Abdalla

2. The application which is supported by the sworn adavit of the plainti, is premised on the grounds that: the plainti is the personal representative of the estate of the deceased who was the daughter of the late Bwana Riziki Bin Mwenye who was the benecial and/or registered owner of the suit land (registered jointly with others) and that the plainti is his great daughter. The deceased died in 1993. The plainti has been in possession of the suit property. In September 2023 the plainti noted activity on the suit land by unknown persons who claimed ownership of a portion of the suit land; upon a search at the land registry the plainti learnt that the 1st defendant was the registered as a proprietor of 5 acres of the suit land pursuant to a transfer registered in 1995; that the plainti also learnt that there had been an application for an oce copy pursuant to an Gazetted Notice No 10847 of 15th November 2029; that the gazette notice is not in existence; that its copy in the land registry is unsigned and lacks a number; that the registration of the 1st defendant was in bad faith; that the plainti has also learnt from the proceedings in Malindi ELC No E048 Of 2023 that the 1st defendant has a search showing that it is the owner of the entire parcel yet the plainti has neither subdivided the land or transferred it in the 1st defendant’s favour. Responses 3. 4. The 1st defendant led a Notice of Preliminary Objection dated 21/1/2025 as follows: a. The plainti is forum shopping; b. The plainti had led a similar suit ELC Land Cause No E048 of 2023 which was struck out; c. The plainti lacks locus standi; d. The plainti’s recourse lay in an appeal or review; e. The postal search attached by the plainti shows the 1st defendant indeed owns the entire land; f. That the suit land has never devolved to the plainti; g. That without some grant ad litem in respect of Mwana Riziki Bi Mwenye the plainti lacks locus standi to lodge suit on her own behalf or on behalf of the estate of the deceased; h. The grant of letters attached is made to another person not the plainti and the court has issued a disclaimer that the grant is both limited and revocable; i. That the grant was obtained from a court lacking jurisdiction; j. That the letters were obtained contrary to the Judicature Act and the Law of Succession Act in regard to the powers of the magistrate’s courts; k. The letters of administration are incurably defective and do not create a nexus between the plainti the suit property and any registered owner; l. The plainti suit seeks to deprive the defendant of their constitutional rights to property as protected by Article 40 of the constitution and Article 60(1)(b); m. The suit is frivolous and vexatious and fails to disclose a cause of action since the plainti lacks any registrable interest in the suit land. These grounds were further amplied in the adavit of James Abiam Mugoya Isabirye the 1st defendant’s director/shareholder, dated 21/1/2025 which supported an adavit of the 1st defendant seeking an order that the plaint and notice of motion, both dated 19th November 2023, be struck out for being fatally and incurably defective. The same grounds are also replicated at the foot of that https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18319/eng@2025-12-15 2

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application dated 21/1/2025. They are also in the replying adavit of James Abiam Mugoya Isabirye dated 10/6/2025 and led in respect of the motion dated 19/11/2024. 5. The 1st defendant also led a Notice of Preliminary Objection dated 21/1/2025 setting out grounds as follows: a. The suit is res judicata Malindi ELC Land Cause No E048 of 2023; b. The suit is fatally defective as it contravenes Section 2 of the Civil Procedure Act as to who constitutes as valid legal representative as the grant of letters obtained by the plainti do not confer a legal or benecial interest over the suit property and no nexus exists between the plainti and the suit property; c. The plainti lacks locus standi as she has no grant ad litem with respect to the deceased; d. The suit has been led in contravention so Section 48 of the Law Of Succession Act; e. The court that issued the grant lacks pecuniary jurisdiction; f. The grant of letters of administration is limited; g. The court lacks jurisdiction to recognize the plainti as a legal representative of the estate of the deceased, or grant him the right to act on behalf of any of the estates or recognize the suit property as the property of any of the estates; or to give the plainti any right to sue or eect any transfer of the estate to unknown beneciaries; h. The suit fails to adhere to the principles set out in sections 24, 25 and 26 of the Land Registration Act No 3 of 2012; i. The suit is defective as it fails to sue all previous title holders expressly listed in the entry section of the certicate of title whom the property has over the years been transferred contrary to order 1 rule 3 of the CPR; j. The suit oends Article 50 of the constitution of Kenya and section 47 of the fair administrative actions act k. The entire suit is contrary to article 40 of the constitution of Kenya 2010 protecting the 1st defendant from arbitrary deprivation of its property and the registered rights of the 1st defendant as secured by Article 60(1) (b) of the constitution of Kenya; 6. The two motions and the Notice of Preliminary Objection were disposed of by way of written submissions. Only the 1st defendant led submissions as ordered by court. its submissions are dated 10/6/2025. 7. This court needs only address the most important limb of the preliminary objection raised by the 1st defendant because it may dispose of the suit and the motion for injunctive orders in limine: res judicata. 8. There is a ruling that was delivered in Malindi ELC E 048 of 2023 delivered by my brother Hon Justice Makori on 24th October 2024. Notably the order striking out the suit arose from the issue of locus standi. In that case the Judge held as follows: “ 20. From the pleadings, the Plainti expressly admitted that she is not the registered proprietor of the suit property. She has further failed to express in her pleadings what registrable interest she has over the suit property. She has just alleged that she is the great-granddaughter of someone who https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18319/eng@2025-12-15 3

