1. The objection raised by the 7th, 21st and 29th defendants herein is to the effect that:
a. The plaintiffs not being the legal representatives of the estates of their deceased fathers who are allegedly beneficiaries to the suit properties, the suit and application herein is defective;
b. The plaintiffs are total strangers as they lack locus standi to institute the suit as no grant of letters of administration has been granted to them.
2. The objection was ordered disposed of by way of written submissions. the interested party filed submissions dated 7/10/24. The plaintiff filed submissions dated 3/10/24 and the 1st, 7th 9th 19th 21st 23rd 24th and 29th defendants filed submissions dated 4/4/2024.
3. In the objectors’ submissions it is stated that as per the plaintiffs’ pleadings, the suit land is said to belong to their late fathers. It is urged that the plaintiffs have not proved they are from the lineage of Mkamba Mwango or that their fathers are the sons of Mkamba Mwango, or that the plaintiffs themselves are related to the sons of the said Mkamba Mwango; that the plaintiffs therefore appear to be fighting for their alleged deceased fathers’ shares which accrued from their alleged grandfather. In that case, it is argued, the plaintiffs have brought the suit not in their own capacity but as beneficiaries of the estates of deceased persons. They therefore lack capacity to lodge the present claim. For their arguments, the objectors rely on the case of Trouistick International & Another Vs Jane Mbeyu & Another Civil Appeal No 145 Of 1990.
4. The interested parties added to the above argument stating that locus standi is a pure point of law as per the locus classicus Mukisa Biscuits case and that the plaintiffs lack locus standi. They cited Joseph Muriuki Kithinji V Peterson Ireri Mwaniki & 3 Others 2021 eKLR and Christopher Mutiembu Machimbo & 3 Others Vs County Surveyor Trans Nzoia & 4 Others 2022 eKLR and Alexander Mutunga Wathome Vs Peter Lavu Tumbo & Another 2015 eKLR and they urge that the plaintiffs have failed to satisfy Section 82 of the Law of Succession Act.
5. The plaintiffs’ response is contained in their submissions dated 3/10/2024. Citing the renowned Mukisa case and the Independent Electoral & Boundaries Commission Vs Jane Chepengerer & 2 Others 2015 eKLR, and David KAROBIA Kiiru V Charles Nderitu Gitoi & Another 2018 eKLR and Oraro Vs Mbajah 2005 eKLR and esther nyambura Waweru v Andrew waiganjo muiruri 2017 Eklr. They assert that the grounds contained in the preliminary objection are factual in nature and can not afford to be the basis of a preliminary objection. They urge that the first and second limb of the preliminary objection require evidence to support them and therefore the objection should fail.
6. The issues arising for determination are as follows:
a. In what capacity are the plaintiffs suing?
b. Is the preliminary objection merited?
c. Who should bear the costs of the objection?
7. This court notes the very well drafted and succinct submissions of the objectors and the case law cited. In particular, is the case law warning against the raising of purported preliminary objections while evidence is needed to support such objections, or when it is necessary to look outside of the pleadings for material in support of the preliminary objection.
8. I agree with the objectors and interested parties that that the very lack of a grant of letters of administration disentitles one from acting for the estate of a deceased person as is seen in the numerous cases cited by the objectors and the interested parties herein above. That informs the basis of the inquiry as to in what capacity the plaintiffs bring the suit.
9. The title to the plaint leaves no doubt that the plaintiffs are suing in their own personal capacity and for themselves. Also, a perusal of the descriptive paragraphs of the plaint can not answer the first question. This court has perused the plaint all the way to paragraphs 34 and 35 where the plaintiffs stated as follows:
“34. The plaintiffs aver that they are beneficial owners of the parcels of land numbers Ganze Mwahera D / 34……..”
“35. That the above parcels were as a result of the subdivision of Ganze Mwahera D legally owned by Mkamba Mwango (deceased) the 1st, 2nd and 3rd plaintiffs as well as the 1st -26th defendants’ grandfather.”
10. In this case paragraphs 34 and 35 of the plaint leave no doubt that the plaintiffs are suing as co-owners of the land in question. There is no doubt in our jurisprudence and particularly in view of Article 50 of the Constitution of Kenya 2010 that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or if appropriate another independent and impartial tribunal or body. In their own case, they therefore have a right to approach the court and that militates against the success of the preliminary objection. It is therefore incorrect for the objectors to state that the plaintiffs appear to be fighting for their alleged deceased fathers’ shares which accrued from their alleged grandfather. There is an issue of co-ownership. Regarding how they co-own the land, how much of the land is theirs, and whether or not they have a grant in respect of any other co-owner of the land are matters of evidence and should arise at the substantive hearing. Those matters involve scrutiny of testaments and examination of witnesses and are not fit to be made the subject of a preliminary objection. They are not pure matters of law.
11. On that basis, I find that the preliminary objection herein fails and it is hereby dismissed with costs to the plaintiffs.
12. The defendants shall file their defences within 21 days from today and all the parties, if they have not done so already, shall file their trial bundles duly paginated and indexed, the plaintiff within 14 days of the expiry of the period granted for filing of defences, and the defendants within the 14 days of the expiry of the plaintiff’s compliance period herein before and the matter shall be mentioned on 12/2/2025 for directions as to hearing.
a. The plaintiffs not being the legal representatives of the estates of their deceased fathers who are allegedly beneficiaries to the suit properties, the suit and application herein is defective;
b. The plaintiffs are total strangers as they lack locus standi to institute the suit as no grant of letters of administration has been granted to them.
