SHEILA CHEBET WANJEA VS CAREN ADWENYA AND RACHAEL BAHATI

1. The Defendants raised a Preliminary objection dated on 7th March 2025 against the suit on the following grounds;
1) That the Plaintiff/Applicants herein do not have capacity to institute this application together with the suit herein.
2) That the said application together with the entire suit are misconceived, bad in law and an abuse of the court process.
2. The Defendant filed submissions on the Preliminary Objection
Analysis & Disposition
3. A Preliminary Objection was defined by LAW  J.A in the case of Mukisa Biscuits Company LTD vs West End Distributors (1968) E.A 896  in the following terms:-
“So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleading, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”
4. Further, Ojwang J (as he then was) expressed himself in Oraro vs Mbaja 2005 1 K.L.R 141 as follows;
“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 basis that all facts pleaded by the opposite side are correct”
5. A Preliminary Objection must therefore must only raise matters of law and must not contain matters of fact that require to be proved through evidence or matters that are in controversy.
6. This suit was instituted by way of plaint dated 26th February 2025 seeking to have a permanent injunction barring the Defendants from trespassing on the property known as LR Nos. SUNA EAST/KAKRAO/1411 and SUNA EAST KARAO/36. The Plaintiffs’ claim to the suit property is premised on the allegation that the properties were bequeathed to her deceased husband in Nairobi HC Succession 2968 of 2002.
7. Section 79 of the Law of Succession Act provides as follows:
“The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.”

8. The use of the ‘device’ known as a Limited Grant of Letters of Administration Ad Litem is typically employed when the estate of a deceased individual must be represented in judicial proceedings and for preserving the estate of deceased persons. Such a Grant authorizes an individual to represent or defend the deceased's estate. In the present matter, it is undisputed that the owner of the property in question, Andrew Kisia Adwenya, is deceased. The Plaintiff’s claim is premised on her being a beneficiary of the estate of the deceased who was bequeathed the suit properties by way of a will.
9. An estate does not constitute a juristic person and cannot initiate or defend legal proceedings in its name. It is not a legal entity capable of independent existence within the framework of law. Consequently, when a cause of action arises against a deceased individual, the appropriate party to initiate or respond to legal actions on behalf of an estate is the legal representative of the deceased individual's estate, serving either as an executor under a will or as an administrator appointed under a grant of letters of administration pursuant to the Laws of Succession Act, Cap 160.
10. In the present case, no grant of representation has been submitted to demonstrate that a legal representative has been appointed and properly joined as a party to these proceedings. Consequently, the Plaintiff lacks the locus standi to institute the suit. Therefore, the suit is fundamentally defective.
11. The upshot of the foregoing is that I hereby allow the Preliminary Objection. The Plaintiff’s suit cannot be sustained and the Plaint dated 26/02/2025 is struck out.
12. The parties herein are family. Thus, for a harmonious relationship into the future, each party shall bear its own costs.
13. Orders accordingly.