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

3. It was deposed that one administrator out of the others lacks the capacity to bind the estate or any of the administrators or file a suit alone on behalf of the estate. 4. The plaintifi/respondent did not file her response to the instant application. This court directed that the application be canvassed by way of written submissions. The 2nd defendant/ applicant filed the written submissions dated 10th July, 2025. 5. I have considered the application and the written submissions filed by the 2nd defendant/ applicant. The issue for determination is whether the suit ought to be struck out for lack of consent of the coadministrator of the estate of the deceased. 6. The plaintifi/respondent instituted this suit on behalf of the estate of the deceased on account of being one of the personal representatives of the estate of the deceased alongside the 2nd defendant/applicant. This fact was disclosed in the plaint as admitted by the 2nd defendant/applicant. While relying on the case of Republic v Nairobi City Council & 3 others Exparte Christine Wangari Gachege suing on behalf of the estate of Rahab Wanjiru Evans [2014] eKLR, the 2nd defendant/applicant submitted that this court lacks jurisdiction to resolve a dispute among joint administrators of the an estate of a deceased, and that the same can only be resolved by the court that issued the grant. To buttress further on this issue, the 2nd defendant/applicant relied on the cases of 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 and Migwi (suing on his own behalf and on behalf of the estate of Migwi Marigadeceased) v Ngunjiri & another (Environment & Land Case E044 of 2023) [2024] KEELC 476 (KLR) (6 February 2024) (Ruling). 7. While the 2nd defendant/applicant argued that the suit is defective for lacking her consent, I am of the view that the suit is not entirely defeated on this ground. The plaintifi/respondent has all the right to institute proceedings in a court of law where she feels aggrieved by the actions or inactions of another party. In the undated plaint, the plaintifi/respondent contents the registration and transfer of the suit property in 2016 in the name of the 1st defendant by the 3rd defendant after the death of the deceased and prior to the confirmation of grant. The plaintifi/respondent contends that the entries made on 26th August, 2016 were efiected illegally, unprocedurally and fraudulently by the defendants. 8. The issues raised by the plaintifi/respondent in her plaint can only be determined by this court. Now that the consent of the 2nd defendant/applicant was not sought, does this mean that the plaintifi/ respondent has no remedy in court? I do also note that the 2nd defendant/applicant argued that this court lacks the jurisdiction to determine a suit which concerns a dispute between joint administrators. 9. In re Estate of Raphael Charles Makokha (Deceased) [2025] KEHC 10502 (KLR), Musyoka, J in a ruling delivered on 18th July 2025 stated as follows:“ I postponed confirmation of LR No. 2/2X1 Gitanga Road, to enable the administratrices sort out the issue of its ownership, in whichever way, even if it included litigation. I see that Pauline Mary Makokha has taken the initiative, to sue regarding that property. The determination of that matter will resolve the issue of ownership of the property. That being the case, no precipitate action should be taken in this matter, in terms of discharging the interested party and the property, before that suit is heard and determined. 6. Consequently, I find that there is no merit in the application, dated 16th February, 2025. I hereby dismiss it, but with no orders as to costs. The matter https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1974/eng@2026-04-09 2

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shall be mentioned on 10th December, 2025 for updates on progress in the suit, in Milimani ELC No. E169 of 2025. Orders accordingly.” 10. While referring to the suit property in this matter, Musyoka, J noted that the issue of ownership of the suit property could only be determined by this court. This just confirms that the argument that this court lacks jurisdiction cannot be sustained. I am persuaded to rely on the authority in the case of Koinange & 2 others (Suing as Administrators of the Estate of the Late Charles Karuga Koinange) v Mitithiru Company Limited [2024] KEELC 1414 (KLR), where Angote, J stated:“ Further, this court should, as a matter of fair hearing, give the 1st Plaintifi a chance to be heard on the issues he has raised in so far as the suit property is concerned and make a determination, after trial, on whether he had a justification in bringing the suit in the first place.” 11. By virtue of Section 82 of the Law of Succession Act, and as a co-administrator of the estate of the deceased, it is the primary duty of the personal representatives to protect the said estate. What the plaintifi/respondent has done in this case is to take this step. In view of this, I am satisfied that the plaintifi/respondent is justified in filing this suit. 12. From the above, I find that the notice of motion dated 25th June, 2025 lacks merit, and it is hereby dismissed. Costs in the cause. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLYTHIS 9TH DAY OF APRIL, 2026. HON. MBOGO C.G. JUDGE 09/04/2026. In the presence of: Ms. Benson Arunga - Court assistant Mr. Benson Odiwuor for the Plaintifi Mr. Fwaya for the 2nd Defendant Mr. Boaz Agutu for the 1st Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1974/eng@2026-04-09 3

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