Before court for determination are two Notices of preliminary Objection. The first one is dated 8th day of October 2024 filed by the 1st and 2nd Defendants/ Respondents’ seeking that the plaintiff suit be struck out on grounds:
i)that the plaintiffs have no locus standi to sue on behalf of the of Estates of Sansiro Omari, Ombasa Ombura, Ogoro Ombura, Charles Okindo, Samuel Otweka, Momanyi Omwenga And Nyamairo Ochoki (hereinafter called the Estates) deceased persons without limited letters of Administration (Ad litem)
ii) that the plaintiffs suit is fatally defective as it offends the mandatory provisions of section 82 of the Law of Succession Act.
iii)that the orders sought overstretch the muscle of this Honourable court.
2.The second Notice of Preliminary Objection is dated 11th day of October 2024 filed by the 3rd to 6th Defendants herein in respect of the suit and the Notice of Motion Application dated 30/9/2024 on the grounds that:
a) The suit offends section 7 of the limitations of Actions Act Cap 22 s it has been brought after the expiry of the statutory period of twelve (12) years; this court is bereft of jurisdiction.
b) The suit is fatally defective as contrary to section 82 of the Law of Succession Act, the plaintiffs’ lacks locus to sue on behalf of the Estates of Sansiro Omari, Ombasa Ombura, Ogoro Ombura, Charles Okindo, Samuel Otweka, Momanyi Omwenga And Nyamairo Ochoki hereinafter called “the Estates”)
c) The Plaintiffs’ suit is incompetent, bad in law, barred in law and abuse of the Court Process and should be dismissed with costs to the defendants.
3.On 24th November 2024, the court directed that the two Preliminary Objections be heard concurrently by way of written submissions. In support of their Preliminary objections the The 1st and 2nd Defendants’ on their part have submitted on 3 issues. the first being what is preliminary objection, whether the plaintiffs suit have locus standi and whether the suit is time barred. On issue number 1 it is their submission that the preliminary objection herein meets the criteria of preliminary objectionand they cite the decision in the case of Mukhisa Biscuits vs West End Distributors on what constitutes a preliminary objection and submit further that the issue of limitation of time as raised in the 3rd to 6th Defendants P/O is a matter of pure point of law and meets the criteria of a preliminary objection..
4. On the second issue of the Plaintiff lacking of locus to locus standi to commence suit on behalf of the Estates. The 1st and 2nd Defendants cite the decision in the case of Alfred Njau vs City Council Of Nairobi (1983) KLR where the court held iteralia ” locus standi literally means a place of standing and refers to the right to appear or be heard in court or other proceedings and to say that a person has no locus standi means that he has no right to appear or be herd in such and such proceeding"
5. On the third issue the 1st and 2nd Defendants/ Respondents submit that the suit is time barred by virtue of section 7 of the Limitations of Actions Act s the cause of action accrued to the Plaintiffs on19th June 1986 in respect of the Moyoi plot I and the 1st defendant transferred it to himself on 7th September 2001 the limitation period thus lapsed on 7th September 2013 and suit having being filed on 30th September 2024 is thus time barred. On the strength of the above the 1st and 2nd defendants urge the court to dismiss the suit as they support the preliminary objection by the 3rd to 6th Defendants.
4. The 3rd to 6th Defendants framed and submitted on two issues, to wit, whether the court has jurisdiction to hear and determine the suit as it offends section 7 of the Limitations of Actions Act and whether the plaintiff can sue on behalf of the “Estates”. These issues are basically on the merits of the Preliminary Objections.
5 On issue 1 it is their submisions that the court lacks jurisdiction to hear and determine this matter as the suit is timed barred. They have in support of this position cited numerous Authorities that the court has considered.
6.On issue number 2 the 3rd to 6th Defendants submit that a suit on behalf of a deceased persons can only be commenced by a personal representative as per section 82 of the Law of succession Act. They further submit that a person seeking to sue as such must have the requisite Authority and that the Plaintiff must show the court that he had been granted that authority and that the plaintiff’s have not adduced any evidence to that end. They submit that the plaintiffs suit thus be dismissed on the strength on the foregoing.
7 On their part the Plaintiff/ Applicants in opposition to the two notices of preliminary objections submit that there is no proper preliminary objection before court. In this regard they have cited the decision of the Muranga ELC case no.15 of 2012 Margaret Njeri Gitau vs Julius Mburu Gitau and 2 others 2022 elkr; to support their position that a preliminary objection cannot be raised when a factual issue needs to be ascertained. They thus submit that the court dismisses the preliminary objections.
ISSUES FOR DETERMINATION
8. Having analysed the two Notices of preliminary objection as well as the rival submissions by the parties, the court frames the sole issue for determination as follows,
Whether the Preliminary objections before court meets the threshold of a preliminary objection capable of determining the suit in limine?
ANALYSIS AND DETERMINATION
9. Whereas the issue of the suit offending section 7 of the Limitations of Actions Act and also offending section 82 of the law of succession Act are undoubtedly points of law they would have been best argued as Grounds of Opposition to the application, the ground of the preliminary objection relating to the lack of locus standi on the part of the Plaintiffs’ to institute the suit on behalf of the Estates by raised by the 1st to 6th Defendants in their respective in their preliminary objection has a factual aspect requiring examination of facts and evidence.
