Anthony Mwaura Kahonge v Wilson Mwania Musinda

3. The record further shows that the matter proceeded for taxation of the Plaintiff’s Party and Party Bill of Costs filed on 18/03/2022, which Bill was taxed at a sum of Kshs. 287,655/- vide a ruling delivered on 30/08/2022 by Hon. L. Mbacho (Deputy Registrar). Thereafter, the Plaintiff commenced execution proceedings against the Defendant. The Application 4. The Notice of Motion (the Motion) under determination was instituted by Mary Nduume Wilson and Chris Musili Mwania (hereafter the 1st and 2nd Intended Interested Parties). It is dated 20/05/2025 and is supported on the grounds found on the face of it and in the Supporting Affidavit sworn by the 2nd Intended Interested Party. 5. The Motions seeks the following orders: i. Spent. ii. THAT the Interested Parties be enjoined in this suit being the administrators of the estate of the defendant who is deceased. iii. THAT leave be and is hereby granted to the firm of M/S KING’ANG’I & MUTAHI ADVOCATES, LLP, THIKA ARCADE, 3RD FLOOR, ROOM 305, ALONG KENYATTA HIGHWAY, P.O. BOX 2427-00100 THIKA TOWN to come on record for the Interested Party/Applicant, post-judgment. iv. THAT the taxation billing of 30th August, 2022, Bill of Costs dated and Decree dated 11th October, 2022 be declared incompetent and fatally defective and that the same be struck out with costs. v. Spent. vi. THAT the entire suit (Plaint dated 10/02/2003) and Application (Notice of Motion dated 11/09/2017) be and are hereby struck out having been reinstated and continued against a dead person and therefore is a Nullity Ab Initio and cannot even be amended. vii. Spent. viii. THAT the costs of the suit and the Application be awarded to the Interested Parties in any event. sic 6. In support of the Motion, it has been stated that the delay in bringing the instant Motion was unintentional and was triggered by the actions taken by the Plaintiff in filing a protest in Machakos High Court Succession Cause No. E018 of 2023 (the Succession Cause); that the Interested Parties came to learn of the existence of this suit on 6/05/2025; that the hearing of the present suit was malicious since the same was conducted following the death of his father (the Defendant); that the judgment herein was obtained illegally and irregularly and that the taxation and execution processes which followed that judgment are without legal basis. 7. The 2nd Intended Interested Party has stated, further, that the present suit was initially dismissed on 11/09/2017 but that the Plaintiff sought to have it reinstated on the basis that he had served the Defendant with the requisite trial documents and that at the time of reinstatement, the Defendant was deceased and was not the owner of the motor vehicle linked to the material accident. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7476/eng@2026-04-27 2

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8. The Interested Parties urge that it would serve the interest of justice if the prayers sought in the Motion are granted to pave way for the dispute to be canvassed on its merits. The Replying Affdavit 9. The Plaintiff swore a Replying Affidavit on 28/11/2025 to challenge the Motion. It is his averment, therein, that upon filing the present suit, he proceeded to effect service upon the Defendant in person in the company of the Defendant’s daughter (the 1st Intended Interested Party), at his business premises situated in U-Shop in Kimathi Estate, Thika town; that the Defendant however did not enter appearance thereby prompting him to file a request for entry of an interlocutory judgment and that at all material times, neither of the Intended Interested Parties and especially the 1st Intended Interested Party, mentioned the Defendant’s passing to him, despite having severally received documents and notices on behalf of the Defendant. 10. On the subject of the dismissal order, it is the Plaintiff’s averment that the same was regularly set aside and that the final judgment was regularly entered; that the taxation proceedings and execution process which commenced subsequently, were properly undertaken and that efforts to trace the whereabouts of the Defendant were futile, hence the warrants of attachment were returned to court. 11. The Plaintiff has stated that he later conducted a Google search on the Defendant in January, 2025 and learned that the Defendant had died and that there was in existence a Succession Cause; that he instruct his advocates to follow up on the matter and that he learned that the Grant of Letters of Administration was pending confirmation and that the administrators had indicated that there was no liabilities pertaining to the estate of the Defendant. 12. The Plaintiff termed the instant Motion as fatally defective for the reason that the Interested Parties did not first seek leave of the court to have them listed as interested parties and therefore lack the locus standi before this court. That consequently, the prayers sought in the Motion cannot be granted. The Preliminary Objection 13. The Plaintiff has also filed a Notice of Preliminary Objection (PO) of similar date, challenging the competency of the Motion on the following grounds: 1. That the Interested Parties/Applicants have no Locus Standi to commence and/or prosecute the present application in its current form as the suit and the application are fatally defective, incompetent and bad in law for having been instituted in their personal capacities while purporting to defend the estate of the late Wilson Mwania Musinda hence offends the mandatory provisions of Order 3, Rule 7 and Order 31 Rule 1 & 2 of the Civil Procedure Rules and Section 82 of the Law of Succession Act, which require suits concerning the estate of a deceased person to be brought against or by the legal representatives in such capacity. 2. That the cause of action, if any, lies against the estate of the deceased and not the interested parties personally, hence the interested parties are the wrong parties rendering the suit a nullity ab initio and therefore the court lacks jurisdiction to entertain it. 3. That the application ought to be struck out with costs for being an abuse of the court process.” Sic https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7476/eng@2026-04-27 3

