Stella Kavuli v The Estate of Peter Mulu Makula

Succession of Kenya is bad in law and ipso facto an abuse of the court process. 3) THAT the orders sought in the originating summons dated 26 th August 2025 cannot be granted since the Registrar of Lands Makueni County has not been joined as a necessary party to the suit. 4) THAT therefore, this Honourable Court has no jurisdiction to hear and determine the originating summons dated 26 th August, 2025 in its current form. 5) THAT the originating summons dated 26th August 2025 is vexatious, frivolous, scandalous, fueled by malice and greed on the part of the Applicant therefore a total abuse of court process. 6) THAT the originating summons dated 26 th August, 2025 is improper before this Honourable Court and should be struck out with costs payable by the Applicant. 3. The preliminary objection was canvassed by way of written submissions. 4. In the Respondent’s submissions dated 17th February, 2026, Counsel submitted that a dead person lacks the legal capacity to sue and be sued. Counsel added that suing a deceased person without undertaking succession is a nullity. Citing the case of Macfoy v United Africa Co. Ltd, it was submitted that the suit is incurably bad as it was lodged against a non-existent person. Counsel urged the court to strike out the suit with costs. 5. The Applicant filed her submissions dated 1st April, 2026. On her behalf, Counsel contended that the Applicant could not include the names of administrators of the estate of the Respondent as that information was not within their knowledge. It was argued that the true position is that the succession proceedings were undertaken in Succession Cause Number 1122 of 1992. ELC OS NO. E007 OF 2025 2|Page

page 2 of 6

6. Citing the decision of the court in Gailay & Roberts Limited –vs - Krishna & sons Limited, Counsel submitted that where there has been a bona fide mistake of law or fact in commencing a suit in the name of the wrong person, the court ought to allow an amendment rather put the parties to the possible expense of a fresh suit. It was urged that the preliminary objection ought to be dismissed with costs. 7. The broad issue for determination is whether the Respondent has demonstrated merit in the preliminary objection on a pure point of law and whether the same should be upheld by the court. More specifically, does the Respondent have the requisite locus standi to be sued by the Applicant. 8. The law on preliminary objections is settled. A preliminary objection must be on a pure point of law. Sir Charles Newbold, P coined an apt description of what constitutes a preliminary objection in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 along these lines: “A preliminary objection is in the nature of what used to be a demurrer. It raises a 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 nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop.” 9. In Oraro v Mbaja [2005] eKLR, J.B. Ojwang J. described it as follows: “I think the principle is abundantly clear. “A Preliminary Objection” correctly understood is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. An assertion which claims to be a Preliminary Objection and yet it bears ELC OS NO. E007 OF 2025 3|Page

page 3 of 6

factual aspects calling for proof, or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed.” 10. Having considered the arguments advanced in the rival submissions, it is evident that the Applicant instituted these proceedings against the estate of a deceased person one Peter Mulu Makula. In her pleadings under paragraph 2 of the supporting affidavit, the Applicant contended that the suit property land Parcel No. MAKUENI/UKIA/UTAATI/810 is registered in the name of the deceased. From a perusal of the pleadings, there is no indication that the estate of the deceased was subject to succession proceedings and that a grant of representation was issued by a probate court to administrators/legal representatives for purposes of to management and distribution of the assets of the deceased. 11. Section 2 of the Civil Procedure Act defines a ‘legal representative’ as follows:‘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.’ 12. Section 82 of the Law of Succession Act provide 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; …’ 13.In the instant case, there is absolutely no doubt that the personal representatives of the estate of the deceased person have not been sued. The legal effect of the above omission is that the suit is incompetent, null and void. ELC OS NO. E007 OF 2025 4|Page

page 4 of 6

14.In Awadh (Holder of General Power of Attorney for Burka Ahmed Salim) v Ngala (Sued as administrator of the Estate of Stephen EC Ngala) [2026] KECA 1689 (KLR), the Court of Appeal made the following observation: “More importantly, capacity to sue or be sued as the representative of a deceased person’s estate is fundamental requirement. Such capacity is derived from a grant of representation issued under the Law of Succession Act. It is therefore incumbent upon a party asserting that another has been sued in a representative capacity to place before the court the requisite documentation proving such capacity.” 15. In similar fashion, the Court of Appeal in Kihanya & 4 others v Gichuri & another [2024] KECA 852 (KLR), held as follows: “Section 82 of the Law of Succession Act gives the personal representatives of a deceased person’s estate the power 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 of his personal representative”. It is evident from the above provision that one can only institute or enforce a suit on behalf of the estate of a deceased person once they have been appointed personal representatives to the estate. Such appointment under the Succession Act can only be by way of obtaining a full grant or a grant limited for purposes of instituting or defending a suit, which would in this case be ad-litem. Decided cases are in agreement that where a suit is filed relating to a deceased’s estate without a grant of representation, the proceedings are null and void for want of locus standi. (See Virginia Edith Wamboi v Joash Ochieng Ougo & Another [1982-88] 1 KAR and Teouistik Union International & Another vs Jane Mbeyu & Another, Civil ELC OS NO. E007 OF 2025 5|Page

page 5 of 6

Appeal No. 145 of 1990). It follows that for a party to have locus standi to institute or defend a case for and on behalf of a deceased person, he or she must first obtain a grant of letters of administration empowering him or her to administer the deceased’s estate or limited for the purpose of filing or defending the suit.” 16.On the basis of the above judicial precedent, it is manifestly clear that the Respondent does not have the requisite locus standi to defend the suit not being the duly appointed personal representatives of the estate of the deceased. In the end, the preliminary objection is merited. The suit is hereby struck out with no order as to costs. ......................................... HON. E. O. OBAGA, FCIArb JUDGE RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 1ST DAY OF OCTOBER, 2026. IN THE PRESENCE OF: Ms. Vahid for Mr. Lusiola for Applicant. Mr. Kiluva for Respondent. Court assistants – Kilonzo and Musyoki ELC OS NO. E007 OF 2025 6|Page

page 6 of 6