Ronald Nyamweya Nyasende (Suing as a beneficiary of the estate of the late Bathsheba Nyakoboke Mosioma) v Andrew Mogaka Mosioma

have the capacity to be sued on behalf of the estate of one Bathsheba Nyaboke Mosioma (Deceased), the alleged registered owner of that suit property, allegedly known by reference as L.R. NO. Kericho/Kipchorian/Lelu/Block 1/50. c. That the Plaintiff's lack of capacity to sue on behalf of the Estate of the Deceased person makes the suit herein a total abuse of the Court process and ought to be struck out with costs to the Defendant. Factual Background. 2. The Plaintiff commenced the present proceedings vide the Plaint dated 13th November, 2025 where he seeks the DR A FT COP Y following orders; a. A declaration that the land parcel Kericho/Kipchorian/Lelu/Block 1/50 forms part of the estate of the late Bathsheba Nyakoboke Mosioma and is held in trust for all her beneficiaries. b. A permanent injunction restraining the Defendant, his agents, servants, or representatives from entering, fencing, cultivating, building, or in -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 2 of 26

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any other manner interfering with the said land until lawful subdivision and distribution is done. c. An order reinstating the restriction placed by Agnes Buyaki Nyasende on the said property. d. An order compelling the Defendant to cooperate in the family’s agreed subdivision in accordance with the deceased’s will and resolutions. e. Costs of this suit. f. Any other or further relief this Honourable Court may deem just and fit to grant. 3. DR A FT COP Y As at the time of writing of this ruling, the Defendant has not filed a Statement of Defence. 4. On 10th March, 2026, the Court issued directions that the Preliminary Objection be heard by way of written submissions. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 3 of 26

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5. The Preliminary Objection was mentioned a few times to confirm filing of submissions and on 6 th May, 2026 it was reserved for ruling. Issues for Determination. 6. The Defendant filed submissions on 19 th March, 2026 while the Plaintiff filed submissions on 2nd April, 2026. 7. The Defendant submits on the following issues; a. Whether the suit before this Honourable DR A FT COP Y Court, is Plaintiff’s incompetent and the for both Defendant’s lack the of capacity/locus standi to sue or be sued. b. If the answer to (a) above is in the affirmative, what follows? 8. On the first issue, the Defendant submits that in the present suit, the Plaintiff is seeking to enforce alleged rights over a parcel of land that belongs to a deceased person. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 4 of 26

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9. The Defendant also submits that the Plaintiff contends that the deceased left a will and further submits that the Plaintiff is seeking orders in respect of the property of a deceased person through him (Defendant). 10. The Defendant further submits that in order for a party to sue or be sued over the estate of a deceased person, they must have locus standi by obtaining the requisite Letters of Administration. 11. The Defendant relies on Section 82 of the Law of DR A FT COP Y Succession Act, Section 2 of the Civil Procedure Act, the judicial decisions of Mukhisa Biscuit Manufacturing Co. Ltd vs West End Distributors Company Limited [1969] EA 696, Philip Kipkemoi Chumo vs David Langat [2022] eKLR, Isaya Masira Momanyi vs Daniel Omwoyo & another [2017]eKLR, Esther Nyambura Kariuki vs Simeon Muthuku Munjuga [2018]eKLR and submits that the Plaintiff does not have the requisite capacity to commence the present proceedings on behalf of -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 5 of 26

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the estate of Bathsheba Nyakoboke Mosioma (Deceased). 12. The Defendant also submits that he (Defendant) does not have the capacity to be sued with regard to the estate of Bathsheba Nyakoboke Mosioma (Deceased). 13. The Defendant relies on the judicial decisions of Philip Kipkemoi Chumo vs David Langat [2022]eKLR, Julius Cheruiyot Chirchir vs David Kipkemoi Rono [2022] eKLR, Mutyandia Kilonzo v John Masimbi Imundi & DR A FT COP Y another [2020]eKLR and submits that the issue of locus standi is not a mere technicality. 14. It is the Defendant’s submissions that the suit herein ought to have been filed in the succession Court as the Plaintiff seems to be seeking orders to enforce an alleged will. 15. The Defendant relies on the judicial decision of Trouistik Union International vs Mbeyu & another [1993]eKLR and urges the Court to dismiss the Plaintiff’s suit with costs. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 6 of 26

