REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MIGORI ELC O.S. NO. E038 OF 2025 SIMION NYAMOHANGA FRANCIS NYAKOREMA} ESTHER MASEKE MWITA}...................APPLICANTS/PLAINTIFFS VERSUS NCHAGWA MOSABI (Sued as the Administratrix to the Estate of MOSABA MAKONGORO (Deceased).........................RESPONDENT RULING Background 1. This ruling is on a Notice of Preliminary Objection dated 15 th November 2025, filed by the Respondent. It sought to for orders of striking out or dismissal of the suit, with costs. 2. The suit began by way of Originating Summons dated 11 th September 2025. The 1st Applicant, Simion Nyamohanga, swore the Supporting Affidavit. He also filed a witness statement, a list of documents and a list of witnesses, all of even date. 3. The Applicants asked the court to determine three questions. First, whether the deceased Mosaba Makongoro held Bukira/Bwisaboka/131 in customary trust for the family of the late Nyamohanga Rimo. Second, whether Bukira/Bwisaboka/131 was family land of Nyamohanga Rimo before demarcation and adjudication registered it in RULING ELCLOS E038 OF 2025 1
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the name of Mosaba Makongoro, the elder half-brother. Third, whether the Applicants were entitled to the whole parcel, among other prayers. 4. The Respondent opposed the Originating Summons. She filed a Replying Affidavit and the instant Notice of Preliminary Objection. Both were dated 15th November 2025. The Notice of Preliminary Objection 5. The Respondent raised three grounds. One, that the suit was fatally defective as the Respondent was not the legal representative of the Estate of Mosaba Makongoro. This, she pleaded, contravened Section 82 as read with Section 3 of the Law of Succession Act, Chapter 160 Laws of Kenya. 6. Two, that the Applicants had no locus standi to institute the suit. Further, that they purported to sue on behalf of the Estate of the late Nyamohanga Rimo. They held no letters of administration. This too, she pleaded, contravened Section 82 as read with Section 3 of the Law of Succession Act. 7. Thirdly, the 2nd and 3rd Applicants had no locus standi. That they gave the 1st Applicant no authority to institute the summons on their behalf, nor to depone the Supporting Affidavit on their behalf. The Replying Affidavit 8. The Respondent, Nchagwa Mosabi Rimo, swore the Replying Affidavit on 15th November 2025. RULING ELCLOS E038 OF 2025 2
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9. She deponed that the deceased Musaba Makongoro alias Joseph Mosabi Rimo was a brother to Nyamohanga Rimo. The two held the suit land in trust, in equal 1:1 shares. That before his death, the deceased instructed her to divide the land 50:50 between herself and Nyamohanga Rimo's family. 10. That in early 2023, while she was planning to take out succession over her late husband's estate, the 1 st Applicant and his brothers sent a surveyor to place beacons on the land, including within the 9 Hectares meant for her and her daughter, Elizabeth Mokami Mosabi. This aroused her interest. 11. She deponed further that she discovered that the 1 st Applicant and his brothers had filed Kehancha Succession Cause No. 12 of 2007, purporting to be the deceased's biological sons. They never disclosed that the deceased left a widow and a daughter. Nor did they ever plead that the land was held in trust for their mother, as now alleged in this suit. 12. She deponed that upon the discovery, she instructed her advocates to file summons for revocation of the grant issued in Succession Cause No. 141 of 2023. The court found that the grant had been fraudulently obtained without her involvement, and revoked it. She annexed the summons, the supporting and further affidavits, and the ruling of the court, marked "NMR-1 a-d". 13. The Respondent further annexed a copy of the petition and the death certificate used in Succession Cause No. 12 of RULING ELCLOS E038 OF 2025 3
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2007, marked "NMR-2", deponing that the certificate was fraudulently obtained. She annexed what she deponed to be the genuine death certificate of her husband, marked "NRM4". 14. She deponed that the deceased did not hold the entire land in trust for his brother. Rather, the two brothers held it in equal shares. She deponed further that she was married to the deceased in a monogamous marriage, and had buried him on the suit land. 15. She deponed that she has not obtained a grant of letters of administration over her late husband's estate, and that the suit was, for that reason, fatally defective. She annexed a copy of a petition she had filed at the High Court at Nairobi, Succession Cause No. E007 of 2025, together with the Notice to the Principal Registrar and the public notice of the same, marked "NRM-5". 16. She deponed further, that the Applicants had not shown that they were children or beneficiaries of the late Nyamohanga Rimo. She deponed that the 2 nd and 3rd Applicants were strangers to the suit, having deponed no affidavit and given the 1st Applicant no signed authority to depone on their behalf. 17. She prayed that the suit be struck out, with costs. The Applicants' Submissions 18. The Applicants filed their submissions on 2 nd July 2026. They identified RULING ELCLOS E038 OF 2025 three issues. One was whether the 4
