REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT ITEN
ELCOS EOO6 OF 2025
PAULINA JEBIWOTT KURGAT ..……………………....….…APPLICANT
VERSUS
PERIS RUTO………………………..………………...……1ST RESPONDENT
NICODEMUS MAIYO………………………………..……2ND RESPONDENT
HILLARY KIPROP…………………………………………3RD RESPONDENT
RULING
PAULINA JEBIWOT KURGAT (the Applicant herein) moved to this court vide an originating summons dated 25th May 2025. She sought her substantive remedy against PERIS RUTO, NICODEMUS MAIYO and HILLARY KIPROP (the 1st, 2nd and 3rd Respondents respectively) the main order that she had acquired by way of adverse possession title to the land parcel No. E/MARAKWET/KESSUP “B” 1086 having cultivated it for a period of over 35 years. The finer details of the originating summons are not relevant for purpose of this ruling.
The Respondents filed a replying affidavit dated 24th June 2025 and deponed by the 3rd respondent opposing the Applicant’s claim. Again I need not go into the details of the response. Suffice it to state that vide a Chamber summons application also dated 25th May 2025, the Applicant sought an order of interim injunction to restrain the Respondents by themselves through the heirs of the late RAPHAEL KIMAIYO CHEMWENO, their agents, servants or any other persons acting through them from entering, alienating, transferring, interfering or evicting the Applicant and her family from the said land parcel No. E/MARAKWET/KESSUP “B”/1086 (the suit land).
That application fell for determination before WAITHAKA J. who vide a ruling delivered on 13th November 2025 made the specific finding that the Applicant had not obtained Letters of Administration in respect to the estate of her late husband JOHN KIPROTICH KIBII and therefore had no capacity to file this suit. The Judge therefore dismissed the application for injunction on that basis and also found that the Respondents who had also not obtained Letters of Administration in respect to their husband (in the case of the 1st Respondent) and father (in case of the 2nd and 3rd Respondents) had no capacity to be sued.
Given that ruling, when the matter came up for direction as to the hearing of this originating summons, MR. MOMANYI Counsel for the Respondents informed this court that since the Applicant had been declared to have no capacity to act in respect of the estate of her late husband, she could not file this suit and neither could the Respondents be sued as they too were not the Legal Administrators to the estate of RAPAHAEL KIMAIYO CHEMWENO the registered proprietor of the suit land.
Having heard that oral submission by MR. MOMANYI, I retreated to deliver this ruling.
With respect to the Applicant, she has approached this court in her own capacity and not as a party suing on behalf of the estate of her late husband. That is clear from paragraphs (a) and (b) of the grounds upon which the originating summons is founded and also paragraphs (2) and (3) of her supporting affidavit. She has approached the court in her own capacity as a person who has openly and peacefully occupied and utilized the suit land. However, I did inform both MR. MOMANY, Counsel for the Respondents and MS. ODHIAMBO Counsel for the Applicant that this court cannot interfere with the findings of WAITHAKA J. with respect to the capacity of the Applicant.
As regards the capacity of the Respondents, they have been sued as the representatives of the estate of RAPHAEL KIMAIYO CHEMWENO the registered proprietor of the suit land. There is no evidence produced to show that they are the legal representatives of that estate. They therefore have no capacity to be sued in respect of that estate. The suit against them is therefore a non-starter in the absence of any Letters of Administration issued jointly to them or any of them in respect of that estate.
The orders which I therefore issue in respect to the directions which MR. MOMANYI had sought from me are therefore as follows:-
1. This suit is struck out.
2. It can only be re-instituted when:
(a) The ruling delivered on 13th November 2025 with respect to Applicant’s capacity is set aside by a superior court.
(b) The Respondents or any of them is appointed as a legal Administrator to the estate of RAPHAEL KIMAIYO CHEMWENO.
3. As the Respondents had filed a response to the originating summons, they shall have costs agreed or taxed.
BOAZ N. OLAO
JUDGE
11TH FEBRUARY 2026
Ruling dated, signed and delivered by way of electronic mail on this 11th day of February 2026.
BOAZ N. OLAO
JUDGE
11TH FEBRUARY 2026
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