Areri v Gwako & another
The bottom line
#A Kenyan administrator appointed only to preserve a deceased's estate cannot sue over it; you need a separate ad litem grant first.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant had the legal standing (locus standi) to institute the suit in the ELC relying on a limited grant of letters of administration ad colligenda bona
Key legal issues
#Whether a limited grant ad colligenda bona confers capacity to sue
It does not; its purpose is limited to collection and preservation of estate assets, and suits require a grant ad litem under paragraph 14 of the Fifth Schedule to the Law of Succession Act.
The court traced the statutory scheme: section 67 of the Law of Succession Act provides for limited grants, and paragraph 14 of the Fifth Schedule specifically governs grants ad litem for representing a deceased in pending or contemplated suits. Relying on Morjaria v Abdalla, it held that an administrator ad colligenda bona cannot stand in the deceased's shoes to institute an action. The appellant never obtained an ad litem grant, so the suit was incompetent.
Whether the appeal should be determined on other grounds (limitation, trust, adverse possession, elders' agreement)
No; once the suit was found incompetent for want of locus standi, consideration of the remaining issues was unnecessary and the court declined to address them.
The court noted the ELC had, after finding the suit void ab initio, gone on to decide limitation, trust, adverse possession and the validity of the sale. The Court of Appeal held this was 'wholly unnecessary' and refused to repeat the error, disposing of the appeal solely on the standing issue.
Legal principles established
#- A grant of letters of administration ad colligenda bona does not confer authority to institute a suit; the proper authority is a grant ad litem under paragraph 14 of the Fifth Schedule to the Law of Succession Act.
- A suit instituted by a party without locus standi is fatally defective, null and void ab initio, and a court cannot entertain it or grant reliefs.
Court orders
#- 1.Appeal dismissed with no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Kisii
- ELC No. 1246 of 2016 (Formerly Kisii HCC No. 134 of 2003)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Civil Appeal 22 of 2020)
Relief refused
#All reliefs sought in the original suit (declarations of trust, transfer of appropriated acres, injunctions, mesne profits)
The appellant lacked locus standi, rendering the suit fatally defective; the appeal was dismissed
Costs
No order as to costs (appeal dismissed with no order as to costs)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
we do not think that the appointment of a person “ad colligenda bona” can possibly include the right to stand in the shoes of the deceased for the purpose of instituting an action, or, indeed, an appeal
where a party has no locus standi a court of law will not entertain or hear him on his suit and cannot grant any reliefs in his favour as the suit would be fatally defective, null, void abnitio and incompetent.
In the ultimate, we nd no merit in the appeal which we accordingly dismiss with no order as to costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Areri v Gwako & another", Case Analysis (2025). Civil Appeal 22 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2300/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.