Nesiria v Estate of Lekokwa Nesiria & another

c) The filing of the suit offends the provisions of Order 1 rule 1-3 which provides that a suit shall be between legally recognized persons and not an estate as is apparent herein. d) The filing of the suit offends the provisions of section 79 of the Law of Succession Cause Act which provides that the property of the Estate of a deceased shall vest in the Personal representative. e) . The filing of the suit offends the provisions of section 82(a) of the Law of Succession Cause Act which provides for the powers of the Personal representative to include suing and defending a suit. 2. The hearing of the P/O was directed to be by way of written submissions. On behalf of the Applicant it was submitted that the suit offended section 19and 20 of the Civil Procedure Act as well as section 79 and 82 of the Law of the Successions Act and reliance was placed on the decision in the case of Estate of Samuel Gatheru Njuguna / joseph Kamau Gichuki vs James Gatheru Mukora and anorther 2019 eklr and Mr. Mwita Nyangi learned counsel for the Appicant thus reiterated the grounds in support of the Notice of Preliminary Objection in whole and urged the court to allow the Preliminary Objection. 3. In Response it was submitted that as filed the suit was competent as no provisions of the order 1 rues 1-3 had been offended as the suit herein was commenced b way of an originating summons under the provisions of order 37rule 7 (1) of the Civil Procedure rules as well read together with section 38 of the Limitation of Actions Act. The Respondent further submitted that section 61 of the Land Registration Act as well as section 79 of the Law of Succession act recognize that a suit can be brought against a personal representative of a deceased estate either been an executor or an administrator thereof and that in so far as there were contentious issue is the same could not be settled by way of a preliminary objection as is the case herein. In support of this limb of Page 2|6

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Submissions reliance was placed on the decision in the case of John Musakali vs Speaker County of Bungoma and 4 Others 2015 eKLR thus in this regard respondent submits that the test of a preliminary Objection as stated in Mukhisa biscuits has not been met. 4. The Respondent further submits that an estate can be legally sued and places reliance in the case of Estate of James Gitau Njuguna 2026(KEHC)6465 KLR. Hawo Shanko vs Mohammed Uta Shanko2018 eKLR on the strength of the said submissions the Respondent urged the court to dismiss the preliminary Objection. ISSUES FOR DETERMINATION 5. Having analyzed the Notice of preliminary objection as well as the rival submissions by the parties, the court frames the issues for determination as follows, (i) Whether the Preliminary objection before court meets the threshold of a Preliminary Objection capable of determining the suit in limine? (ii) whether the preliminary objection is merited? (iii) what reliefs ought to issue? (iv) Who bears the costs? ANALYSIS AND DETERMINATION 6. The Court shall now consider the first issue, to wit, whether the Preliminary objection as filed in this Matter meets the threshold of Preliminary Objections as was observed in the decision in the case of In Mukisa Biscuit Manufacturer Limited vs Westend Distributors Limited; the Court held in respect of a preliminary objection, that “so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implications out of pleadings, and which if argued as 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 acts pleaded Page 3|6

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by the other side are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion….” 7. Similarly in the decision in the case of Omondi vs National Bank of Kenya Limited and 2 others; as quoted in the decision of J. N. and 5 others vs Board of Management St. G. School Nairobi and Another where it was held 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………..where a Court needs to investigate facts, a matter cannot be raised as a preliminary point. Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.” 8. From the above excerpts a Preliminary Objection must no deal with issues of ascertainment of the facts and evidence. The issue of the Defendant being the Estates of Lekokwa Nesiria and Kutiti Nesiria is an issue that can be garnered from the pleadings without the need to ascertain facts and or evidence. The court does not need to call for evidence in relation to the said issue raised and therefore the preliminary objection raises pure points of law. It follows therefrom as drawn the Preliminary objection meets the threshold of a preliminary objection and issue number 1 is answered in the positive. 9. On issue number 2 as to whether the Preliminary objection is merited. The gravamen of the Objection is that it is only the legal representatives of an estate of a deceased person that can be sued in accordance with section 79 and 82 of the Law of Succession Act. While the counter argument is that an Estate forms part a chose in action left by a deceased person and as such an action against the said estate can be sustained.it is thus important to look at the Page 4|6

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definition of the term’s legal representatives and an Estate for clarity. 10. Section 3 of the Law of Succession Act defines "estate" means the free property of a deceased person and a Legal representative means the executor or administrator, as the case may be, of a deceased person ; whereas the Respondent is right that where a cause of action survives the deceased, a suit against the Estate of the deceased can be instituted in line with the provisions of order 24 rule 1 of the Civil procedure Rules, but such a suit can only be instituted against the Legal Representatives of the estate of the deceased and not the Estate directly as a party to the suit as is the case herein, as the powers to administer a deceased’s Estate is vested on the personal representative under section 79 of the Law of Succession Act which provides as follows: “79. Property of deceased to vest in personal representative. The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.” there is therefore merit in the argument that the suit as filed offends the provisions of section 79 of the Law of Succession Act in so far as the defendants is the Estate of the two deceased persons and not the personal representatives thereof. 11. Equally It is only the personal representatives who can be sued on behalf of a deceased estate in accordance with section 82 of the Law of Succession Act and not the Estate itself. It follows therefrom that in so far as the suit herein names the Estates as Defendants instead of the personal representatives of the said Estates the suit again offends sections 82 of the Law of succession Act and this is not merely as mis joinder or non-joinder curable as contemplated under order 1 rule 9 of the Civil Procedure Rules. It is Page 5|6

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a case where the defendant is non-existent in law. The court therefore finds merit in the Notice of Preliminary objection dated 15.5.2026 in answer to issue No 2. 12. On what reliefs sought to issue, having found that the Originating summons is fatally defective and ought to be struck out. 13. The upshot is that the preliminary objection dated 15.5.2026 is hereby upheld and the Amended Originating summons is hereby struck out with costs to the 1st Respondent. Dated and delivered AT KILGORIS this 16th day of September 2026. HON. M.N. MWANYALE JUDGE In the presence of C/A Sylvia/ Clara Dr. Kembero for the Applicants N/A for Respondents Page 6|6

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