Fransisca Nabwire Wabwire (Suing as a legal representative of the estate of Marisiana Nabwire Wambwire) v Joseph Amollo Ayienga & 2 Others

2. The 1st Defendant/Applicant seeks orders that the suit be declared incompetent and struck out following the revocation of the Plaintiff’s Grant of Letters of Administration Ad Litem by the Chief Magistrate’s Court in Busia Succession Cause NO E044 of 2024. 3. The Applicant contends that the Plaintiff’s entire capacity to institute and maintain the suit was derived from the revoked grant, and upon its revocation for fraud, forgery, impersonation and concealment of material facts, she ceased to have any locus standi to represent the estate. 4. The Applicant argues that the revocation extinguished the legal foundation upon which the suit was instituted, rendering the proceedings null and void ab initio. He further relies on the succession court’s finding that all actions undertaken pursuant to the impugned grant, including the institution of proceedings touching on Land Parcel NO. BUKHAYO/MUNDIKA/9905, were declared null and void. 5. It is further stated that no appeal was filed against the revocation order, while the Plaintiff’s subsequent application BUSIA ELC LC NO. E008 OF 2024 – RULING Page 2 of 22

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for review was dismissed for non-attendance, making the succession proceedings final. 6. The Applicant also seeks the discharge and setting aside of all interim and injunctive orders issued in the suit on the basis that they were obtained by a person lacking legal capacity and whose authority had been procured through fraud. 7. According to the Applicant, the continued existence of those orders prejudices his proprietary rights over the suit property and permits a litigant found to have obtained authority fraudulently to continue benefiting from court orders. 8. The Applicant further avers that the Plaintiff has no legally recognized relationship with the deceased’s estate, lacks authority under the Law of Succession Act to institute proceedings on behalf of the estate, and that litigation commenced without locus standi is incurably defective and cannot be sustained. He therefore urges the Court to strike out the plaint together with all proceedings founded on the revoked grant. BUSIA ELC LC NO. E008 OF 2024 – RULING Page 3 of 22

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9. The Applicant additionally contends that the continued pendency of the suit amounts to an abuse of the court process, exposes him to continued trespass and financial loss, and undermines existing orders issued in BUSIA CM ELC NO E087 of 2023 protecting his ownership of Land Parcel NO. BUKHAYO/MUNDIKA/9905. He also raises allegations of collusion between the Plaintiff, the 2 nd and 3rd Defendants, and their advocates aimed at sustaining proceedings founded on a fraudulent grant. 10. Lastly, the Applicant prays that the counterclaim filed by the 2nd and 3rd Defendants be struck out on the ground that, once the Plaintiff’s suit is struck out for want of locus standi, there remains no competent suit capable of sustaining any counterclaim. THE RESPONDENT’S CASE 11. The 2nd and 3rd Defendants oppose the application on the ground that it is misconceived, incompetent and an abuse of the court process. 12. They contend that their counterclaim constitutes an independent and separate cause of action which survives BUSIA ELC LC NO. E008 OF 2024 – RULING Page 4 of 22

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notwithstanding the striking out, withdrawal, discontinuance or dismissal of the Plaintiff’s suit. Relying on Order 7 Rule 12 of the Civil Procedure Rules, they argue that the counterclaim is capable of proceeding to hearing and determination independently of the Plaintiff’s claim. 13. They further maintain that the revocation of the Plaintiff’s Grant Ad Litem affects only the Plaintiff’s authority to represent the estate and does not extinguish or prejudice the proprietary and contractual rights asserted in their counterclaim. 14. The 2nd and 3rd Defendants also argue that their counterclaim concerns Land Parcel NO BUKHAYO/MUNDIKA/9904, which is distinct from Land Parcel NO BUKHAYO/MUNDIKA/9905, the property affected by the succession proceedings. Consequently, they submit that the ruling revoking the grant neither determines nor invalidates ownership or legal rights relating to parcel NO 9904. SUBMISSIONS 15. The 1st Defendant/Applicant submits that the Plaintiff lacked legal capacity to institute and maintain the proceedings once BUSIA ELC LC NO. E008 OF 2024 – RULING Page 5 of 22

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her Grant of Letters of Administration Ad Litem was revoked. He argues that locus standi is fundamental to the institution of proceedings involving a deceased person’s estate and that a suit commenced by a person without such capacity is a nullity from inception. 16. The Applicant submits that the succession court conclusively determined that the grant had been obtained fraudulently and declared all actions taken pursuant to it, including the filing of the present suit, null and void. 17. He therefore argues that the suit, all interlocutory orders issued therein, and any consequential proceedings cannot legally survive. The Applicant further submits that the continued prosecution of the suit amounts to an abuse of the court process and urges the Court to strike out both the plaint and the counterclaim, contending that the latter cannot subsist in the absence of a competent suit. 18. On the other hand, the 2nd and 3rd Defendants submit that their counterclaim remains competent notwithstanding the fate of the Plaintiff’s suit. BUSIA ELC LC NO. E008 OF 2024 – RULING Page 6 of 22

