Elaki & 5 others v Embakasi Ranching Company Limited & 2 others

thus intermeddling with the estate of the deceased contrary to section 45(1) of the Law of Succession Act Cap 160 2. The court directed for the notice of preliminary objection be dispensed off by written submissions and both parties complied with the Appellants drafting submissions dated 11th May 2026 while the Respondent drafted submissions dated 7th April 2026. Respondents submissions 3. The 1st and 2nd Defendants submitted that the issue raised was a point of law that formed basis for what constitutes a preliminary objection. That the Appellants did lack locus standii to approach the court on any proprietary rights over the suit properties as they were not administrators to the estate of the deceased therefore strangers relying in the case of the estate of Veronica Njoki Wakagoto (Deceased) [2013] KEHC 1930 (KLR) and the provisions of section 45(1) of the law of succession Act. The Respondent submitted being that the Appellants lacked locus the proceedings are therefore a nullity and should be struck out. 4. The Applicants in their submissions argued that the preliminary objection did not meet the threshold for what constitutes a preliminary objection as in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 as it would involve looking at evidence to establish the issue of who is the administrator of the estate of the decease. ELCLA E182 OF 2025 R 2

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The other argument advanced was that the preliminary objection was time barred as the application on which it was grounded on had been determined by this court. Counsel further submitted that the issue of locus standii was not mentioned in the trial court and should not be entertained at this appellate court Analysis and determination 5. Having considered the Notice of Preliminary objection and the submissions herein the I find the following issues for determination; 1. Whether the Preliminary Objection as raised meets the threshold of a pure point of law 2. Whether the preliminary objection is merited 6. Regarding the first issue, the Court must determine if this Objection is capable of terminating the suit at the threshold. Black’s Law Dictionary defines a Preliminary Objection as an automated resistance to a claim on a point of law. The Halsbury’s Laws of England further clarify that such an objection must not require the Court to embark on an inquisitive journey into contested facts. In the Mukisa Biscuit Case (supra), Law JA succinctly stated: “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.”Sir Charles Newbold P added that it is in the nature of a demurrer and cannot be raised if any fact has to be ascertained. ELCLA E182 OF 2025 R 3

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The Applicants argues that the issue of whether they have locus standi to file the current proceedings is a contested fact that will require evidence to be adduced in trial. However, the Court observes that the question of locus standi the legal capacity to sue is a threshold issue of law. If a party lacks the standing to even knock at the doors of justice, the factual merits of the case become a moot point. In Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama [2014] eKLR, the Court of Appeal held that: “Locus standi is a point of law. If a person has no standing to sue, the Court has no jurisdiction to hear him.” Consequently, this Court finds that the Objection is a pure point of law properly raised 7. On the second issue of locus standi, the law in Kenya is settled and uncompromising. Section 82(a) of the Law of Succession Act (Cap 160) restricts the power to enforce causes of action on behalf of a deceased person solely to personal representatives. This is backed up by Section 45 of the same Act, which prohibits intermeddling with the estate of a deceased person without legal authority. The Court of Appeal in Trouistik Union International & Another v Jane Mbeyu & Another [1993] eKLR was emphatic that: “To determine who may sue on behalf of the estate of a deceased person, one must look at the Law of Succession Act ... only personal representatives have capacity to act in that regard.” 8. The Applicants have not denied the facts raised that they do not have Grant of Representation neither have they produced any ELCLA E182 OF 2025 R 4

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evidence as a rebuttal to the said arguments. Further the Applicants argue that the issue of locus standi should have been brought at the lower court and not at this stage of the appeal which argument the Respondents have challenged indicating that they filed the preliminary objection at the knowledge of the same implying they were not aware of the said lack of representation during the proceedings in lower court. I find this is not enough reason as not to consider the preliminary objection, although it is good practise to file such an objection at the earliest available opportunity, in this case the Respondents have indicated that they filed the preliminary objection when they became aware of the lack of legal capacity of the Applicants. 9. I find that without a Grant of Representation, the Applicants are strangers to this suit, notwithstanding their biological relationship to the deceased. To allow this suit to proceed would be to sanction a violation of the mandatory provisions of the. Law of Succession Act. 10. My final determination is that the Preliminary Objection dated 30th January 2026 is merited, since the Applicants lacks the locus standi to sue on behalf of the estate of Francis Mungasia Elaki. Final disposition 11. In the upshot of the above, I make the following orders i. That the notice of Preliminary Objection dated 30th January 2026 is merited and hereby upheld and the entire suit is struck out for lack of jurisdiction. ii. Costs be awarded to the 1st and 2nd Respondents. ELCLA E182 OF 2025 R 5

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It is so ordered. DATED, SIGNED and DELIVERED via e-mail at NAIROBI on this 16th day of July 2026. MOHAMMED N. KULLOW JUDGE ELCLA E182 OF 2025 R 6

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