Owino & 3 others v Hayer (Sued as Legal Representative of the Estate of Bishan Singh) & 3 others (Environment and Land Case E048 of 2025) [2026] KEELC 2920 (KLR)

of the Limitation of Actions Act Cap 22 that the court has power to grant the relief sought and that the application has been made without delay and that the same is geared towards meeting the ends of justice. 3. The application was supported by the averment in the Supporting Afidavit of Jane Betty Atieno filed with the application. 4. Afidavit of service sworn by Vera Kemunto, Advocate, on 10th November, 2025 shows that the Plaintifi was served with the application on 10th November, 2025 vide email. On 19th March, 2026 the court directed the Defendant/Applicant to serve the Plaintifi with directions issued on the same that the Plaintifi with directions issued on the same date that the Plaintifi files written submissions on the application within 14 days from 19th March, 2026. Afidavit of service sworn by Vera Kemunto Advocate on 23rd March, 2026 shows that the Plaintifis were served with the order/directions given by the court on 19th March, 2026. Perusal of the court file shows that Counsel for the Plaintifi had, on 13th November, 2026, been granted 14 days to file response to the application. No response or written submissions have so far been filed by the Plaintifi/Respondent. The application is therefore unopposed. 5. I have considered the application and grounds on which it is brought. I have also read the plaint and all the accompanying documents. Although the Plaintifis describe themselves in the heading of the plaint as legal representative of Jackton Ochier Olwal alias Ochier Olwal deceased, there is no document exhibited to show that the Plaintifis have attained that capacity. In paragraph 6 of the plaint they describe themselves as son and daughter of the deceased. They further plead that the suit land namely; KISUMU/OJOLA/1770 which was altered to land parcel No. KISUMU/OJOLA/3816 was registered in the name of the deceased. 6. Under the provisions of sections 2, 79, 82 and 83 of the Law of Succession Act, only personal representatives appointed under the provisions of the Law of Succession Act have capacity to sue on behalf of or transact in the property of a deceased person. Further, I note that although the 1st Defendant is described as legal representative of one Bishan Singh, no evidence has been exhibited/adduced to prove this. The second defendant denies having any interest in the suit land. I find that it has not been demonstrated that the Defendants have capacity to be sued. 7. The Plaintifi’s suit was also challenged on the grounds that it is statutorily time-barred under sections 7 and 9 of the Limitation of Actions Act. the Applicant deponed in paragraphs 10 and 11 of the Supporting Afidavit that the Plaintifis’ suit which was based on a lease agreement and green card opened in 1977 and 1979 was time-barred as it was filed on 30th May, 2025 which was more than 48 years later. This contention/averment was not rebutted. Section 7 of the Limitation of Actions Act makes provision on actions to recover land and prohibits filing of such actions after the expiry of 12 years from the date the right of action accrued. I find that the suit was filed out of time. 8. Having determined that the plaintifis locus standi to institute the suit for lack of letters of Administration in respect of the estate of the deceased registered owner, that the 1st and 2nd Defendants lack capacity to be sued and that the suit was filed out of time and considering that the application was unopposed, I find that the application has merit and hereby allow it. 9. The result is that; i. The suit is struck out. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2920/eng@2026-05-14 2

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ii. Costs of the suit are awarded to the 1st and 2nd Defendants. Orders accordingly. RULING DATED AND SIGNED AT KISUMU, READ THIS 14TH DAY OF MAY, 2026, VIRTUALLY, THROUGH MICROSOFT TEAMS ONLINE APPLICATION. E. ASATI, JUDGE. In the presence of Atika: Court Assistant Onsongo for the Applicants No appearance for the Respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2920/eng@2026-05-14 3

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