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ELCDismissedMilimani ELC No. E169 of 2025· [2026] KEELC 1974 (KLR)

Makokha v Omondi & 2 others (Environment and Land Case E169 of 2025) [2026] KEELC 1974 (KLR)

Environment and Land Court
9 April 2026
1,123 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 confirmed one estate co-administrator can sue to protect family land without the other co-administrator's consent.

What this practically means

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Executive summary

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The 2nd defendant, a co-administrator of the estate of the late Raphael Charles Makokha, brought a notice of motion dated 25th June 2025 under Sections 3 and 3A of the Civil Procedure Act and Sections 79 and 82 of the Law of Succession Act seeking to strike out the entire suit on the ground that the plaintiff, her fellow co-administrator, filed it without her consent and therefore lacked capacity to sue on behalf of the estate. The plaintiff did not respond to the application; the court canvassed it by written submissions. The 2nd defendant argued, relying on the Christine Wangari Gachege, Theresa Wanjiru and Migwi authorities, that the court lacked jurisdiction over disputes among joint administrators, which she said lay before the court that issued the grant. The court disagreed. It held that a plaintiff has the right to institute proceedings where aggrieved by another party's actions or inactions, and that the absence of a co-administrator's consent does not defeat the suit. Relying on Musyoka J's ruling in the succession cause, which expressly postponed confirmation of the grant to allow the administratrices to resolve the ownership of the suit property through litigation in this very suit, the court confirmed that the issues in the plaint could only be determined by the ELC. It further held that under Section 82 of the Law of Succession Act, personal representatives have a primary duty to protect the estate, and the plaintiff was justified in filing the suit. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the absence of a co-administrator's consent renders a suit by one personal representative fatally defective

Holding

No; the plaintiff as co-administrator was justified in filing the suit to protect the estate, and the application to strike out lacked merit

Reasoning

The court held that a plaintiff has the right to institute proceedings where aggrieved by another party's actions or inactions. Under Section 82 of the Law of Succession Act, personal representatives have a primary duty to protect the estate, and filing the suit was exactly that step. The 2nd defendant disclosed in her own deposition that both parties are joint administrators, so capacity existed; lack of consent did not defeat the suit.

p. 3
02

Whether the ELC lacks jurisdiction over a dispute between joint administrators of an estate

Holding

The jurisdictional objection failed; the issues raised in the plaint concerning ownership of the suit property can only be determined by the ELC, as confirmed by the ruling in the succession cause

Reasoning

The 2nd defendant argued, relying on Christine Wangari Gachege and other authorities, that disputes among joint administrators fall to the court that issued the grant. The court rejected this, noting that Musyoka J in the succession cause had expressly contemplated litigation over the suit property in the ELC and postponed confirmation of the grant pending determination of that suit, confirming that ownership of the property is for this court.

p. 2

Legal principles established

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  • A co-administrator of a deceased's estate may institute proceedings to protect the estate without the consent of the other co-administrator, by virtue of the duties under Section 82 of the Law of Succession Act
  • A suit is not entirely defeated merely because it was instituted without the consent of a co-administrator; the aggrieved plaintiff retains the right to access the court

Court orders

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  1. 1.The notice of motion dated 25th June, 2025 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 3 and 3A
  • Law of Succession ActSections 79 and 82

Cases cited (5)

  • Republic v Nairobi City Council & 3 others Exparte Christine Wangari Gachege suing on behalf of the estate of Rahab Wanjiru Evans
    [2014] eKLR
  • Theresa Wanjiru (Suing as the administrator of the estate of Joseph Gichuki Riunge v Andrew Kimata Gachanga & another; George Mwai Mburu (3rd Party)
    [2021] eKLR
  • Migwi (suing on his own behalf and on behalf of the estate of Migwi Mariga-deceased) v Ngunjiri & another
    (Environment & Land Case E044 of 2023) [2024] KEELC 476 (KLR) (6 February 2024) (Ruling)
  • In re Estate of Raphael Charles Makokha (Deceased)
    [2025] KEHC 10502 (KLR)
  • Koinange & 2 others (Suing as Administrators of the Estate of the Late Charles Karuga Koinange) v Mitithiru Company Limited
    [2024] KEELC 1414 (KLR)
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act and Sections 79 and 82 of the Law of Succession Act (application); original civil jurisdiction of the Environment and Land Court over the suit property dispute

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, "Makokha v Omondi & 2 others (Environment and Land Case E169 of 2025) [2026] KEELC 1974 (KLR)", Case Analysis (2026). Milimani ELC No. E169 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1974/eng@2026-04-09

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