Chirchir v Rono (Environment & Land Case 79 of 2018) [2022] KEELC 2617 (KLR)

There were no succession proceedings in respect of the deceased's estate and no letters of administration had been issued, a fact conceded by the Applicant in his Supporting Affidavit. Under Section 3 of the Law of Succession Act a personal representative is an executor or administrator of a deceased person. Since the Respondent held no such capacity, he could not be sued to propound the estate. Locus standi is a primary point of law akin to jurisdiction, and its absence renders a suit fatally defective and the proceedings a nullity.

Applying the Mukisa Biscuits test, a preliminary objection must relate purely to matters of law. Most of the Respondent's Grounds of Opposition were factual matters properly addressed by Replying Affidavit and submissions. Only the ground that the Respondent had no capacity to be sued on behalf of the estate was a point of law which, if argued, could dispose of the suit, and it was dealt with at the preliminary stage.

Following the Supreme Court's decision in Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others, a Replying Affidavit is the principal document setting out a respondent's reply and the basis of any submissions. The Applicant chose not to file a response but filed submissions; accordingly, the submissions were of no effect without a Replying Affidavit. The court nonetheless reviewed the pleadings and the Respondent's submissions in reaching its determination.