Ongoma & 2 others (Suing as the Legal Representatives of the Estate of the Late Dr Apollo Ogambo (Deceased)) v Chesoni (Sued as the Administrator of the Estate of the Late Zacchaeus Chesoni Defendants/Zakayo Richard Chesoni (Deceased) & another (Environment & Land Case E006 of 2025) [2025] KEELC 4460 (KLR)
The bottom line
#The Environment and Land Court in Kitale dismissed a land injunction because the plaintiffs had no grant of representation and no documentary proof of their claimed purchase.
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 applicants established a prima facie case with a probability of success to warrant a temporary injunction
- 2.Whether the applicants would suffer irreparable loss not compensable in damages
- 3.Whether the balance of convenience tilts in favour of granting the injunction
- 4.Whether the 1st respondent has locus standi/capacity to be sued on behalf of the estate of the late Z.R. Chesoni
Key legal issues
#Locus standi of the 1st respondent to be sued on behalf of the estate of the late Z.R. Chesoni
The nexus between the cause of action and the 1st respondent is lacking; she is not shown to be a legal representative of the estate and the suit against her is struck out
The 1st respondent deposed that the legal representatives of her late father's estate are Mary Aherwa Chesoni and Nelson Chesoni, both deceased. The applicants filed no documents to contradict this. Under section 82 of the Law of Succession Act only a personal representative may enforce causes of action surviving a deceased, and suits concerning a deceased's estate without a grant are null and void for want of locus standi. Without a grant the 1st respondent cannot be sued for the estate.
Whether a prima facie case with probability of success was established for a temporary injunction
No prima facie case was established; the applicants did not attach the sale agreement or official search certificate, and did not demonstrate irreparable loss
The applicants alleged a 1985/1989 sale agreement between two deceased persons but never attached a copy of it, nor an official search certificate over the suit land, nor documents proving the 1st applicant's grant. The nature of developments allegedly threatened was not pleaded, and the photographs annexed did not comply with the law on electronic evidence. The burden rested on the plaintiffs to show a clear and unmistakable right, which was not discharged.
Legal principles established
#- Where a suit is filed relating to a deceased's estate without a grant of representation, the proceedings are null and void for want of locus standi
- The proper plaintiff in an action of trespass to land is the person with title or in possession at the time of the trespass
- The three Giella requirements for an interlocutory injunction must be satisfied sequentially as separate, distinct and logical hurdles
Court orders
#- 1.The suit against the 1st respondent is struck out with costs
- 2.The application for temporary injunction dated 21/2/2025 is dismissed for lack of merit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (temporary injunction application in an ELC suit)
Relief refused
#Temporary injunction restraining the defendants from fencing, alienating, leasing, selling, cultivating or interfering with 2 acres of L.R No. Trans Nzoia/South West of Kitale Town pending hearing and determination of the suit
Applicants did not establish a prima facie case, irreparable loss or balance of convenience; no copy of sale agreement, no official search, photographs did not comply with electronic evidence law
Costs of the application
Application dismissed; suit against 1st respondent struck out with costs against the plaintiffs
Costs
The suit against the 1st respondent is struck out with costs to the 1st respondent; the injunction application having lacked merit, costs go to the respondents.
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.
The nexus between the cause of action and the 1st respondent is lacking. I therefore find, no basis to sustain the suit against the 1st respondent in the capacity she has been sued. The suit against her is struck out with costs.
The upshot is I find the application for temporary injunction lacking merits.
Locus standi is cardinal in civil proceedings. Without it a party cannot institute or maintain a suit.
where a suit is filed relating to a deceased's estate without a grant of representation, the proceedings are null and void for want of locus standi
the proper plaintifi in an action of trespass to land is the person who has title to it or a person who be deemed to have been in possession at the time of the trespass
Issues in the judgment
#The supporting affidavit is dated 21/1/2025 in support of an application dated 21/2/2025 - the affidavit predates the application it supports
The judgment alternates between a sale agreement said to be made in 1985 and one made on 14/6/1989
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ongoma & 2 others (Suing as the Legal Representatives of the Estate of the Late Dr Apollo Ogambo (Deceased)) v Chesoni (Sued as the Administrator of the Estate of the Late Zacchaeus Chesoni Defendants/Zakayo Richard Chesoni (Deceased) & another (Environment & Land Case E006 of 2025) [2025] KEELC 4460 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4460/eng@2025-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.