https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7730

Wanjiku & another v Chege & another (Civil Appeal E050 of 2023) [2026] KEHC 7730 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 7730 (KLR) Republic of Kenya In the High Court at Nakuru Civil Appeal E050 of 2023 PN Gichohi, J June 3, 2026 Between Angelina Wanjiku 1st Appellant Nancy Wanjira Gichuki 2nd Appellant and Peter Chege 1st Respondent Samuel Karanja 2nd Respondent (Being an Appeal against the judgement of the Hon. Prisca Nyota(SRM) Delivered on 24th February, 2023 in Nakuru CMCC No. 809 of 2015) Judgment 1.The background of this appeal is that vide the Plaint dated 6th August, 2015, the Appellants sued the Respondents, seeking the following Orders:a.An Injunction to issue against the Defendants restraining them from entering the business premises known as Salama Bar and Hotel, run by the 2nd Plaintiff.b.That the 1st Defendant pays rent arrears to the 1st Plaintiff.c.That the 1st Defendant do pay the loss incurred by the 2nd Plaintiff from 9th July, 2015 up to the time of determination of the suit.d.Costs of the suit and interest. 2.In summary, the Appellants’ case was that they were unlawfully dispossessed of their business premises (Shop 2) located at Plot No. 43 Kabazi Centre. The 1st Appellant claimed beneficial ownership of the bar and hotel on this plot, stating she acquired these rights following the death of her husband, Daniel Gitonga Chege. According to her testimony and supporting witnesses, the property originally belonged to her father-in-law, Chege Kariuki Chege, and was subsequently divided among his sons, which included her late husband. 3.The 1st Appellant stated that upon the demise of her husband, she leased out the bar to Patrick Kinyua and the Hotel to the 2nd Appellant. She stated that Patrick Kinyua, later sublet the bar to the 1st Respondent, Samuel Karanja. The 2nd Appellant, Nancy, continued operating the Hotel as a tenant and paid a monthly rent of Kshs. 2,000/- to her. 4.The 1st Respondent allegedly stopped paying rent, and on 9th July, 2015, he completely denied 2nd Appellant access to the hotel, asserting instead that he had purchased the premises from the 2nd Respondent, Peter Chege. Furthermore, the Appellants alleged that Karanja demolished a store, destroyed hotel counters, and burned Nancy's goods, business licenses, and permits. 5.The 1st Appellant maintained that the 2nd Respondent had no valid title to sell the property, arguing that his grandmother, Virginia Muthoni Chege, had no legal authority to bequeath the plot since it belonged strictly to the deceased father-in-law's estate and no woman was given a share. Consequently, the Appellants urged the trial court to issue an injunction against the Respondents, and an order for payment of rent arrears, and compensation for the loss of business income. 6.In his statement of defence dated 24th August 2015, the 2nd Respondent denied the claim in its entirety. He asserted that he rightfully inherited the disputed plot from his grandmother, Virginia Muthoni. He relied on a Will dated 12th August 1998, which was later revoked and replaced by a final Will on 12th August 1999. This subsequent Will purportedly directed that the plot be bequeathed to the 2nd Respondent upon her death. He stated that, as the son of the late Daniel Gitonga Chege Kariuki, husband to the 1st Appellant, he was the ultimate beneficiary of the property. 7.Consequently, the 1st Respondent, Samuel Karanja, asserted that he owes no rent to the 1st Appellant because he legally purchased the premises from Peter Chege, the 2nd Respondent. 8.Admitting this sale, the 2nd Respondent confirmed that the 1st Respondent is the current and rightful owner of the shop. Because he considered himself the owner by right of purchase. Karanja maintained that he was justified in barring the Appellants from the premises. Consequently, the Respondents urged the trial court to strike out the suit, contending that it is entirely devoid of merit. 9.Upon hearing both parties, the trial court rendered its Judgment on 24th February, 2023, where it held that the 1st Appellant lacked the locus standi to bring the suit as she had not obtained a grant of representation for her late husband’s estate, who was the undisputed owner of the property. The court noted that the 1st Appellant was aware of this requirement for eight years but failed to regularise the situation. 10.Regarding the 2nd Appellant’s claim for special damages (loss of earnings) totalling over Kshs. 8 million, the trial court held that while her tenancy and eviction were not disputed, the 2nd Appellant failed to strictly prove her losses. Specifically, that she did not produce the record books she claimed to keep, and her oral testimony regarding her daily earnings was inconsistent with her formal pleadings. 11.In conclusion, the trial court struck out the Appellants’ claim with costs to the Respondents. However, given the circumstances of the case, the 2nd Appellant was ordered not to pay costs to the Respondents. 