1. Through a plaint dated 19 th August 2025 filed before this Court as a Miscellaneous Application, prays for judgment against the defendants jointly and severally for;
a) A declaration that the plaintiff is the absolute, indefeasible and registered proprietor of L.R No. KANYADA/KOTIENO/KATUMA “A” /879 as contained under Adjudication Sketch Map of 1972 in Homa Bay County.
b) A declaration that the occupation of the suit property is fraudulent, unlawful, null and void.
c) A permanent injunction restraining the defendants by themselves, their agents, employees, servants from entering upon, advertising for sale, charging, dealing with, disposing off, leasing, and or in any interfering with KANYADA/KOTIENO/KATUMA “A” /879 as contained under Adjudication Sketch Map of 1972 in Homa Bay County in any manner whatsoever.
d) An order compelling the Chief Land Registrar to revoke any other titles including conversions pertaining and touching the parcel of land KANYADA/KOTIENO/KATUMA “A” /879 as contained under Adjudication Sketch Map of 1972 in Homa Bay County.
e) General damages for trespass, fraud, and unlawful interference with the Plaintiff’s proprietary rights.
f) Costs of this and interest thereon at court rates.
2. The 1st Respondent raised a Preliminary Objection dated 3 rd January 2026 based on the following grounds;
i. The plaintiff herein is ill conceived, defective incurable, bad in Law and in competent as the registered owner of the suit property is Olwero Ochoki (deceased) therefore the plaintiff has no Locus Standi or capacity to institute his suit.
ii. As per the Title deed and the official search, the registered owner of the suit property land parcel no. KANYADA/KOTIENO/KATUMA “A” /879 is Olwero Ochoki therefore Rusbela Okumu Olwero has no capacity to institute this suit.
iii. The plaintiff is yet to obtain limited grant of letters of administration ad litem to give her capacity to institute the present proceedings on behalf of the estate of Olwero Ochoki (deceased) contrary to section 82 of the law of Succession Act.
iv. Therefore, the Application and the entire suit is inherently and constitutes an abuse of the legal process, warranting its dismissal with cost at the outset.
3. The preliminary objection was canvassed by way of written submissions which this court has taken into consideration.
4. The plaintiff filed written submissions dated 10th June 2026 where Counsel for the plaintiff admitted that the Olwero Ochoki the registered owner is deceased. That the plaintiff in her capacity brought the instant suit as a precautionary measure against the illegal occupation of the suit property by the 1st Respondent, with the aid of the 2nd Respondent, being in custodian of all necessary documentation. That the 1st Respondent in its objection, only raises issues related to locus of the Applicant. However, they have been unable to provide before this Honourable court any documentation proving the legal ownership of the suit property. That the applicant is in the process of being appointed as the administrator of the estate of Olwero Ochoki in MMCSUCC/E184/2026 and that failure to preserve the suit property would be prejudicial.
5. The plaintiff prays that this Court dismisses the 1 st Respondent’s preliminary objection and issue temporary injunction against the 1st Respondent, its agents or servants from conducting any construction work or dealing with the suit property in entire suit property.
6. On the other hand, the 1st respondent filed submissions supporting the preliminary objection as it was filed.
Determination .
7. Having considered the pleadings, the Preliminary Objection and the rival submissions, the issue falling for determination is whether the Plaintiff has the requisite locus standi to institute the present suit on behalf of the estate of the deceased registered proprietor.
8. The law governing Preliminary Objections is now settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 , the Court stated that a Preliminary Objection consists of a pure point of law which, if argued successfully, is capable of disposing of the suit without the necessity of ascertaining contested facts.
9. The objection before this Court is founded on the Plaintiff's legal capacity to institute these proceedings. Capacity or locus standi is purely a question of law and is therefore a proper subject of a preliminary objection.
10. From the Plaint and the Plaintiff's own submissions, there is no dispute that the registered proprietor of Land Parcel No. KANYADA/KOTIENO/KATUMA "A"/879 is Olwero Ochoki (deceased) . The Plaintiff equally admits that she has not yet obtained any Grant of Representation and that succession proceedings are still pending before the Magistrate's Court. It is therefore common ground that at the time this suit was instituted, the Plaintiff had not been appointed as the legal representative of the estate of the deceased. The question is whether such a person can institute proceedings seeking declaratory, injunctive and proprietary reliefs on behalf of the estate of a deceased person.
11. It is not in dispute that the plaintiffs have not obtained grant of letters of administration and therefore lack the legal right to sue on behalf of the deceased’s estate. Since the plaintiffs did not obtain grant of letters of administration or a grant limited to the filing of the suit, I do find that the suit herein cannot be sustained.
