Mwakutwaa & 3 others v Ali & 4 others (Environment and Land Miscellaneous Application E011 of 2025) [2026] KEELC 5222 (KLR)

namely the Notice of Motion application dated 12 th June, 2025 by JUMA SALIM MWAKUTWAA, KASSIM SALIM MWAKUTWAA, SAIDI SALIM MWAKUTWAA and BAKARI SALIM MWAKUTWAA, the Applicants herein and the a Preliminary Objection dated 8th September, 2025 raised by BAKARI ALI, KHAMISI OMAR, ALI MWALIMU, ALI NASSORO and MWANASITI SALIM KUTWAA, the Respondents herein the in response to the said motion. 2. The application was brought pursuant to the provisions of Order 51 Rules 1,3 and 4 of the Civil Procedure Rules 2010, Sections 1A,1B 3B of the Civil Procedure Act, Cap. 21 and all other enabling provisions of the law. 3. In opposing the application, the Respondents filed a Replying Affidavit sworn by Hamisi Omari Mwakutwaa together with a Notice of Preliminary objection. The two will be expounded later in the ruling. 4. Due to the nature of the prayers sought, the court will make this ruling brief in the interest of justice and saving of judicial time and management of its resources. II. The Notice of Motion application dated 12 th June, 2025 by case of the Applicants 5. The Applicants sought for the following orders.

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a. Spent. b. That this Honourable Court be pleased to declare that the deceased is the rightful owner of land parcel KWALE/ MSAMBWENI A/2603 c. That costs of this application be provided for. 6. The application was premised upon grounds, testimonial facts and the averments set on its face and the 21 Paragraphed affidavit supporting of KASSIM SALIM MWAKUTWAA together with annextures marked as “KSM” annexed hereto. He averred as follows:a) He was an adult of sound mind and disposition. He was the 2nd Applicant and hence competent to swear this affidavit. b) He was the biological son of the deceased Salim Bakari Mwakutwaa (hereinafter referred to as “The Deceased”). c) The Deceased had left the land known as LR. No. Kwale/Msambweni A/2603 to be shared amongst their heirs. d) The Applicants herein moved the Msambweni Kadhis Court vide Succession Case No 368 of 2023 seeking to be proposed administrators of the estate of the deceased.

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e) In the said Succession Cause, the Applicants produced copies of the Chief’s letter and the Certificate of death of the deceased. f) The Kadhi’s Court directed that the death certificate be verified and which exercise was done. It bore the correct details. g) They also produced a copy of the Green card search and which bore the name of the deceased as owner of the suit property. The adjudication search also showed the deceased as the owner of the suit property. h) It was deposed that the Respondents had challenged the death of the deceased herein but the Certificate of Death certificate proved otherwise. i) Prior to he demise, the deceased left behind various parcels of land. j) The Respondents went ahead to produce in Court a letter dated 12th October, 2023 from the District Civil Registry stating that the death of one Salim Bakari Mwakutwaa was never registered. k) The Respondents never produced any other document. l) The Kadhi in its Judgement held that the land Kwale/Msambweni A/2603 was in contention and directed

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the parties to approach the right forum. Attached and marked as “KSM – 6” was a copy of the said Judgement. m) According to the applicants, the documents produced before the Kadhi’s Court and which were annexed to the instant supporting affidavit proved ownership of the suit property and hence the need to allow the application as prayed. III. The responses by the Respondents – The Objection & the Replying Affidavit 7. As already indicated, while opposing the application, the Respondents filed a Notice of Preliminary Objection dated 8th September, 2025. The preliminary objection raised the following grounds that:a) The Applicants did not have “locus standi” to file the suit since they were neither the owners nor the legal representatives of the owners of the suit property b) The suit was a non-starter and hence void ab initio since the Applicants filed it without first obtaining Letters of Administration c) The application never disclosed any reasonable cause of action known in law against the

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Respondents. The suit was thus scandalous, frivolous and/or vexatious d) The suit was incurably defective, incompetent and bad in law having been commenced by way of a miscellaneous application contrary to Section 19 of the Civil Procedure Rules, 2010 and e) The reliefs sought were final and substantive in nature and could not be granted through the application that was before this Honourable Court. 8. Further, the Respondents filed an 18 Paragraphed Replying Affidavit sworn by HAMISI OMARI MWAKUTWAA, the 2nd Respondent dated 3rd November, 2025. He averred as follows that:a) He was one of the Respondents herein, conversant with the matter and hence compete to swear the affidavit. He did that on behalf of and the authority of the other Respondents. b) Was baffled by the reliefs sought by the Applicants herein to the effect that they sought to have the deceased person to be declared the rightful owner of the suit land.

