https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5004

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELC NO. 105 OF 2018** **STELLA KOKI MUTUNGA....…………………………………..PLAINTIFF** **-VERSUS** **NDUNGE MUTUNGA..................................... ………….....1ST DEFENDANT** **TAABU NZOWE.................................................................. 2ND DEFENDANT** **DAVID KIVUNGI.................................................................3RD DEFENDANT** **ALFRED MUNENE..............................................................4TH DEFENDANT** **THE TRUSTEES OF JESUS............................................... 5TH DEFENDANT** **RESTORATION CENTRE- MATILIKU......................... 6TH DEFENDANT** **RULING** 1. This is a ruling in respect of a notice of preliminary objection by the Defendants on the following grounds: 2. **That the Plaintiff is pursuing this case on behalf of the estate of the late John Nzonga Kamwathi.** 3. **That the Plaintiff lacks the capacity to institute this suit on behalf of the estate of the late John Nzonga Kamwathi as the Limited Grant of Letters of Administration made by the honourable court on 25th October, 2018 in Makueni SPMCC Succession Cause No. 144 of 2018 was limited to filing and prosecuting a suit in respect to the death of the deceased and not to the filing of this suit herein.** 4. **That the legal administrators in regard to the estate of the late John Nzonga Kawmawthi are Daniel Kyama Nzonga and Jacinta Ndunge Mutunga.** 5. The Defendants contend that the Plaintiff has no locus standi to pursue this suit on behalf of the Estate of John Nzonga Kamwathi as the limited letters of administration ad litem issued to her in Makueni SPMSC No. 144 of 2018 was limited to filing of a suit in respect of the death of John Nzonga Kamwathi and not filing of the present suit. 6. The parties were directed to file written submissions. The Defendants filed submissions dated 2nd February, 2026. The Plaintiff filed submissions dated 3rd February, 2026. 7. The Defendants submitted that this court has no jurisdiction to deal with matters to do with succession and that the Plaintiff has no locus standi to bring this suit as she is not one of the administrators of the estate of the late John Nzonga Kamwathi. The Defendants relied on the case of **Owners of Motor** **Vessel “Lilian S” –VS- Caltex Oil (Kenya) (1989) KLR 1**. They also relied on the case of **Beatrice Wambui Kiarie & 2 Others –vs- Tabitha Wanjiku Kiearie and 9 others (2018) EKLR**. 8. The Plaintiff submitted that she has locus standi to bring this suit as she had applied for a limited grant of letters of administration ad litem which was granted. She submits that there was an error in the typing of the grant ad litem which should not be visited upon her. She submits that she specifically applied for filing of a suit and this is what she did. She further submitted that she did not require a full grant to pursue the suit and relied on the case of **Atieno & Another –vs- Murila (Civil** **Appeal E431 of 2023) (2025) KEHC 3462 (KLR).** 9. I have carefully considered the preliminary objection by the Defendants as well as the submissions by the parties. The only issue for determination is whether the preliminary objection meets the test of what a preliminary objection should be. 10. In the case of **Mukisa Biscuit Manufacturing Co. Ltd –vs- Westend** **Distributors Ltd (1969) EA 696** a preliminary objection was defined as follows: **“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises y 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 parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”.** 1. In the **Mukisa Biscuit Manufacturing Case (Supra)**, it was further stated as follows: **“........the first matter related to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. 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 the exercise of judicial discretion the improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion confuse issues. This improper practice should stop.”** 1. The Defendants are contending in their submissions that this court does not have jurisdiction to deal with matters of succession. A cursory look at the prayers in the plaint shows that the Plaintiff is seeking among other reliefs injunctive orders and eviction orders in respect of LR No. Nzaui/Kawala/961. This is a case which falls under the jurisdiction of this court. 2. The Defendants are contending that the administrators of the Estate of John Nzonga Kamwathi are Daniel Kyama Nzonga and Jacinta Ndunge Mutunga. If this be the case, then this calls for ascertainment of this fact and as such one cannot bring a preliminary objection where such facts are to be ascertained. 3. A look at the limited grant of letters of administration ad litem issued to the Plaintiff on 25th October, 2018 shows that she was granted authority to file suit in respect of the estate of John Nzonga Kamwathi. This suit was filed a week later on 1st November, 2018. The Plaintiff therefore had locus standi to bring the suit. She did not require a full grant to do so. 4. In the case of **Atieno & Another (Supra)**, it was held as follows: **“In my view, the Court of Appeal’s holding in the Joel Muga case leave no doubt that a claimant suing under the Law Reform Act on behalf of a deceased person only requires a limited grant ad litem to establish locus standi, rather than a full grant, as was held in the Lydia Ntembi’s case. Consequently, I am convinced that the trial court erred in its determination on this issue, and I accordingly allow the first ground of appeal.”** 1. If the grant issued to the Plaintiff was restricted to filing suit in respect of death of John Nzonga Kamwathi as the Defendants submit, then this will require ascertainment of that position and no preliminary objection can be brought in the circumstances. I therefore find that the preliminary objection is devoid of merit. The same is dismissed with costs to the Plaintiff. It is so ordered. **..............................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 30TH DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Mr. Muendo for Mr. Muthiani for Plaintiff Court assistant – Kilonzo