10. The said factual aspect requires the court to examine whether or not the Plaintiffs were granted Letters of Administration (Ad litem) in respect of the Estates they indicate to sue on behalf.
11.The Court shall now consider whether the Preliminary objection as filed in this Matter meets the threshold of Preliminary Objections as was defined in the decision in the case of In Mukisa Biscuit Manufacturer Limited vs Westend Distributors Limited; cited by all the parties herein. In that casethe Court held interalia, in respect of a preliminary objection, that “so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implications out of pleadings, and which if argued as 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 the acts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion.”
12. Similarly in the decision in the case of Omondi vs National Bank of Kenya Limited and 2 others; as quoted in the decision of J. N. and 5 others vs Board of Management St. G. School Nairobi and Another where it was held that; “a preliminary objection 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………..where a Court needs to investigate facts, a matter cannot be raised as a preliminary point. Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.”
13. From the above excerpts a preliminary objection must no deal with issues of ascertainment of the facts and evidence. The issue of the lack of locus standi on the part of the Plaintiffs to sue on behalf of the Estates is a factual issue that requires the court to examine the existence or otherwise of Letters of administrations in respect of each of the Estate and the 1st and 2nd Defendants in their submissions acknowledge that no evidence was adduced showing that the plaintiff were the Personal Representatives’ of the said Estates.
14 That exercise moves the Notices of Preliminary Objections from being a pure point of law as required to an issue of ascertainment of facts through the ordinary course of evidence by way of either viva voce evidence or affidavit evidence. It follows therefrom as drawn both Notices of preliminary objection fails to meet the threshold of a preliminary objection as the same involve ascertainment of facts through the rules of evidence and the same must fail, as they hereby do, and the court shall not dwell on their merits or otherwise.
15.The two Notices of preliminary objection as drawn thus fails the criteria of a preliminary objection and the must fails. The issues of law raised therein to wit the issue of suit offending section 7 of the Limitation of Actions Act and the suit offending section 82 of the law of succession shall be deemed as Grounds of opposition to the application and will be dealt with during the hearing of the Application.
16.The upshot is that the Notices of preliminary objection dated 8.10.2024 and 11.10.2024 are hereby dismissed with costs.
DATED AT KILGORIS this 19th day of FEBRUARY 2025
In the presence of
Mr. Rono for the 1st and 2nd Defendants
Ms Rono for the 3rd to 6th Defendants
Mr. Nderitu for the 7th Defendant
N/A for Mr. Wesonga duly notified of the ruling date.
i)that the plaintiffs have no locus standi to sue on behalf of the of Estates of Sansiro Omari, Ombasa Ombura, Ogoro Ombura, Charles Okindo, Samuel Otweka, Momanyi Omwenga And Nyamairo Ochoki (hereinafter called the Estates) deceased persons without limited letters of Administration (Ad litem)
ii) that the plaintiffs suit is fatally defective as it offends the mandatory provisions of section 82 of the Law of Succession Act.
iii)that the orders sought overstretch the muscle of this Honourable court.
2.The second Notice of Preliminary Objection is dated 11th day of October 2024 filed by the 3rd to 6th Defendants herein in respect of the suit and the Notice of Motion Application dated 30/9/2024 on the grounds that:
a) The suit offends section 7 of the limitations of Actions Act Cap 22 s it has been brought after the expiry of the statutory period of twelve (12) years; this court is bereft of jurisdiction.
b) The suit is fatally defective as contrary to section 82 of the Law of Succession Act, the plaintiffs’ lacks locus to sue on behalf of the Estates of Sansiro Omari, Ombasa Ombura, Ogoro Ombura, Charles Okindo, Samuel Otweka, Momanyi Omwenga And Nyamairo Ochoki hereinafter called “the Estates”)
c) The Plaintiffs’ suit is incompetent, bad in law, barred in law and abuse of the Court Process and should be dismissed with costs to the defendants.
3.On 24th November 2024, the court directed that the two Preliminary Objections be heard concurrently by way of written submissions. In support of their Preliminary objections the The 1st and 2nd Defendants’ on their part have submitted on 3 issues. the first being what is preliminary objection, whether the plaintiffs suit have locus standi and whether the suit is time barred. On issue number 1 it is their submission that the preliminary objection herein meets the criteria of preliminary objectionand they cite the decision in the case of Mukhisa Biscuits vs West End Distributors on what constitutes a preliminary objection and submit further that the issue of limitation of time as raised in the 3rd to 6th Defendants P/O is a matter of pure point of law and meets the criteria of a preliminary objection..
