https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5030

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT IN KAJIADO** **ELCOS E015 OF 2025** **IN THE MATTER OF LAND PARCEL NO. KAJIADO/OLCHORO-ONYORE/1960** **AND** **IN THE MATTER OF SECTION 7, 13, 37 AND 38 OF THE LIMITATIONS OF ACTIONS ACT, CAP 22 LAWS OF KENYA** **BETWEEN** **PATRICK MICHAEL NDUNGU WAWERU.......................................................APPLICANT** **VERSUS** **SUSAN NYAMBURA (Sued as the legal** **representative of the estate of MOSES DAVID).................................................RESPONDENT** **AND** **ABSA BANK KENYA PLC....................................................................INTERESTED PARTY** **RULING** ***(In respect of the preliminary objection dated 11th March 2026 raised by the Respondent)*** **Introduction** 1. Before this Honorable Court for determination is the Notice of Preliminary Objection dated 11th March 2026, raised by the Respondent, Susan Nyambura. The Respondent has been sued by the Applicant, Patrick Michael Ndungu Waweru, in her purported capacity as the legal representative of the estate of the late Moses David, with Absa Bank Kenya PLC named as an Interested Party. The said Preliminary Objection targets the Applicant's Originating Summons dated 24th September 2025, challenging the entire suit on points of law. 2. The crux of the Respondent's objection is that the Applicant instituted the proceedings against the estate of a deceased person without any proof that a Grant of Representation had been obtained, rendering the suit legally untenable. To fully capture the basis of this challenge, the Respondent relies on the following grounds *inter alia*: 3. THAT the suit as drawn and filed is fatally defective, incompetent and bad in law. 4. THAT the Applicant has sued the Respondent as the legal representative of the Estate of the late Moses David without any proof that the Respondent has obtained Letters of Administration or a Grant of Representation in respect of the said estate. 5. THAT pursuant to Section 82(a) of the Law of Succession Act, Cap 160 Laws of Kenya, only a duly appointed personal representative has legal capacity to represent the estate of a deceased person in court proceedings. 6. THAT in the absence of a Grant of Letters of Administration or Grant of Representation, the Respondent lacks the legal capacity to be sued on behalf of the estate, and therefore these proceedings are premature, incompetent and an abuse of the court process. 7. THAT the Originating Summons dated 24th September 2025 is incurably defective for purporting to sue a non-existent legal representative. THAT the claim as framed improperly seeks to determine rights over property forming part of the estate of a deceased person without the involvement of a duly appointed administrator, contrary to the provisions of the Law of Succession Act, Cap 160 Laws of Kenya. 8. THAT the Applicant has failed to establish a proper cause of action capable of sustaining a claim for adverse possession against the estate of a deceased person in the absence of a legally appointed personal representative. 9. THAT it is an established legal principle that a suit filed against or on behalf of a deceased person without a grant of representation is a nullity ab initio. 10. THAT the Applicant's claim is misconceived, legally untenable and ought to be struck out with costs. 11. The Respondent therefore prays that the Originating Summons dated 24th September 2025 be struck out with costs for being incompetent and an abuse of the court process. **Directions** 1. The instant preliminary objection was canvassed by way of written submissions, the submissions of which have been duly considered in the writing of this ruling. **Analysis and Determination** 1. Having carefully considered the Notice of Preliminary Objection dated 11th March 2026, the rival submissions filed by the parties and the authorities cited therein, I am of the considered view that the only issue falling for determination is whether the Respondent's Preliminary Objection raises pure points of law capable of disposing of the suit, and consequently, whether the same is merited. 2. A preliminary objection occupies a unique place in civil litigation. It is intended to summarily dispose of proceedings where there exists a pure point of law that is capable, without resort to evidence, of determining the entire suit. The jurisprudential foundation of a preliminary objection was settled in the celebrated case of ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696***, where Law JA stated as follows: ***"So far as I am aware, 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."*** 1. Sir Charles Newbold P, in the same decision, further explained 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 the 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 the exercise of judicial discretion."*** 1. These principles have remained the touchstone upon which every preliminary objection is measured. The Court of Appeal reaffirmed them in ***Attorney General & Another v Andrew Mwaura Githinji & Another [2016] eKLR***, where it observed that: ***"A preliminary objection 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 where any fact has to be ascertained or where what is sought is the exercise of judicial discretion."*** 1. It therefore follows that where the Court is invited to interrogate evidence, ascertain disputed facts or evaluate documents, the objection ceases to be a proper preliminary objection. 2. The Respondent's objection is principally anchored on the argument that she lacks capacity to be sued because there is no proof that she obtained a Grant of Representation as contemplated under Section 82(a) of the Law of Succession Act. The Respondent consequently urges this Court to find that the Originating Summons is a nullity for having been instituted against a person without legal capacity to represent the estate of the deceased. 3. There is no dispute with the legal principle that only a duly appointed personal representative may sue or be sued on behalf of a deceased person's estate. Section 3 of the **Law of Succession Act**, Cap. 160 defines a personal representative as: ***"the executor or administrator of a deceased person."*** 1. Section 82(a) of the same Act further provides that: ***"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 personal representative."*** 1. Similarly, the Court of Appeal in ***Trouistik Union International & Another v Jane Mbeyu & Another [1993] eKLR,***emphatically held that: ***"The administrator is not entitled to bring an action as administrator before he has taken out letters of administration. If he does, the action is incompetent at the date of its inception."