' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL CASE NO. 323 OF 2025
JACK ONE STAR MACHIKA
(Suing as the spouse of the Deceased)………………………………..…PLAINTIFF/APPLICANT
VERSUS
ASTER HEALTHCARE LIMITED…………………………1 ST DEFENDANT/RESPONDENT
KENYATTA UNIVERSITY FUNERAL HOME……….…..2 ND DEFENDANT.RESPONDENT
RULING
Background
This dispute revolves around detention of the body of Mary Kita Ambaka, deceased, who died on 30 th October 2025 while undergoing treatment at the 1 st Defendant’s/Respondent’s hospital by the defendants/respondents. The Applicant claims to be the husband of the deceased. The Applicants wants the body released to enable him and the family organize the burial of the deceased.
The Applicant filed a Plaint dated 27 th November 2025 alongside the Notice of Motion (the Application) of the same the date. The Application seeks a mandatory injunction to compel the defendants/respondents, whether by themselves or anyone acting on their instructions, to unconditionally release the body of the deceased to the Applicant for burial and a mandatory injunction restraining the defendants/respondents from detaining/or continuing with the detention of the body of the deceased.
Preliminary Objection
The 1 st Defendant/Respondent raised a Preliminary Objection (PO) to the suit and the Application. The PO, dated 4 th December 2025, is based on the ground that the suit and/or application offends Section 82(a) of the Law of Succession Act, Cap. 160 Laws of Kenya, since the Plaintiff instituted this suit and/or filed the application without obtaining the Letters of Administration.
This court directed the parties to argue the PO first. In support of the PO, Mr. Musuwe, counsel for the 1 st Defendant, submitted that the Plaintiff filed this suit and the Application as the husband of the deceased but he has failed to present any evidence, by way of a marriage certificate or any other relevant evidence, to demonstrate that he is the husband of the deceased.
Mr. Musuwe submitted that without the evidence that the Plaintiff is the husband of the deceased, this Court is not able to confirm that the Plaintiff is properly before it and therefore this PO ought to be allowed.
Mr. Masinde, counsel for the Plaintiff, submitted that the PO does not meet the threshold as laid down in Mukisa Biscuits case ( Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] 969).
Mr. Masinde submitted that it is not in all the actions brought before the court that locus standi will only arise pursuant to obtaining letters of administration; that burial disputes are commenced by persons closely related to the deceased without the need for letters of administration. Counsel referred this court to Mary Nyang’anyi Nyaigero & another v Karen Hospital Limited & another [2016] KEHC 6882 (KLR) and Mutua v Mater Misericordiae Hospital (Civil Case E220 of 2025) [2025] KEHC 13266 (KLR) (Civ) (23 September 2025) (Ruling) and submitted that these cases were determined without calling for letters of administration. Counsel asked this court to be persuaded by those decisions.
Mr. Masinde submitted that counsel for the 1 st Defendant has not placed any authorities before the court to support his arguments that a matter like this one can only be brought after obtaining letters of administration. Counsel referred this court to claims under the Fatal Accidents Act that matters under that law are brought without first obtaining letters of administration. He cited Civil Appeal No. 23 of 2013 Peterson Mokaya Kaguga (Sing as the administrators of the estate of Jackline Mokaya & James Mbuya to support his arguments that the Plaintiff did not need to obtain letters of administration to bring this suit.
Mr. Masinde submitted, further, that the burial permit ( annexure JOSM2B) was issued to the Plaintiff and that the Plaintiff is indicated as the next of kin to the deceased in the admission form ( annexure JOSM1B ) and that the 1 st Defendant does not lack fall back position should it decide to pursue the estate of the deceased.
In rebuttal, Mr. Musuwe submitted that Section 82 (a) of the Law of Succession Act defines how a person can bring a suit on behalf of a deceased person and that the court has to satisfy itself of the authority the Plaintiff is relying on in bringing this case. It was submitted that the Plaintiff can still obtain the authority required.
Mr. Musuwe submitted that the authorities relied on by the Plaintiff are distinguishable with this matter because in those cases, the issue of locus standi was not raised and that this case is not based on Fatal Accidents Act.
The 2 nd Defendant did not participate in the PO proceedings.
Analysis and determination
11. I have considered the PO and the submissions of both counsel. It is my view that the issue for determination is whether this PO meets the threshold of a PO as defined in Mukisa Biscusits case . Mr. Musuwe holds the view that the PO is merited and is properly before this court. Mr. Masinde holds a different view, that the PO does not meet the test and ought to be dismissed
12. The law is settled on what constitutes a PO. In Mukisa Biscuits , the Court stated as follows:
“As far as I am aware, a preliminary objection consists of a point of law which has been pleased, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration…
13. The court in the Mukisa Biscuits case continued to state that:
“A preliminary objection is in the nature of what used to be a demuerrer. It raises a pure point of law which is argued on the assumption that all the 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 discretions.
