RULING
1. The subject of this ruling is the Notice of Preliminary Objection dated 10th September 2025. The Respondent raised the Objection to the suit on the following points;
1) The Plaintiffs/Applicants lack locus standi or capacity to institute and or prosecute the suit.
2) The suit is incompetent, incurably defective, misconceived and be struck out with costs.
2. To put the Preliminary Objection to clear perspective when this court turns to its analysis and determination later, this court gives hereafter the pleadings impugned. The Objection was raised against the Applicants’ Originating Summons dated, 1st September 2025 in which they sued the respondents for a number of reliefs, based on a claim for adverse possession in which they sought to be registered as proprietors of a parcel number L.R. Kamagambo/Kong’udi/532 measuring 2.0 hectares, and an order of injunction against the defendant. They pleaded more particularly that prior to the registration of Elmada Ondiek Ottawa in the year 2024 as the owner, the suit parcel of land was occupied by the plaintiffs’ father Jecktone Ondiek Oringo (now deceased), nec vi, nec clam, nec precario since the 1950s. Their father died in the year 2002. The plaintiffs’ entry onto the land was first by virtue of birth, being the children of the deceased, and secondly by inheritance after the demise of their father. They and other members of the family were the only surviving ones and were born on and still lived on the said parcel of land. They had been in open, continuous and uninterrupted occupation of the land from their birth, and specifically in the year 1960s. They had built homes thereon and buried on it over ten remains of their deceased family members, and planted trees and have grown and developed plantations. Their occupation and possession had been long for over 50 years. They depended on the suit land.
3. The defendant had never occupied or carried out any activity on the said land and was a stranger to the plaintiffs. He had not taken any precipitate action to defeat or interrupt their occupation. Their said occupation had been adverse to his interests.
4. The deposition of the Affidavit of Elizabeth Akinyi Ondiek which was in support of the originating summons repeated largely the contents of the grounds in support of the summons except that to it she added a number of annexures to prove and evidence some of the facts. These are annexures included a certificate of death of the deceased Jecktone Ondiek, a copy of the title deed in issue, a written authority to show that she had been given authority by the 2nd, 3rd and 4th Applicants to plead on their behalf, photographs of homes and structures on the land, additional photographs of graves on the suit and other photographs of plantations thereon.
5. The Objection was disposed of by way of written submissions.
Respondents’ Submissions
6. The Respondent filed submissions dated 29th January 2026. Counsel cited the case of Rajesh Chandasama vs Sailesh Pranvijan Chandasama (2014) eKLR and Virginia Edith Wambui Otieno vs Joash Ochieng Ougo & Another CA 31 of 1987 on the locus standi of an administrator. Counsel urged that the Applicants are legally bound to obtain a grant ad litem or a full grant of letters of administration to institute and prosecute the suit as it proliferates from the interest of Jacktone Ondiek Oringo (deceased). Counsel submitted that the Applicants are not the administrators of the estate and therefore they have no locus standi to institute the suit. It is on this basis that counsel urged the court to dismiss the suit with costs.
Applicants’ Submissions
7. The Applicants filed submissions dated 12th January 2026. Counsel cited the case of Owners of the motor Vessel Lillian vs Caltex oil (Kenya ) Ltd (1989) eKLR on jurisdiction and Mukisa Biscuit Manufactures Ltd Vs West End Distributors Ltd (1969) EA 696 on the definition of a Preliminary Objection. Counsel posited that the preliminary objection as presented needs evidence to ascertain whether the Applicants lack locus standi to bring the suit. Further, that the preliminary Objection is ambiguous and consists of contested facts hence cannot be on pure points of law.
8. Counsel submitted that the applicant’s pleadings are clear that they brought the suit in their own capacity and not on behalf of the estate of their late father. They prayed that the Preliminary Objection be dismissed with costs.
Analysis and Determination
9. In the case of Mukisa Biscuits Manufacturers – Versus - Westend Distributor Ltd [1969] EA 696 it was held that;
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion...”
10. A preliminary objection was further defined in the Supreme Court case of Hassan Ali Joho & Anor v Suleiman Said Shabal & 2 others SCK Petition 10 of 2013 (2014) eKLR as one which:
“…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.”
11. The crux or gravamen of the argument herein regarding the preliminary objection is whether the plaintiffs have sued the Respondent in their capacity Representatives of the state of the deceased father or in their personal capacity as occupants of the suit parcel of land following their alleged occupation thereof since path and specifically after the death of their father.
12. I have carefully read, analysed and gleaned through the pleadings by the Applicants, to wit the Originating Summons dated 1st September 2025. It is evident that the Applicants have instituted the suit on their own behalf and personal capacities as persons who have been in occupation of the suit land, and not that of their deceased father. The allegation that they have instituted the same on behalf of their fathers’ estate is unfounded since they have not pleaded as much and nor have they purported to do so. The Defendant cannot choose for them the capacity by which they bring their suit. That can only remain an issue for determination at the trial. Therefore, as their pleadings show, they have the capacity to institute the suit and the same should proceed to its logical conclusion.
13. The upshot of the foregoing is that the Preliminary Objection baseless and lacks merit. It is dismissed with costs to the Applicants.
14. This suit is fixed for mention on 18th May 2026 for confirmation of compliance with Order 11 of the Civil Procedure Rules. Mention Notice to issue.
15. Orders accordingly.
Ruling dated, signed and delivered via the Teams Platform this 29th day of April 2026.