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19. They argue that a counterclaim is an independent action capable of surviving the dismissal or striking out of the main suit and that Order 7 Rule 12 of the Civil Procedure Rules expressly preserves such a claim. 20. They further submit that their counterclaim relates to Land Parcel NO BUKHAYO/MUNDIKA/9904, which is distinct from parcel NO 9905 affected by the succession proceedings, and therefore the revocation of the Plaintiff’s grant does not affect the rights asserted in their counterclaim. Accordingly, they urge the Court to dismiss the application and allow the counterclaim to proceed to hearing on its merits. ANALYSIS AND DETERMINATION 21. Having considered the Notice of Motion dated 10 th April 2026, the grounds of opposition therein and the rival submissions, the following issues arise for submission: a) Whether the revocation of the Plaintiff’s Grant of Letters of Administration Ad Litem deprived the Plaintiff of the requisite locus standi to institute and maintain the present BUSIA ELC LC NO. E008 OF 2024 – RULING Page 7 of 22

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suit, and if so, what is the legal effect of such revocation on the suit and the proceedings founded thereon. b) Whether the interim and injunctive orders issued in favour of the Plaintiff ought to be discharged and revocation of set the aside Grant following of the Letters of Administration Ad Litem. c) Whether the Counterclaim by the 2nd and 3rd Defendants survives independently of the Plaintiff’s suit notwithstanding the alleged want of locus standi and the revocation of the Grant of Letters of Administration Ad Litem. d) Who should bear the costs of the application. On whether the revocation of the Plaintiff’s Grant of Letters of Administration Ad Litem deprived the Plaintiff of the requisite locus standi to institute and maintain the present suit, and if so, what is the legal effect of such revocation on the suit and the proceedings founded thereon. BUSIA ELC LC NO. E008 OF 2024 – RULING Page 8 of 22

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22. Section 82 (a) of the Law of Succession Act provides that: “Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers; (a) to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative; 23. In the case of Trouistik Union International & another v Jane Mbeyu & another [1993] KECA 89 (KLR) the court provided that: “To determine who may agitate by suit any cause of action vested in him at the time of his death, one must turn to section 82 (a) of the Law of Succession Act. That section confers that power on personal representatives and on them alone. As to who are personal representatives within the contemplation of the Act, section 3, the interpretative section, provides an all-inclusive answer. It says “personal representative means executor or administrator of a deceased person”. BUSIA ELC LC NO. E008 OF 2024 – RULING Page 9 of 22

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It is common ground that the deceased in this case died intestate. Therefore, the only person who can answer the description of a personal representative, is the administrator of the estate of the deceased. The next enquiry must answer the question, who is an administrator within the true meaning and intendment of the Act? section 3 says “administrator means a person to whom a grant of letters of administration has been made under this Act”. 24. Similarly, in the case of Kinyua -v- Ireri [2025] KEHC 10685 (KLR) the court provided that: “From perusal of the record, the appellant died on 15th October 2008. Thus, a grant of representation ought to have been made in respect of his estate under the Law of Succession Act to lodge the instant appeal.” 25. These authorities underscore the principle that locus standi is not a procedural technicality capable of being overlooked BUSIA ELC LC NO. E008 OF 2024 – RULING Page 10 of 22

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under Article 159 of the Constitution; rather, it is a substantive jurisdictional requirement. 26. In the present case, the Applicant’s case is anchored on the proposition that the Plaintiff’s authority to institute these proceedings was exclusively derived from the Grant of Letters of Administration Ad Litem issued in Busia CM Succession Cause NO E044 of 2024. 27. It is not disputed that the succession court subsequently revoked the said grant upon findings that it had been obtained through fraud, forgery, impersonation and concealment of material facts. The succession court further declared all actions undertaken pursuant to that grant, including proceedings touching on Land Parcel NO. BUKHAYO/MUNDIKA/9905, null and void. 28. From the foregoing, it is settled that where a cause of action belongs to the estate of a deceased person, only a duly appointed personal representative has the legal capacity to institute or defend proceedings on behalf of that estate. Such capacity is donated by a valid grant of representation issued under the Law of Succession Act. In the absence of such BUSIA ELC LC NO. E008 OF 2024 – RULING Page 11 of 22