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Respondent was the legal representative of the Estate of Mosaba Makongoro; the other one whether the Applicants had locus standi; and lastly, whether the Applicants were entitled to the reliefs sought. 19. On the first issue, the Applicants conceded that the Respondent had, by then, initiated succession proceedings on 17th December 2025. They submitted that, unless she proved otherwise, she was for all purposes the current Administratrix of the Estate. 20. On the second issue, the Applicants relied on Article 50(1) of the Constitution, on the right to have a dispute resolved by a court or tribunal, and Article 22(1) of the Constitution, on the right to institute proceedings for a violation of a right in the Bill of Rights. They cited Order 37 Rule 1 of the Civil Procedure Rules, 2010, on who may take out an originating summons, and Article 40 of the Constitution, on the right to property. They submitted that the they had locus standi to approach the court. 21. On the third issue, the Applicants submitted that none of the questions raised in the Originating Summons sought a declaration of ownership. They submitted that the questions were governed by the Supreme Court decision in Kiebia v M’lintari & another [2018] KESC 22 (KLR). They submitted that the court had the mandate to hear and determine the questions posed, and that they were entitled to the declarations sought. The Respondent's Submissions RULING ELCLOS E038 OF 2025 5
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22. The Respondent filed her submissions on 26th February 2026,. She framed the same three issues. 23. On the first issue, she relied on Section 3 of the Law of Succession Act, which defined a personal representative as “the executor or administrator, as the case may be, of a deceased person.” She also relied on Section 2 of the Civil Procedure Act, which defined a legal representative as “a person who in law represents the estate of a deceased person, and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.” She relied further on Section 82 of the Law of Succession Act, on the powers of a personal representative. 24. She submitted that she had merely initiated succession proceedings, having approached the court on 17 th December 2025, and that the matter was still awaiting gazettement, with no grant yet issued. She relied on the case of Alexander Mutunga Wathome v Peter Lavu Tumbo & another [2015] KEHC 1767 (KLR). 25. She submitted that, in the absence of a grant, she lacked the legal capacity to sue or be sued on behalf of the Estate, and that the suit, as constituted, was incompetent and premature. 26. On the second issue, she relied on the decision of Law Society of Kenya v Commissioner of Lands & Others, Nakuru HCCC No. 464 of 2000, wherein the court held that locus standi “signifies a right to be heard, a person RULING ELCLOS E038 OF 2025 6
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must have sufficiency of interest to sustain his standing to sue in court of law.” She submitted that the 1 st Applicant was not the legal representative of the Estate of his late father, Nyamohanga Rimo, and held no grant of representation, and therefore lacked capacity to institute the suit. She submitted that the 2nd and 3rd Applicants, Francis Nyakorema and Esther Maseke Mwita, gave the 1st Applicant no authority to institute the suit on their behalf. She submitted that it was bad in law for the 1st Applicant to swear a written statement on behalf of two other adult and competent Applicants, relying on Sections 107 to 109 of the Evidence Act, on the burden of proof, to submit that each witness must testify to facts within his or her own knowledge. 27. On the third issue, she submitted that the application and the prayers sought lacked merit, that neither party had locus standi, and that the proceedings were futile and legally untenable. She submitted that locus standi was as important as jurisdiction, and that a want of capacity to sue robs the court of the ability to grant the orders sought. Issues for Determination 28. Having considered the Notice of Preliminary Objection, the pleadings, the law, and the submissions, the Court considers the following issues to arise: a) Whether the Respondent’s capacity to be sued constitutes a Preliminary point of law, and if it’s merited; RULING ELCLOS E038 OF 2025 7
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b) Whether the objection on lack of locus standi of the Applicants raises a pure question of law; c) Whether the objection on lack of a written authority raises a pure preliminary objection and if it is merited; and d) What orders should issue. Analysis and Determination 29. The starting point is the understanding of the nature and scope of a preliminary objection. A preliminary Objection means a point of contention between the parties, which, based on he pleadings they have presented before the court or tribunal at the point, are at variance with the legal position of the issue at hand. This entitles the Court to consider it first, and if successful it terminates the issue without the need to go into the merits of the issue. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the Court defined that; ‘a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … 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 RULING ELCLOS E038 OF 2025 8