14. The PO raised in this matter must be subjected to the above test. In addition, the court must determine whether the Plaintiff was required to seek a grant, whether limited or not, for purposes of filing this case.
15. If this issue of lack of locus standi by the Applicant had been brought in the normal application, the Applicant would have filed an Affidavit in reply to which he would have attached evidence of whatever nature to show that he has capacity to bring this suit. The 1 st Defendant would also have filed evidence to oppose the Plaintiff’s case.
16. My careful analysis of this issue leads me to the conclusions that this PO does not meet the test of the Mukisa Biscuit case . The PO, in my view, requires evidence to ascertain the facts of the case. In other words, the PO herein, does not raise a pure point of law.
17. That said, I wish to turn to the authorities cited. I have considered the authorities cited by the Plaintiff. In Mary Nyang’anyi Nyaigero & another case and Mutua v Mater Hospital , the issue of locus standi did not arise.
18. In Peterson Mokaya Kaguga case, the Court found that widows who had not obtained grant of letters of administration had the legal competence to claim damages for loss of dependency under the Fatal Accidents Act. The Court relied on section 7 of the Fatal Accidents Act which provides that:
“If at any time, in any case intended and provided for by this Act, there is no executor or administrator of the person deceased, or if no action is brought by the executor or administrator within six months after the death of the deceased person, then and in every such case an action may be brought by and in the name or names of all or any of the persons for whose benefit the action would have been brought if it had been brought by and in the name of the executor or administrator , and every action so brought shall be for the benefit of the same person or persons as if it were brought by and in the name of the executor or administrator.”
19. I am alive that this matter does not concern with damages under the Fatal Accidents Act but concerns with release of the body for burial. However, the Plaintiff, who has come to this court as the husband of the deceased and who appears in the admission form as the next of kin and who was issued with the burial permit, has approached this court for orders to have the body of the deceased released for burial.
20. I will exercise the discretion in this matter and find that the PO is not merited for the reasons given in this ruling. Given that there is a pending application, I have restrained myself from dealing with any other issue that may prejudice the hearing and determination of the pending Notice of Motion.
21. Consequently, I hereby dismiss the Preliminary Objection dated 4 th December 2025. Orders shall issue accordingly.
In the presence of:
Mr. Masinde for the Plaintiff/Applicant
Mr. Musuwe for the 1 st Defendant/Respondent
N/A for the 2 nd Defendant/Respondent
'
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL CASE NO. 323 OF 2025
JACK ONE STAR MACHIKA
(Suing as the spouse of the Deceased)………………………………..…PLAINTIFF/APPLICANT
VERSUS
ASTER HEALTHCARE LIMITED…………………………1 ST DEFENDANT/RESPONDENT
KENYATTA UNIVERSITY FUNERAL HOME……….…..2 ND DEFENDANT.RESPONDENT
RULING
Background
This dispute revolves around detention of the body of Mary Kita Ambaka, deceased, who died on 30 th October 2025 while undergoing treatment at the 1 st Defendant’s/Respondent’s hospital by the defendants/respondents. The Applicant claims to be the husband of the deceased. The Applicants wants the body released to enable him and the family organize the burial of the deceased.
The Applicant filed a Plaint dated 27 th November 2025 alongside the Notice of Motion (the Application) of the same the date. The Application seeks a mandatory injunction to compel the defendants/respondents, whether by themselves or anyone acting on their instructions, to unconditionally release the body of the deceased to the Applicant for burial and a mandatory injunction restraining the defendants/respondents from detaining/or continuing with the detention of the body of the deceased.
Preliminary Objection
The 1 st Defendant/Respondent raised a Preliminary Objection (PO) to the suit and the Application. The PO, dated 4 th December 2025, is based on the ground that the suit and/or application offends Section 82(a) of the Law of Succession Act, Cap. 160 Laws of Kenya, since the Plaintiff instituted this suit and/or filed the application without obtaining the Letters of Administration.
This court directed the parties to argue the PO first. In support of the PO, Mr. Musuwe, counsel for the 1 st Defendant, submitted that the Plaintiff filed this suit and the Application as the husband of the deceased but he has failed to present any evidence, by way of a marriage certificate or any other relevant evidence, to demonstrate that he is the husband of the deceased.
Mr. Musuwe submitted that without the evidence that the Plaintiff is the husband of the deceased, this Court is not able to confirm that the Plaintiff is properly before it and therefore this PO ought to be allowed.
Mr. Masinde, counsel for the Plaintiff, submitted that the PO does not meet the threshold as laid down in Mukisa Biscuits case ( Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] 969).