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allegedly has a benecial interest in the suit property but has not indicated in the pleadings what specic benecial interest this alleged person holds. Furthermore, nothing in the pleadings demonstrates that the alleged greatgrandmother holds a benecial interest in the suit property. 21 ….. 22 ….. 23. When raised, a Preliminary Objection aims to determine a matter in limine. It is based on a pure point of law. The Court must only look at the pleading; no other evidence is required. The special grant of administration ad colligenda bona issued to the Plainti dated 6th June 2023 was limited to: “ Collecting and getting in and receiving the estate and doing such acts as may be necessary for the preservation of the estate without power of distribution.” 24. According to the authorities cited by the 1st Defendant, the grant did not empower the Plainti to le suit. If that was the intention, the grant should have disclosed the same. By the Plainti's invitation, the words – “such other acts as may be necessary for the preservation of the estate” as to -including ling suit, with due respect, is erroneous. The Plainti needed to obtain a specic grant tailored to le suit. 25. To the extent, and without considering the other Objections raised here and since locus standi goes to the root of the matter, the Preliminary Objection succeeds, the Court downs tools to the extent that the entire suit and the application for an injunction are struck out with costs to the 1st Defendant. 26. The Plainti will be at liberty, subject to the limitation of actions, to bring fresh suit when clothed adequately with the necessary locus standi.” 9. It appears that the plainti has nally determined that she now has the proper locus standi and she has therefore led the present suit; nevertheless, the same issue of her lack of locus standi, by reason of which the earlier suit was struck out, has returned to haunt her. 10. Regarding locus, the 1st defendant avers that the plainti has failed to establish any nexus between herself and the suit property; that though she claims to be the granddaughter of Mwanatumu Riziki who was allegedly the daughter of Bwana Riziki Bin Mwenye; that Riziki bin Mwenye was allegedly, jointly with others, the benecial or registered owner of the suit property, she has failed to establish any nexus between her and those two persons now said to be deceased. The 1st defendant states that the court can only rely on conjecture to make that conclusion. The 1st defendant also avers that the plainti is not the registered proprietor of the suit land. 11. I have noted, rst, that the plainti is not the registered owner. Neither do I nd any evidence that any of her two alleged predecessors were registered proprietors of the suit land. Instead, the plainti has averred expressly that the 1st defendant is the registered proprietor of the suit land according to a search that she conducted at the land registry. These are the same facts that the court addressed in the earlier case that is MALINDI ELC E 048 of 2023. Even in the present suit nothing has changed. The position remains that the plainti has not demonstrated that either her great grandmother https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18319/eng@2025-12-15 4

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Mwanatumu Riziki Mwinyi or her alleged great, great grandfather, Bwana Riziki bin Mwinyi, had any benecial or registered interest in the land. 12. In view of the foregoing, res judicata it is observable that in respect of locus standi can only occur if the same grant of letters of administration ad colligenda bona earlier relied on is to be used in the present suit. However, now, in contrast to the ad colligenda grant in the earlier suit the plainti has now presented a grant of letters of administration intestate to the estate of Mwanatumu Riziki Mwinyi. Locus standi premised on a fresh grant of a dierent kinds is therefore not res judicata and this court can proceed to examine whether that grant confers on her the appropriate locus. 13. Though the plainti has relied on a new grant, she has not presented any grant issued to her or issued earlier on to Mwanatumu under the Law of Succession Act in respect of the estate of Bwana Riziki bin Mwinyi. Consequently, no nexus has been drawn between Mwanatumu and Bwana Riziki bin Mwinyi. In the circumstances, even the grant of letters of administration intestate to the estate of Mwanatumu Riziki Mwinyi does not link the plainti to Bwana Riziki Bin Mwinyi. 14. Above all, perchance she had established the nexus between the two, the nexus between the said Bwana Riziki bin Mwinyi and the suit land is still yet to be established. Consequently, though a grant in respect of Mwanatumu’s estate grants her right to lodge a suit in respect of that estate, any suit so led must be one in which Mwanatumu’s interest can be demonstrated. If it cannot be deciphered from the rst pleading, the plaint, then there is little likelihood that it can ever be demonstrated at any other stage in the proceedings, that is if the suit were to be allowed to subsist. Not only that, Mwanatumu’s interest in the estate of Bwana Riziki Bin Mwinyi has to be demonstrated. 15. With respect to Bwana Riziki Bin Mwinyi’s estate, it is just as though the plainti has returned to this court with the same species of grant, ad colligenda bona, which was ruled as incapable of enabling her to le the previous suit. She has nothing either to support the alleged nexus between Mwanatumu and Bwana Riziki and she has nothing to rely on to claim on behalf of the estate of Bwana Riziki Bin Mwinyi. 16. It is appropriate thus to state that on the issue of locus standi in the present case, as no new material has been provided to distinguish her present status from the previous status in the former suit, the plainti nds herself exactly where the striking order in Malindi ELC E 048 of 2023 left her. The preliminary objection on locus standi, independent of the issue of res judicata, succeeds. As the plainti has not yet acquired locus standi to enable her lodge the present suit, the plaint as well as the application in this suit, both dated 19/11/2024 are hereby struck out with costs to the 1st defendant. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 15TH DAY OF DECEMBER, 2025. MWANGI NJOROGE JUDGE, ELC, MALINDI. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18319/eng@2025-12-15 5

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