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correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion’.” 30. The same principle was restated in Oraro v Mbaja [2005] KEHC 3182 (KLR), where the Court cautioned that a preliminary objection should not be used as a vehicle for determining disputed facts or matters requiring evidentiary investigation. The Court must therefore examine each ground against that threshold rather than merely being guided by the description given to it by the Respondent. This turns the court then to the points raised as a preliminary objection herein. a) Whether the Respondent’s capacity to be sued constitutes a preliminary point if law, and if it is merited 31. The first ground is that the Respondent was not the legal representative of the Estate of Mosaba Makongoro at the time the suit was instituted. The pleadings show that she is expressly sued as the “Administratrix to the Estate of Mosaba Makongoro (Deceased).” 32. Section 3 of the Law of Succession Act defines a personal representative as an executor or administrator of a deceased person. Section 82 sets out the powers of a personal representative. They include the power to enforce by suit or otherwise causes of action which survive the deceased. Such representative capacity is acquired through a grant of representation or by one having been appointed the executor of the will. It does not arise merely because a RULING ELCLOS E038 OF 2025 9
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person is a widow, child or beneficiary, relative or a person entitled to petition for a grant. 33. The material facts relevant to this ground are not in dispute. The Originating Summons was instituted on 11 th September 2025. The Respondent's own position is that she only petitioned for a grant of representation on 17 th December 2025. This was approximately three months after the institution of the suit. Thus, at the date when the Originating Summons was instituted, she had not been appointed administrator of the Estate of Mosaba Makongoro. 34. Section 80(2) of the Law of Succession Act provides that a grant of letters of administration takes effect only from the date of the grant. It follows that the mere filing of a petition for a grant does not confer upon the petitioner the status or powers of an administrator. 35. This principle has been consistently applied by the superior courts. In Alexander Mutunga Wathome v Peter Lavu Tumbo & another [2015] KEHC 1767 (KLR), the Court held: “In law one can only represent the estate of a deceased person when a grant of representation has been made in respect of the estate of such deceased person under the Law of Succession Act.” The same principle was reaffirmed in Mwangi & 2 others v Karanja [2024] KEELC 5314 (KLR), where the Court held that a party cannot institute proceedings without the RULING ELCLOS E038 OF 2025 10
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requisite grant and subsequently obtain a grant to regularise the legal capacity that was absent when the proceedings were commenced. By the same token, this court holds that a person cannot be sued without that capacity of representation being in existence first. 36. The Court of Appeal has, similarly, maintained that where a person purports to institute proceedings in a representative capacity without first obtaining letters of administration, the defect goes to the competence of the proceedings. In Rugiri v Kinuthia & 3 others [2024] KECA 1601 (KLR), the Court reiterated the principle in Trouistik Union International & another v Mbeyu & another [1993] KECA 89 (KLR), itself founded on Otieno v Ougo & another (No. 2) [1987] KECA 79 (KLR), that an administrator cannot bring an action in that capacity before taking out letters of administration and that an action brought in the absence of such capacity is incompetent at inception. 37. More recently, in Atika v Atika & another [2025] KEELC 5577 (KLR), of which I am persuaded by, the Court applied the same principle to a suit filed before the plaintiff had obtained a grant. The Court held that the subsequent application for a grant could not cure the defect because the material time is the date when the suit was instituted. The suit was consequently struck out. 38. In the present case, the position is even more direct because it is not merely a question of whether the RULING ELCLOS E038 OF 2025 11
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Respondent had obtained a grant after filing the suit. She had not obtained one at all when she was sued. Her subsequent petition of 17th December 2025 could not retrospectively confer upon her representative capacity as to found a basis for her to be sued as at 11 th September 2025. 39. I therefore find that the first ground raises a pure question of law arising from facts apparent from the record. Consequently, it is a proper preliminary objection. On the merits, the pleadings show that the proper representative of the Estate of the deceased was not the one sued. Thus, the objection it succeeds. The Respondent lacked the legal capacity to be sued as the administratrix of the Estate of Mosaba Makongoro at the commencement of these proceedings. 40. Having so found, the Court must determine the consequence of that finding. The Respondent is the sole person sued in the representative capacity upon which the Applicants' proceedings are founded. 41. The authorities demonstrate that proceedings brought against or by a person who lacks the requisite representative capacity at inception are not merely irregular:, they are incompetent against or by that purported representative. 42. In Atika v Atika & another [2025] KEELC 5577 (KLR), which holding I am persuaded by, the Court held that where proceedings were instituted by a person without a grant, the defect rendered the suit a nullity from inception and the appropriate consequence was striking out. RULING ELCLOS E038 OF 2025 12
