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ELCStruck OutNaivasha ELCLC No. E017/2025· [2025] KEELC 6235 (KLR)

Wachira v Macharia & 4 others (Environment and Land Case E017 of 2025) (Environment and Land) [2025] KEELC 6235 (KLR)

Environment and Land Court
25 September 2025
MOM.C. Oundo
4,426 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiff, father of the late Joseph Kamau Wacira (deceased 2007), brought a Notice of Motion dated 12th February 2025 seeking temporary and permanent mandatory injunctions restraining the Defendants from dealing with Naivasha/Maraigushu Block 18/617, registered to his deceased son in March 2008. He held a Limited Grant ad colligenda bona. He alleged the 1st Defendant fraudulently acquired title in 2015, sub-divided the land in 2020, and transferred the resulting parcels to the 2nd and 3rd Defendants, who claimed to be innocent purchasers for value having bought the land for Kshs. 3,350,000/= after an official search, and had constructed up to 90% completion. The 2nd and 3rd Defendants raised a preliminary objection that the grant ad colligenda bona did not confer capacity to sue. The Attorney General, for the 4th and 5th Defendants, opposed the injunction for failure to satisfy the Giella v Cassman Brown conditions and contended a permanent mandatory injunction could not issue at an interlocutory stage. Framing two issues (locus standi and prima facie case), the court resolved the preliminary objection first. Relying on Morjaria v Abdalla and distinguishing Martha Ndiro Odero, the court held that the grant was limited to collecting, getting in and receiving the estate and did not include filing suit, so the Plaintiff lacked locus standi, a point of law going to the root of the suit. The court struck out both the application and the suit, with the preliminary objection succeeding with costs. The court did not reach the merits of the title dispute.

Key legal issues

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01

Whether a Limited Grant ad colligenda bona confers locus standi to institute a suit

Holding

It does not, where the grant is limited to collecting, getting in and receiving the estate without power of distribution and does not expressly include filing of suit.

Reasoning

The court examined the grant dated 13th January 2025 issued under Section 67(1) of the Law of Succession Act and Rule 36 of the Probate and Administration Rules. It was worded as limited to collecting/getting in/receiving the estate and without power of distribution. Distinguishing Martha Ndiro Odero (where the grant expressly included filing suit) and following Morjaria v Abdalla, the court held the plaintiff could not stand in the deceased's shoes and lacked locus standi.

p. 7
02

Whether an objection on locus standi is properly a preliminary objection

Holding

Yes; locus standi is a pure point of law capable of disposing of the suit and must be determined first.

Reasoning

Applying Mukisa Biscuit principles and the Owners of Motor Vessel 'Lilian S' and Rajesh Pranjivan Chudasama, the court held that locus standi, being akin to jurisdiction, is a primary point of law that goes to the root of the suit and must be resolved before substantive issues.

p. 7

Legal principles established

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  • A limited grant of letters of administration ad colligenda bona authorises only the collection and preservation of estate assets and does not confer capacity to institute suit unless expressly so worded.

Court orders

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  1. 1.Strike out both the Notice of Motion dated 12th February 2025 and the suit
  2. 2.Preliminary Objection succeeds with costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 Rules 1 and 4; Order 51 Rule 1
  • Civil Procedure ActSections 1A, 1B and 3A
  • Law of Succession ActSection 67(1)
  • Probate and Administration RulesRule 36
  • Penal CodeSections 393, 320, 313

Cases cited (14)

  • Giella vs Cassman Brown & Co. Ltd
    [1973] EA 353
  • Martha Ndiro Odero (suing as the administrator and Personal representative of the estate of Willy Patrick Ochieng Ndiro (Deceased) v Come Cons Africa Limited
    [2015] KECA 405 (KLR)
  • Banis Africa Ventures Limited v National Land Commission
    [2021] KEELC 4243 (KLR)
  • Evans v Bartlan
    (1937) 2 ALL ER 652
  • Banque DE Moscou v Kindersly
    (1950) 2 ALL ER 548
  • Mukhisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd
    (1969) EA 696
  • Musakali -v- Speaker County of Bungoma & 4 others
    (2015) eKLR
  • Morjaria v Abdalla
    [1984] eKLR
  • Nathaniel O. Khisa v Mary Khisa Nyanyi & 3 Others
    [2013] eKLR
  • Elijah Nderitu Gachaga -v- Francis Gakuu Gachaga & 2 Others
    [2019] eKLR
  • Julian Adoyo Ongunga -v- Francis Kiberenge Bondeva
    [2016] eKLR
  • The Owners of the Motor Vessel "Lilian S" –vs- Caltex (Kenya) Ltd
    [1989] KLR 1
  • Rajesh Pranjivan Chudasama vs. Sailesh Pranjivan Chudasama
    [2014] eKLR
  • Alfred Njau & Others v City Council of Nairobi
    [1982-88] 1 KAR 229
Jurisdiction invoked
Articles 162(2) and 165 of the Constitution (Environment and Land Court) — not expressly stated in judgment; application brought under Order 40 Rules 1 and 4, Order 51 Rule 1 CPR 2010 and Sections 1A, 1B, 3A Civil Procedure Act

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, "Wachira v Macharia & 4 others (Environment and Land Case E017 of 2025)  (Environment and Land) [2025] KEELC 6235 (KLR)", Case Analysis (2025). Naivasha ELCLC No. E017/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6235/eng@2025-09-25

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