12. In the case of Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased) [2016] eKLR the court observed as follows:
“….Further the issue of locus standi is so cardinal in a civil matter since it runs through to the heart of the case. Simply put, a party without locus standi in a civil suit lacks the right to institute and/or maintain that suit even where a valid cause of action subsists. Locus standi relates mainly to the legal capacity of a party. The impact of a party in a suit without locus standi can be equated to that of a court acting without jurisdiction since it all amounts to null and void proceedings. It is also worth-noting that the issue of locus standi becomes such a serious one where the matter involves the estate of a deceased person since in most cases the estate involves several other beneficiaries or interested parties.”
13. Section 79 of the Law of Succession Act vests the property of a deceased person in the personal representative upon the grant of representation. Further, Section 82(a) thereof empowers personal representatives to enforce by suit all causes of action that survive the deceased. The combined effect of these provisions is that only a duly appointed personal representative has the legal authority to institute proceedings on behalf of a deceased person's estate.
14. The Court of Appeal has consistently held that a suit instituted by a person who has not obtained letters of administration is incompetent. The grant of representation is not a procedural technicality capable of being cured under Article 159 of the Constitution but is the very foundation of the right to sue on behalf of a deceased person's estate. In Trouistik Union International & Another v Jane Mbeyu & Another [1993] eKLR the Court of Appeal stated:
“The Act came into force on the July 1, 1981. The person whose death and succession gave rise to this suit, namely, John Katembe, died on the April 10, 1984. 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”. It is common ground that the deceased in this case died intestate. Therefore, the only person who can answer the description of a personal representative, is the administrator of the estate of the deceased. The next enquiry must answer the question, who is an administrator within the true meaning and intendment of the Act? section 3 says “administrator means a person to whom a grant of letters of administration has been made under this act”. The Plaintiff urges this Court to overlook the issue of capacity because succession proceedings are ongoing and because the suit was filed merely to preserve the estate.
15. While the Court appreciates the Plaintiff's concern regarding the preservation of the suit property, jurisdiction cannot be founded on sympathy or equitable considerations. A litigant must first establish the legal capacity to approach the Court. A party without locus standi cannot invoke the jurisdiction of the Court, however meritorious the intended claim may appear. It is equally notable that the Plaint seeks substantive declarations of ownership, cancellation of titles, damages for trespass and fraud, and permanent injunctive relief. These are substantive proprietary claims that can only be prosecuted by a person legally authorized to represent the estate.
16. The Plaintiff further invited the Court to grant temporary injunctive orders notwithstanding the admitted absence of capacity. Once the Court finds that the Plaintiff lacks locus standi, it cannot proceed to entertain any interlocutory or substantive application founded on an incompetent suit. To do so would amount to exercising jurisdiction where none exists. The Court therefore finds that the absence of a Grant of Representation at the time of filing this suit is fatal to the proceedings.
Whether the proceedings were properly instituted.
17. Before concluding this matter, the Court has observed that although the Plaintiff filed a Plaint dated 19th August 2025 seeking substantive reliefs, the matter was nevertheless registered as a Miscellaneous Application. The reliefs being sought in the Plaint include declarations of ownership, permanent injunctive orders, cancellation of titles and general damages. Such reliefs can only be determined in a substantive suit commenced in the manner prescribed under the Civil Procedure Act and the Civil Procedure Rules. A miscellaneous application is generally intended for matters where no substantive suit exists or where the law expressly permits proceedings to be commenced by miscellaneous application. It is not the proper procedure for instituting a claim of the nature before this Court.
18. From the record, however, it is evident that the Plaintiff prepared and lodged a Plaint. The erroneous registration of the matter as a Miscellaneous Application appears to be an administrative or procedural error at the point of filing. Had that been the only issue before the Court, it would have been a curable irregularity capable of rectification through appropriate directions by the Court or amendment of the court record, since courts are enjoined to administer justice without undue regard to procedural technicalities pursuant to Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act.
19. The present matter, however, suffers from a more fundamental defect. As already found, the Plaintiff lacked the requisite legal capacity to institute proceedings on behalf of the estate of the deceased proprietor, no grant of representation having been obtained at the time the suit was filed. The issue of locus standi is not a procedural technicality capable of cure under Article 159 of the Constitution but goes to the very competence of the proceedings.
20. Therefore, the Preliminary Objection dated 3rd January 2026 is upheld.
21. Costs to the Respondents and Interested Party.
22. File closed.
23. It is so ordered.
Ruling dated and delivered virtually at Homa Bay this 21 st day of July 2026.