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Submissions 14. The Motion and the PO were canvassed together through written submissions as directed by this court. The Intended Interested Parties have submitted that contrary to the arguments of the Plaintiff, substitution of parties post-judgment is not legally possible and hence the only available option for them would be a prayer for joinder as Interested Parties; that in the present instance, there is such prayer in the instant Motion, the same having been sought in their capacity as the legal representatives of the estate of the Defendant and therefore, the PO must fail. 15. In support of the Motion, the Intended Interested Parties have relied on the decision in Shah v Mbogo & Another [1967] EA 116 that the court has discretionary power to set aside an ex parte judgment, as well as the decision in Patel v East African Cargo Handling Services Ltd [1974] EA 75 where it was held that in exercising its discretion, the court’s key concern ought to be the delivery of justice to the parties. 16. The Intended Interested Parties have argued that the judgment and decree in the present suit were obtained without evidence of proper service of the relevant pleadings and pre-trial documents having been effected upon them; that they only came to learn of the existence of the suit upon being served with a copy of the decree post-judgment and that the resulting decree and consequent proceedings are a nullity, as was pronounced by the Court of Appeal in the case of Oluoch Eric Gogo v Universal Corporation Ltd [2015] eKLR. 17. They have argued, further, that flowing from the foregoing, the execution process that resulted from the taxation ruling is also a nullity and ought to be set aside ex debito justitiae. They relied on the case of Kenya Power & Lighting Co. Ltd v Benzene Holdings Ltd [2016] eKLR where a similar reasoning was adopted and argued that in the absence of proper service, they were condemned unheard, in contravention of Article 50 of the Constitution which guarantees their right to a fair hearing. 18. They submitted that proceedings conducted against a deceased person automatically become null and void and cited the decisions in Pranjivan Chudasama v Sailesh Pranjivan Chudasama [2014] eKLR and Said Sweilem Gheithan Saanum v Commissioner of Lands [2015] eKLR to support that argument and urged that the PO ought to be dismissed while the Motion should be allowed as prayed and that the Plaintiff be condemned to settle the costs of both the PO and the Motion, pursuant to Section 27 of the Civil Procedure Act which provides that costs shall lie at the discretion of the court and shall follow the event. 19. In support of the PO, the Plaintiff has anchored his submissions on the case of Mukisa Biscuit Company v West End Distributors Limited (1969) EA 696 regarding the definition and the applicable principles in respect to a PO and submitted that the instant PO is challenging the locus standi of the Intended Interested Parties before this court. He submitted that the Intended Interested Parties lack the legal capacity and authority to bring the instant Motion in their personal capacities rather than in a representative capacity, pursuant to Section 2 of the CPA which defines the term ‘legal representative.’ 20. The Plaintiff relied on the case of Chemitei & another v Chepkok & 2 others [2025] KEELC 4358 (KLR) where the court laid out the importance of describing the capacities under which parties are suing or being sued and the case of Kisero (Suing as the administrator of the Estate of the Late Benard Kisero Owenda - Deceased) & 2 others v Liech & 3 others [2024] KEELC 3975 (KLR) where the court ordered that a suit be struck out for being brought by a party in his personal capacity rather than in a representative capacity as a legal administrator. 21. In support of the Motion, the Plaintiff has contended that the Intended Interested Parties herein ought to have first filed a substantive application seeking leave to be enjoined in such capacity, before https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7476/eng@2026-04-27 4