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c) the suit property was registered in the names of five ( 5 ) different individuals and it could not be said that it solely the belonged to the deceased herein only. d) All the persons in the title to the suit property were deceased and letters of administration to the estates were yet to be taken out. e) That for that reason the Applicants did not have locus to file the suit. f) When the matter on ownership of the suit property was taken before the Kadhis Court, the court in its Judgement dated 2nd May, 2024, ruled that it lacked jurisdiction to make any determination on ownership. It noted that there ownership issues to be determined. g) According to the deponent the court could not be moved on a miscellaneous application or a notice of motion application while seeking for substantive orders like a declaration on ownership of titles. h) The Respondents further argued that the copy of Certificate of death annexed was questionable as there were several members of the Mwakutwaa family that bore names similar to the deceased.

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i) The Applicants were feigning ignorance and claiming that this was their father land and that they were entitled to shares in it. j) Parties were all family members and hence the suit land belonged to the said family members of the great Mwakutwaa. k) The court was urged to dismiss the application. IV. Submissions 9. On 15th October, 2025 while Counsels for the Parties were present in Court, they were directed to have the application and the preliminary objection disposed of by way of written submissions. 10. Unfortunately, by the time of penning down this Ruling the Court was not able to access any of the written submission from neither the Judiciary CTS Portal nor ELC Registry. Nonetheless, it proceeded to deliver its Ruling on its merit herein. V. Analysis and determination 11. This court has keenly considered the pleadings in form of the Notice of Motion, the reply and the Preliminary Objection raised by the Respondents herein, the relevant

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provisions of the Constitution of Kenya, 2010 and the Statutes. 12. In order to arrive at an informed, reasonable and just decision, I have framed the following three ( 3 ) salient issues for determination:a) Whether the Preliminary objection meets the threshold of an objection based on Law and precedents. b) Whether the Notice of Preliminary Objection dated 8 th September, 2025 raised by the Respondents as taken is well founded, valid and merited; c) Who will bear the costs of the Notice of Motion and the Preliminary Objection? ISSUE No, a). Whether the Preliminary objection meets the threshold of an objection based on Law and precedents. 13. Under this sub – heading, the Honourable Court will be examining the nature, meaning and scope of the concept of the Preliminary Objection in law. According to the Black Law Dictionary a Preliminary Objection is defined as: “In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”

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14. In other words, it holds that a Preliminary Objection is an objection that if upheld would render further proceedings before the tribunal impossible or unnecessary. Courts have various defined Preliminary objection as one that consists of a point which has been pleaded or which arises by clear implication out of pleadings and which if argued as a Preliminary point my dispose of the suit. 15. The above legal preposition has been made graphically clear in the now famous case of “Mukisa Biscuits – Versus - Westend Distributor Ltd [1969] EA 696” , the court observed that: “A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue.” 16. This statement of the law has been echoed time and again by the courts: see for example, “Oraro – Versus - Mbaja [2007] KLR 141”. The same position was held in the case of “Nitin Properties Ltd – Versus - Jagjit S.

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Kalsi & another Court of Appeal No. 132 of 1989[19951998] 2EA 257” where the Court held that; “A preliminary Objection raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any facts has to be ascertained or if what is sought is the exercise of Judicial discretion.” 17. Similarly in the case of “United Insurance Company LTD – Versus - Scholastica A Odera Kisumu HCC Appeal No. 6 of 2005(2005) LLR 7396”, the Court held that; “A preliminary Objection must be based on a point of law which is clear and beyond any doubt and Preliminary Objection which is based on facts which are disputed cannot be used to determine the whole matter as the facts must be precise and clear to enable the Court to say the facts are contested or disputed .” 18. Therefore from the above holdings of the Courts, it is clear that a preliminary Objection must be raised on a pure point of law and no fact should be ascertained from elsewhere. See also the case of “In the matter of Siaya Resident Magistrate Court Kisumu HCCMisc. App No. 247 of 2003” where the Court held that; “A Preliminary Objection cannot be raised if any facts has to be ascertained.” 19. I have further relied on the decision of “Attorney General & Another – Versus - Andrew Mwaura Githinji & another [2016]

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eKLR” as it explicitly extrapolates in a more concise and surgical precision what tantamount to the scope, nature and meaning of a Preliminary Objection inter alia:(i) A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct. (ii) A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and (iii) The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute. 20. In view of the above, it is clear that a preliminary objection should raise pure points of law and which are argued on the assumption that all facts are correct. The question therefore is does the Notice of Preliminary Objection raised herein meet the above qualification or description of a Preliminary Objection? The preliminary objection herein raises several issues as against the Applicants and the suit and which include the allegation that the said Applicants have no requisite Locus standi to maintain the suit since they have not taken out letters of administration in respect of the estate of their deceased father.

