aggrieved over the intermeddling of the deceased’s Estate. They applied for and obtained a Grant of Letters of Administration ad Litem dated 05/04/2024 in accordance with Schedule 5 of the Law of Succession Act. They thus had capacity to sue. They prayed that the Objection be dismissed.

Issue, Analysis and Determination 9. I have considered the Preliminary Objection the law and submissions be the rival parties. The first question for me to determine is whether the Preliminary Objection is merited. It arises by necessary implication from the consideration whether the Plaintiffs have capacity to institute the suit for and on behalf of the Estate of the late Lokolinyang Cheptipoch. The second one depends on the outcome of the first one. It is who to bear the costs of the application, and of the suit if the Objection succeeds.

10. I begin by defining a Preliminary Objection. Without re-inventing the wheel, in this jurisdiction or legal arena the commonest definition of a Preliminary Objection is to be found in the case of Mukhisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd (1969) EA 696, wherein Sir Charles Newbold defined it as follows:“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. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a Preliminary Objection is in the nature of what used to be a demurrer. It 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 had to be ascertained or if what is sought is the exercise of judicial discretion.”

11. The same Court (of Appeal), in Bashir Haji Abdullahi v Adan Mohammed Noor & 3 Others [2004] e KLR, added its voice as follows:“We are of the considered view that if a party wishes to raise a Preliminary Objection and files in Court a Notice to that effect and is subsequently served on other parties to the suit, the Preliminary points should be sufficiently particularized and detailed to enable the other side and indeed the court to know exactly the nature of the preliminary points of law to be raised. To state that „the application is bad in law? without saying more does not assist the other parties to neither the suit nor the Court to sufficiently prepare to meet the challenge. If it is only at the hearing that the Preliminary Objection is amplified and elaborated, it gets the other side unprepared and is reminiscent of trial by ambush.”

12. Also, in Susan Wairimu Ndiangui V Pauline W. Thuo & Another [2005] eKLR, Musinga J as he then was held as follows:-“a preliminary objection should not be drawn in a manner that is vague and non-disclosing of the point of law or issue that is intended to be raised. It should clearly inform both the court and the other party or parties in sufficient details what to expect.”

13. It is clear beyond peradventure that a Preliminary Objection arises on a point of law only. This is unction this Court will follow. It will consider the Preliminary Objection, using the conventional method of legal analysis if Issue, Rule, Application/Analysis and Conclusion, simply abbreviated as IRAC. As it does so, the parties should be clear in their mind that instead of using facts in the part or step of Analysis, the court is called upon to, and will use, the pleadings since that is all that one is required to determine a preliminary point of law.

14. I now begin the determination of the two issue in this matter sequentially. The first issue is that the Plaintiffs do not have a grant or a legally proper ground to file and prosecute the instant suit. In essence the Defendants object to the institution of the suit by the Plaintiffs because, allegedly, the latter do not have locus standi to file and prosecute the suit. Simply put, without Letters of Administration the plaintiffs do not have capacity to institute the suit.

15. The Rule (or law) regarding institution of suits in relation to the property of a deceased person is governed by the provisions of the Law of Succession Act, Chapter 160 Laws of Kenya. Section 82(a) provides thus:“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 arise out of his death for his estate.”

16. This provision if read in isolation may not bring out the real reason why the Defendants were up in arms against the institution of the suit, as deduced from their submissions. They argued that Section 67 of the Law of Succession Act and Rule 36 of the Probate and Administration Rules, 1980 should apply to the Plaintiffs suit herein since the latter did not have a proper grant hence lacked locus standi to file and prosecute the suit. Thus, Section 80(2) of the Act provides that “A grant of letters of administration, with or without the will annexed, shall take effect only as from the date of such grant.”

17. Be that as it may, a quick perusal of Section 67 of the Law of Succession Act and Rule 36 of the Probate and Administration Rules, 1980 reveals that the substantive provision is on the procedure of issuing a Limited Grant of Letters of Administration and the relevant Rule is on limitation of the powers of an Administrator when the Grant is issued for a special purpose. It is to the effect that a notice of the application for such grant be published by being exhibited conspicuously in the court-house, and in other manner the court may directs, inviting objections thereto, for a period of not less than thirty days from the date of publication. The Grant be issued after expiry of the notice. Rule 36 of the Probate and Administration Rules 1980 provides for issuance of letters ad colligenda bona pursuant to Section 67, limited for a certain purpose.

18. As is clear from the four provisions referred to above, a party who does not have a full Grant of Letters of Administration to an estate of a deceased person as provided for under Sections 82(2) and 80(a) of the Act or Limited as provides for by Rule 36 of the Probate and Administration Rules shall not have capacity to institute or defend a suit.

19. Turning to the step of Analysis of the law and facts, in this matter the defendants contend that the Plaintiffs did not obtain Letters pursuant to the law. But the Plaintiffs submitted that they had capacity by virtue of being beneficiaries of the Estate of the late Lokolinyang Cheptipoch alias Lokoling’or Loyerik, and being aggrieved over the intermeddling of the deceased’s Estate, applied for and obtained a Grant of Letters of Administration Ad Litem dated 05/04/2024 in accordance with Schedule 5 of the Law of Succession Act. On their part the Defendants contended that the Limited Grant dated 05/04/2024 was “Limited only for the purpose of preserving the land title number West Pokot/ Kanyarkwat Group Ranch/195”, yet the Plaintiffs had institute suit in respect of parcel Nos. 60-77 and 168 & 196.

20. I agree holdings on the decisions the Defendants cited in support of their contention that there is always need for one to obtain a Grant of Letters of Administration before he/she can file suit on behalf of an estate of a deceased.

21. Thus, the Court can only arrive at a just decision by looking at the Grant of Pleadings on the Grant of Letters. The Plaint shows that indeed the suit was in respect of different parcel of land than the one that the Limited Grant of Letters of Administration were issued. The Plaintiff’s obtained letters to sue in respect of parcel No. West Pokot/ Kanyarkwat Group Ranch/195. It is totally different from the ones they have sought reliefs over. In those circumstances, the Plaintiff’s powers for prosecution of a suit over a specific subject matter did not extend to other parcels of land.

22. The Conclusion is that the Preliminary Objection is merited. I uphold it and strike out the suit, with costs to the Defendants. The file is closed subject to payment of the costs ordered.

23. Orders accordingly.

RULING DATED, SIGNED AND DELIVERED VIA THE ELECTRONIC MAIL THIS 16TH DAY OF JANUARY, 2025. HON. DR. IUR F. NYAGAKA,JUDGE