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authority, a litigant lacks the locus standi, and the court is deprived of jurisdiction to entertain the claim. 29. The Applicant argues that once the grant was revoked, the legal foundation upon which the Plaintiff commenced these proceedings ceased to exist. More significantly, the succession court expressly declared all actions undertaken pursuant to the impugned grant to be null and void. This Court cannot ignore or sit on appeal over those findings. 30. It is a cardinal principle that orders of a court of competent jurisdiction remain valid and binding unless set aside on appeal or review. The material before the Court demonstrates that no appeal was preferred against the revocation order, while the Plaintiff’s subsequent application for review was dismissed. Consequently, the decision revoking the grant remains valid, binding and enforceable. 31. The inevitable consequence is that the Plaintiff can no longer purport to represent the estate in these proceedings. Having lost the legal authority upon which the suit was instituted, the Plaintiff lacks the requisite standing to continue prosecuting the claim on behalf of the deceased’s estate. BUSIA ELC LC NO. E008 OF 2024 – RULING Page 12 of 22

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32. Accordingly, this Court finds that the Plaintiff presently lacks locus standi to maintain or further prosecute this suit by virtue of the revocation of the Grant of Letters of Administration Ad Litem. The Plaintiff’s authority to represent the estate has been extinguished unless a lawful personal representative is appointed and properly brought on record. To that extent, the Applicant succeeds on the question of the Plaintiff’s present legal capacity. On whether the interim and injunctive orders issued in favour of the Plaintiff ought to be discharged and set aside following the revocation of the Grant of Letters of Administration Ad Litem. 33. The Applicant seeks the discharge of all interim and injunctive orders issued in favour of the Plaintiff on the ground that they were obtained by a person who no longer has legal capacity to represent the deceased’s estate. He submits that permitting those orders to subsist would prejudice his proprietary rights and allow the Plaintiff to continue enjoying the benefit of orders founded on a grant that has since been revoked. BUSIA ELC LC NO. E008 OF 2024 – RULING Page 13 of 22

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34. It is trite that interlocutory orders are ancillary to the substantive suit. Their existence is dependent upon the continued competence of the proceedings in which they were issued. Where the party in whose favour such orders were granted loses the legal capacity to prosecute the suit, the basis upon which the court exercised its discretion to grant interim relief is fundamentally altered. 35. Order 40 Rule 7 of the Civil Procedure Rules provides that; “Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order.” 36. In the present case, the Plaintiff’s authority to litigate on behalf of the estate was founded upon the Grant of Letters of Administration Ad Litem, which has since been revoked by a court of competent jurisdiction. As already found under the first issue, the Plaintiff no longer possesses the legal capacity to maintain these proceedings. The continuation of injunctive orders in favour of a litigant who presently lacks authority to prosecute the suit would have the effect of preserving rights in favour of a person without legal standing before the Court. BUSIA ELC LC NO. E008 OF 2024 – RULING Page 14 of 22

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37. The Court is therefore satisfied that the revocation of the grant constitutes warranting the a material reconsideration change of in the circumstances interim orders previously issued. Since the Plaintiff no longer has the legal capacity to sustain the suit in its current form, there exists no sufficient basis for the continued subsistence of the interlocutory injunctive orders issued for her benefit. 38. Accordingly, the Court finds merit in the Applicant’s prayer for the discharge and setting aside of the interim and injunctive orders issued in favour of the Plaintiff. Those orders are hereby discharged, without prejudice to the right of any duly appointed legal representative of the deceased’s estate, if subsequently brought on record in accordance with the law, to seek appropriate interim relief should the circumstances so warrant. On whether the Counterclaim by the 2nd and 3rd Defendants survives independently of the Plaintiff’s suit notwithstanding the revocation of the Grant of Letters of Administration Ad Litem. BUSIA ELC LC NO. E008 OF 2024 – RULING Page 15 of 22

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39. The 2nd and 3rd Defendants contend that their counterclaim is an independent cause of action capable of surviving the striking out or dismissal of the Plaintiff’s suit. They rely on Order 7 Rule 12 of the Civil Procedure Rules, which provides that where a suit is stayed, discontinued or dismissed, a counterclaim may nevertheless proceed to hearing and determination. 40. They further submit that their counterclaim relates to Land Parcel NO BUKHAYO/MUNDIKA/9904, which they argue is distinct from Land Parcel NO BUKHAYO/MUNDIKA/9905 that formed the subject of the succession proceedings. 41. In the case of Abardare Investments Limited v Paul Nyanjui Kamochu & 34 others [2018] KEELC 2587 (KLR) the court stated that: “A counter-claim is an independent suit that is why even if the main suit the counter-claim will still stand. is dismissed, The contested suit property cannot be a security for costs as the 36th defendant claims. A look at the counter-claim filed herein and the whole case by the plaintiff BUSIA ELC LC NO. E008 OF 2024 – RULING Page 16 of 22

