HANNAH WANJIKU MBURU AND IDES WAIRIMU MBURU AND 1 Others VS REGINA MUTHONI AND PATRICK KARANJA AND 4 Others

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIVASHA

ELC SUIT NO. E054 OF 2024

IDES WAIRIMU MBURU…………………………………1^st PLAINTIFF/APPLICANT

JOYCE MUTHONI MBURU..................................2^nd PLAINTIFF/APPLICANT

HANNAH WANJIKU MBURU................................3^rd PLAINTIFF/APPLICANT

-VERSUS-

CHARLES VINCENT WAWERU………….……….1^st DEFENDANT/RESPONDENT

ROSEMARY KIRIKA……………………….…….. 2^nd DEFENDANT/RESPONDENT

ALICE WAMBUI...........................................3^rd DEFENDANT/RESPONDENT

GEOFREY NYAGA…………………………….…....3^rd DEFENDANT/RESPONDENT

REGINA MUTHONI ......................................4^th DEFENDANT/RESPONDENT

PATRICK KARANJA.....................................5^th DEFENDANT/RESPONDENT

RULING

1. The Plaintiffs, vide a Plaint dated 16^th December 2024 filed the instant suit against the Defendants seeking to restrain them, their agents or persons acting under their instructions from dealing with the properties hived off Gilgil IR 96015/1 registered in the name of Mburu Kinani and Magdalene Waithera, and thereafter there be an order compelling the relevant land registry to place a caution on the said properties. The Plaintiffs also sought that the land Registry issues them with all records pertaining to the subdivision and transfers arising from the suit property registered in the name of Mburu Kinani.
2. Simultaneously with a suit, the Plaintiffs filed a Notice of Motion under certificate of urgency seeking interim orders against the Defendants/ Respondents restraining them from dealing with the said suit parcels of land pending the hearing and determination of the suit. Upon service of the application there was no response and therefore the Respondents sought that the application be allowed as unopposed.
3. It is trite that the Respondents having failed to comply by filing their responses to the application that are deemed as having failed to defend the same and therefore as it stands, the Application herein is un-defended. This notwithstanding, I have to interrogate the Applicants’ application as is expected of me as not all unopposed applications ought to be allowed automatically.
4. I have therefore interrogated the application and more so the supporting affidavit sworn by the 2^nd Plaintiff /Applicant and of interest to note is that whereas the parties herein are siblings, the Plaintiffs filed the instant suit and application to preserve the suit property referred to as Gilgil IR 96015/1 registered to their deceased father Mr Mburu Kinani who died on the 20^th November 2024.
5. The Plaintiff/Applicants in filing the current suit did not demonstrate that they were legal representatives of the estate of Mr Mburu Kinani by attaching any document to show that they were his administrators or even proof of evidence that they had taken out any citation proceedings related to the estate of Mr. Mburu Kinani. In essence, this meant that they had no locus standi to sue until such a time as letters of administration would be taken out to the estate of Mr. Mburu Kinani.
6. Section 82(a) of the Law of Succession Act provides as follows;

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;

1. In Alfred Njau & Others v City Council of Nairobi [1982-88] 1 KAR 229 the Court of Appeal gave meaning to the term locus-standi by stating:

“……to say he has no locus standi means he cannot be heard, even on whether or not he has a case worth listening to.”

1. The Court of Appeal has authoritatively delivered itself on the issue of locus standi in Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & Another (1982-99) 1 KAR, Morjaria v Abdalla [1984] KLR 490 and in Trouistik Union International & Another v Jane Mbeyu & Another Civil Appeal No. 145 of 1990 to the effect that Locus standi is a primary point of law almost similar to that of jurisdiction since the lack of capacity to sue or be sued renders the suit incompetent.
2. The issue of locus standi is a point of law which goes to the root of any suit and its absence renders a suit fatally defective. For that reason, I strike out the suit and proceed to dismiss this application and set aside the interim orders of status quo with no costs.

Dated and delivered at Naivasha via Teams Microsoft this 13^th day of March 2025

M.C. OUNDO

ENVIRONMENT & LAND – JUDGE