Bukachi & 5 others v Bukachi & another; Bukachi (Interested Party) (Land Case E007 of 2024) [2025] KEELC 8662 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the ex parte proceedings and consequential orders should be set aside and the Defendants and Interested Party granted unconditional leave to defend the suit
- 2.Whether service of summons and pleadings upon the Defendants and Interested Party was proper
- 3.Whether the draft defence raises triable issues
- 4.Whether the Plaintiffs have locus standi to institute the suit on behalf of the living registered proprietor of the suit land without his authority (preliminary objection)
Key legal issues
#Setting aside ex parte proceedings
The grounds are proper explanation for non-participation, a defence raising triable issues, and absence of prejudice; service being proper, the explanation failed
The court recited the three tests for setting aside ex parte proceedings. Although the court perused the file and found the affidavit of service disclosed substituted service as ordered by the court, and the explanation for non-attendance was therefore not plausible, the court nonetheless found the draft defence raised triable issues. The application was ultimately mooted by the outcome of the preliminary objection.
Locus standi of Plaintiffs to sue on behalf of a living registered proprietor
Without the Interested Party's consent or authority, pleaded in the plaint, the Plaintiffs lack locus standi and the suit must be struck out
The suit land belongs to the Interested Party, who did not file the suit and gave no evidence of authority to the Plaintiffs. Had authority been obtained it would have been pleaded under Order 1 Rule 13, Order 9 or Order 32 of the Civil Procedure Rules. Capacity to sue is a pure point of law, and lack of capacity is a fundamental defect unamendable, justifying striking out notwithstanding its drastic nature.
Legal principles established
#- A preliminary objection must be on a pure point of law, arising from the pleadings, argued on the assumption that the facts pleaded by the opposite party are correct, and cannot succeed where facts must be ascertained or discretion exercised
- Lack of capacity to sue is a fundamental defect that cannot be cured by amendment
- A plaintiff suing on behalf of a living registered proprietor must plead the proprietor's consent and/or authority in the plaint
Court orders
#- 1.The preliminary objection is upheld and the entire suit is struck out for want of locus standi on the part of the Plaintiffs
- 2.Each party to bear own costs of the suit and the preliminary objection
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162 of the Constitution and section 13 of the Environment and Land Court Act
Relief refused
#Setting aside the ex parte proceedings/orders and grant of unconditional leave to defend
Though the court found the application had merit, the preliminary objection disposed of the suit, rendering it unnecessary; service had been proper
The Plaintiffs' claim regarding access to the Interested Party
Outside the jurisdiction of the Environment and Land Court
Costs
Each party to bear own costs of the suit and the preliminary objection, the parties being close relatives
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As it is clear from the plaint, the suit land is the property of the Interested Party. The Interested party has not filed the suit. There is no evidence that he has authorized the plaintiffs to bring the suit on his behalf.
While striking out pleadings is a drastic action that should be applied as a last resort, the court finds that lack of capacity to sue on the part of a plaintiff is such a fundamental defect in the suit that cannot be rectified by any amount of amendment.
As the parties are close relatives, each party will bear own costs of the suit and the preliminary objection. Orders accordingly.
Issues in the judgment
#The court holds both the application and the preliminary objection meritorious but the reasoning on the application is in tension with the outcome on service - the draft defence was held to raise triable issues yet leave to defend was not granted because the preliminary objection disposed of the suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bukachi & 5 others v Bukachi & another; Bukachi (Interested Party) (Land Case E007 of 2024) [2025] KEELC 8662 (KLR)", Case Analysis (2025). Not stated in judgment (Notice of Motion dated 9th October 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8662/eng@2025-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.