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43. There is, however, an important procedural qualification. The lack of capacity of the person presently before Court does not necessarily mean that the underlying cause of action can never be litigated. The Civil Procedure Rules permit the Court, in an appropriate case, to remove an improperly joined party and substitute or add the person whose presence is necessary for the effective determination of the dispute. 44. Order 1 Rule 10(2) of the Civil Procedure Rules empowers the Court, at any stage of the proceedings, either upon or without an application by a party, to strike out the name of a person improperly joined and to add a person who ought to have been joined or whose presence is necessary for the effectual and complete determination of the questions in dispute. 45. This power was considered in Wanjohi & 3 others v Muchira; Matu (Intended [2025] KEELC 1433 (KLR). The Interested Court found Party) that the person sued was not the appropriate person to be sued on behalf of the deceased's estate because he lacked the requisite representative capacity. The Court nevertheless exercised its power under Order 1 Rule 10(2), struck out the improperly sued defendant and substituted the duly appointed administrator. It further set aside the judgment that had been entered against the person who lacked capacity and allowed the substituted administrator an opportunity to defend the substantive claim. RULING ELCLOS E038 OF 2025 13
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46. The circumstances in Wanjohi are, however, distinguishable from the present case in one material respect. In that matter there was an identifiable person who had already been appointed administrator and who could properly be substituted. In the present matter, the material before this Court only demonstrates that the Respondent subsequently petitioned for a grant. There is no evidence or material before the Court that she had, by the time of the determination of this Preliminary Objection, been appointed administrator of the Estate of Mosaba Makongoro. 47. A petition for a grant cannot itself be treated as equivalent to a grant. The Court therefore cannot substitute the Respondent with a person whose representative capacity has not been established on the record. The court cannot go on a frolic of its own. Simply put, the Court cannot entertain the sustenance of a suit an incompetent suit by virtue of the application of Order 1 Rule 10 of the Civil Procedure Rules and make orders in vain. To do so would amount to a resuscitation a suit, which is not alive. 48. Accordingly, I find that, as presently constituted, there is no competent representative of the Estate of Mosaba Makongoro before the Court against whom the Applicants' Originating Summons can proceed. The defect is fundamental because the Respondent is the sole party sued and the capacity in which she was sued is the basis upon which the proceedings are founded. RULING ELCLOS E038 OF 2025 14
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49. I am mindful that Article 159(2)(d) of the Constitution requires the Court to administer justice without undue regard to procedural technicalities. That provision does not, however, confer substantive legal capacity upon a person who does not possess it under the Law of Succession Act. The requirement for a grant is not a mere technical formality, it determines who has legal authority to represent the estate of a deceased person in proceedings. Capacity of a party goes to the root of any litigation that he/she participates in, and lack of it completely puts the party outside of the same. 50. The Court cannot adjudicate upon the rights of the Estate of Mosaba Makongoro through a person who had no authority to represent that estate when the suit was commenced. Consequently, the Originating Summons, as presently constituted, is incompetent and cannot proceed against the Respondent. In the absence of a duly appointed administrator presently before the Court who can properly be substituted, the appropriate consequence is to strike out the Originating Summons. 51. . b) Whether the lack of locus standi of the Applicants raises a pure question of law, and if it is merited 52. The second ground is that the Applicants lack locus standi because they purportedly sued on behalf of the Estate of the RULING ELCLOS E038 OF 2025 15