HON. DR. IUR NYAGAKA
JUDGE
In the presence of,
Oyoo advocate for the Applicants (absent)
Mr. Kirui advocate for the Respondents
1. The subject of this ruling is the Notice of Preliminary Objection dated 10th September 2025. The Respondent raised the Objection to the suit on the following points;
1) The Plaintiffs/Applicants lack locus standi or capacity to institute and or prosecute the suit.
2) The suit is incompetent, incurably defective, misconceived and be struck out with costs.
2. To put the Preliminary Objection to clear perspective when this court turns to its analysis and determination later, this court gives hereafter the pleadings impugned. The Objection was raised against the Applicants’ Originating Summons dated, 1st September 2025 in which they sued the respondents for a number of reliefs, based on a claim for adverse possession in which they sought to be registered as proprietors of a parcel number L.R. Kamagambo/Kong’udi/532 measuring 2.0 hectares, and an order of injunction against the defendant. They pleaded more particularly that prior to the registration of Elmada Ondiek Ottawa in the year 2024 as the owner, the suit parcel of land was occupied by the plaintiffs’ father Jecktone Ondiek Oringo (now deceased), nec vi, nec clam, nec precario since the 1950s. Their father died in the year 2002. The plaintiffs’ entry onto the land was first by virtue of birth, being the children of the deceased, and secondly by inheritance after the demise of their father. They and other members of the family were the only surviving ones and were born on and still lived on the said parcel of land. They had been in open, continuous and uninterrupted occupation of the land from their birth, and specifically in the year 1960s. They had built homes thereon and buried on it over ten remains of their deceased family members, and planted trees and have grown and developed plantations. Their occupation and possession had been long for over 50 years. They depended on the suit land.
3. The defendant had never occupied or carried out any activity on the said land and was a stranger to the plaintiffs. He had not taken any precipitate action to defeat or interrupt their occupation. Their said occupation had been adverse to his interests.
4. The deposition of the Affidavit of Elizabeth Akinyi Ondiek which was in support of the originating summons repeated largely the contents of the grounds in support of the summons except that to it she added a number of annexures to prove and evidence some of the facts. These are annexures included a certificate of death of the deceased Jecktone Ondiek, a copy of the title deed in issue, a written authority to show that she had been given authority by the 2nd, 3rd and 4th Applicants to plead on their behalf, photographs of homes and structures on the land, additional photographs of graves on the suit and other photographs of plantations thereon.
5. The Objection was disposed of by way of written submissions.
Respondents’ Submissions
6. The Respondent filed submissions dated 29th January 2026. Counsel cited the case of Rajesh Chandasama vs Sailesh Pranvijan Chandasama (2014) eKLR and Virginia Edith Wambui Otieno vs Joash Ochieng Ougo & Another CA 31 of 1987 on the locus standi of an administrator. Counsel urged that the Applicants are legally bound to obtain a grant ad litem or a full grant of letters of administration to institute and prosecute the suit as it proliferates from the interest of Jacktone Ondiek Oringo (deceased). Counsel submitted that the Applicants are not the administrators of the estate and therefore they have no locus standi to institute the suit. It is on this basis that counsel urged the court to dismiss the suit with costs.
Applicants’ Submissions
7. The Applicants filed submissions dated 12th January 2026. Counsel cited the case of Owners of the motor Vessel Lillian vs Caltex oil (Kenya ) Ltd (1989) eKLR on jurisdiction and Mukisa Biscuit Manufactures Ltd Vs West End Distributors Ltd (1969) EA 696 on the definition of a Preliminary Objection. Counsel posited that the preliminary objection as presented needs evidence to ascertain whether the Applicants lack locus standi to bring the suit. Further, that the preliminary Objection is ambiguous and consists of contested facts hence cannot be on pure points of law.
8. Counsel submitted that the applicant’s pleadings are clear that they brought the suit in their own capacity and not on behalf of the estate of their late father. They prayed that the Preliminary Objection be dismissed with costs.
Analysis and Determination
9. In the case of Mukisa Biscuits Manufacturers – Versus - Westend Distributor Ltd [1969] EA 696 it was held that;
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion...”
10. A preliminary objection was further defined in the Supreme Court case of Hassan Ali Joho & Anor v Suleiman Said Shabal & 2 others SCK Petition 10 of 2013 (2014) eKLR as one which:
“…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.”
11. The crux or gravamen of the argument herein regarding the preliminary objection is whether the plaintiffs have sued the Respondent in their capacity Representatives of the state of the deceased father or in their personal capacity as occupants of the suit parcel of land following their alleged occupation thereof since path and specifically after the death of their father.
12. I have carefully read, analysed and gleaned through the pleadings by the Applicants, to wit the Originating Summons dated 1st September 2025. It is evident that the Applicants have instituted the suit on their own behalf and personal capacities as persons who have been in occupation of the suit land, and not that of their deceased father. The allegation that they have instituted the same on behalf of their fathers’ estate is unfounded since they have not pleaded as much and nor have they purported to do so. The Defendant cannot choose for them the capacity by which they bring their suit. That can only remain an issue for determination at the trial. Therefore, as their pleadings show, they have the capacity to institute the suit and the same should proceed to its logical conclusion.
13. The upshot of the foregoing is that the Preliminary Objection baseless and lacks merit. It is dismissed with costs to the Applicants.
14. This suit is fixed for mention on 18th May 2026 for confirmation of compliance with Order 11 of the Civil Procedure Rules. Mention Notice to issue.
15. Orders accordingly.
Ruling dated, signed and delivered via the Teams Platform this 29th day of April 2026.
HON. DR. IUR NYAGAKA
JUDGE
In the presence of,
Oyoo advocate for the Applicants (absent)
Mr. Kirui advocate for the Respondents