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16. The Plaintiff in his submissions relies on the judicial decision of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors (1969) and submits that the preliminary objection filed by the Defendant does not raise a pure point of law. 17. The Plaintiff relies on Article 27 of the Constitution of Kenya, the judicial decision of Roche v Roche & another [2025] KECA 1637 (KLR) and submits that he filed the present suit in his capacity as a beneficiary who has an DR A FT COP Y identifiable interest in the suit parcel of land which was held in trust for him. 18. It is the Plaintiff’s submissions that the issue whether he has the requisite capacity to sue is a factual matter that requires interrogation of evidence including the nature of his interest and the status of the estate. 19. It is also the Plaintiff’s submissions that this issue is not a pure point of law. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 7 of 26

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20. It is further the Plaintiff’s submissions that the Defendant has been sued because of his interest in the suit parcel of land and not merely as a representative of the estate of the deceased. 21. The Plaintiff submits that the Defendant is personally dealing with the suit parcel of land thereby effectively exercising control over trust property which gives him a right to sue. 22. The Plaintiff also submits that contrary to the Defendant’s assertions, he has not pleaded in the Plaint that the DR A FT COP Y deceased left a will and neither is the present suit founded on enforcement of a testamentary disposition. The Plaintiff relies on the judicial decision of Independent Electoral and Boundaries Commission vs Stephen Mutinda Mule and 3 Others (citation not given) in support of his submissions. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 8 of 26

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23. The Plaintiff also relies on Section 28(b) of the Land Registration Act and submits that this Court has jurisdiction to determine questions relating to trusts. 24. The Plaintiff further submits that the authorities relied on by the Defendant are distinguishable and inapplicable in the present suit as his claim is not based on a succession dispute and neither is he seeking administration and/or distribution of the estate of the deceased. DR A FT COP Y 25. It is the Plaintiff’s submissions that the Defendant is the son of the deceased and he reiterates that the deceased was holding the land in trust for him. 26. It is also the Plaintiff’s submissions that the Defendant has assumed control and management of the suit parcel of land and he is therefore bound to act in the best interests of the beneficiaries. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 9 of 26

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27. It is further the Plaintiff’s submissions that the document the Defendant is referring to as a will was prepared by his grandfather where he expressed his wishes with respect to the suit parcel of land. 28. The Plaintiff submits that he is relying on the said document not as a formal will within the meaning of the law of succession but as evidence of the intention and understanding with regard to the trust property and its beneficiaries. DR A FT COP Y 29. The Plaintiff also submits that the Defendant is under an obligation to cooperate in giving effect to the trust and cannot evade responsibility by mischaracterizing his claim. 30. The Plaintiff further submits that a Preliminary Objection cannot be sustained where a Court is required to ascertain facts or exercise judicial discretion. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 10 of 26

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31. The Plaintiff concludes his submissions by urging the Court to dismiss the Defendant’s Preliminary Objection. Analysis and Determination. 32. I have considered the Defendant’s Preliminary Objection and the rival submissions. It is my view that the following issues arise for determination; a. Whether the Plaintiff has the locus standi to commence the present proceedings. b. Whether the Defendant has capacity to be sued. DR A FT COP Y c. Who should bear costs of the Preliminary Objection. A. Whether the Plaintiff has the locus standi to commence the present proceedings. 33. The judicial decision of Ushago Diani Investment Limited v Abdulwahab (Environment & Land Case 12 of 2023) [2023] KEELC 20213 (KLR) (27 September 2023) -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 11 of 26

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(Ruling) cited with approval Oraro v Mbaja [2005] eKLR 141 where the Court held as follows on the nature of preliminary objections; “A preliminary objection 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. Any assertion which claims to be a preliminary objection and yet it bears factual aspects calling for proof or seeks DR A FT COP Y 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. Where a Court needs to investigate facts, a matter cannot be raised as a preliminary objection anything that purports to be a preliminary objection must not deal with disputed facts and it must not itself derive its foundation from -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 12 of 26

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factual information which stands to be tested by normal rules of evidence.” (Emphasis mine) 34. A preliminary objection raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. However, it cannot be raised if any facts have to be ascertained. Further, a preliminary objection must stem from the proceedings and raise pure points of law and should not deal with disputed facts nor should it derive its foundation from factual information. DR A FT COP Y 35. The Defendant submits that the Plaintiff commenced the present proceedings seeking orders on behalf of the estate of Bathsheba Nyakoboke Mosioma (Deceased). 36. The Defendant also submits that for a party to sue and/or be sued over the estate of a deceased person, letters of administration must first be obtained. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 13 of 26

