Kamore (Suing as the Administrator of the Estate of the Late James Kamore Njomo) & another v Njomo & 14 others & 3 others (Environment and Land Case E115 of 2025) [2026] KEELC 4386 (KLR)

Ngong/1668 which measured approximately 4.05 hectares. She states that the survey report dated 28th August 2023 confirmed that the subdivisions emanating from parcel 3820 (the 1st defendant’s parcel) overlapped and encroached on parcel 3821. 3. She also avers that the interested party had instituted ELC Misc. Application E005 of 2023 seeking to procure a survey report but it could not address substantive merits of the dispute since the interested party is not the registered proprietor of the suit property. She therefore sought for injunctive reliefs against the Defendants in her Application dated 7th September 2025. 4. The 3rd, 9th, 11th, 12th, 13th and 15th Defendants then filed a Preliminary objections dated 5th, 6th and 13th October 2025 seeking dismissal of the suit on grounds that: The suit is incompetent for non joinder of the co-administrator ofiending provisions of Sections 79 and 82 of the Law of Succession Act; that the Plaintifi lacks locus to institute the sui since the Estate of the late James Kamore Njomo is not the registered owner of parcel Ngong/Ngong/3821 and the suit ofiended provisions of Section 18, 19 and 20 of the Land Registration Act as it should be determined by the Land Registrar. 5. The 1st defendant in her Replying Afidavit dated 13th October 2025 and application also opposes the Plaintifi’s suit/ application and seeks its dismissal on the same grounds as the ones raised in the preliminary objections adding that the survey report relied on the Plaintifi was defective 6. The 1st Defendant has filed an application dated 11th August 2025 primarily seeking to have the suit and the application dated 7th September 2025 dismissed in entirety for the very reasons cited in the Preliminary Objections summarized above. 7. In the 1st, 3rd, 9th, 11th, 12th, 13th and 15th Defendants submissions, counsel submitted that the plaintifi has no locus standi to institute the suit, because property Ngong/Ngong/3821 which she claims against, is registered under one Phoebe Wangui Gakui and not the Estate of the late James Kamore Njomo. It is also submitted that the Estate of the late James Kamore Njomo was being administered by the Plaintifi as well as one Hillary Mwangi Kamore who was neither party to the suit nor had he given consent/authority to the Plaintifi to institute the suit alone. Reference was made to Order 4 rule Civil Procedure Rules, Section 79 ad 82 Law of Succession Act, R vs Nairobi City Council Misc. Civil No. 103B of 2013, Michael Chole Lugalia (sing as administrator of the Estate of Ezekiel Majani Lugalia) vs Jonathan Ligare Ayod [2016] eKLR and Macfoy vs United Africa Ltd (1961) 3 All F.R. 1169. Counsel also submits that the dispute being a boundary dispute should be determined by the Land Registrar under Section 18 and 19 Land Registration Act and the Court has no jurisdiction to entertain the dispute citing George Kamau Macharia & Dexka Limited (2019) eKLR. As such, the suit should be dismissed with costs to the defendants. 8. On the issue of locus standi, counsel for the Plaintifi submits that the Court of Appeal in Kamore v Kamore [2000] 1 EA 128 apportioned the beneficial interest of 60% to the Estate of Phoebe Wangui Gakui; and 40% to the Estate of James Njomo Kamore. And that the registration of the suit property in the sole name of Phoebe Wangui Gakui was unlawfully undertaken upon the demise of James Njomo Kamore and the Registrar had been moved to rectify the illegality and the property reverted to its proper state as per the title deed filed in Court. Counsel submits that Phoebe thus holds the property in trust and not solely hers citing Re Estate of James Ngengi Muigai v Ngengi Muigai & 2 others [2016] eKLR. 9. On whether lack of joinder / consent of the Co-Administrators makes the suit incompetent, it is submitted that any administrator had the right to move court to protect the Estate of the deceased as held by Odunga J. (as he then was) in Re Estate of Benson Maingi Mulwa (deceased) (2021) eKLR, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4386/eng@2026-07-09 2