12.Dissatisfied with that decision, the Appellants lodged this Appeal vide a Memorandum of Appeal dated 24th March, 2023 and on the following grounds:-1.That the learned trial magistrate erred in law and fact in finding that the 1s appellant ought to have taken out letters of administration for a business she had been running with her deceased husband.2.That the learned trial magistrate erred in law and fact in finding the 1st appellant lacked locus standi to institute the suit in the Chief Magistrate's court.3.That the learned trial magistrate erred in law and fact in not finding that the 2nd respondent had no locus standi to sell shop No 2 plot 43 Kabazi, having not operated the same nor obtained Letters of administration of the late Daniel Chege's Estate.4.That the learned trial magistrate erred in law and fact in failing to make a decision as to the ownership of shop No 2 plot 43 Kabazi which is in the hands of a total stranger to the 1st respondent herein.5.That the learned trial magistrate erred in law and fact in downing her tools on the issue of dealing with the properties of the 2nd appellant which the 2nd respondent confirmed were in the suit premises shut down by the 1st respondent.6.The learned trial magistrate failed to make a finding that the plot No 2 plot 43 Kabazi is in a strangers hands and his purchase from the 2nd respondent was illegal, null and void.7.That the learned trial magistrate failed to consider her orders that the 1st respondent opens the premises to ascertain the 2nd appellant's goods were in the premises were frustrated by the 2nd respondent and their whereabouts remains unresolved.8.That the learned trial magistrate erred in law and fact in failing to find the 2nd appellant was entitled to special damages.9.That the learned trial magistrate failed to appreciate the law regarding a business that was previously jointly run by the 1st appellant and her deceased husband.10.That the learned trial magistrate erred in law in failing to award the costs. Appellants’ Submissions 13.The Appellants submitted that the trial court committed a significant legal error by requiring Angelina Wanjiku (the 1st Appellant) to produce letters of administration for a business she had actively operated alongside her husband during his lifetime. They contended that the suit was primarily concerned with the unlawful interference with an ongoing business and the recovery of rent, rather than a determination of property ownership. 14.It was argued that the 2nd Respondent is a stranger to the estate, as he purported to sell the business premises based on a will from a grandmother who was never a registered beneficiary of the original land. 15.The Appellants further submitted that the trial magistrate failed to consider the decision of the High Court ruling (Nakuru HCC 144 of 2007), which had already identified the 2nd Respondent’s mother as a trespasser and ordered her eviction from the same property. They asserted that the 2nd Respondent’s own testimony contained an admission that the 2nd Appellant, Nancy Wanjira, had her goods and tools of trade inside the premises at the time they were locked, yet the court failed to resolve the whereabouts of these items or award special damages for the loss of business. 16.In seeking equitable relief, the Appellants emphasised that the Respondents acted with unclean hands and should not have been allowed to invoke the Law of Succession Act to justify their actions. To support this principle of equity, they quote the Court of Appeal's decision in Caliph Properties Limited v Barbel Sharma & Another [2015] eKLR that held that:-“He that comes to equity must come with clean hands and must also do equity. The conduct of the Plaintiff in this case betrays him. It does not endear him to equitable remedies.... He who comes to equity must fulfil all or substantially all his outstanding obligations before insisting on his rights. The Plaintiff has not done that. Consequently, he has not done equity.” 17.The Appellants concluded by asserting that the trial magistrate misdirected herself by focusing on extraneous legal technicalities rather than the substantive issues of the case. They argued that the trial court’s insistence on the 1st Appellant obtaining letters of administration for a business she had run for years was a misapplication of the law that ignored the core dispute: the illegal sale of business premises and the resulting dispossession of the Appellants. 18.The Appellants urged this Court to allow the appeal and set aside or review the lower court's judgment in its entirety. They specifically urged this Court to grant the injunctive orders originally sought, to restrain the sale of Room 2 on Plot 43 and prevent further interference with their business, and enter judgment in their favour. 19.Further, they sought a specific order for the return of the 2nd premises as at the time of the shutdown. Lastly, they prayed that the costs of the appeal and the lower-court suit be awarded to them. Respondents’ Submissions 20.Their submissions are on the grounds of the Appeal. On Locus Standi, they argued that the 1st Appellant admitted that the business was run jointly with her deceased husband, placing the deceased at the centre of the claim. 21.They submitted that under Sections 79 and 82 of the Law of Succession Act, legal ownership vests in the estate and then the administrator upon a grant of representation. Therefore, since the 1st Appellant never obtained letters of administration, she lacked the locus standi to sue. To support this position, reliance was placed on the case of Trouistik Union International & Another V Jane Mbeyu & Another [2008] 1 KLR (G&F) 730, where the Court of Appeal held that:-“...To determine who may agitate by suit any cause of action vested in the deceased 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.” 22.Further reliance was placed on the case of Julian Adoyo Ongunga & Another vs Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased) [2016] eKLR, where A. C. Mrima J held that:-“...the issue of locus standi is so cardinal in a civil matter since it runs through to the heart of the case. Simply put, a party without locus standi in a civil suit lacks the right to institute and/or maintain that suit even where a valid cause of action subsists." 