1. The applicant filed a chamber summons application dated 25th May, 2025 under Section 1A, 1B, 3, 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules seeking an order of temporary injunction restraining the respondents, either by themselves, agents, servants and/or any other person acting under their instructions from entering onto, alienating, transferring, interfering and/or evicting the plaintiff and family from parcel of land known as E/Marakwet/Kessup “B”/ 1086 (suit property) measuring 1.3 which has been in use and/or possession of the applicant, or distributing the same to the heirs of the late Raphael Kimaiyo Chemweno and costs.
2. The application is premised on the grounds on its face and supported by the affidavit of Pauline Jebiwot Kurgat sworn on 25th May, 2025. She avers that she acquired rights of adverse possession over the suit property after open, peaceful, continuous and uninterrupted occupation for over 35 years; that the suit property was held in trust for her husband John Kiprotich Kibii, deceased (hereafter referred to as John), by Raphael Kimaiyo Chemweno, deceased, (hereafter referred to as Raphael) since 1990; that Raphael had all intentions of transferring the suit property to her late husband and made an application to the Land Control Board, paid the requisite fee and surrendered the title deed to her family to proceed with the transfer, but he passed on before the title deed could be processed; that the respondents have failed, refused and or ignored her plea that her interests be taken care of in the succession cause. She avers that her rights and interests which are protected under Section 28 of the Land Registration Act, are bound to be defeated and there is likelihood that upon distribution of the estate of Raphael she and her family will be evicted from the suit property.
3. In response and in opposition to the application, the respondents filed separate replying affidavits sworn on 24th June, 2025. In their affidavits, the respondents averred that the originating summons is incompetent, an abuse of the court process and untenable because it is not supported by the requisite documents; that the suit property belongs to Raphael, deceased; that they are not the administrators of the estate of Raphael; that the applicant has not taken out a grant of letters of administration for the estate of John, deceased; that the applicant and her deceased husband never purchased the suit property from Raphael; that Raphael did not initiate any process with a view of transferring the suit property to the applicant’s deceased husband; that this court cannot issue orders against a deceased person and his estate; that the reliefs sought by the applicant are incapable of being granted as the respondents have no capacity to pass title to the applicant through transmission in the absence of letters of administration for the estate of Raphael. They deny that the applicant has been in occupation of the suit property for a period in excess of 12 years; that she is on the land as a trespasser and that her occupation of the suit property has been open, uninterrupted, peaceful and or exclusive.
4. Pursuant to directions given on 26th June 2025, that the application would be canvassed by way of written submissions, the applicant filed submissions on 23rd July, 2025. At the time of writing this ruling, the respondents had not filed submissions despite being given an opportunity to do so.
5. In her submissions, the applicant gave a background of the application and identified the issues for determination to be whether she has met the threshold for grant of an order of injunction and whether the court should grant the orders sought.
6. The applicant set out the principles applicable for grant of an injunction as laid down in the case of Giella v Cassman Brown & Co. Ltd (1973) EA 358 that;
i) The applicant must show a prima facie case with a probability of success.
ii) A temporary injunction will not normally be granted unless the applicant might otherwise suffer irreparable harm which would not be adequately compensated by an award of damages;
iii) lf the court is in doubt; it will decide an application on a balance of convenience.
7. She submitted that she had shown a prima facie case with probability of success and had demonstrated that she would suffer irreparable harm which would not be adequately compensated by an aware of damages.
Analysis and Determination
8. I have carefully considered the application, the supporting and replying affidavits and the applicant’s submissions and l find the issue for determination to be whether the orders sought should be granted.
9. The applicant filed the originating summons against three respondents, Peris Ruto, Nicodemus Maiyo and Hillary Kiprop, claiming to have acquired title to the suit property by adverse possession/prescription. She claims that her husband, deceased, purchased the suit property from Raphael, deceased, who is the father to the respondents and who are the legal representatives/ and or administrators of the estate of Raphael. The applicant has not annexed letters of administration adlitem/or grant of letters of administration for the estates of Raphael and John to show that she is the legal representative of the Estate of John and therefore has locus standi to file the suit. She has also not presented any evidence showing that the respondents are the legal representatives /and or administrators of the estate of Raphael and can therefore be sued in that capacity.
10. In Trouistik Union International & Another v Jane Mbeyu & Another [1993] eKLR the court stated; “To determine who may agitate by suit any cause of action vested in him at the time of his death, one must turn to Section 82 (a) of the Law of Succession Act. That Section confers that power on personal representatives and on them alone. As to who are personal representatives within the contemplation of the Act, Section 3, the interpretative Section, provides an all-inclusive answer. It says “personal representative means executor or administrator of a deceased person”.
11. In Otieno v Ougo [1986-1989] EALR 468, the Court rendered itself thus “…An administrator is not entitled to bring any action as administrator before he has taken out letters of administration. If he does, the action is incompetent as of the date of inception.
12. From the above decisions, it is clear that the life of a suit is granted to it upon the filing of a suit by a competent person. A suit cannot lie unless it is filed by a person with locus standi. The applicant commenced this suit without obtaining Letters of Administration for the estate of John Kiprotich Kibii against the respondents who have denied being administrators of the estate of Raphael. A litigant pursuing a claim of this nature must first obtain capacity by petitioning the court for and being granted Letters of Administration to the estate of the deceased.
13. Having found that the applicant had no capacity to bring this claim as administrator before she has taken out letters of administration, I find considering the application for injunction on its merits will serve no purpose. Consequently, the application is dismissed with costs to the respondents.
14. Orders accordingly.
Ruling dated, signed and delivered virtually at Iten this 13th day of November, 2025.
In the presence of;-
Ms. Odhiambo h/b for Mr. Nyachiro for the Applicant
N/A for the Respondent
Court Assistant: Christine