2. The objection was ordered disposed of by way of written submissions. the interested party filed submissions dated 7/10/24. The plaintiff filed submissions dated 3/10/24 and the 1st, 7th 9th 19th 21st 23rd 24th and 29th defendants filed submissions dated 4/4/2024.
3. In the objectors’ submissions it is stated that as per the plaintiffs’ pleadings, the suit land is said to belong to their late fathers. It is urged that the plaintiffs have not proved they are from the lineage of Mkamba Mwango or that their fathers are the sons of Mkamba Mwango, or that the plaintiffs themselves are related to the sons of the said Mkamba Mwango; that the plaintiffs therefore appear to be fighting for their alleged deceased fathers’ shares which accrued from their alleged grandfather. In that case, it is argued, the plaintiffs have brought the suit not in their own capacity but as beneficiaries of the estates of deceased persons. They therefore lack capacity to lodge the present claim. For their arguments, the objectors rely on the case of Trouistick International & Another Vs Jane Mbeyu & Another Civil Appeal No 145 Of 1990.
4. The interested parties added to the above argument stating that locus standi is a pure point of law as per the locus classicus Mukisa Biscuits case and that the plaintiffs lack locus standi. They cited Joseph Muriuki Kithinji V Peterson Ireri Mwaniki & 3 Others 2021 eKLR and Christopher Mutiembu Machimbo & 3 Others Vs County Surveyor Trans Nzoia & 4 Others 2022 eKLR and Alexander Mutunga Wathome Vs Peter Lavu Tumbo & Another 2015 eKLR and they urge that the plaintiffs have failed to satisfy Section 82 of the Law of Succession Act.
5. The plaintiffs’ response is contained in their submissions dated 3/10/2024. Citing the renowned Mukisa case and the Independent Electoral & Boundaries Commission Vs Jane Chepengerer & 2 Others 2015 eKLR, and David KAROBIA Kiiru V Charles Nderitu Gitoi & Another 2018 eKLR and Oraro Vs Mbajah 2005 eKLR and esther nyambura Waweru v Andrew waiganjo muiruri 2017 Eklr. They assert that the grounds contained in the preliminary objection are factual in nature and can not afford to be the basis of a preliminary objection. They urge that the first and second limb of the preliminary objection require evidence to support them and therefore the objection should fail.
6. The issues arising for determination are as follows:
a. In what capacity are the plaintiffs suing?
b. Is the preliminary objection merited?
c. Who should bear the costs of the objection?
7. This court notes the very well drafted and succinct submissions of the objectors and the case law cited. In particular, is the case law warning against the raising of purported preliminary objections while evidence is needed to support such objections, or when it is necessary to look outside of the pleadings for material in support of the preliminary objection.
8. I agree with the objectors and interested parties that that the very lack of a grant of letters of administration disentitles one from acting for the estate of a deceased person as is seen in the numerous cases cited by the objectors and the interested parties herein above. That informs the basis of the inquiry as to in what capacity the plaintiffs bring the suit.
9. The title to the plaint leaves no doubt that the plaintiffs are suing in their own personal capacity and for themselves. Also, a perusal of the descriptive paragraphs of the plaint can not answer the first question. This court has perused the plaint all the way to paragraphs 34 and 35 where the plaintiffs stated as follows:
“34. The plaintiffs aver that they are beneficial owners of the parcels of land numbers Ganze Mwahera D / 34……..”
“35. That the above parcels were as a result of the subdivision of Ganze Mwahera D legally owned by Mkamba Mwango (deceased) the 1st, 2nd and 3rd plaintiffs as well as the 1st -26th defendants’ grandfather.”
10. In this case paragraphs 34 and 35 of the plaint leave no doubt that the plaintiffs are suing as co-owners of the land in question. There is no doubt in our jurisprudence and particularly in view of Article 50 of the Constitution of Kenya 2010 that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or if appropriate another independent and impartial tribunal or body. In their own case, they therefore have a right to approach the court and that militates against the success of the preliminary objection. It is therefore incorrect for the objectors to state that the plaintiffs appear to be fighting for their alleged deceased fathers’ shares which accrued from their alleged grandfather. There is an issue of co-ownership. Regarding how they co-own the land, how much of the land is theirs, and whether or not they have a grant in respect of any other co-owner of the land are matters of evidence and should arise at the substantive hearing. Those matters involve scrutiny of testaments and examination of witnesses and are not fit to be made the subject of a preliminary objection. They are not pure matters of law.
11. On that basis, I find that the preliminary objection herein fails and it is hereby dismissed with costs to the plaintiffs.
12. The defendants shall file their defences within 21 days from today and all the parties, if they have not done so already, shall file their trial bundles duly paginated and indexed, the plaintiff within 14 days of the expiry of the period granted for filing of defences, and the defendants within the 14 days of the expiry of the plaintiff’s compliance period herein before and the matter shall be mentioned on 12/2/2025 for directions as to hearing.