*** 1. Likewise, in ***Isaya Masira Momanyi (Suing as the Legal Representative of the Estate of Masira Onsase) v Daniel Omwoyo & Another [2017] eKLR***, the Court stated that: ***"Only a person who has been issued with Grant of Letters of Administration has capacity to represent the estate of a deceased person."*** 1. These authorities correctly state the law and this Court fully associates itself with those principles. 2. However, the question before this Court is not whether a grant is legally necessary. The law is settled that it is. Rather, the question is whether the existence or absence of such grant can properly be determined by way of a preliminary objection. 3. Upon examining the pleadings and the rival submissions, it becomes immediately apparent that the Applicant disputes the factual basis upon which the Preliminary Objection is founded. The Applicant expressly contends that the Respondent was appointed administrator of the estate of the late Moses David in **Ngong Succession Cause No. E074 of 2022**, and that a Grant of Letters of Administration was confirmed on 28th July 2022, culminating in the issuance of a Certificate of Confirmation of Grant on 4th August 2022, well before the institution of the present proceedings. 4. The Applicant therefore maintains that the Respondent possesses full legal capacity to defend the present proceedings. 5. Once that assertion is made, the Court is immediately confronted with competing factual positions. The Respondent asserts that no grant exists, while the Applicant maintains that a confirmed grant exists. Resolving that controversy would inevitably require the Court to examine the succession record, scrutinize the alleged Grant of Representation or Certificate of Confirmation of Grant, and ascertain whether indeed the Respondent is the duly appointed administrator of the estate. 6. That exercise plainly entails evaluation of evidence. 7. Indeed, the Applicant correctly submitted that if the Court is invited to examine documentary evidence outside the pleadings to determine whether a Grant exists, then the objection ceases to be one founded upon a pure point of law. 8. This position finds support in ***Muumbo & Another (C/o Muigai Kemei & Associates Advocates) v Mwingi View Point Lodge Limited & 8 Others [2024] KEELC 6921 (KLR*)**, where the Court held that questions concerning the existence of a Grant of Representation involve evidentiary proof and therefore cannot properly be determined through a preliminary objection. A court cannot, under the guise of determining a preliminary objection, embark upon an inquiry into disputed factual matters. 9. The Respondent has equally argued that the Applicant has failed to disclose a cause of action capable of sustaining a claim for adverse possession. I respectfully disagree. 10. The law concerning the existence of a cause of action is equally settled. At the preliminary stage, the Court does not determine whether the claim will ultimately succeed. Rather, it considers whether the pleadings disclose material facts which, if proved, would entitle the claimant to the relief sought. 11. In the present Originating Summons, the Applicant pleads that he entered into possession of the suit property in the year 1987 and has remained in open, peaceful, continuous, exclusive and uninterrupted occupation of the land for a period exceeding thirty-eight years, without the permission of the registered proprietor. He consequently seeks declarations under Sections 7, 13, 37 and 38 of the Limitation of Actions Act that he has acquired title by adverse possession. 12. Whether those allegations are true is not a matter for determination at this interlocutory stage. They constitute the factual substratum of the Applicant's claim and can only be established through viva voce evidence and cross-examination during the hearing of the suit. 13. To determine, at this preliminary stage, whether adverse possession has been established would require the Court to investigate when possession commenced, whether such possession was peaceful, continuous, uninterrupted and adverse to the title of the registered owner, whether time was interrupted by any legal proceedings, and whether the statutory period has accrued. These are quintessential questions of fact incapable of determination without evidence. 14. The Court is therefore persuaded that the Respondent's objection invites it to determine substantive issues reserved for trial. Such an invitation runs afoul of the principles enunciated in **Mukisa Biscuit case**, which prohibit the determination of contested facts under the guise of a preliminary objection. 15. The Court is equally alive to the constitutional command contained in **Article 159(2)(d) of the Constitution**, which provides that: ***"Justice shall be administered without undue regard to procedural technicalities."*** 1. Similarly, Sections 1A and 1B of the Civil Procedure Act obligate courts to facilitate the just, expeditious, proportionate and affordable resolution of disputes. While these provisions cannot be invoked to sanitize substantive defects relating to jurisdiction or locus standi, they reinforce the principle that parties ought not to be driven away from the seat of justice through objections founded upon disputed factual matters. 2. In the instant case, the Applicant has asserted that the Respondent is a duly appointed administrator of the deceased's estate. Whether that assertion is true is a matter capable of proof through production of the succession record. Equally, whether the Applicant has acquired title by adverse possession is a substantive question reserved for trial. Neither issue can properly be disposed of by way of a preliminary objection. 3. Consequently, I find that the Respondent's Preliminary Objection does not raise pure points of law within the meaning of ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696***. Instead, it is predicated upon contested factual matters requiring evidentiary interrogation. Such issues cannot be resolved summarily without offending the settled principles governing preliminary objections. 4. Accordingly, I hold that the Notice of Preliminary Objection dated 11th March 2026 is misconceived and devoid of merit. The same is hereby dismissed with costs to the Applicant. The suit shall proceed to hearing on its merits so that the parties may fully ventilate the substantive issues in dispute. It is ordered. **Dated, Signed and Delivered at Kajiado Virtually this 30th Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Mr. Shago for the Plaintiff Mr. Nyairo h/b for Mr. Njagi for the Defendant Ms. Yasin h/b for Mr. Evans Ochieng for the Interested Party Court Assistant: Alex **M.D. MWANGI** **JUDGE**