In the Presence of;
1. Odhiambo for the 1 st defendant – Present
2. Brian Odhiambo for the plaintiff.
3. Aloice Otieno for Interested Party-Present
4. No appearance for the Plaintiff – Absent
5. Court Assistant, Awino.
JUSTICE J.W WANYONYI – JUDGE
21/7/2026
1 | Page HOMA BAY ELC MISC. NO. E045 OF 2025 – RULING
a) A declaration that the plaintiff is the absolute, indefeasible and registered proprietor of L.R No. KANYADA/KOTIENO/KATUMA “A” /879 as contained under Adjudication Sketch Map of 1972 in Homa Bay County.
b) A declaration that the occupation of the suit property is fraudulent, unlawful, null and void.
c) A permanent injunction restraining the defendants by themselves, their agents, employees, servants from entering upon, advertising for sale, charging, dealing with, disposing off, leasing, and or in any interfering with KANYADA/KOTIENO/KATUMA “A” /879 as contained under Adjudication Sketch Map of 1972 in Homa Bay County in any manner whatsoever.
d) An order compelling the Chief Land Registrar to revoke any other titles including conversions pertaining and touching the parcel of land KANYADA/KOTIENO/KATUMA “A” /879 as contained under Adjudication Sketch Map of 1972 in Homa Bay County.
e) General damages for trespass, fraud, and unlawful interference with the Plaintiff’s proprietary rights.
f) Costs of this and interest thereon at court rates.
2. The 1st Respondent raised a Preliminary Objection dated 3 rd January 2026 based on the following grounds;
i. The plaintiff herein is ill conceived, defective incurable, bad in Law and in competent as the registered owner of the suit property is Olwero Ochoki (deceased) therefore the plaintiff has no Locus Standi or capacity to institute his suit.
ii. As per the Title deed and the official search, the registered owner of the suit property land parcel no. KANYADA/KOTIENO/KATUMA “A” /879 is Olwero Ochoki therefore Rusbela Okumu Olwero has no capacity to institute this suit.
iii. The plaintiff is yet to obtain limited grant of letters of administration ad litem to give her capacity to institute the present proceedings on behalf of the estate of Olwero Ochoki (deceased) contrary to section 82 of the law of Succession Act.
iv. Therefore, the Application and the entire suit is inherently and constitutes an abuse of the legal process, warranting its dismissal with cost at the outset.
3. The preliminary objection was canvassed by way of written submissions which this court has taken into consideration.
4. The plaintiff filed written submissions dated 10th June 2026 where Counsel for the plaintiff admitted that the Olwero Ochoki the registered owner is deceased. That the plaintiff in her capacity brought the instant suit as a precautionary measure against the illegal occupation of the suit property by the 1st Respondent, with the aid of the 2nd Respondent, being in custodian of all necessary documentation. That the 1st Respondent in its objection, only raises issues related to locus of the Applicant. However, they have been unable to provide before this Honourable court any documentation proving the legal ownership of the suit property. That the applicant is in the process of being appointed as the administrator of the estate of Olwero Ochoki in MMCSUCC/E184/2026 and that failure to preserve the suit property would be prejudicial.
5. The plaintiff prays that this Court dismisses the 1 st Respondent’s preliminary objection and issue temporary injunction against the 1st Respondent, its agents or servants from conducting any construction work or dealing with the suit property in entire suit property.
6. On the other hand, the 1st respondent filed submissions supporting the preliminary objection as it was filed.
Determination .
7. Having considered the pleadings, the Preliminary Objection and the rival submissions, the issue falling for determination is whether the Plaintiff has the requisite locus standi to institute the present suit on behalf of the estate of the deceased registered proprietor.
8. The law governing Preliminary Objections is now settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 , the Court stated that a Preliminary Objection consists of a pure point of law which, if argued successfully, is capable of disposing of the suit without the necessity of ascertaining contested facts.
9. The objection before this Court is founded on the Plaintiff's legal capacity to institute these proceedings. Capacity or locus standi is purely a question of law and is therefore a proper subject of a preliminary objection.
10. From the Plaint and the Plaintiff's own submissions, there is no dispute that the registered proprietor of Land Parcel No. KANYADA/KOTIENO/KATUMA "A"/879 is Olwero Ochoki (deceased) . The Plaintiff equally admits that she has not yet obtained any Grant of Representation and that succession proceedings are still pending before the Magistrate's Court. It is therefore common ground that at the time this suit was instituted, the Plaintiff had not been appointed as the legal representative of the estate of the deceased. The question is whether such a person can institute proceedings seeking declaratory, injunctive and proprietary reliefs on behalf of the estate of a deceased person.
11. It is not in dispute that the plaintiffs have not obtained grant of letters of administration and therefore lack the legal right to sue on behalf of the deceased’s estate. Since the plaintiffs did not obtain grant of letters of administration or a grant limited to the filing of the suit, I do find that the suit herein cannot be sustained.