Mr. Masinde submitted that it is not in all the actions brought before the court that locus standi will only arise pursuant to obtaining letters of administration; that burial disputes are commenced by persons closely related to the deceased without the need for letters of administration. Counsel referred this court to Mary Nyang’anyi Nyaigero & another v Karen Hospital Limited & another [2016] KEHC 6882 (KLR) and Mutua v Mater Misericordiae Hospital (Civil Case E220 of 2025) [2025] KEHC 13266 (KLR) (Civ) (23 September 2025) (Ruling) and submitted that these cases were determined without calling for letters of administration. Counsel asked this court to be persuaded by those decisions.
Mr. Masinde submitted that counsel for the 1 st Defendant has not placed any authorities before the court to support his arguments that a matter like this one can only be brought after obtaining letters of administration. Counsel referred this court to claims under the Fatal Accidents Act that matters under that law are brought without first obtaining letters of administration. He cited Civil Appeal No. 23 of 2013 Peterson Mokaya Kaguga (Sing as the administrators of the estate of Jackline Mokaya & James Mbuya to support his arguments that the Plaintiff did not need to obtain letters of administration to bring this suit.
Mr. Masinde submitted, further, that the burial permit ( annexure JOSM2B) was issued to the Plaintiff and that the Plaintiff is indicated as the next of kin to the deceased in the admission form ( annexure JOSM1B ) and that the 1 st Defendant does not lack fall back position should it decide to pursue the estate of the deceased.
In rebuttal, Mr. Musuwe submitted that Section 82 (a) of the Law of Succession Act defines how a person can bring a suit on behalf of a deceased person and that the court has to satisfy itself of the authority the Plaintiff is relying on in bringing this case. It was submitted that the Plaintiff can still obtain the authority required.
Mr. Musuwe submitted that the authorities relied on by the Plaintiff are distinguishable with this matter because in those cases, the issue of locus standi was not raised and that this case is not based on Fatal Accidents Act.
The 2 nd Defendant did not participate in the PO proceedings.
Analysis and determination
11. I have considered the PO and the submissions of both counsel. It is my view that the issue for determination is whether this PO meets the threshold of a PO as defined in Mukisa Biscusits case . Mr. Musuwe holds the view that the PO is merited and is properly before this court. Mr. Masinde holds a different view, that the PO does not meet the test and ought to be dismissed
12. The law is settled on what constitutes a PO. In Mukisa Biscuits , the Court stated as follows:
“As far as I am aware, a preliminary objection consists of a point of law which has been pleased, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration…
13. The court in the Mukisa Biscuits case continued to state that:
“A preliminary objection is in the nature of what used to be a demuerrer. It raises a pure point of law which is argued on the assumption that all the 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 discretions.
14. The PO raised in this matter must be subjected to the above test. In addition, the court must determine whether the Plaintiff was required to seek a grant, whether limited or not, for purposes of filing this case.
15. If this issue of lack of locus standi by the Applicant had been brought in the normal application, the Applicant would have filed an Affidavit in reply to which he would have attached evidence of whatever nature to show that he has capacity to bring this suit. The 1 st Defendant would also have filed evidence to oppose the Plaintiff’s case.
16. My careful analysis of this issue leads me to the conclusions that this PO does not meet the test of the Mukisa Biscuit case . The PO, in my view, requires evidence to ascertain the facts of the case. In other words, the PO herein, does not raise a pure point of law.
17. That said, I wish to turn to the authorities cited. I have considered the authorities cited by the Plaintiff. In Mary Nyang’anyi Nyaigero & another case and Mutua v Mater Hospital , the issue of locus standi did not arise.
18. In Peterson Mokaya Kaguga case, the Court found that widows who had not obtained grant of letters of administration had the legal competence to claim damages for loss of dependency under the Fatal Accidents Act. The Court relied on section 7 of the Fatal Accidents Act which provides that:
“If at any time, in any case intended and provided for by this Act, there is no executor or administrator of the person deceased, or if no action is brought by the executor or administrator within six months after the death of the deceased person, then and in every such case an action may be brought by and in the name or names of all or any of the persons for whose benefit the action would have been brought if it had been brought by and in the name of the executor or administrator , and every action so brought shall be for the benefit of the same person or persons as if it were brought by and in the name of the executor or administrator.”
19. I am alive that this matter does not concern with damages under the Fatal Accidents Act but concerns with release of the body for burial. However, the Plaintiff, who has come to this court as the husband of the deceased and who appears in the admission form as the next of kin and who was issued with the burial permit, has approached this court for orders to have the body of the deceased released for burial.
20. I will exercise the discretion in this matter and find that the PO is not merited for the reasons given in this ruling. Given that there is a pending application, I have restrained myself from dealing with any other issue that may prejudice the hearing and determination of the pending Notice of Motion.
21. Consequently, I hereby dismiss the Preliminary Objection dated 4 th December 2025. Orders shall issue accordingly.
In the presence of:
Mr. Masinde for the Plaintiff/Applicant
Mr. Musuwe for the 1 st Defendant/Respondent
N/A for the 2 nd Defendant/Respondent
'