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participating in the matter and that while the said Intended Interested Parties have purported to move this court in their capacities as the legal representatives of the estate of the Defendant, they have not availed a Grant of Letters of Administration in support thereof. 22. The Plaintiff urged that this court to be guided by the case of JMK v MWM & another KECA 524 (KLR) where the Court of Appeal discussed the subject of joinder of parties in proceedings pending before the court as well as the case of Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) KESC 12 (KLR) in which the Supreme Court held that a formal application seeking leave for enjoinment as an interested party ought to be filed and sufficient material tendered in support thereof, where such prayer is sought. 23. In respect of the execution process, the Plaintiff submitted that the mandatory procedure for challenging the same upon conclusion of the taxation process is clearly set out under Paragraph 11 of the Advocates (Remuneration) Order, which procedure ought to be strictly followed; that the Intended Interested Parties cannot purport to apply to have the plaint and application dated 11/09/2017 (seeking reinstatement of the suit) struck out on the basis that the same was never served upon them, and yet at the time of filing, they were never parties to the present suit; that not only was the issue of service thereof never raised in the instant Motion, but that there was no legal requirement for personal service to be effected upon them since the Defendant was alive at the time and that service was properly effected upon the said Defendant who then failed to enter appearance or file a statement of defence, thereby resulting in the interlocutory judgment which settled the issue of liability. 24. The Plaintiff has submitted that, in any event, the 1st Intended Interested Party was later served with various court processes which she received on behalf of the Defendant and that in the circumstances, the Intended Interested Parties are estopped from denying prior knowledge of the existence of the suit. The Plaintiff relied on In re Estate of Jackson Karani Livasia (Deceased) (Succession Appeal E022 of 2023) [2025] KEHC 3028 (KLR) where the court elaborated the doctrine of estoppel and submitted that the prayers sought in the Motion are purely discretionary in nature and do not lie as of right and that in this instance, the Intended Interested Parties have not tendered any material or brought any reasonable explanation to warrant a grant of the said prayers. 25. The Plaintiff has urged this court not to consider the merits of the Motion but strike out the Motion in limine with costs, as prayed in the PO. Analysis and Determination 26. I have carefully considered the instant Motion, the PO and the rival submissions and the authorities cited. Starting with the PO, I have applied my mind to the issues raised in it and I am persuaded that the instant PO, which questions the jurisdiction of this court to entertain the Motion, meets the threshold of a PO as defined in Mukisa Biscuit Company v West End Distributors Limited (1969) EA 696. I am further guided by the Supreme Court decision in Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others [2015] eKLR on that regard. 27. It is clear from the record that the Plaintiff has raised the present PO challenging the jurisdiction of this court to entertain the instant Motion on the grounds that the 1st and 2nd Intended Interested Parties lack the locus standi to bring the said Motion. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7476/eng@2026-04-27 5