23.The Respondents further cited the case of Rajesh Pranjivan Chudasama V Sailesh Pranjivan Chudasama [2014] EKLR, where it was held that "a beneficiary cannot arrogate to themselves the role of administrator and sue in respect of estate property." 24.On Locus Standi of the 2nd Respondent, the Respondents maintain the trial court correctly focused on the Appellant’s standing as the live issue. They argue the Appellant did not plead or prove the 2nd Respondent’s lack of capacity at trial and cannot shift that burden on appeal. 25.On the 3rd Ground, the Respondents argued the trial magistrate rightly refrained from declaring ownership of Shop No. 2, on Plot 43 Kabazi, because it is part of a deceased estate. This, they argued, such matters such as per Section 47 of the Law of Succession Act, are a preserve of a succession court, which is vested with the requisite jurisdiction to vest ownership of estate property. 26.Regarding the legality of the sale to a third party, the Respondents contended that the Appellants failed to seek a declaratory order to nullify the sale within their original pleadings. Furthermore, they submit that the alleged purchaser was never joined as a party to the suit, and it is a settled principle of law that a court cannot make adverse findings or reach a determination prejudicial to a person who is not a party to the proceedings. 27.In response to the 6th ground concerning the purported frustration of court orders, the Respondents maintained that there was no evidence adduced, nor were any contempt proceedings instituted, to demonstrate that the 1st Respondent wilfully obstructed orders to grant access to the premises. 28.On the issue of special damages, the Respondents argued that the 2nd Appellant failed to meet the requisite legal threshold of strict proof, as no invoices, receipts, or valuation reports were provided. They rely on the established principle that special damages must be specifically pleaded and strictly proved, citing the locus classicus case of Hahn v. Singh [1985] KLR 716. 29.The Respondents further reiterated that while the business may have been operated as a joint venture, it legally devolved into the estate of the deceased upon his demise. Consequently, the Appellants lacked the requisite standing to litigate in respect of the property in the absence of a grant of letters of administration. 30.Ultimately, the Respondents pray for the dismissal of the appeal with costs, invoking Section 27 of the Civil Procedure Act. Analysis and Determination 31.The jurisdiction of this court whilst entertaining a first appeal has been elaborated upon in various decisions. In the case of Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, the Court of Appeal for Eastern Africa elaborated on the applicable principle and stated thus;“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect...” 32.From the material placed before this Court, the Memorandum of Appeal and the Record of Appeal, together with the rival submissions filed, the main issue for determination is whether the 1st Appellant had locus standi to institute the trial Court suit. 33.The 1st Appellant contended that she is entitled to injunctive relief against the Respondents, who she asserted have unlawfully usurped the suit premises (Shop 2). She maintained that the property was originally given to her late husband, and she now holds a vested beneficial interest therein. Furthermore, she submitted that as the premises served as her primary source of livelihood, the quiet enjoyment of her tenants must be protected from third-party interference to ensure she continues to realise the economic benefits accruing from her husband's share of the estate. 34.To start with, it is undisputed that Plot No. 43 formed part of the estate of the late Chege Kariuki, as determined by the Court in Nakuru Succession Cause No. 330 of 2001. Upon the confirmation of the grant on 4th March 2003, the estate, comprising the aforementioned parcel, was distributed in equal shares among the deceased’s nine sons, including Daniel Gitonga Chege, the late husband of the 1st Appellant. While Plot No. 43 contained several commercial shops, the said grant was silent on the particularisation of these units and did not specify the individual ownership or distribution of the specific shops erected thereon. 35.The evidence consistently demonstrates that Daniel Gitonga Chege, in conjunction with his wife, Angelina Wanjiku (the 1st Appellant), operated the business enterprises within Shop No. 2, comprising a bar, hotel, and pool table facility. This long-standing occupation was corroborated by the testimonies of both the plaintiffs' and the defence witnesses. Consequently, it is an inescapable inference that Shop No. 2 was impliedly vested in Daniel Chege Kariuki for the use and benefit of himself and his household. 36.Following the demise of Daniel, the 1st Appellant maintained continuous possession and control of the premises, subsequently leasing portions of the property to various tenants. These included Matthew Maina and Patrick Kinyua- the latter of whom purportedly sublet the bar area to the 1st Respondent, Samuel Karanja. 37.Furthermore, she authorised the 2nd Appellant, Nancy Wanjira, to operate a hotel within the same premises. This consistent pattern of dealings affirms that the 1st Appellant exercised de facto control over Shop No. 2, a right derived from her late husband’s established occupation and interest, notwithstanding the absence of an indefeasible title. 