1. This ruling is in respect of the Preliminary Objection raised on behalf of the 1st and 2nd Defendants vide the Notice of Motion application dated 7th November, 2025.
The application seeks that the suit be struck out with costs to the 1st and 2nd Defendants/Respondents.
2. The grounds of the application/Preliminary Objection are that the suit is incompetent, incurably defective, misbegotten, misconceived and an abuse of the court process, that the Plaintiffs, lack the capacity to institute and prosecute the suit, that the 1st Defendant has no capacity to be sued for or on behalf of Bishan Singh, that the 2nd Defendant is non-suited to the Plaintiffs as he has no interest in the suit property, that the suit is statutorily time-barred by dint of the provisions of sections 7 and 9 of the Limitation of Actions Act Cap 22 that the court has power to grant the relief sought and that the application has been made without delay and that the same is geared towards meeting the ends of justice.
3. The application was supported by the averment in the Supporting Affidavit of Jane Betty Atieno filed with the application.
4. Affidavit of service sworn by Vera Kemunto, Advocate, on 10th November, 2025 shows that the Plaintiff was served with the application on 10th November, 2025 vide email. On 19th March, 2026 the court directed the Defendant/Applicant to serve the Plaintiff with directions issued on the same that the Plaintiff with directions issued on the same date that the Plaintiff files written submissions on the application within 14 days from 19th March, 2026. Affidavit of service sworn by Vera Kemunto Advocate on 23rd March, 2026 shows that the Plaintiffs were served with the order/directions given by the court on 19th March, 2026. Perusal of the court file shows that Counsel for the Plaintiff had, on 13th November, 2026, been granted 14 days to file response to the application. No response or written submissions have so far been filed by the Plaintiff/Respondent. The application is therefore unopposed.
5. I have considered the application and grounds on which it is brought. I have also read the plaint and all the accompanying documents. Although the Plaintiffs describe themselves in the heading of the plaint as legal representative of Jackton Ochier Olwal alias Ochier Olwal deceased, there is no document exhibited to show that the Plaintiffs have attained that capacity. In paragraph 6 of the plaint they describe themselves as son and daughter of the deceased. They further plead that the suit land namely; KISUMU/OJOLA/1770 which was altered to land parcel No. KISUMU/OJOLA/3816 was registered in the name of the deceased.
6. Under the provisions of sections 2, 79, 82 and 83 of the Law of Succession Act, only personal representatives appointed under the provisions of the Law of Succession Act have capacity to sue on behalf of or transact in the property of a deceased person.
Further, I note that although the 1st Defendant is described as legal representative of one Bishan Singh, no evidence has been exhibited/adduced to prove this. The second defendant denies having any interest in the suit land. I find that it has not been demonstrated that the Defendants have capacity to be sued.
7. The Plaintiff’s suit was also challenged on the grounds that it is statutorily time-barred under sections 7 and 9 of the Limitation of Actions Act. the Applicant deponed in paragraphs 10 and 11 of the Supporting Affidavit that the Plaintiffs’ suit which was based on a lease agreement and green card opened in 1977 and 1979 was time-barred as it was filed on 30th May, 2025 which was more than 48 years later. This contention/averment was not rebutted.
Section 7 of the Limitation of Actions Act makes provision on actions to recover land and prohibits filing of such actions after the expiry of 12 years from the date the right of action accrued. I find that the suit was filed out of time.
8. Having determined that the plaintiffs locus standi to institute the suit for lack of letters of Administration in respect of the estate of the deceased registered owner, that the 1st and 2nd Defendants lack capacity to be sued and that the suit was filed out of time and considering that the application was unopposed, I find that the application has merit and hereby allow it.
9. The result is that;
i) The suit is struck out.
ii) Costs of the suit are awarded to the 1st and 2nd Defendants.
Orders accordingly.
Ruling dated and signed at Kisumu, read this 14th day of May, 2026, virtually, through Microsoft Teams online application.
E. ASATI,
JUDGE.
In the presence of
Atika: Court Assistant
Onsongo for the Applicants
No appearance for the Respondents.
| ELC LC E048/2025 RULING 2 |