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28. It is trite that jurisdiction is everything and that without it, a court cannot perform any further action in a matter. This position was clearly stated by the Court of Appeal in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR when it held thus: “ Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a complaint one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself. The subordinate court could not therefore entertain the suit and allow only that part of the claim that was within its pecuniary jurisdiction. In another locus classicus in this subject, this Court pronounced; Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd. (1989): “Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction….Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.” 29. The Plaintiff’s position on the one part is that the Intended Interested Parties lack the requisite authority to bring the instant Motion in their respective personal capacities whilst purporting to act for the estate of the Defendant herein. He has argued that upon the death of a party to a suit, the personal representatives ought to file an application to be enjoined in the case in such capacity, on behalf of the estate of a deceased party and that the Intended Interested Parties have failed to avail a Grant of Letters of Administration confirming their status as legal administrators to the estate of the Defendant. 30. On their part, the Intended Interested Parties have maintained their position that the Motion is brought in their rightful capacity as the personal representatives of the estate of the Defendant, thereby causing them to have legal standing before this court. 31. The term locus standi or ‘legal standing’ is defined by the Black’s Law Dictionary, 9th Edition at page 1026 as: ‘the right to bring an action or to be heard in a given forum’. 32. The principle of ‘locus standi’ has been the subject of discussion in various decisions in the superior courts. In Alfred Njau & 5 others v City Council of Nairobi [1983] eKLR, the Court of Appeal in Mombasa Civil Appeal No. 75 of 2016, Juletabi African Adventure Limited & Another v Christopher Michael Lockley [2017] eKLR described locus standi thus: “ …The term locus standi means a right to appear in Court and, conversely, as is stated in Jowitt’s Dictionary of 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….” 33. I have carefully considered the instant Motion and material on record. I have noted a copy of the Certificate of Death marked as Annexure “CM 1” to the Supporting Affidavit to the Motion. It clearly shows that the Defendant is deceased. I have also noted that Prayer (ii) of the Motion seeks leave of the court to enjoin the 1st and 2nd Interested Parties in the suit on the basis that they are purportedly the legal administrators to the estate of the Defendant. My understanding of that prayer is that the Intended Interested Parties wish to be enjoined in a representative capacity and not in their personal capacities, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7476/eng@2026-04-27 6

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as argued by the Plaintiff. This begs the question as to whether the Intended Interested Parties have demonstrated, through credible evidence, that they are the legal representatives of the estate of the Defendant, as purported. 34. I have noted that the Intended Interested Parties have availed an Affidavit of Protest against the confirmation of the Grant, said to have been sworn by the Plaintiff on 15/02/2025 in the Succession Cause marked as Annexure “CM 2”. They have also availed a Gazette Notice dated 16/06/2023 Vol. CXXV-No. 139 marked as “Annexure AMK-6” and a copy of the Summons of Confirmation of Grant dated 14/11/2024 (Annexure “AMK-7”) seeking to confirm the Grant of Letters of Administration said to have been issued to them on 19/07/2023. 35. I have not seen a Grant of Letters of Administration issued to them, whether Limited Grant or Full Grant or a Confirmed Grant of Letters of Administration issued to them by the Probate and Administration Court. As the matter stands, there is no document presented to the court confirming the status of the Intended Interested Parties in respect to their alleged status as the administrators of the estate of the Defendant. 36. The law is settled that in matters succession, a person wishing to act on behalf of the estate of a deceased person must first seek and obtain the requisite letters of administration or grant of probate, in order to have locus before the respective court, as stated by the Court of Appeal in the case of Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama [2014] KECA 250 (KLR) where it was held that: “ A litigant is clothed with locus standi upon obtaining a limited or a full grant of letters of administration in cases of intestate succession. In Otieno v Ougo (supra) this Court differently constituted rendered itself thus: “… an administrator is not entitled to bring any action as administrator before he has taken out letters of administration. If he does, the action is incompetent as of the date of inception.” 37. In view of all the foregoing circumstances, I am of the view that in the absence of any cogent material clarifying the status of the 1st and 2nd Intended Interested Parties, there is no basis for me to determine with certainty that the said Intended Interested Parties have the requisite locus standi to bring the instant Motion. Without a Grant of Letters of Administration presented to the court, it is my considered view that this court cannot assume one exists. It is upon the Applicants to present evidence of the existence of such Grant for this court to conclusively find that they are indeed the administrators of the estate of the deceased. 38. Consequently, I find merit in the PO, which I hereby uphold. Having done so, there is no reason for me to proceed to determine the Motion, for I lack jurisdiction to do so for the reasons that the movers of that Motion have no locus standi to appear before this court. 39. As a result of my reasoning above, I issue the following orders: 40. a. The Preliminary Objection dated 28/11/2025 be and is hereby upheld. b. The Notice of Motion dated 20/05/2025 be and is hereby struck out for want of competency. c. The Plaintiff shall have the costs of the PO and the Motion. It is so ordered. DATED, SIGNED AND DELIVERED THIS 27TH DAY OF APRIL 2026. S. N. MUTUKU https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7476/eng@2026-04-27 7

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JUDGE In the presence of: Mr. King’ang’I for the Intended Interested Parties/Applicant Mr. Ombogi for the Plaintiff/Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7476/eng@2026-04-27 8

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