https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4424

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ELC CASE NO. 39 OF 2019** **EMILY ATIENO OKIRI (suing and being sued as the Legal Administrator of the estate** **Maurice Okiri Yongo) .........APPLICANT/ PROPOSED DEFENDANT** **VERSUS** **MARGARET ADOYO OMUNE ...............PLAINTIFF/1ST RESPONDENT** **AND** **GEORGE OWUOR OKIRI (Sued as the Administrator of the Estate of Maurice Okiri Yongo....................DEFENDANT/2ND RESPONDENT** **RULING** **The Application** 1. The applicant filed a notice of motion dated 10th February 2025 under certificate of urgency. The application is anchored on sections 3A of the civil procedure act as well as orders 9 rule 9, order 12 rule 7 and order 36 rule 10 of the civil procedure rules 2010. She sought the following orders: 2. THAT the judgment of this Honorable Court made on the 24th day of March 2021, and any other consequential orders made therein be set aside and allow inter-parties hearing of this application. 3. THAT the judgment of this Honorable Court made on the 24th day of March 2021, and any other consequential orders made therein be set aside and allow hearing of this suit. 4. THAT the Applicant's Advocate be granted leave to come on record after judgment. 5. THAT the Applicant/Defendants' Advocate be granted leave to file the Defendant's Statement of Defense. 6. THAT the cost of application be provided for. 7. The application is premised on the grounds set out on its face as well as the grounds contain in the affidavit in support of the application and deponed by Emily Atieno Okiri, the applicant. Accordingly, the applicant stated that this court rendered an *ex-parte* judgment over property that constitutes her deceased father’s estate, being land parcel Kanyandoto/Kabura/1277 on 24th March 2021. The judgment in question was a culmination of proceedings before this court filed by the 1st respondent who had claimed a portion of the aforesaid land through adverse possession. The applicant, who became a co-administrator of her deceased father’s estate alongside the 2nd respondent pursuant to a confirmed grant dated 31st July 2024. 8. Before then, the 2nd respondent had been confirmed the administrator of their deceased father’s estate and issued with a grant of representation of 10th August 2017 which was confirmed on 28th January 2022 but subsequently revoked. After the revocation of the aforesaid grant, both the applicant and the 2nd respondent became co-administrators of their late father’s estate pursuant to a confirmed grant of representation dated 31st July 2024. 9. The applicant indicated that she was not aware of the suit filed by the 1st respondent until she visited the land registry sometimes in 2024 for purposes of effecting transmission pursuant to the confirmed grant of administration dated 31st July 2024. She stated that she learnt that the register for the suit parcel had been closed on subdivision in the month of December 2024 yet succession had been ongoing. 10. It was the applicant’s assertion that the 2nd respondent had acted single handedly without consulting the other beneficiaries of the estate of their deceased father by selling 2 acres thereof hence intermeddling with the said estate. She also stated that their father died in the year 1994 and in the year 1995, the 2nd respondent had already sold the portion which the 1st respondent claimed through adverse possession. The applicant indicated that she is willing to defend the suit and stated that her defence raises triable issues. She also asserted that the interests of justice demand that the application be allowed and added that the respondent will not be prejudiced should the application be allowed. **The 1st Respondent’s replying Affidavit** 1. The 1st respondent filed a replying affidavit dated 21st October 2025 and vehemently opposed the application. she deponed that she instituted as suit against the 2nd respondent in his capacity as an administrator of the estate of his deceased father on 14th June 2019. The suit was one of adverse possession over land parcel Kanyadoto/Kabura/1277 as it then was. Her reasons for suing the 2nd respondent were that he had instituted Ndhiwa PMC Succession Cause 53 of 2016, which he was prosecuting at the time she instituted her suit. She also stated that the 2nd respondent had already been issued with letters of administration on 10th august 2017 and she feared that the estate would be transmitted and/or mutated even before the grant issued to the 2nd defendant could be confirmed. Finally, the 1st respondent asserted that the 2nd respondent had capacity to defend the suit since the grant issued to his had not been revoked at the time she instituted her suit. 2. Concerning the applicant’s standing, the 1st respondent deponed that the applicant was a stranger to the suit. she also maintained that the applicant cannot be joined as defendant since the plaintiff determines who to sue and she had not been sued. Rather, the applicant should have applied to be joined as an interested party. Since no such application for joinder had been made, the 1st respondent stated that the applicant had no capacity to lodge the instant application. Further, the 1st respondent maintained that the original defendant had not been substituted or otherwise dispensed with. 3. In addition to the above stated, the 1st applicant also raised an issue of the duration within which the application had been brought, considering that the judgment of the court was rendered on 24th march 2021 and the she had already been registered as the proprietor of a portion of the suit land as decreed by the court. 