https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3953

Oisebe & 2 others (As Legal Rep of Estate of Sweeney Oisebe) v Oisebe & another (Sued as Legal Rep of Estate of Shadrack Oisebe) (Enviromental and Land Originating Summons E005 of 2025) [2026] KEELC 3953 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEELC 3953 (KLR) Republic of Kenya In the Environment and Land Court at Kisii Enviromental and Land Originating Summons E005 of 2025 AA Omollo, J June 25, 2026 Between Biliah Bosibori Oisebe 1st Applicant James Bosibori Oisebe 2nd Applicant Jane Kerubo Oisebe 3rd Applicant As Legal Rep of Estate of Sweeney Oisebe and Biliah Bosibori Oisebe 1st Respondent Joel Oichoe Oisebe 2nd Respondent Sued as Legal Rep of Estate of Shadrack Oisebe Ruling 1.On 24/11/2025, Justice Munyao Sila (as he then was) directed the Applicants to file submissions addressing the question of the validity of their suit, having noted that the 1st Applicant was a co-administrator of the estate of the deceased Respondent, Shadrack Oichoe Oisebe. 2.The Applicants filed submissions dated 4th December, 2025, explaining the background to the dispute. They argue that the dispute is between the two estates, not between the personalities appearing as representatives. They cited the provisions of Order 4 Rule 4 of the Civil Procedure Rules, which state as follows:“Where the plaintiff sues in a representative capacity the plaint shall state the capacity in which he sues and where the defendant is sued in a representative capacity the plaint shall state the capacity in which he is sued, and in both cases it shall be stated how that capacity arises.” 3.It is the Applicants’ contention that it is this court which has the jurisdiction to determine the issue of the allegation that the suit property, Kisii Mun block III/36, was registered in the name of Shadrack Oisebe to hold in trust for Sweeney Oisebe. The 1st Applicant denies any breach of fiduciary duties and urged this case to proceed. 4.The Respondents did not any file submissions. 5.I understand my predecessor’s concern about how the 1st Applicant will give evidence on behalf of the Applicant and then cross over to give evidence favouring the Respondent against the Applicants’ claim. This may be so, but as she states that her claim is hostile to the estate of Shadrack Oichoe Oisebe-deceased, it will be incumbent on the beneficiaries of the said estate to rise up to defend their interests. Whether such a defence will be given can only be ascertained by allowing the matter to proceed. 6.From the copies of the Rulings made in the High Court Succession No 30 of 2014, the estate of Shadrack Oisebe on 21st December, 2022, Justice R.E. Ougo stated that the grant could not be confirmed unless the dispute of ownership of the suit land had been resolved by this court. Hence the necessity of filing the present suit. 7.Lastly, the court may not take evidence that is likely to touch on the merits of the case in advance to determine the validity or otherwise of the Applicants’ claim. Therefore, I will let the matter proceed to full hearing and thereafter determine whether or not the suit lay in the first place. 8.Consequently, directions are issued that the matter proceed and that the next step is to hear the pending interlocutory application. RULING DATED, SIGNED AND DELIVERED AT KISII THIS 25TH JUNE, 2026A. OMOLLOJUDGE