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late Nyamohanga Rimo without obtaining a grant of representation. 53. There is no dispute about the general proposition of law advanced by the Respondent. Where a party seeks to enforce a cause of action belonging to a deceased person's Estate, he must ordinarily be clothed with the requisite grant of representation. This is the legal position that this court has ably explained above, when determining the first issue herein. The Court of Appeal recently reaffirmed this principle in Rugiri v Kinuthia & 3 others [2024] KECA 1601 (KLR), holding that a party litigating for and on behalf of a deceased person's estate must first obtain a full or limited grant authorising the institution or defence of proceedings. 54. The difficulty, however, lies in the application of that principle to the present case. The Respondent's objection assumes that the Applicants are suing on behalf of the Estate of Nyamohanga Rimo. That assumption must first be tested against the pleadings, that is to say, the Originating Summons. 55. The Applicants are not described and do not in any way describe themselves in the Originating Summons as administrators or personal representatives of Nyamohanga Rimo's estate. Rather, they are named individually as Applicants. Their claim is that Bukira/Bwisaboka/131 was family land of the family of Nyamohanga Rimo before RULING ELCLOS E038 OF 2025 16
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adjudication and registration and that Mosaba Makongoro held the land in customary trust for that family. 56. The distinction between a person enforcing a deceased person's Estate rights and a person asserting an independent right arising from a customary trust is material. The legal position is that where claimants bring a customary trust claim in their own right as members of the family it does not require them to obtain a grant of letters of in order to confer them locus standi. A customary trust runs with the familial title being litigated upon. 57. The same distinction is apparent in Mogeni v Attorney General & another; Manyi (Interested Party) [2025] KEELC 5078 (KLR), where the Court held that a claimant requires letters of administration to pursue a cause of action vested in a deceased person's estate, but does not require such grant to pursue a cause of action vested in the claimant personally. 58. The Applicants' reliance on customary trust is therefore significant. In Kiebia v M’lintari & another [2018] KESC 22 (KLR), the Supreme Court recognised customary trust as a form of landholding whose existence depends upon the relationship between the claimant, the land and the family, clan or group in question. 59. The issue before this Court is not, at this stage, whether the Applicants will ultimately prove the alleged customary trust. The narrower question is whether their claim, as pleaded, necessarily constitutes an action brought for and RULING ELCLOS E038 OF 2025 17
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on behalf of Nyamohanga Rimo's estate. It is my finding that it does not necessarily do so. The Applicants assert rights in their own capacity as members of the family allegedly entitled under the customary trust. Whether they can establish the factual ingredients of that trust is a matter for evidence at trial. It must be noted that the Applicants claim that their was land, part of the suit land, which belonged to the said Nyamohanga Rimo before adjudication took place. Then when adjudication took place, the land was registered in the Respondent’s name in the nature of customary trust. What I understand the applicants’ claim to be is that the deceased Rimo did not leave any property (registered as his individual one) in the suit land as at the time of adjudication but the completion of the adjudication process left them (applicants) in occupation of the portion they claim as members of the family hence the registration of the same in the name of he Respondent created a customary trust in their favour. This does not in any way put them in the position of claimants of the property through the Estate of Rimo (deceased). As to the success or otherwise of the claim, it will depend on evidence to be adduced at the hearing of the claim on its merits. 60. It follows that the Respondent's second ground of objection cannot succeed merely by establishing that Nyamohanga Rimo is deceased and that the Applicants have no grant in his estate. The Respondent must first establish that the right asserted in the Originating Summons is a right vested exclusively in that Estate, since he who alleges RULING ELCLOS E038 OF 2025 18
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proves. That is not a matter which can be conclusively determined as a preliminary objection since it requires evidence to be adduced. Thus, the second ground, as framed, therefore does not satisfy the Mukisa Biscuit case threshold. It therefore fails. c) Whether the objection on lack of authority from the 2nd and 3rd Applicants constitutes a pure point of law, and if merited 61. The third ground is that the 2 nd and 3rd Applicants did not give the 1st Applicant written authority to institute the proceedings or depone on their behalf. 62. Order 1 Rule 13(1) of the Civil Procedure Rules provides that where there are several plaintiffs, one or more may be authorised by the others to appear, plead or act for them. Rule 13(2) provides that such authority shall be in writing, signed by the party giving it and filed in the case. 63. Unlike the second ground, this objection does not require the Court to investigate the merits of the Applicants' claim. The question whether written authority was filed is ascertainable from the court record. The issue is therefore capable of determination from the pleadings and since it is relating to a provision of the law, it is a pure point of law. 64. This approach is supported by the recent decision in Mose v Amaya [2025] KEELC 7038 (KLR). The Court considered a preliminary objection founded on the alleged absence of written authority under Order 1 Rule 13. It held that the RULING ELCLOS E038 OF 2025 19
