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ELCDismissedNot stated in the judgment· [2025] KEELC 1387 (KLR)

Ndolo (Suing as the Personal Legal Representative of the Estate of Ndolo Mumo (Deceased)) v Wanzuu & 4 others (Environment & Land Case E004 of 2023) [2025] KEELC 1387 (KLR)

Environment and Land Court
20 March 2025
1,104 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to strike out a land suit, confirming that estate administrators can sue for trespass and that uncommissioned affidavits carry no legal weight.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (E. O. Obaga, J) dated 20th March 2025 determines a Notice of Motion dated 24th October 2024 by the 1st Defendant seeking striking out of the Plaintiff's suit. The Applicant advanced four grounds: the Plaintiff lacked locus standi for want of letters of administration over his late father's estate; the issues were succession matters outside the court's jurisdiction; the suit was res judicata given Machakos HC Succession Cause No. 874 of 2011; and the suit had been overtaken by events since the Applicant was evicted. The Plaintiff opposed through a replying affidavit. The court framed four issues: locus standi, commissioning of the replying affidavit, jurisdiction, and res judicata. On locus standi, the Plaintiff annexed a grant of letters of administration issued on 7th November 2018, establishing he is an administrator of the estate and thus has standing. The court found the replying affidavit dated 11th November 2024 was not commissioned and, relying on Pius Njogu Kathuri and Maktar Bisher Sheikh, struck it out; a purported supporting affidavit produced later was found to be a backdated document intended to mislead the court. On jurisdiction, the plaint seeks damages for trespass, value of cut trees, mesne profits and general damages - matters for the Environment and Land Court, with succession issues merely background. The suit was not res judicata: the succession court dealt only with intermeddling and lacked jurisdiction over mesne profits and damages, and had advised the Plaintiff to file in the Environment and Land Court. Although striking out the affidavit left the application unopposed, the court held an unopposed application need not succeed: striking out pleadings is exercised sparingly, and triable issues exist. The application was dismissed with no order as to costs.

Key legal issues

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01

Locus standi of the plaintiff suing over a deceased father's estate

Holding

The Respondent, being an administrator of his father's estate with a grant of letters of administration issued on 7th November 2018, has locus standi.

Reasoning

The Applicant argued the plaintiff lacked locus standi for want of a grant. In submissions the Respondent annexed a grant of letters of administration from Machakos HC Succession Cause No. 874 of 2011, showing he is an administrator of the estate of his father who died on 10th April 1998. On that evidence the objection fails.

p. 2
02

Effect of an uncommissioned affidavit

Holding

The uncommissioned document is not an affidavit and was struck out; a later purported 'Supporting Affidavit' filed to cure the defect was a backdated document intended to mislead the court.

Reasoning

The document dated 11th November 2024 titled 'replying affidavit' was not commissioned before a commissioner for oaths and therefore was not an affidavit in law. When the defect was exposed in submissions, the Respondent produced a purportedly sworn 'Supporting Affidavit' which the court found was backdated and misleading. The uncommissioned 'affidavit' was struck out.

p. 2
03

Jurisdiction of the Environment and Land Court over the claims

Holding

The claims for damages for trespass, value of cut down trees, mesne profits and general damages fall squarely within the Environment and Land Court's jurisdiction; succession matters were merely background.

Reasoning

The Applicant argued the matter belonged to a succession court. The court examined the plaint and found the reliefs sought (trespass damages, value of trees, mesne profits, general damages) are matters for the Environment and Land Court, with succession issues raised only as background. The objection on jurisdiction fails.

p. 3
04

Res judicata vis-à-vis Machakos Succession Cause No. 874 of 2011

Holding

The suit is not res judicata; the succession court determined intermeddling only and had no jurisdiction over mesne profits and damages, and the Respondent was advised to file in the Environment and Land Court.

Reasoning

The prior succession cause dealt only with intermeddling of the estate. It did not determine trespass or destruction of property. The succession court lacked jurisdiction to award mesne profits, general or special damages, and the intermeddlers were ordered out with advice to pursue other issues in the Environment and Land Court, which led to this suit.

p. 3
05

Whether an unopposed application must be allowed

Holding

No - even with the replying affidavit struck out leaving the application unopposed, the court must still be satisfied on the merits; striking out pleadings is done sparingly and the suit raises triable issues.

Reasoning

With the replying affidavit struck out, the application was effectively unopposed. The court held that, as in an undefended case, the applicant must still prove entitlement to the relief. Striking out a pleading is a drastic remedy exercised sparingly in the clearest of cases; here triable issues exist requiring a full hearing, so the application is dismissed.

p. 3

Legal principles established

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  • An affidavit that is not commissioned by a commissioner for oaths is not an affidavit in law but a mere statement
  • An affidavit must be voluntary, written and commissioned; if any ingredient is missing it is incompetent
  • An unopposed application does not automatically succeed; the applicant must still satisfy the court on the merits, as striking out pleadings is exercised sparingly

Court orders

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  1. 1.The uncommissioned replying affidavit dated 11th November, 2024 is struck out
  2. 2.The Applicant's Notice of Motion dated 24th October, 2024 is dismissed with no order as to costs
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (not expressly cited; court held 'These are issues which can only be dealt with in the Environment and Land Court')

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ndolo (Suing as the Personal Legal Representative of the Estate of Ndolo Mumo (Deceased)) v Wanzuu & 4 others (Environment & Land Case E004 of 2023) [2025] KEELC 1387 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1387/eng@2025-03-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.