4. On the second issue of the Plaintiff lacking of locus to locus standi to commence suit on behalf of the Estates. The 1st and 2nd Defendants cite the decision in the case of Alfred Njau vs City Council Of Nairobi (1983) KLR where the court held iteralia ” locus standi literally means a place of standing and refers to the right to appear or be heard in court or other proceedings and to say that a person has no locus standi means that he has no right to appear or be herd in such and such proceeding"
5. On the third issue the 1st and 2nd Defendants/ Respondents submit that the suit is time barred by virtue of section 7 of the Limitations of Actions Act s the cause of action accrued to the Plaintiffs on19th June 1986 in respect of the Moyoi plot I and the 1st defendant transferred it to himself on 7th September 2001 the limitation period thus lapsed on 7th September 2013 and suit having being filed on 30th September 2024 is thus time barred. On the strength of the above the 1st and 2nd defendants urge the court to dismiss the suit as they support the preliminary objection by the 3rd to 6th Defendants.
4. The 3rd to 6th Defendants framed and submitted on two issues, to wit, whether the court has jurisdiction to hear and determine the suit as it offends section 7 of the Limitations of Actions Act and whether the plaintiff can sue on behalf of the “Estates”. These issues are basically on the merits of the Preliminary Objections.
5 On issue 1 it is their submisions that the court lacks jurisdiction to hear and determine this matter as the suit is timed barred. They have in support of this position cited numerous Authorities that the court has considered.
6.On issue number 2 the 3rd to 6th Defendants submit that a suit on behalf of a deceased persons can only be commenced by a personal representative as per section 82 of the Law of succession Act. They further submit that a person seeking to sue as such must have the requisite Authority and that the Plaintiff must show the court that he had been granted that authority and that the plaintiff’s have not adduced any evidence to that end. They submit that the plaintiffs suit thus be dismissed on the strength on the foregoing.
7 On their part the Plaintiff/ Applicants in opposition to the two notices of preliminary objections submit that there is no proper preliminary objection before court. In this regard they have cited the decision of the Muranga ELC case no.15 of 2012 Margaret Njeri Gitau vs Julius Mburu Gitau and 2 others 2022 elkr; to support their position that a preliminary objection cannot be raised when a factual issue needs to be ascertained. They thus submit that the court dismisses the preliminary objections.
ISSUES FOR DETERMINATION
8. Having analysed the two Notices of preliminary objection as well as the rival submissions by the parties, the court frames the sole issue for determination as follows,
Whether the Preliminary objections before court meets the threshold of a preliminary objection capable of determining the suit in limine?
ANALYSIS AND DETERMINATION
9. Whereas the issue of the suit offending section 7 of the Limitations of Actions Act and also offending section 82 of the law of succession Act are undoubtedly points of law they would have been best argued as Grounds of Opposition to the application, the ground of the preliminary objection relating to the lack of locus standi on the part of the Plaintiffs’ to institute the suit on behalf of the Estates by raised by the 1st to 6th Defendants in their respective in their preliminary objection has a factual aspect requiring examination of facts and evidence.
10. The said factual aspect requires the court to examine whether or not the Plaintiffs were granted Letters of Administration (Ad litem) in respect of the Estates they indicate to sue on behalf.
11.The Court shall now consider whether the Preliminary objection as filed in this Matter meets the threshold of Preliminary Objections as was defined in the decision in the case of In Mukisa Biscuit Manufacturer Limited vs Westend Distributors Limited; cited by all the parties herein. In that casethe Court held interalia, in respect of a preliminary objection, that “so far as I am aware, a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implications out of pleadings, and which if argued as 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 the acts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion.”
12. Similarly in the decision in the case of Omondi vs National Bank of Kenya Limited and 2 others; as quoted in the decision of J. N. and 5 others vs Board of Management St. G. School Nairobi and Another where it was held that; “a preliminary objection 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………..where a Court needs to investigate facts, a matter cannot be raised as a preliminary point. Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.”
13. From the above excerpts a preliminary objection must no deal with issues of ascertainment of the facts and evidence. The issue of the lack of locus standi on the part of the Plaintiffs to sue on behalf of the Estates is a factual issue that requires the court to examine the existence or otherwise of Letters of administrations in respect of each of the Estate and the 1st and 2nd Defendants in their submissions acknowledge that no evidence was adduced showing that the plaintiff were the Personal Representatives’ of the said Estates.
14 That exercise moves the Notices of Preliminary Objections from being a pure point of law as required to an issue of ascertainment of facts through the ordinary course of evidence by way of either viva voce evidence or affidavit evidence. It follows therefrom as drawn both Notices of preliminary objection fails to meet the threshold of a preliminary objection as the same involve ascertainment of facts through the rules of evidence and the same must fail, as they hereby do, and the court shall not dwell on their merits or otherwise.
15.The two Notices of preliminary objection as drawn thus fails the criteria of a preliminary objection and the must fails. The issues of law raised therein to wit the issue of suit offending section 7 of the Limitation of Actions Act and the suit offending section 82 of the law of succession shall be deemed as Grounds of opposition to the application and will be dealt with during the hearing of the Application.
16.The upshot is that the Notices of preliminary objection dated 8.10.2024 and 11.10.2024 are hereby dismissed with costs.
DATED AT KILGORIS this 19th day of FEBRUARY 2025
In the presence of
Mr. Rono for the 1st and 2nd Defendants
Ms Rono for the 3rd to 6th Defendants
Mr. Nderitu for the 7th Defendant
N/A for Mr. Wesonga duly notified of the ruling date.