https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5120

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAJIADO** **ENVIRONMENT AND LAND DIVISION** **ELC CASE NO. E097 OF 2022** **VIRGINIA GATHONI WAKABA.......................................1ST PLAINTIFF/RESPONDENT** **FRASHIA WAMBUI WAKABA.........................................2ND PLAINTIFF/RESPONDENT** **VERSUS** **STEPHEN NG'ANG'A WAKABA...........................1ST DEFENDANT/3RD RESPONDENT** **ERICK KINUTHIA WAKABA...............................2ND DEFENDANT/4TH RESPONDENT** *(Sued as administrators of the Estate of Monica Njeri Wakaba)* **LAND REGISTRAR NGONG......................................................................3RD DEFENDANT** **SALOME WANGUI WAKABA...........................................4TH DEFENDANT/APPLICANT** **AND** **JULIA NGAMI MUSENGI......................................1ST INTENDED INTERESTED PARTY** **SUSAN WAITHERA WAKABA.............................2ND INTENDED INTERESTED PARTY** **ANN MUTHONI NG'ANG'A..................................3RD INTENDED INTERESTED PARTY** **SIMON GICHIHI WAKABA..................................4TH INTENDED INTERESTED PARTY** **JAMES KAMAU WAKABA...................................5TH INTENDED INTERESTED PARTY** **ANTHONY GAITHO WAKABA............................6TH INTENDED INTERESTED PARTY** **ESTHER NJOKI MUTURI.....................................7TH INTENDED INTERESTED PARTY** ### **RULING** ***(In respect of the Preliminary Objection dated 23rd September 2023 and the P.O dated 24th March 2026)*** **Introduction** 1. Before this court for determination are two Preliminary Objections raised independently by the 1st Defendant/Respondent and the 4th Defendant/Applicant. As both objections dispute the foundational validity of the suit and the locus standi of the Plaintiffs, they raise overlapping questions of law that strike at the core of these proceedings. Consequently, the Court has deemed it prudent and judicious to consider the two Preliminary Objections contemporaneously. 2. The first Preliminary Objection, dated 25th September 2023, is brought by the 1st Defendant, Stephen Ng'ang'a Wakaba. The objection specifically targets the application dated 25th January 2023 and the suit in its entirety. It is anchored on the following primary grounds: 3. That the Plaintiffs lack the capacity and locus standi to commence and maintain a suit on behalf of the deceased's estate. 4. That the lawful authority to bring a cause of action regarding the estate resides exclusively with a personal representative, executor, or administrator. 5. That the Plaintiffs ought to have obtained a limited grant of letters of administration *ad litem* to institute the suit. 6. That the 1st Defendant himself lacks the capacity to be sued, asserting that he is neither an administrator nor an executor of the estate in question. 7. The second Preliminary Objection, dated 24th March 2026, is preferred by the 4th Defendant, Salome Wangui Wakaba, through E. Valerie Advocates. This objection seeks the outright dismissal of the suit and is predicated on profound jurisdictional and statutory grounds, notably: 8. That the present proceedings are *sub judice*, given the existence of Nairobi High Court Succession Cause No. 586 of 2013 (Re Estate of Monicah Njeri Wakaba), which renders concurrent litigation before this Court fundamentally defective and offensive to Section 6 of the Civil Procedure Act. 9. That this Honourable Court lacks subject-matter jurisdiction to hear and determine what is fundamentally a succession dispute disguised as an environment and land matter, contrary to Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. 10. That the dispute calls upon this Court to determine matters falling exclusively within the jurisdiction of the Probate and Administration Court. 11. That the Plaintiffs similarly lack the requisite locus to sue on behalf of the deceased's estate under the mandatory provisions of the Law of Succession Act. **Directions** 1. Both preliminary objections were canvassed by written submissions, the submissions of which have been duly considered in the writing of this ruling. **Issues for determination** 1. Having carefully considered the two Preliminary Objections, the pleadings on record, and the rival positions taken by the parties, the Court is of the considered view that the objections raise four broad issues for determination. These are: firstly, whether the Plaintiffs possess the requisite locus standi to institute and maintain the present suit; secondly, whether the suit is sub judice by reason of the existence of Nairobi High Court Succession Cause No. 586 of 2013; thirdly, whether this Court has jurisdiction to entertain the dispute; and finally, whether the suit is incompetent as against the 1st Defendant on account of the alleged want of capacity to be sued. **Analysis and Determination** ### ***(i) Whether the Plaintiffs possess the requisite locus standi*** 1. The first issue raised in both Preliminary Objections concerns the legal capacity of the Plaintiffs to institute these proceedings. The Defendants contend that the suit has been instituted on behalf of the estate of the deceased without the Plaintiffs first obtaining letters of administration or a grant ad litem as required under the Law of Succession Act. It is further argued that only a duly appointed personal representative can institute proceedings touching on the estate of a deceased person. 