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shows that it is on shaky grounds and may possibly not stand” 42. Indeed, I agree with the 2nd and 3rd Defendants that the law is settled that a counterclaim is generally treated as a cross-suit and is capable of proceeding independently of the main suit. 43. However, the independence of a counterclaim is not absolute. Like every suit, a counterclaim must disclose a competent cause of action against a proper party. It must be capable of determination within the legal framework governing the rights in issue. A counterclaim cannot survive where its determination is inextricably dependent upon a party who lacks the legal capacity to litigate or where the subject matter is vested in an estate that has no lawful legal representative before the Court. 44. I have carefully perused the Plaint filed herein. It is evident that the Plaintiff’s case is that Land Parcel NO BUKHAYO/MUNDIKA/672 was originally registered in the name of the deceased and that the 1st Defendant unlawfully caused the same to be subdivided into Land Parcel NOS BUKHAYO/MUNDIKA/9904 BUSIA ELC LC NO. E008 OF 2024 – RULING and Page 17 of 22

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BUKHAYO/MUNDIKA/9905. The Plaintiff seeks, inter alia, declarations touching on the legality of those subdivisions and the ownership of the resultant parcels. 45. Likewise, although the 2nd and 3rd Defendants submit that their counterclaim is confined to Land Parcel NO BUKHAYO/MUNDIKA/9904, it is apparent that parcel NO 9904 did not exist independently but emanated from the subdivision of the original Land Parcel NO BUKHAYO/MUNDIKA/672. Consequently, the rights asserted in the counterclaim are inseparably linked to the ownership and legality of the subdivision of the mother title, which the Plaintiff alleges belonged to the deceased’s estate. 46. In the Court’s view, the mother title, Land Parcel NO BUKHAYO/MUNDIKA/672, remains the foundation upon which both the Plaint and the Counterclaim are premised. Following the revocation of the Plaintiff’s Grant of Letters of Administration Ad Litem, the deceased’s estate presently remains unrepresented before this Court. 47. Any determination regarding the validity of the subdivision of the mother title or the ownership of the resultant parcels BUSIA ELC LC NO. E008 OF 2024 – RULING Page 18 of 22

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would inevitably affect the proprietary interests of the deceased’s estate. Such issues cannot properly be adjudicated in the absence of a duly appointed legal representative of the estate. 48. Accordingly, while the Court agrees with the general proposition that a counterclaim is ordinarily an independent suit, the peculiar circumstances of this case render that principle inapplicable. The counterclaim is not founded upon an entirely separate transaction or subject matter; rather, it is anchored on rights flowing from the subdivision of the deceased’s property and necessarily calls into question the estate’s interest in the original parcel. The absence of a lawful representative of the estate deprives the Court of a competent party against whom those claims may properly be adjudicated. 49. The Court therefore finds that the counterclaim cannot be sustained independently merely because it concerns parcel NO BUKHAYO/MUNDIKA/9904. Since the mother title from which that parcel arose belongs to the deceased’s estate, which currently lacks a lawful representative before the Court, BUSIA ELC LC NO. E008 OF 2024 – RULING Page 19 of 22

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the counterclaim is equally rendered incompetent and cannot proceed in isolation. The Applicant’s prayer seeking the striking out of the counterclaim therefore succeeds. On who should bear the costs of the application. 50. Costs ordinarily follow the event pursuant to Section 27(1) of the Civil Procedure Act, unless the Court, for good reason, orders otherwise. Accordingly, the Court finds no reason to depart from the general rule that costs follow the event. The costs of the application are therefore awarded to the 1st Defendant/Applicant. DISPOSITION AND FINAL ORDER 51. In the result, the Notice of Motion dated 30 th April 2026 is meritorious and is hereby allowed. Accordingly, the Court makes the following orders: a) A declaration is hereby issued that, following the revocation of the Plaintiff’s Grant of Letters of Administration Ad Litem, the Plaintiff lacks the requisite locus standi to BUSIA ELC LC NO. E008 OF 2024 – RULING Page 20 of 22

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institute and maintain this suit on behalf of the deceased’s estate. b) The Plaint together with all consequential proceedings founded on the revoked Grant of Letters of Administration Ad Litem is hereby struck out. c) All interim and injunctive orders previously issued in favour of the Plaintiff in this suit are hereby discharged and set aside. d) The Counterclaim filed by the 2nd and 3rd Defendants is hereby struck out for want of a competent suit and for being incapable of determination appointed in legal the absence of representative a duly of the deceased’s estate. e) The costs of the Notice of Motion and the suit shall be borne by the Plaintiff. 52. It is so ordered. Ruling dated, signed and delivered in open Court on this 22nd day of September 2026. BUSIA ELC LC NO. E008 OF 2024 – RULING Page 21 of 22

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C. MUGAMBI JUDGE 22ND SEPTEMBER 2026 BUSIA ELC LC NO. E008 OF 2024 – RULING Page 22 of 22

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