4. The 1st respondent termed the instant application as being vexatious, frivolous and an abuse of court process. She stated that the 2nd respondent actively participated in the proceedings and annexed a copy of the court proceedings to elaborate on this assertion. She added that the defendant (2nd respondent), despite being aware of the judgment of the court, has never appealed against the same or applied to have it set aside. As such, she deponed that the applicant’s attempts at having the judgment set aside is not only unprocedural but also overtaken by events since the judgment of the court was executed on 1st December 2024. 5. Lastly, the 1st respondent stated that the only recourse available to the applicant was amendment, rectification or modification of the confirmed grant so that the same reflects the current state of affairs regarding the remaining portion of the deceased’s estate. **The 2nd Respondent’s Replying Affidavit** 1. The 2nd respondent filed a replying affidavit dated 16th October 2025 and termed the application as premature, malicious, insufficient and misleading. He added that the applicant had not disclosed material information relating to the suit, that is, the applicant is his sister who got married and left their father’s home to live with her husband. 2. Moreover, the 2nd respondent deponed that his brother had left for Mombasa and had since not bee traced. Granted the circumstances of his sister being a married woman and the brother having disappeared, he was the only person who was supposed to make all the decisions pertaining to their ancestral home. 3. In light of the above, the 2nd respondent deponed that he decided to sell a portion of his inheritance to the 1st respondent even though the succession process of his late father had not been initiated. He annexed a copy of a land sale agreement dated 3rd July 1995 to support this averment. He reiterated that he was the only person at home and did not see the need to consult any of his siblings concerning the aforestated sale. 4. Further, the 2nd respondent emphasized that his sister, the applicant herein does not have any say whatsoever over their late father’s estate since she is married woman who lives with her husband. 5. The 2nd respondent deponed that he obtained a grant of letters of administration over his father’s estate but the same was revoked before the commencement of the instant suit. He emphasized that at the time the 1st applicant commenced the instant suit, the estate of his deceased father had no administrator. **The Applicant’s Further Affidavit** 1. The applicant filed a further affidavit dated 17th November 2025. She deponed that her brother, the 2nd respondent herein sold a portion of the suit property in the year 1995. At this time, the 2nd respondent had not taken out letters of administration for the estate of their deceased father. She also stated that the 1st respondent was introduced to the estate vide the sale, which was an act of intermeddling. As such, she maintained that the 1st Respondent’s claim of adverse possession cannot stand. Moreover, the applicant also stated that the 2nd respondent took out letter of administration but the same were revoked because he had left her out of the succession process yet she is a rightful heir and beneficiary of her late father’s estate. She stated that the instant suit was commenced in 2019 and that she was not aware of the same. She reiterated that she learnt of about the suit in December 2024 and maintained that she is desirous of defending the suit in her capacity as heir and beneficiary of her father’s estate. 2. The applicant filed their submissions dated 7th January 2026. She started by giving the brief facts of the case and set forth two issues for determination. The first was whether the 1st Respondent sued the right party and the second, whether the application was merited. 3. Regarding whether the applicant sued the right party, she submitted that the first respondent sued the second respondent whose Grant of Letters of Administration was revoked and subsequently confirmed in the names of the applicant herein and the 2nd respondent but the applicant was never or joined in the suit. Judgment was entered ex parte against the estate of the deceased without the knowledge of the second administrator who is now the applicant. The orders issued on 24th March 2021 were premised on misrepresentation. She referred the court to an annexture No. E05 which was an agreement entered into in the year 1995between the two respondents yet the deceased had passed away in the year 1994. She submitted that the first respondent did not sue the right party because he did not have capacity to be sued. 4. On whether the application was merited she submitted that it was because it was filed against the Estate of a deceased person which estate was currently being administered by two people, including herself. But the 1st respondent’s claim was that she served hearing notices upon the 2nd respondent. These were neither here nor there. She relied on the case of International Air Transport Association and another versus Roskar Travel Limited & 3 others (Civil Case E0457 of 2020) [2022] KEHC 200 (KLR) (Commercial and Tax) (17 March 2022) (Ruling). She prayed that the application be allowed. **1ST RESPONDENT’S WRITTEN SUBMISSIONS** 1. The 1st respondent commenced his submissions by giving issues for determination. They were whether the Application by the Applicant is vexatious, frivolous and an abuse of the Court process and who to bear the costs of this Application. 