2. The law regarding locus standi in matters involving the estate of a deceased person is well settled. Section 82(a) of the Law of Succession Act provides that personal representatives shall, subject only to any limitation imposed by their grant, have power— ***"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 estate."*** 1. The import of the foregoing provision is that the right to litigate on behalf of a deceased person's estate vests exclusively in a duly appointed administrator or executor. Consequently, where a party institutes proceedings on behalf of an estate without first obtaining a grant of representation, such proceedings are generally incompetent. 2. This principle has received consistent judicial affirmation. In ***Trouistik Union International & Another v Jane Mbeyu & Another [1993] eKLR***, the Court of Appeal emphatically held that: *"****To determine who may agitate by suit any cause of action vested in a deceased person at the time of his death, one must turn to section 82(a) of the Law of Succession Act. That section confers that power on personal representatives and on them alone."*** 1. Likewise, in ***Otieno v Ougo & Another [1986-1989] EA 468,*** the Court observed that: ***"An 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."*** 1. The rationale underlying these decisions is that the grant of representation constitutes the legal authority through which the estate acquires a juristic personality capable of suing or being sued. 2. However, whether the Plaintiffs indeed instituted these proceedings **on behalf of the estate** or whether they seek to vindicate their own proprietary rights in land is a matter that must be discerned from the pleadings. Where litigants sue to enforce their own constitutional or proprietary interests in land, they do not necessarily require letters of administration merely because the dispute involves property formerly belonging to a deceased person. 3. It is equally settled that a preliminary objection must arise from undisputed facts. Where the Court must interrogate pleadings or ascertain the nature of the rights asserted before determining whether a grant of representation was necessary, the objection ceases to be a pure point of law. 4. In ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696***, Law JA stated: ***"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 further added that: ***"A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law... It cannot be raised if any fact has to be ascertained."*** 1. Similarly, in ***Henry Wanyama Khaemba v Standard Chartered Bank Limited & Another [2014] eKLR***, the Court reiterated that where determination of an objection requires investigation of facts, such objection falls outside the scope of a true preliminary objection. 2. Accordingly, if determination of the Plaintiffs' locus requires examination of the pleadings, the reliefs sought, or the capacity in which the Plaintiffs approach the Court, the issue cannot properly be determined at the preliminary stage. Such matters are more appropriately resolved upon consideration of evidence. ### ***(ii) Whether the suit is sub judice*** 1. The 4th Defendant further contends that these proceedings offend the doctrine of sub judice because Nairobi High Court Succession Cause No. 586 of 2013 concerning the estate of the deceased remains pending. 2. Section 6 of the Civil Procedure Act provides: *"****No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit... between the same parties... where such suit is pending in the same or any other court having jurisdiction."*** 1. The doctrine seeks to prevent parallel litigation over the same subject matter, avoid conflicting decisions and preserve the integrity of the judicial process. 2. The Supreme Court in ***Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR,*** explained that for sub judice to apply, there must exist identity of the parties, identity of the subject matter, identity of the issues, and the previously instituted proceedings must be pending before a court of competent jurisdiction. 3. Whether those ingredients exist in the present matter cannot be conclusively determined merely from the notice of preliminary objection. The Court would require examination of the pleadings filed in the succession proceedings, the issues framed therein, and comparison with the pleadings before this Court. Such an exercise necessarily entails consideration of factual material beyond the pleadings presently before Court. 