Laitobir v Tarkwen & another (Enviromental and Land Originating Summons E001 of 2025) [2026] KEELC 6185 (KLR) (30 September 2026) (Ruling) Neutral citation: [2026] KEELC 6185 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KAPSABET ENVIROMENTAL AND LAND ORIGINATING SUMMONS E001 OF 2025 GMA ONGONDO, J SEPTEMBER 30, 2026 BETWEEN AILEN JEPLETING LAITOBIR ............................................................... PLAINTIFF AND SUSANA TARKWEN ....................................................................... 1ST DEFENDANT CHARIT KIRWA KOGO ................................................................ 2ND DEFENDANT RULING 1. The 2nd Defendant/Applicant through Kipkosigei Choge and Company Advocates brought the instant application by way of a Notice of Motion Application dated 26th June 2026 seeking the following orders: a. That the Honourable Court be pleased to order and direct a stay of proceedings pending an appointment of an administrator over the Estate of the 1st defendant Susan Tarkwen (Susana herein) who has died. b. That it is further proposed to the court for an orders that the report of the County Surveyor and the Land Registrar, if any, prepared pursuant to the consent order, be ordered and directed deferred pending such appointment of an administrator over the Estate of Susana. c. That costs of the application be provided for. 2. The application is anchored upon the applicant’s supporting adavit and the grounds, inter alia, Susana died. That the subject matter of the suit is Nandi Kebulonik/596 co-registered in the name of Susana and the applicant. That there has been no appointment of an administrator over the Estate of Susana. 3. The plainti/respondent through Cheruiyot Lagat and Company Advocates opposed the application by way of a Replying Adavit sworn on 2nd July 2026. He averred that the applicant and Susana were https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6185/eng@2026-09-30 1
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joint owners of the suit land hence, the death of one survives the other. That the application lacks merit, an abuse of the process of the court, among other things. That the application be dismissed with costs. 4. The application was heard by written submissions pursuant to directions of the court given on 1st July 2026 under Order 51 Rule 16 of the Civil Procedure Rules 2010 5. By the submissions dated 27th July 2026, learned counsel for the applicant submitted that Susana and the applicant own the suit land as they are administrators of the Estate of Kipyego Arap Kios (Deceased) and the orders in the application are deserved. Counsel relied on iktar Maina Ngunjiri & 4 others vs the Attorney General (2018) eKLR and Black’s Law Dictionary 9th Edition and Geeta Bharat Shah vs Omar Said Mwatayari (2009) eKLR on suit against a dead person, among others. So, counsel urged the court to allow the application. 6. In the submissions dated 29th July 2026, learned counsel for the respondent termed the applicant and Susana as joint owners of the suit land further to their grant obtained in respect of the Estate of the Deceased in Kapsabet CMC Succession Cause No. 91 of 1994. Counsel cited sections 60 and 91 (4) of the Land Registration Act 2016 (2012), Geeta case (supra) and Kenya Wildlife Service vs James Mutembei (2019) eKLR on the discretionary powers of the court to grant stay order sought herein. That death of one of them survives the other. 7. This Court has carefully considered the application, the response thereto and the rival submissions of the parties and nds two issues for determination namely; a. whether there should be a stay of proceedings pending the appointment of an administrator in the estate of Susana. b. Whether the site visit and the report thereof should be deferred. 8. On the rst issue, it is borne in mind that there is no dispute that Susana passed away on the 10th April 2026. She was the 2nd Defendant herein and a co-owner of the suit land. The applicant contended that he does not have the locus standi to proceed with the case on behalf of the Estate of Susana and that it is required for the proceedings herein to be stayed to allow for an administrator to be appointed. 9. On the other hand, the Respondent maintained that the suit land was jointly owned by the applicant and Susana and that the doctrine of survivorship dictates that upon the demise of one co-owner, the other one automatically becomes the owner of the property. 10. The Respondent attached a certicate of conrmation of grant dated 1st July 1993 on the face of which it was indicated that the applicant and Susana jointly owned the suit land. In case of joint ownership, land automatically vests in the applicant. 11. Indeed, Order 24 of the Civil Procedure Rules 2010 provides that the death of a Plainti or a Defendant does not cause the suit to abate if the cause of action survives or continues. To this end, there is no need to stay the proceedings in order to get a representative or administrator because the estate of Susana does not have a stake in the suit land that was owned jointly. 12. On the second issue of the site visit and the report. It is not disputed that Susana died in April of the year 2026. The orders for the site visit as attached on the Replying Adavit, were issued in January of 2026 further to sections 19 and 20 of the Land Registration Act 2016 (2012). At this time, the 2nd Defendant was alive. All parties consented and agreed to have the visit which went on as planned in June of 2026 but according to the Respondent, the Applicant’s advocate wrote a letter to the Land Registrar with a view of postponing the said visit. Further, it was noted that the relatives of the Applicant tried to bar the land ocials from accessing the suit land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6185/eng@2026-09-30 2
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13. Clearly, the participation of all parties during the is in contest said visit. In the premises, it would be fair to have the said report deferred for consideration at a later stage in the presence of all parties herein. 14. Wherefore, the application dated 26th June 2026 succeeds only partially as follows; 15. a. Stay of these proceedings, declined. b. Report of the County Surveyor and the Land Registrar following the site to the suit land, be deferred as prayed in the application c. Costs of the application be in the cause. The suit is set for directions on 4th November 2026. i. It is so ordered. DATED AND DELIVERED AT KAPSABET THIS 30TH DAY OF SEPTEMBER 2026. HON. G M A ONGONDO JUDGE In the presence of; 1. Mr. Cheruiyot Bethwel learned counsel for the respondent/plainti. 2. Ms. Emma Chepkorir, court assistant. KAPSABET ELCLOS NO. E001 OF 2025 RULING 2 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6185/eng@2026-09-30 3
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