2. Regarding whether the application was vexatious, he submitted that it was utterly vexatious, frivolous and is an abuse of the process of Court. He then gave the summary of the impugned judgment, including the hearing process, all of which I need not rehash here. He added what the provisions of **Section 82** of the **Law of Succession Act** are regarding personal representatives’ powers. He relied on **re Estate of Barasa Kanenje Manya (Deceased) (Succession Cause 263 of 2002) [2020] KEHC 1 (KLR).** He then urged that the applicant was not properly before the Court. He relied on the case of **Julius Meme v Republic & Another [2004] eKLR** and the Supreme Court of Uganda decision in **Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 (SCU).** He argued that the applicant was not sued in the main suit as a Defendant. Furthermore, she had not filed an application before Court outlining why she ought to be enjoined as an Interested Party or otherwise. 3. Again, he contended that the Application was designed to defeat the course of justice. He added that it was utterly unbelievable that the Applicant was not aware of the happenings yet subdivision of land is a very public process moreover, her brother was actively fighting execution of that decree. 4. He relied on the Philippine case of **Yau vs. Veloso, G.R. No. 200466** on the point that litigation must come to an end. Lastly, that if the present Application was allowed it would violate the concept of hierarchy and supremacy of Courts because the 2nd Respondent was lawfully designated as personal representative in the grant issued on **10/08/2017** by the Magistrate’s Court at Ndhiwa. Thereafter, he was rightfully sued in that capacity before the Environment & Land Court of Kenya at Migori. He prayed for the dismissal of the application. **Issues, Analysis and Determination** 1. After considering the application, the responses thereto, the submissions of the parties as well as the relevant law, the court has determined that the issues that arise for determination in the instant application are as follows: 2. Whether the proceedings and the ex-parte judgment rendered by the court on 24th march 2021 should be set aside; 3. Who should bear the costs of the application 4. This court now embarks on determining the issues that it identified, starting with the first in sequence. 5. **Whether the proceedings and ex-parte judgment rendered by this court should be set aside** 6. The issue herein is that the applicant claims that she, as a beneficiary of her father’s estate, was left out of the proceedings that led to the judgment herein, which is in favour of a buyer of part of the estate. Further, that the proceedings were ex parte and should be set aside. The respondents contend that the proceedings were regular and the judgment should be left to stand. 7. The law on setting aside is provided for in the Civil Procedure Rules, 2010. **Order 12 Rule 7** of the **Rules** provides for the setting aside of *ex-parte* judgments. The same is couched in the following terms: ***Setting aside judgment or dismissal [Order 12, rule 7]*** *Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.* 1. The applicant prayed that the court’s judgment rendered on 24th March 2021 be set aside. Suffice to state is that the said judgment was rendered *ex-parte* and the applicant had not been sued. The 1st respondent instituted a suit against the 2nd respondent, whom she stated was the administrator of the estate of Maurice Okiri Yongo. The applicant on her part submitted that she was not aware of the existence of the suit and only discovered that the *ex-parte* judgment had been entered when she visited the registry to when following up on the succession of her deceased father’s estate following the revocation of a grant initially issued to her brother but revoked because the said brother, who is the 2nd respondent herein had left her out of the succession despite being a heir and beneficiary of the estate of their deceased father. 2. The 1st respondent also faulted the manner in which the applicant approached the court, considering that the matter had been decided on 24th March 2021 and the decree of the court implemented on 1st December 2024. She stated that she had since been issued with a title deed for the portion of land that she obtained by way of adverse possession from the estate of Maurice Okiri Yongo. She equally stated that the applicant was stranger to the suit, since her brother was actively involved in the proceedings leading to the ex-parte judgment and added that the applicant ought to have applied to be joined as an interested part as opposed to being a defendant. 