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37. The Defendant further submits that the Plaintiff did not obtain the requisite letters of administration and he does not have therefore have capacity to commence the present proceedings. 38. The Plaintiff on the other hand submits that he commenced the present proceedings against the Defendant over the suit parcel of land which was held in trust for him. 39. The Plaintiff also submits that his claim is based on trust and DR A FT COP Y it is enforced independently of succession proceedings. 40. In the Plaint, the Plaintiff avers that he is the son of Joseph Nyasende Mosioma (Deceased) who was an adopted son of Bathsheba Nyakoboke Mosioma (Deceased) and Barnabas Mosioma (Deceased). 41. The Plaintiff also avers that he has commenced the present proceedings as a beneficiary of the estate of Bathsheba Nyakoboke Mosioma (Deceased). -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 14 of 26

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42. The Plaintiff further avers that Bathsheba Nyakoboke Mosioma (Deceased) acquired land parcel No. Kericho/Kipchorian/Lelu Block 1/50 during her lifetime and unfortunately passed away before transferring the land to her name. 43. The Plaintiff avers that upon her death, Barnabas Mosioma (Deceased), registered the suit parcel of land in the name of Nyaboke Gisore Mosioma (Deceased), their daughter and DR A FT COP Y the Defendant’s mother, to hold in trust for the beneficiaries of the late Bathsheba Nyakoboke Mosioma (Deceased). 44. It is the Plaintiff’s averment that Nyaboke Gisore Mosioma (Deceased) also died before effecting transfer to the beneficiaries of the estate of Bathsheba Nyakoboke Mosioma (Deceased). 45. It is also the Plaintiff’s averment that Barnabas Mosioma (Deceased) wrote a will wherein he set out the wishes of -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 15 of 26

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Bathsheba Nyakoboke Mosioma (Deceased) with respect to the subdivision of the suit parcel of land. 46. It is further the Plaintiff’s averment that the family members met, confirmed the authenticity of the will and agreed on the manner of subdivision. 47. The Plaintiff avers that despite several meetings, the Defendant has remained uncooperative and has refused to comply with the agreed mode of distribution. DR A FT COP Y 48. The Plaintiff also avers that the beneficiaries of the estate of Bathsheba Nyakoboke Mosioma (Deceased) unanimously appointed Agnes Buyaki Nyasende to act in place of Nyaboke Gisore Mosioma (Deceased) in administering the estate of the deceased. 49. The Plaintiff further avers that they registered a restriction on the land which restriction was removed. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 16 of 26

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50. It is the Plaintiff’s averment that after the removal of the restriction, the Defendant fenced the suit parcel of land, planted coffee, bananas, Sukuma Wiki, trees and begun constructing structures on the land. 51. It is also the Plaintiff’s averment that the Defendant’s actions are unlawful and fraudulent and intended to disinherit them. 52. The prayers sought in the Plaint have been set out in the preceding paragraphs but I will nonetheless replicate them DR A FT COP Y as hereunder; a. A declaration that the land parcel Kericho/Kipchorian/Lelu/Block 1/50 forms part of the estate of the late Bathsheba Nyakoboke Mosioma and is held in trust for all her beneficiaries. b. A permanent injunction restraining the Defendant, his agent, servants, or representatives from entering, fencing, cultivating, building, or in any other manner interfering with -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 17 of 26

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the said land until lawful subdivision and distribution is done. c. An order reinstating the restriction placed by Agnes Buyaki Nyasende on the said property. d. An order compelling the Defendant to cooperate in the family’s agreed subdivision in accordance with the deceased’s will and resolutions. e. Costs of this suit. f. Any other or further relief this Honourable Court may deem just and fit to grant. DR A FT COP Y 53. The Court of Appeal in Njau & 5 others v City Council of Nairobi [1983] KECA 56 (KLR) held as follows; “The term locus standi means a right to appear in Court and, conversely, Jowitt’s as is Dictionary stated of in English Law, to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding.” (Emphasis mine) -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 18 of 26

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54. As stated, the Defendant submits that the Plaintiff does not have the locus standi to commence the present proceedings on behalf of the estate of Bathsheba Nyakoboke Mosioma (Deceased). 55. In response, the Plaintiff submits that he commenced the present proceedings as a beneficiary with an identifiable interest in the suit parcel of land which he contends was held in trust. DR A FT COP Y 56. It is important to point out that in the Plaint, the Plaintiff avers that he commenced the present proceedings in his capacity as a beneficiary of the estate of Bathsheba Nyakoboke Mosioma (Deceased). 57. In the judicial decision of Ndua (Suing as Beneficiary of the Estate of David Ndua Thuo) v Waithera & 3 others [2025] KEELC 700 (KLR) the Court held as follows; “On the whether the Plaintiff has locus standi to bring this -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 19 of 26