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and the suit should not be dismissed for reason of misjoinder or non joinder as provided by Order 1 Rule 9 Civil Procedure Rules. Counsel also submits that Court has the power to issue orders suo moto to preserve the Estate of the deceased as provided under Section 47 Law of Succession Act and Rule 73 Probate & Administration Rules with reference to John Marete Kirema & Another v Gladys Karimi Muthamia & 3 Others (2013) eKLR. Therefore, the Plaintifi empowered by Section 71 and 82 Law of Succession Act has locus standi to seek conservatory orders to protect the Estate from waste or intermeddling adding that the Interested party is the son of the late James Kamore and Phoebe Wangui. 10. On whether the Court lacks jurisdiction to determine the suit, it is submitted that the Land Registrar conducted a site visit and made a finding as per the report dated 28th August 2023. Despite the Land Registrar’s finding, the 1st defendant subdivided the suit property and created new titles in total disregard of the trespass and encroachment. As such, the Court has proper jurisdiction to determine the question of trespass and encroachment and the preliminary objections should thus be dismissed. 11. Having considered the applications and objections, the twin issues for determination are as follows;Whether the Plaintifi has locus standiWhether the court has jurisdiction 12. The locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 stated that a preliminary objection consists of a pure point of law which is argued on the assumption that all facts pleaded by the opposite party are correct. It cannot be raised where any fact has to be ascertained or where the court is called upon to exercise judicial discretion. 13. The Defendants oppose the suit on grounds that the suit is incompetent for want of joinder of a coadministrator of the Estate; that the Plaintifi lacks locus standi to institute the suit since the Estate of the late James Kamaore is not the registered owner of property Ngong/Ngong/3821 and that the suit concerns a boundary dispute which ought to be determined by the Land Registrar. 14. The Defendants argue that the Plaintifi instituted the suit without joining a co-administrator and therefore lacks capacity to sue on behalf of the Estate. The Plaintifi, however, asserts that she is the duly appointed administrator of the Estate of the late James Kamore Njomo and nothing stops her from bringing a suit to preserve the said Estate and that non-joinder or mis-joinder should not be a reason to dismiss a suit. She further argues that the suit property registered in the sole name of Phoebe Wangui was illegally and unlawfully registered as such, since the Court of Appeal in Kamore v Kamore [2000] 1 EA 128 apportioned the beneficial interest of 60% to the Estate of Phoebe Wangui Gakui; and 40% to the Estate of James Njomo Kamore. 15. From the foregoing argument, it is clear that the locus standi of the Plaintifi can only be ascertained by interrogating evidence which the court cannot do at this interlocutory stage. The issue of the failure of the co administrator to participate in the proceedings is one on which the court will need to hear the Plaintifi on before locking out the party from being heard. 16. On whether the dispute falls within the jurisdiction of the Land Registrar, the pleadings before Court indicate that the issues are of trespass, encroachment and unlawful extension of boundaries through subdivision of parcel Ngong/Ngong/3820. Whether the dispute is a boundary dispute falling exclusively within the mandate of the Land Registrar or whether it concerns alleged encroachment arising from subdivisions, trespass and interference with proprietary rights is a question that cannot be determined without considering evidence and the nature of the claims advanced by the parties. 17. The court finds therefore that this is a matter which should be heard fully on merits so that the court can determine all the issues which it has not been able to delve into at this stage. In exercise of the Courts responsibility to ensure eficient disposal of the business of the court, the court finds it necessary to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4386/eng@2026-07-09 3

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maintain the prevailing status quo as the matter proceeds for hearing. Consequently, the court issues the following orders; a. The Preliminary Objections dated 5th October 2025, 6th October 2025 and 13th October 2025 and the application dated 11th August 2025 are hereby dismissed and the suit set to be determined on its merits. b. The hearing of the application dated 7th September 2025 is dispensed with. The status quo in respect of the title and occupation of Ngong / Ngong /3821 and resultant sub divisions are to remain in place pending the hearing and determination of the suit. c. The matter is to be expeditiously set down for hearing d. Costs shall abide the outcome of the suit. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 9TH DAY OF JULY 2026. JUDY OMANGE JUDGE. IN THE PRESENCE OF: Mr. Wanjohi for plaintifi & interested party. Mr. Omayio 1st, 4th, 6th & 8th Defendants. Mr. Paul Gachana for 7th & 5th Defendants. Mr. Chelonjo for Mr. Njau for 3rd defendant and holding brief for Oronge. Ms. Terer for 9th, 11th & 13 defendants. Peter – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4386/eng@2026-07-09 4

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