3. The 2nd respondent on his part prayed that the application be dismissed. He stated that his brother disappeared without a trace and his sister, the applicant had no business whatsoever with the estate of their father, having been married and living with her husband. More importantly, the 2nd Respondent deponed that there was no administrator when the 2nd respondent instituted her suit in 2019 since the grant that was issued to him in 2027 had been revoked. Moreover, the 2nd respondent admitted that he sold the portion of land in 1995 before commencement of succession proceedings that was eventually registered in the name of the 2nd respondent, since he believed he had to sole discretion of determining all the issues relating to the estate of this deceased father, being the only son that was living at their home. 4. Although none of the parties disclosed when the grant issued to the 2nd respondent in 2017 was revoked, both the applicant and the respondent deponed in their respective affidavits that the grant was revoked before the 1st applicant filed her suit. the applicant deponed that the 2nd defendant had no capacity to defend the suit since he was not an administrator of the estate of their father following the revocation of the grant issued to him in 2017. The 1st respondent on the other hand deponed that she sued the 2nd defendant because he was holding a valid grant of representation at the time she instituted her suit. 5. The parties ought to have stated when the grant issued in 2017 was revoked. Since none of them did that, the court is persuaded that the said grant was revoked before the 1st respondent instituted her suit. Paragraphs 9 and 10 of the 2nd respondent’s affidavit indicates as much and the court cannot gloss over such an admission by the Respondent. 6. Having so found, can the 2nd applicant be said to have been rightly sued? The question of standing is very critical in litigation. Once a grant of representation is revoked under section 76 of the law of Succession Act, the said grant ceases to exist and estate therefore ceases to be represented. The respondent had not capacity to represent the estate of his father at the time the 2nd respondent filed her suit. 7. In **Balleth v Khamis & 3 others (Legal Representatives of Omar Khamis Baleth) (Civil Appeal E180 of 2023) [2025] KEHC 4499 (KLR) (28 March 2025) (Judgment)**, the court held as hereunder concerning *locus standi* where a grant of representation had been revoked. The court held that: *10.It is trite law that a party without locus standi can neither sue nor be sued. Locus standi is defined in Black’s Law Dictionary, 9th Edition (page 1026) as:* *‘The right to bring an action or to be heard in a given forum.’* *11.In the case of Juletabi African Adventure Limited & another v Christopher Michael Lockley [2017] eKLR, the Court of Appeal had this to say about locus standi:* *Locus standi is defined in Black’s Law Dictionary, 9th Edition at page 1026 as-* *“The right to bring an action or to be heard in a given forum”. This Court in Alfred Njau & 5 others vs. City Council of Nairobi [1983] eKLR put it in the following terms:-“The term locus standi means a right to appear in Court and, conversely, as is stated in Jowitt’s Dictionary of English Law, 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.”* *12.The Respondents are not the personal or legal representatives of the estate of Omar. As such, they were non-suited to the Applicant’s claim for want of locus standi to be sued.* 1. Even if the grant of representation issued the 2nd respondent was revoked after the commencement of the 1st respondent’s suit, would the judgment obtained thereafter stand? In **In re Waiganjo (Deceased) (Probate & Administration E354 of 2022) [2026] KEHC 4091 (KLR) (Family) (30 March 2026) (Ruling),** the court held that: 29. When a Grant is revoked, the legal authority of the personal representative to deal with the estate is instantly extinguished. The revocation operates to invalidate the mandate that empowered the Respondent to institute ELC Case No. 123 of 2022. The Court is acutely aware that the Respondent’s primary argument against revocation is that the underlying ELC suit is necessary to recover allegedly stolen property. However, a noble end does not justify legally deficient and fraudulent means. The sanctity of the probate process cannot be sacrificed at the altar of expediency. As the equitable maxim states, no cause of action arises from a base or illegal act—a principle highly relevant when an applicant seeks equitable or legal relief based on a foundational misrepresentation. The Respondent cannot bene.t from a Grant obtained through deceit. 1. Equally, in **re Estate of Kipkeny Arap Kogo (Deceased) (Probate & Administration 05 of 2021) [2025] KEHC 6864 (KLR) (20 May 2025) (Ruling) the court held as hereunder after revoking a grant of representation:** *‘‘23. Further, all the transactions undertaken on the strength of the revoked grant and certificate of confirmation of grant are hereby declared invalid, null and void “obnitio” with the ownership of the entire estate property being Land Parcel No. South Nandi/Mosoriot/286 reverting to and in the name of the deceased. The true and actual beneficiaries of the estate be at liberty to petition for grant of letters of administration, intestate afresh.’’