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ELCDismissedNot stated in judgment (Originating Summons dated 8th August 2023)· [2025] KEELC 5254 (KLR)

Thuku v Kang’ethe & 2 others (Environment and Land Case E011 of 2023) [2025] KEELC 5254 (KLR)

Environment and Land Court
9 July 2025
2,019 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to strike out a landowner's claim against an estate administrator, holding that any semblance of a cause of action deserves a full trial.

What this practically means

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Executive summary

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The 2nd Defendant moved the court by Notice of Motion dated 17th September 2024, under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 2 Rule 15(1)(b) and (d) of the Civil Procedure Rules, seeking to strike out the Plaintiff's Originating Summons dated 8th August 2023 as against him, with costs. Through counsel Leo Masore Nyang'au, he argued that the Plaintiff's claim concerns Kabete/Lower Kabete/5030 while he owns Kabete/Lower Kabete/5031, that no relief was sought against him, that distribution of the estate was completed in Kiambu Succession Cause No. 118 of 2016 rendering the issue res judicata, and that administrators cannot be compelled to explain how estate property passed to beneficiaries. The Plaintiff opposed, stating he has occupied the suit property since 2006, built a school on it before subdivision, and was threatened with eviction in 2023 by the Defendants; the 2nd Defendant is properly sued both as administrator and personally. Counsel relied on Order 2 Rule 15, and authorities including D T Dobie v Muchina and Drummond Jackson v British Medical Association. The court, applying Order 3 Rule 7, found the 2nd Defendant is sued both as administrator of the estate and personally for the attempted eviction, disclosing a semblance of a cause of action that should proceed to trial. The application dated 17th September 2024 was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether the Originating Summons should be struck out against the 2nd Defendant as disclosing no cause of action

Holding

The application lacked merit because the 2nd Defendant is sued both in his capacity as administrator of the estate and personally for attempting to evict the Plaintiff, and the suit discloses at least a semblance of a cause of action fit for trial

Reasoning

The court noted the Plaintiff pleaded that the Defendants are sued as administrators and legal personal representatives of the estate, while the 2nd Defendant is also sued personally for the 2023 attempted eviction. Order 3 Rule 7 permits claims against an administrator in relation to the estate. Applying D T Dobie v Muchina, a pleading showing a semblance of a cause of action should proceed to trial rather than be struck out on a summary application.

p. 4

Legal principles established

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  • A suit should not be struck out if it shows even a semblance of a cause of action capable of being cured by amendment
  • An executor or administrator may be joined in claims arising with reference to the estate in which he sues or is sued as such

Court orders

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  1. 1.The Notice of Motion dated 17th September 2024 is dismissed
  2. 2.The 2nd Defendant shall bear the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules, 2010Order 2 Rule 15(1)(b) and (d), 15(2), 15(3)
  • Civil Procedure Rules, 2010Order 3 Rule 7

Cases cited (6)

  • Deported Asians Property Custodian Board vs Jaffer Brothers Ltd.
    [1999] 1EA 55
  • Logistics Link Ltd vs Yalelo (U) Ltd & Another
    HCCC No. E067 of 2021
  • Wedlock Maloney & Others
    [1965] 1WLR 1238
  • Drummond Jackson vs Britain Medical Association
    (1970) 2 WLR 688
  • D T Dobie K Limited vs Muchina
    (1982) KLR
  • In the Matter of the Estate of Francis Kangethe Felix (Deceased)
    Kiambu HC Succession Cause No. 118 of 2016
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 2 Rule 15(1)(b) and (d) of the Civil Procedure Rules, 2010

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, "Thuku v Kang’ethe & 2 others (Environment and Land Case E011 of 2023) [2025] KEELC 5254 (KLR)", Case Analysis (2025). Not stated in judgment (Originating Summons dated 8th August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5254/eng@2025-07-09

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