[2025] KEELC 4256 (KLR)

Owiro & another v Randiki & another (Environment & Land Case E032 of 2025) [2025] KEELC 4256 (KLR) (5 June 2025) (Ruling)

Neutral citation: [2025] KEELC 4256 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisumu

Environment & Land Case E032 of 2025

E Asati, J

June 5, 2025

Between

Daniel Abuto Owiro

1st Plaintiff

Abraham Owuor Owiro

2nd Plaintiff

and

Caleb Randiki

1st Defendant

Kenya Forest Services

2nd Defendant

Ruling

1. This ruling is in respect of the Preliminary Objection raised by the Defendant vide the Notice of Preliminary Objection dated 28th May, 2025. The grounds upon which the preliminary objection is brought are that;a.the dispute before court as described in the Plaint and Statement of Defence is a boundary dispute with regards to position of the common boundary of registered land parcel number KISUMU/KONYA/2723 and KISUMU/KONYA/3204. Therefore, under section 18(2) of the Land Registration Act, the Honourable Court lacks jurisdiction to entertain any action or any other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined by the Land Registrar;b.the Plaintiff instituted the suit on behalf of the estate of Alphonce Owiro Stephen Odero (now deceased), the registered owner of land parcel No. KISUMU/KONYA/2723 without authority and without obtaining a limited Grant of Letters of Administration Ad Litem as provided under sections 81 and 82 of the Law of Succession Act Cap160 Laws of Kenya.The Defendant therefore sought that the suit be dismissed with costs.

2. The Preliminary Objection was heard by way of oral submissions on 29th May, 2025.

3. I have considered the Preliminary Objection against the pleadings filed and the submissions made.

4. The Defendant’s case is that the issues before court concerns the position of the common boundary between the suit lands and therefore, within the mandate of the Land Registrar. That although the Plaintiff pleaded that the two parcels of land are separated by a road, the maps of the area show no road but that the parcels share a common boundary.

5. Secondly, that the Plaintiff lacks locus standi to bring the suit and hence the court has no jurisdiction.

6. The Plaintiff’s case is that the suit was brought by children of the deceased as representatives of his estate to preserve the estate. That the matters were extremely urgent, that article 159 of the Constitution of Kenya and the Bill of Rights gives the court the powers to entertain the suit. That all the siblings gave consent to the Plaintiff to file the suit.

7. I have considered the Preliminary objection and the grounds advanced in opposition thereto. In Kenya the law applicable in the handling property of deceased persons is the Law of Succession Act Cap 160 Laws of Kenya. The long title of the Law of Succession Act provides that the Law of Succession Act is“an Act of Parliament to amend, define and consolidate the law relating to intestate and testamentary succession and administration of estates of deceased persons and for purposes connected therewith and incidental thereto.”Section 2(1) provides that“except as otherwise provided in this Act or any other written law, the provisions of this Act shall constitute the law of Kenya in respect of and shall have universal application to all cases of intestate or testamentary succession to the estate of deceased persons dying after the commencement of this Act and to the administration of the estates of those persons.”

8. Section 82 of the Act vests the power to file suits on behalf of the estate of the deceased in the personal representative duly appointed through the process of succession as provided in the Act and not in any other person.

9. The Court of Appeal in the case of Barnes Muema v Francis Masuni Kyangangu[2019] eKLR considered the question whether a litigant could file and sustain objection proceedings on behalf of the estate of his grandfather claiming that the suit property was family land. The court was in agreement with the High Court findings that such a litigant lacked locus standi and dismissed the Appeal. Also in the case of Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & another [1987]eKLR the Court of Appeal held that:“But an administrator is not entitled to bring action as administrator before he has taken out Letters of Administration. If he does the action is incompetent at the date of its inception.

10. In Estate of Barasa Kanenje Manya (deceased) Succ Cause No. 263 of 2002 [2020] KWHC 1 (KLR) it was held, inter alia, that the mere fact that a person is a surviving spouse or child of the deceased does not make him or her a personal representative of the deceased, that one needs to be appointed by the court as such.

11. Similarly, in Rajesh Pranjivan Chadasama v Rajesh Pranjivan Chadasama [2014] eKLR it was held that a litigant is clothed with locus standi upon obtaining a limited or full Grant of Letters of Administration.

12. Under section 45 of the Act handling property of a deceased person without complying with the provisions of the Law of Succession Act amounts to an offence called with intermeddling.

13. In the present case, it is pleaded by the Plaintiffs that the suit property is property of a deceased person and it is conceded both in the pleadings and the submissions that no Letters of Administration have taken out in respect of the estate of the deceased owner of the land.

14. It was submitted on behalf of the Plaintiffs that the matter was extremely urgent hence no time to obtain Letters of Administration. However, perusal of the plaint shows that the Plaintiffs were aware of the dispute as early as 3rd January, 2025 and it was not until 9th May 2025, that the action herein was commenced. This was sufficient time to comply with the provisions of Cap.160 of the Laws of Kenya before filing the suit.

15. In determining whether the matters raised in the notice of preliminary objection constitute a proper preliminary objection, the court is guided by the decision in the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Limited [1969]E.A 696 where it was held that:“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 facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is exercise of judicial discretion.”The court further stated that;“a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings and which if argued as a preliminary point may dispose of the suit.”

16. A Preliminary Objection must therefore be based on pure points of law that flow from the pleadings filed. In the present suit the preliminary objection is based on section 18 of the Land Registration Act and the law of succession Act. The Defendant has demonstrated that these are matters based on pure points of law that flow from the pleadings filed.

17. For the foregoing reasons, the court finds that the Preliminary Objection has merit and hereby upholds it. The Plaintiffs/Applicants lack locus standi to bring the suit. The effect of this is that the suit as filed is incompetent and a nullity. It is hereby struck out together with the application dated 21st May, 2025. Costs to the Defendant/Respondent.Orders accordingly.

RULING, DATED AND SIGNED AT KISUMU AND READ VIRTUALLY THIS 5TH DAY OF JUNE, 2025 THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATI,JUDGE.In the presence of:Maureen - Court Assistant.Msando h/b for Kanyonge for the Plaintiff/Applicant.Kouko for the Defendant/Respondent.