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ISSUE No. b). Whether the Notice of Preliminary Objection dated 8th September, 2025 raised by the Respondents as taken is well founded, valid and merited; 21. It is trite that Locus Standi, is an issue that concerns the legal right of a party to be heard by the court. It involves an assessment of the facts as pleaded in the case against the established legal principles of standing. If a party lacks sufficient interest or legal capacity to sue, the court cannot assume jurisdiction to entertain the matter, 22. Therefore, it is evident that locus standi gives one standing to institute a case, and any challenges regarding locus stand, being the legal capacity to bring a lawsuit is considered a pure point of law, because if the court is to uphold it, then it is capable of bringing a matter to a close. 23. Taking that clearly that the issue of locus standi is a pure point of law, is the preliminary objection therefore merited? The issue as to whether a party can file a suit involving a deceased’s estate before obtaining a limited grant has been the subject of several Court cases. It is common knowledge that a party lacks the locus standi to

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file a suit before obtaining a grant limited for that purpose. 24. This legal position is quite reasonable in that if the Plaintiff or Applicant has not been formally authorized by the Court by way of a grant limited for that purpose, then it will be difficult to control the flow of Court cases by those entitled to benefit from the estate. If each beneficiary is allowed to file a suit touching on a deceased’s estate without first obtaining a limited grant, then several suits will be filed by the beneficiaries See the case of:- “Pravinchandra Jamnadas Kakad – Versus Estate of Lucas Oluoch Mumia & 2 others [2022] eKLR”. 25. Legally speaking, it is the Limited grant which gives a party the locus to stand before the Court and argue the case. It does not matter whether the suit involves a claim of intermeddling of the estate or the preservation of the same. One has to first obtain a limited grant that will give him/her the authority to file the suit. In the case of “Julian Adoyo Ongunga – Versus - Francis Kiberenge Abano Migori Civil Appeal No.119 of 2015”, Justice A. Mrima had this to say on the issue of a party filing a suit without having obtained a limited grant:-

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“Further, the issue of locus standi is so cardinal in a civil matter since it runs through to the heart of the case. Simply put, a party without locus standi in a civil suit lacks the right to institute and/or maintain that suit even where a valid cause of action subsists. Locus standi relates mainly to the legal capacity of a party. The impact of a party in a suit without locus standi can be equated to that of a Court acting without jurisdiction. Since it all amounts to null and void proceedings. It is also worth noting that the issue of locus standi becomes such a serious one where the matter involves the estate of a deceased person since in most cases the estate involves several other beneficiaries or interested parties.” 26. The effect of the above cases is that for a party to have locus standi and appear in a case involving a deceased person, he or she must first obtain a grant limited for that purpose. From the evidence on record, the Applicants never obtained a grant before approaching this Honourable Court, I have keenly perused the affidavit in support of the notice of motion herein and at no point was the grant annexed. It therefore follows that without a grant the application as initiated becomes void ab initio and cannot be resuscitated by the issuance of a subsequent limited grant.

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27. The Applicants failed to obtain a grant for purposes of filing this suit, the same cannot therefore be sustained by this court. Thus, the preliminary objection is merited and upheld. 28. From the foregoing circumstances the court will not delve further into the issue as whether the Notice of Motion application has any merit or was properly before this court and is thus lacking in merit, it is automatically dismissed. Having found that the Applicants are not properly before court, it follows that the Court further proceeds to strike out the entire suit as it is clear that it has been instituted by parties who have no legal capacity to institute a suit. The Applicants are at liberty to file a fresh suit after obtaining a limited grant for that purpose ISSUE No. c). Who will bear the costs of the notice of motion and the preliminary objection? 29. It is now well established that the issue of costs is at the discretion of Court. Costs mean the award that a party is granted at the conclusion of a legal action or proceedings in any litigation. The proviso of Section 27 of the Civil Procedure Act, Cap. 21 provides that costs should follow the event unless the court for some good reason orders

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otherwise. By the event it means the results or outcome of the legal action. 30. In the instant case, the notice of motion application has failed while the preliminary objection has been upheld. It will be prudent for the Respondents to have the costs of both the application and the preliminary objection. VI. Conclusion & Disposition Consequently, having caused an in-depth analysis of the framed issues herein, based on the Preponderance of Probabilities and the balance of convenience, the Honourable Court proceeds to make the following orders: a) THAT the Notice of Motion application dated 12th June, 2025 be and is hereby found to lack merit and hence it is dismissed. b) THAT the Preliminary objection dated 8th September, 2025 raised by the Respondents be and is hereby found to be meritorious thus upheld. c) THAT in view of the foregoing, the suit herein and as instituted by the Applicants through a Miscellaneous Application be and is hereby struck out.

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d) THAT the costs of the application, Preliminary objection and the suit and to be awarded to the Respondents to be borne by the Applicants herein. IT IS ORDERED ACCORDINGLY. RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED THIS………28TH ……. DAY OF…...APRIL….2026 ……………………………… HON. MR. JUSTICE L.L NAIKUNI, ENVIRONMENT & LAND COURT AT KWALE. Ruling delivered in the presence of: a) Mr. Daniel Disii, the Court Assistant. b) Mr. Chege Advocate for the Applicants. c) Mr. Hamisi Advocate for the Respondents. AT KWALE

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