38.As much as the 1st Appellant alleges that she is suing as beneficial owner, the said beneficial ownership is traced to an estate property of her late husband. Under Sections 79 and 82 of the Law of Succession Act, the property of a deceased person vests in the personal representative, who alone has the capacity to sue on behalf of the estate. 39.Indeed, Section 82 of the Law of Succession Act 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 arising out of his death for his personal representative; (b). to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best…” 40.The law therefore draws a clear distinction between claims brought on behalf of the estate of a deceased person and those instituted in a personal capacity based on independent rights. 41.In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, the Court of Appeal emphasised that locus standi is grounded on the sufficiency of a party’s interest in the subject matter. However, unlike constitutional claims, where a broad approach to standing may be adopted upon demonstration of a genuine interest, claims founded on private rights require a demonstrable and legally cognizable interest. Where such interest is inextricably linked to the estate of a deceased person, compliance with the Law of Succession Act becomes mandatory. 42.In the present case, it is not in dispute that the suit property, being Shop No. 2 on Plot No. 43, formed part of a business and property arrangement involving the deceased, Daniel Gitonga Chege, and his brothers. The 1st appellant’s occupation, management of the premises, and derivation of livelihood therefrom arose solely by virtue of her relationship with the deceased. Her interest was therefore not independent, but derivative of the deceased’s proprietary rights. 43.While it is true that the 1st appellant remained in possession after her husband’s death and undertook various acts consistent with control of the premises, such possession cannot be divorced from the root of title. Her claim, properly construed, was one seeking to assert and protect rights emanating from her late husband’s share in the property. That share, upon his death, vested in his estate. 44.In that regard, Sections 79 and 82 of the Law of Succession Act are explicit that the property of a deceased person vests in the personal representative, who alone has the capacity to sue or be sued on behalf of the estate. The absence of a grant of representation is therefore not a mere procedural technicality, but a substantive bar to instituting proceedings where the cause of action is founded on rights traceable to the deceased. 45.To hold otherwise would blur the carefully structured regime governing the administration of estates and potentially expose estate property to uncoordinated claims by persons lacking legal authority. The requirement of a grant serves to ensure orderly administration and protection of the interests of all beneficiaries. 46.Accordingly, this Court finds that the learned trial Magistrate rightly held that the 1st Appellant lacked locus standi to institute the suit in the absence of Letters of Administration. Her claim, though framed as one for protection of possession and business, was in substance a claim on behalf of the estate. 47.Flowing from that finding, the 2nd appellant’s claim, being predicated upon authority derived from the 1st appellant, cannot stand independently. In the absence of a properly constituted suit by a legal representative of the estate, her occupation and business operations, however genuine, do not confer standing to challenge third parties in respect of the suit property. 48.As regards the Respondents’ claim, the alleged testamentary disposition by Virginia Muthoni in favour of Peter Chege Gitonga is equally untenable. It is common ground that she was not allocated any share in the confirmed grant relating to the estate of Chege Kariuki. 49.Having no proprietary interest in the suit property, she lacked the legal capacity to bequeath it. Any purported Will in favour of the 2nd respondent was therefore ineffectual. 50.Further, Peter Chege Gitonga failed to demonstrate a lawful chain of title traceable to Daniel Gitonga Chege or any other person with a valid interest. No grant of representation was produced in respect of Daniel’s estate. His claim is thus equally defeated by the principle of nemo dat quod non habet, as affirmed in Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] KECA 816 (KLR) by P.N Waki, RN Nambuye, GBM Kariuki JJA. 51.The consequence of the foregoing is that both the appellants’ and respondents’ claims suffer from foundational legal defects arising from non-compliance with the Law of Succession Act. 52.Accordingly, this Court is satisfied that the learned trial magistrate properly appreciated the nature of the 1st Appellant’s claim and correctly applied the law in finding that a grant of representation was a necessary precondition to instituting the suit. 53.The appeal therefore fails. The order of dismissal is hereby upheld. For the avoidance of doubt, the parties are at liberty to pursue their respective claims upon obtaining the requisite grant of representation in accordance with the Law of Succession Act. 54.Each party shall bear its own costs of the appeal. DATED, SIGNED AND DELIVERED NAKURU, THIS 3RD DAY OF JUNE, 2026.PATRICIA GICHOHIJUDGEIn the presence of:Nancy Njoroge for the AppellantN/A RespondentErickson, Court Assistant