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ground constituted a proper preliminary objection because whether the authority had been filed was discernible from the manner in which the suit had been filed. 65. I therefore find that the third ground constitutes a proper preliminary objection. The question that remains, however, is the legal consequence of the absence of such authority, or put differently, if the ground is merited. 66. In my humble view, the consequence of failure to file a written authority, however, is not as far-reaching as the Respondent suggests. The 2nd and 3rd Applicants are themselves named as Applicants in the Originating Summons. Their being named as parties is distinct from the question whether the 1st Applicant was authorised to act on their behalf. In any event, even if the pleadings in their behalf were to be struck out, for want of the written authority, that would not render the suit incompetent since the 1st Applicant’s claim would still be valid. 67. In Lucy Ougo & 3 others v County Government of Nairobi & another [2021] KEELC 2580 (KLR), the Court considered the effect of failure by one plaintiff to obtain written authority from co-plaintiffs under Order 1 Rule 13. It held that the absence of such authority does not necessarily void the proceedings. Rather, the plaintiff without authority cannot purport to represent the co-plaintiffs, and the suit may proceed as the suit of the plaintiff who properly instituted it. RULING ELCLOS E038 OF 2025 20
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68. The position is consistent with the decision in Savala & another v Ndanyi [2022] KEELC 2536 (KLR), where the Court observed that a party cannot purport to appear, plead or act on behalf of others without written authority, but that lack of such authority does not necessarily void the proceedings. The consequence is directed at the purported representation of the other parties. 69. Accordingly, if the 1st Applicant had no written authority from the 2nd and 3rd Applicants, he could not purport to appear, plead or act on their behalf under Order 1 Rule 13. Nor could he, without the requisite authority, swear an affidavit on their behalf where the Rules require such authority. But that defect does not, by itself, extinguish the individual standing of the 2nd and 3rd Applicants or necessarily render the entire Originating Summons a nullity. In any event, Order 4 Rule 1(3) of the Civil Procedure Rules which provides for the same requirement is given a permissive qualification by Order 4 Rule 1(6) as to the effect of failure to file such a written authority. The latter provision is to the effect that the Court may of its own motion or on an application by the adverse party strike out a Plaint or Counterclaim in case of that failure. 70. Thus, the third ground therefore would have succeeded only to that limited extent had the Respondent sought the proper relief. Indeed, the Court finds that the 1 st Applicant cannot purport to represent or act for the 2 nd and 3rd Applicants in the absence of the written authority as RULING ELCLOS E038 OF 2025 21
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contemplated by Order 1 Rule 13. The further contention that this circumstance, by itself, renders the entire Originating Summons incompetent fails. In any event, the third limb of the objection was that the 2 nd and 3rd Respondents do not have a locus standi to institute the suit since they did not give a written authority to the 1 st applicant. This objection is in my humble view misplaced. As found in the previous issue, if the claimants allege the existence of a customary trust, they have capacity to institute a suit in that regard. Failure to give written authority does not strip a party of his/her capacity to sue. Rather, it only renders the two applicants’ claim susceptible to being struck out on an application. I have not been asked to do so in this objection. And if I have been, then for reason of the paucity of drafting by the Respondent I have not been able to see it. But since the suit is, in any event incompetent for reason of the success of the other points, I will not venture deeper than I have in these nuances. Final Determination 71. The Court finds that only one ground, namely, 1 succeeds. Accordingly, the Notice of Preliminary Objection dated 15 th November 2025 is allowed. The appropriate order is therefore to strike the suit out. This does not of itself mean that the Respondent is now entitled to evict the applicants or do some acts inconsistent with the current occupation and use of the suit land by the applicants except by following RULING ELCLOS E038 OF 2025 22
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legal steps or procedures, if they (applicants) do not move the court to assert their claims. 72. Bearing in mind the circumstances of the case which are that the dispute concerns alleged family land and parties are members of one larger family, each party shall bear its own costs. The file be closed forthwith. 73. Orders accordingly. Ruling dated, signed and delivered virtually via the Teams Platform this 16th day of September 2026. HON. DR. IUR NYAGAKA JUDGE In the presence of: M/s Mwita Nyangi Advocate for the Applicants M/s Onyangore Advocate for the Respondent M/s Lola Court Assistant RULING ELCLOS E038 OF 2025 23
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