* 1. The 2nd respondent submitted that the applicant brought the application way too late considering the impugned judgment was rendered on 24th march 2021. The applicant submitted that she was not aware of the suit and he judgment of the court until sometimes in December 2024 when she came across it at the court registry when following upon on the succession process after being made an administrator of her father’s estate. The court is pursued by her explanation, she was not neither a party to the suit nor an administrator of her father’s estate when the 1st respondent filed her suit. Her brother secretly applied for grant of representation and omitted her name hence the revocation of the grant issued to him in 2022. Granted these circumstances, the court finds that the applicant was not aware of the suit and ex-parte judgment of the court. the applicant deponed that she discovered the existence of the ex-parte judgment in December 2024. She filed thee instant application on 10th February 2025. There was no delay in bringing the application. 2. The court has also considered that the applicant is an administrator ad beneficiary of the estate of her deceased father. It has also considered the submissions of the applicant and that of the respondent on who was sued in this matter and in what capacity. The applicant argues the 1st Respondent was sued not in the capacity of an administrator of the Estate of the deceased father because his letters of grant had been revoked. Rather he was sued in his personal capacity hence did not have locus standi. The 1st respondent argues that that was not the position: he had capacity. 3. The applicant raised serious issues relating to the estate of her father, particularly that she was left out of the estate, and in any event that the judgment was irregular. Even without exhibiting the kind of defence she has, the fact that she was one of the administrators who was never sued by the time the impugned judgment was rendered, the 1st Respondent must be having as much a cause of action as she had against the 2nd Respondent, and the applicant has as much similar defence or even more than the 2nd Respondent. The court considers that the same should be addressed so that the interest of justice of all parties may be served. This argument merits. The judgment is hereby set aside. 4. What remains then is whether the applicant should be joined as a defendant or other party. As to whether the applicant may be joined as defend, the court agrees with the 1st respondent that she can should have applied as an interested party because she has not been sued. She cannot compel the Plaintiff to sue har when the said party does not wish to. Be that as it may, she has stake in the subject parcel of land. She has to defend her stake. 5. In the case of ***Francis Karioki Muruatetu & Another v Republic & 5 Others,* Petition 15** as **consolidated with 16 of 2013 [2016] eKLR**, the Supreme Court set forth requirements to be satisfied for an applicant to be joined as an interested party. At **paragraph 37** the Court state that the Applicant(s) must show: (i) *The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.* (ii)*The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.* (iii) *Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court****.*** 1. It is my considered view that the Applicant has satisfied the first and send limbs above. While she has not filed submissions to show what she will bring it to the proceedings, her claim that the suit was brought against an estate of her deceased father of which she is an administrator, and the lack of capacity at the time of entry into the agreement, the court has, in the interest of justice found that had she applied to be joined as an interested party she would have submitted. Thus, this court will exercise discretion to admit the applicant as an interested party as opposed to a defendant, granted the gravity of the issue presented by this application. In **Francis Karioki Muruatetu & another v Republic, Petition No. 15 of 2015 as consolidated with Petition No. 16 of 2015**, the Supreme Court admitted parties who had sought to be admitted as interested parties as amici. The court held that: *[59] In light of the foregoing, and of the submissions made on behalf of the intended interested parties as to the contribution they intend to make in this matter, we are convinced that the role suitable for them in this matter is that of amici curiae, as opposed to interested parties. We believe that their participation will bring on board the much-needed additional material on the subject of the petition; and this will aid the Court in arriving at a judicious determination.* 1. The court is satisfied that the applicant has demonstrated met test for joinder as an interested party as set out in the Muruatetu decision (supra). She has sufficiently identified herself and described her interest in the matter. She has also shown the prejudice she stands to suffer should the ex-parte judgment not be set aside. Accordingly, the court will admit the applicant as an interested subject to the following conditions: 2. The applicant has 14 days to file her respective pleadings as an interested party and serve. 3. The other parties have 14 days to reply to her pleadings from the date of service. 4. The applicant will have 14 days to file a Reply to the responses by the other parties. 5. The matter will be mentioned on 6th day of October 2026 for compliance with Order 11 of the Civil Procedure Rules, 2010. As for the costs of this application, they will be in the Cause. 6. Orders accordingly. **Ruling Dated, Signed and Delivered Virtually Via the Teams Platform This 8th Day of July 2026.** **HON. DR. IUR NYAGAKA,** **JUDGE** **From 12:39 PM in the presence of**, Ms. Ochieng for the Applicant Mr. Ngani holding brief for Ms. Adoyo for the Plaintiff