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suit, it is clear that what clothes a party with the capacity to institute a case on behalf of the estate of the deceased is the Grant of letters of administration. See the cases of Virginia Otieno v Joash Ougo and another [1988] 1 KAR 1048 and Trouistic Union International & Another v Jane Mbeyu and Another (1993) eKLR. However, a beneficiary is not precluded from filing an application to DR A FT COP Y safeguard his interests or challenge a Grant of Letters of Administration…” (Emphasis mine) 58. The Court in Ndua (Suing as Beneficiary of the Estate of David Ndua Thuo) v Waithera & 3 others (supra) considered the Court of Appeal Judicial decision of Nirmal Singh Dhanjal v Joginder Singh Dhanjal & 4 others [2018] KECA 771 (KLR) and further held as follows; -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 20 of 26

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“…The Court was of the view that a party who seeks to protect his interest in the estate of a deceased person is not legally bound to take out a limited grant prior to moving Court to secure his interest as a beneficiary. However this case is distinguishable from the instant suit as the application was filed within the succession cause. I am of the considered view that such an application can only be made within an existing succession case and not as a stand-alone suit. DR A FT COP Y This is because it is the Court seized with the succession case that has the mandate to deal with disputes arising between beneficiaries. In the instant case, the Plaintiff chose to file a suit in this Court instead of an application in the succession case without taking out a Limited Grant of Letters of Administration and he therefore lacks the locus standi.” (Emphasis mine) -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 21 of 26

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59. To put everything in context, the Court of Appeal in Nirmal Singh Dhanjal v Joginder Singh Dhanjal & 4 others [2018] KECA 771 (KLR) held as follows; “[20] The next issue related to the locus standi is the allegation that the 1st respondent was supposed to take out a limited grant under section 54 of the Act so as to file the application. Under the said section, the Court is given power to limit the application of a grant. The section provides as follows: “Limited grants DR A FT COP Y A Court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the Fifth Schedule to this Act.” As earlier stated, this was not a case of pursuit of grant by the 1st Respondent. He was only seeking to safeguard his rights as a beneficiary. There is nothing in the provisions of Section 54 aforesaid that remotely -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 22 of 26

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suggests that the 1st Respondent was legally bound to take out a limited grant prior to moving Court to secure his interest argument as as a of beneficiary; necessity that fails.” (Emphasis mine) 60. As was explained by the Court in Ndua (Suing as Beneficiary of the Estate of David Ndua Thuo) v Waithera & 3 others (supra), a party who seeks to protect his interest in the estate of a deceased person is not legally bound to take out a limited grant prior to moving the DR A FT COP Y Court to secure his interest as a beneficiary especially if the said interest is being raised in the succession Court. 61. If a suit is filed in the Environment and Land Court, as was filed in Ndua (Suing as Beneficiary of the Estate of David Ndua Thuo) v Waithera & 3 others (supra), the Court held that the said party ought to have first taken out a Limited Grant of Letters of Administration. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 23 of 26

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62. In the present suit, it is evident that the Plaintiff did not take out a Limited Grant of Letters of Administration and he does not therefore have the locus standi to file the present proceedings. B. Whether the Defendant has capacity to be sued. 63. Having found under issue (a) above that the Plaintiff does not have the requisite locus standi to commence the present proceedings, I do not deem it necessary to address this issue on its merits. DR A FT COP Y C. Who should bear costs of the Preliminary Objection? 64. The general rule is that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). 65. A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 24 of 26

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Disposition. 66. Taking the foregoing into consideration, I find that the Defendant’s Preliminary Objection dated 3rd February, 2026 is merited. Consequently, this suit is hereby struck out. 67. The Defendant shall have costs of the preliminary objection. 68. It is so ordered. DR A FT COP Y DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 1ST DAY OF OCTOBER ,2026. L. A. OMOLLO JUDGE. In the presence of: Ronald Nyaweya Plaintiff (Acting in Person). Mr. Mwita for the Defendant. Court Assistant; Mr. Joseph Makori. -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 25 of 26

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DR A FT COP Y -----------------------------------------------------------------------------------------------------------------------------------------ELC CASE NO. E001 OF 2026 [KERICHO] Page 26 of 26

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