4. The doctrine of sub judice, though capable of being raised as a preliminary objection in appropriate circumstances, must be founded upon undisputed facts. Where factual comparison between two proceedings becomes necessary, the objection cannot be disposed of as a pure point of law. 5. The Court therefore finds that, on the material presently before it, the issue cannot conclusively dispose of the suit at this preliminary stage. ### ***(iii) Whether this Court lacks jurisdiction*** 1. The 4th Defendant further submits that the dispute is essentially a succession matter clothed as a land dispute and therefore falls exclusively within the jurisdiction of the Probate Court. 2. Jurisdiction is indeed everything. 3. In ***Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1***, Nyarangi JA famously stated: ***"Jurisdiction is everything. Without it, a court has no power to make one more step."*** 1. The jurisdiction of this Court is derived from Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, which confer jurisdiction over disputes relating to title to, occupation of and interests in land. 2. Equally settled, however, is the principle that the Environment and Land Court does not exercise probate jurisdiction. Questions relating solely to distribution of a deceased person's estate fall within the jurisdiction of the Family Division exercising probate jurisdiction under the Law of Succession Act. 3. Nonetheless, where the dispute concerns ownership, title, cancellation of registrations, validity of land transactions or proprietary interests in land, the Environment and Land Court retains jurisdiction notwithstanding that one of the parties is a deceased person's estate. 4. Whether the present dispute principally concerns succession or determination of proprietary interests in land can only be discerned upon consideration of the pleadings and the substantive reliefs sought. 5. The Court is therefore unable to conclude, purely as a matter of law, that it lacks jurisdiction without first examining the precise nature of the dispute. Such inquiry transcends the narrow confines of a preliminary objection. ### ***(iv) Whether the suit is incompetent against the 1st Defendant*** 1. The 1st Defendant lastly argues that he lacks capacity to be sued because he is neither an administrator nor executor of the estate. 2. Again, whether the suit has been brought against him in his personal capacity or representative capacity is a matter discernible only from the pleadings. 3. Where the pleadings allege personal acts or omissions attributable to the 1st Defendant, his appointment as administrator may be immaterial. Conversely, if relief is sought against him solely as representative of the estate, the issue assumes significance. 4. That determination necessarily calls for examination of the pleadings and cannot properly be undertaken within the confines of a preliminary objection. 5. The Court has carefully considered each of the grounds advanced in the two Preliminary Objections. While the legal principles relied upon by the Defendants are well established, their application to the present dispute is dependent upon ascertainment of facts, examination of the pleadings, and determination of the capacity in which the parties have approached the Court. 6. As was stated in ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696***, a preliminary objection cannot be sustained where the Court is required to investigate facts or exercise judicial discretion. Likewise, in ***Henry Wanyama Khaemba v Standard Chartered Bank Limited & Another [2014] eKLR***, the Court emphasized that issues requiring factual interrogation fall outside the ambit of a true preliminary objection. 7. In the present case, the questions concerning locus standi, the applicability of the doctrine of sub judice, the jurisdiction of this Court, and the capacity of the 1st Defendant are all inextricably intertwined with factual matters that cannot be conclusively resolved without interrogating the pleadings and, where necessary, receiving evidence. They therefore do not qualify as pure points of law capable of disposing of the suit at this preliminary stage. 8. Accordingly, the Court finds that both the Preliminary Objection dated **25th September 2023** and the Preliminary Objection dated **24th March 2026** are devoid of merit and are hereby **dismissed**, with costs to abide the outcome of the main suit. It is so ordered **Dated, Signed and Delivered at Kajiado Virtually this 31st Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Ms. Miencha for the 1st Defendant Ms. Ochola h/b for Ms. Mong’are for the 4th Defendant N/A by the Plaintiff and the 2nd & 3rd Defendants Court Assistant: Alex **M.D. MWANGI** **JUDGE**