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ELCStruck OutNot stated in judgment (Kisumu Environment and Land Court suit; Plaintiffs' application dated 21st May, 2025)

Owiro & another v Randiki & another (Environment & Land Case E032 of 2025) [2025] KEELC 4256 (KLR)

Environment and Land Court
5 June 2025
EAE. Asati
1,242 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisumu (E. Asati, J) determined a preliminary objection dated 28th May 2025 raised by the Defendant in a suit concerning the common boundary of parcels KISUMU/KONYA/2723 and KISUMU/KONYA/3204. The Defendant raised two grounds: that the court lacked jurisdiction under section 18(2) of the Land Registration Act to entertain a boundary dispute before determination by the Land Registrar, and that the Plaintiffs, suing on behalf of the estate of the deceased registered owner, Alphonce Owiro Stephen Odero, lacked locus standi for want of a limited grant of letters of administration ad litem. The Plaintiffs, children of the deceased, argued that all siblings consented to the suit, which was brought urgently to preserve the estate. The court applied the Law of Succession Act, holding that section 82 vests the power to sue for an estate in the personal representative duly appointed by the court, and relied on Court of Appeal and High Court authorities holding that a spouse or child is not thereby a personal representative and that an action brought before a grant issues is incompetent at inception. Noting the Plaintiffs knew of the dispute from 3rd January 2025 but filed only on 9th May 2025, the court found ample time to obtain a grant and that non-compliance amounted to intermeddling under section 45. Applying Mukisa Biscuit, the objection was held to be a proper preliminary objection on pure points of law. The objection was upheld, the Plaintiffs were found to lack locus standi, and the suit and the application dated 21st May 2025 were struck out as a nullity, with costs to the Defendant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the dispute is a boundary dispute which the court lacks jurisdiction to entertain under section 18(2) of the Land Registration Act before determination by the Land Registrar
  2. 2.Whether the Plaintiffs lack locus standi to sue on behalf of the estate of the deceased without a grant of letters of administration ad litem
  3. 3.Whether the grounds raised constitute a proper preliminary objection

Key legal issues

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01

Locus standi to sue for a deceased person's estate

Holding

Plaintiffs, being children of the deceased without letters of administration, lack locus standi; the suit is a nullity

Reasoning

The Law of Succession Act vests the power to sue for an estate in the personal representative appointed by the court. It was conceded that no grant had been taken out. The plaintiffs knew of the dispute from 3rd January 2025 and had sufficient time before filing on 9th May 2025 to obtain a grant; urgency did not excuse non-compliance. Handling estate property otherwise amounts to intermeddling under section 45.

p. 3
02

Validity of the preliminary objection

Holding

The grounds raised are pure points of law flowing from the pleadings and thus a proper preliminary objection

Reasoning

Applying Mukisa Biscuit, the court found that the objections grounded on section 18 of the Land Registration Act and the Law of Succession Act arise on the pleadings without need to ascertain facts or exercise discretion, hence properly raised as a preliminary objection.

p. 3

Legal principles established

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  • The power to file suits on behalf of a deceased person's estate vests in the personal representative duly appointed through succession proceedings, not in any other person
  • An action brought as administrator before taking out letters of administration is incompetent at inception
  • Being a spouse or child of the deceased does not of itself make one a personal representative; appointment by the court is required
  • A preliminary objection must rest on pure points of law arising from the pleadings

Court orders

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  1. 1.The Preliminary Objection dated 28th May, 2025 is upheld
  2. 2.The Plaintiffs/Applicants lack locus standi to bring the suit
  3. 3.The suit as filed is incompetent and a nullity and is struck out together with the application dated 21st May, 2025
  4. 4.Costs to the Defendant/Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EA
majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court jurisdiction; objection founded on section 18(2) of the Land Registration Act and sections 81, 82 and 45 of the Law of Succession Act (Cap 160)

Relief refused

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Plaintiffs' application dated 21st May, 2025

Struck out with the suit as a consequence of the upholding of the preliminary objection on locus standi

p. 3

Costs

Costs to the Defendant/Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For the foregoing reasons, the court finds that the Preliminary Objection has merit and hereby upholds it. The Plaintifis/Applicants lack locus standi to bring the suit.
p. 3Locus standi of plaintiffs suing for a deceased's estate
It is hereby struck out together with the application dated 21st May, 2025. Costs to the Defendant/Respondent.
p. 3Final orders - striking out and costs
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 assumption that all facts pleaded by the other side are correct.
p. 3Definition of a preliminary objection

Issues in the judgment

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minor

Judgment text is unsigned/undated signature block only prints judge name; case number of the suit itself not stated in the ruling

minor

Whether the court determined the first ground (section 18(2) Land Registration Act) is unclear; the striking out rests solely on locus standi

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Owiro & another v Randiki & another (Environment & Land Case E032 of 2025) [2025] KEELC 4256 (KLR)", Case Analysis (2025). Not stated in judgment (Kisumu Environment and Land Court suit; Plaintiffs' application dated 21st May, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4256/eng@2025-06-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.