12. In the case of Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased) [2016] eKLR the court observed as follows:
“….Further the issue of locus standi is so cardinal in a civil matter since it runs through to the heart of the case. Simply put, a party without locus standi in a civil suit lacks the right to institute and/or maintain that suit even where a valid cause of action subsists. Locus standi relates mainly to the legal capacity of a party. The impact of a party in a suit without locus standi can be equated to that of a court acting without jurisdiction since it all amounts to null and void proceedings. It is also worth-noting that the issue of locus standi becomes such a serious one where the matter involves the estate of a deceased person since in most cases the estate involves several other beneficiaries or interested parties.”
13. Section 79 of the Law of Succession Act vests the property of a deceased person in the personal representative upon the grant of representation. Further, Section 82(a) thereof empowers personal representatives to enforce by suit all causes of action that survive the deceased. The combined effect of these provisions is that only a duly appointed personal representative has the legal authority to institute proceedings on behalf of a deceased person's estate.
14. The Court of Appeal has consistently held that a suit instituted by a person who has not obtained letters of administration is incompetent. The grant of representation is not a procedural technicality capable of being cured under Article 159 of the Constitution but is the very foundation of the right to sue on behalf of a deceased person's estate. In Trouistik Union International & Another v Jane Mbeyu & Another [1993] eKLR the Court of Appeal stated:
“The Act came into force on the July 1, 1981. The person whose death and succession gave rise to this suit, namely, John Katembe, died on the April 10, 1984. 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”. It is common ground that the deceased in this case died intestate. Therefore, the only person who can answer the description of a personal representative, is the administrator of the estate of the deceased. The next enquiry must answer the question, who is an administrator within the true meaning and intendment of the Act? section 3 says “administrator means a person to whom a grant of letters of administration has been made under this act”. The Plaintiff urges this Court to overlook the issue of capacity because succession proceedings are ongoing and because the suit was filed merely to preserve the estate.
15. While the Court appreciates the Plaintiff's concern regarding the preservation of the suit property, jurisdiction cannot be founded on sympathy or equitable considerations. A litigant must first establish the legal capacity to approach the Court. A party without locus standi cannot invoke the jurisdiction of the Court, however meritorious the intended claim may appear. It is equally notable that the Plaint seeks substantive declarations of ownership, cancellation of titles, damages for trespass and fraud, and permanent injunctive relief. These are substantive proprietary claims that can only be prosecuted by a person legally authorized to represent the estate.
16. The Plaintiff further invited the Court to grant temporary injunctive orders notwithstanding the admitted absence of capacity. Once the Court finds that the Plaintiff lacks locus standi, it cannot proceed to entertain any interlocutory or substantive application founded on an incompetent suit. To do so would amount to exercising jurisdiction where none exists. The Court therefore finds that the absence of a Grant of Representation at the time of filing this suit is fatal to the proceedings.
Whether the proceedings were properly instituted.
17. Before concluding this matter, the Court has observed that although the Plaintiff filed a Plaint dated 19th August 2025 seeking substantive reliefs, the matter was nevertheless registered as a Miscellaneous Application. The reliefs being sought in the Plaint include declarations of ownership, permanent injunctive orders, cancellation of titles and general damages. Such reliefs can only be determined in a substantive suit commenced in the manner prescribed under the Civil Procedure Act and the Civil Procedure Rules. A miscellaneous application is generally intended for matters where no substantive suit exists or where the law expressly permits proceedings to be commenced by miscellaneous application. It is not the proper procedure for instituting a claim of the nature before this Court.
18. From the record, however, it is evident that the Plaintiff prepared and lodged a Plaint. The erroneous registration of the matter as a Miscellaneous Application appears to be an administrative or procedural error at the point of filing. Had that been the only issue before the Court, it would have been a curable irregularity capable of rectification through appropriate directions by the Court or amendment of the court record, since courts are enjoined to administer justice without undue regard to procedural technicalities pursuant to Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act.
19. The present matter, however, suffers from a more fundamental defect. As already found, the Plaintiff lacked the requisite legal capacity to institute proceedings on behalf of the estate of the deceased proprietor, no grant of representation having been obtained at the time the suit was filed. The issue of locus standi is not a procedural technicality capable of cure under Article 159 of the Constitution but goes to the very competence of the proceedings.
20. Therefore, the Preliminary Objection dated 3rd January 2026 is upheld.
21. Costs to the Respondents and Interested Party.
22. File closed.
23. It is so ordered.
Ruling dated and delivered virtually at Homa Bay this 21 st day of July 2026.
In the Presence of;
1. Odhiambo for the 1 st defendant – Present
2. Brian Odhiambo for the plaintiff.
3. Aloice Otieno for Interested Party-Present
4. No appearance for the Plaintiff – Absent
5. Court Assistant, Awino.
JUSTICE J.W WANYONYI – JUDGE
21/7/2026
1 | Page HOMA BAY ELC MISC. NO. E045 OF 2025 – RULING