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ELCDismissedNot stated in the judgment· [2025] KEELC 8283 (KLR)

Ongubo & another v Ongubo & 2 others (Environment and Land Case E127 of 2025) [2025] KEELC 8283 (KLR)

Environment and Land Court
21 November 2025
TMT. Murigi
1,359 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a family land dispute to continue, ruling that a written authority to act was enough proof that one relative could sue for another.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (T. Murigi, J) determines a Notice of Preliminary Objection dated 11th February 2025 raised by the 2nd Defendant against the Plaintiffs' suit. The objection had four grounds: that the suit was incompetent, fatally defective and bad in law; that the 2nd Plaintiff lacked legal capacity to institute the suit on behalf of the 1st Plaintiff; that the suit did not comply with Order 3 Rule 1 of the Civil Procedure Rules; and that the suit should be struck out with costs. The objection was canvassed by written submissions. The 2nd Defendant argued that the 1st Plaintiff had donated a registered power of attorney dated 3rd January 2025 to the 1st Defendant, that the 1st Plaintiff lacked capacity to authorise anyone owing to her medical condition, and that a valid power of attorney takes precedence over an authority to act, citing Gilbert Mayieka Ogato v Raymond Kiplagat & another. It was also argued that the suit was commenced by an application rather than a plaint, citing Rudufu Limited v Keysian Auctioneers. The Plaintiffs countered that an authority to act dated 20th March 2025 was signed and served, that the power of attorney had been revoked on 25th April 2025, and that the 2nd Defendant bore the burden of proving lack of authority. The court framed two issues: the 2nd Plaintiff's capacity to institute the suit for the 1st Plaintiff, and whether the suit was defective for non-compliance with the law. The court found the authority to act had been demonstrated and that the suit was commenced by a plaint dated 24th March 2025, complying with Order 3 Rule 1 and Section 19 of the Civil Procedure Act. The preliminary objection was dismissed, and as the parties are closely related, each party was ordered to bear its own costs.

Key legal issues

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01

Whether the 2nd Plaintiff has capacity to institute the suit on behalf of the 1st Plaintiff

Holding

The court found that the authority to act dated 20th March 2025 demonstrated that the 2nd Plaintiff had authority to act on behalf of the 1st Plaintiff

Reasoning

The 2nd Defendant argued that a registered power of attorney donated to the 1st Defendant took precedence over the authority to act, relying on Gilbert Mayieka Ogato v Raymond Kiplagat & another, and that the 1st Plaintiff lacked capacity. The 2nd Plaintiff produced an authority to act dated 20th March 2025, and it was also contended that the power of attorney had been revoked. The court was satisfied that authority to act had been demonstrated.

p. 4
02

Whether the suit was defective for non-compliance with Order 3 Rule 1 of the Civil Procedure Rules and Section 19 of the Civil Procedure Act

Holding

The suit was properly instituted by a plaint dated 24th March 2025, and thus complied with the law; the objection failed

Reasoning

Order 3 Rule 1 requires every suit to be instituted by way of a plaint or other prescribed manner, and Section 19 of the Civil Procedure Act requires suits to be instituted as prescribed by the rules. The record showed the Plaintiffs commenced the suit by way of a plaint dated 24th March 2025 and not by a miscellaneous application as alleged by the 2nd Defendant.

p. 4

Legal principles established

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  • Every suit shall be instituted by way of a Plaint or in any other manner that may be prescribed
  • Every suit shall be instituted in such manner as may be prescribed by the rules

Court orders

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  1. 1.The preliminary objection dated 11th February 2025 is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 3 Rule 1
  • Civil Procedure ActSection 19
  • Evidence ActSections 107, 108 and 109

Cases cited (2)

  • Gilbert Mayieka Ogato v Raymond Kiplagat & another
    [2020] eKLR
  • Rudufu Limited v Keysian Auctioneers & another; Ein Geid Limited (Interested Party)
    (Miscellaneous Application E013 of 2023) [2023] KEELC 22030 (KLR) (6 December 2023) (Ruling)
Jurisdiction invoked
Original civil jurisdiction; suit instituted by plaint under Section 19 of the Civil Procedure Act and Order 3 Rule 1 of the Civil Procedure Rules

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, "Ongubo & another v Ongubo & 2 others (Environment and Land Case E127 of 2025) [2025] KEELC 8283 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8283/eng@2025-11-21

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