8.I have given due consideration to the preliminary objection herein raised as well as the Plaintiff’s submission in response, I find that the 1st Defendant has raised weighty issues which go to attack the jurisdiction of the Court.
9.Applying the principles in Mukisa Biscuit Manufacturing Co. Ltd. vs West End Distributors Ltd. (1969) EA 696 to wit that an objection must consist of a point of law which if argued as a preliminary objection is capable of disposing of the suit, the 1st Defendant herein has argued that the Plaintiff cannot bring a suit against them because the same is time barred by virtue of the provisions of Section 7 of the Limitation of Actions Act and secondly that the Plaintiff has no locus standi to bring suit against them.
10.I therefore find the matters that arise for determination as being:i.Whether the Plaintiff’s claim for the recovery of LR No. Kericho/Kipchimchim/1068 is time barred.ii.Whether the Plaintiff has the locus standi to file suit on behalf of the estate of Tabelga W/O Kirui (now deceased).iii.Whether the said Preliminary Objection has merit and should be upheld.
11.Before I analyze my finding, I wish to point out that pursuant to the service of the Notice of Preliminary Objection upon the Plaintiff, he filed his grounds of opposition to the preliminary objection, a supporting affidavit as well as his submissions all dated the May 6, 2022 challenging the Preliminary Objection.
12.On the first issue raised in the objection to the effect that the Plaintiff’s suit was time barred, I have considered the Plaintiff’s submissions as well as his pleading’s herein filed in the Plaint dated September 11, 2020 ,and more so paragraphs 5 and 6 wherein the Plaintiff stated as follows:
13.The Plaintiff’s pleading was to the effect that pursuant to the county council of Kipsigis encroaching on to the suit parcel of land, it had proceeded to allocate plot numbers 22270, 22271, 22272, 1067, 34a, 34b, 1269, 1270, 1305 and 665 to some strangers. He therefore sought for orders that there be cancellation of the registration of these parcels of land so that the same could be reverted back to him.
14.From the Plaintiffs pleadings, it is not in contestation that the cause of action had occurred in the 1960’s when the County council of Kipsigis allegedly encroached on the suit land and therefore he was seeking to recover the same.
15.The 1st defendants’ opposition is that the cause of action having been committed more than 12 years before the filing of the suit, the suit was time barred.
16.A cause of action, is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a Plaintiff brings suit.
18.Section 7 of the Limitation of Actions Act, provides that an action to recover land may not be brought after the end of twelve years from the date on which the right accrued. This means that the 1st Defendant having allegedly encroached onto the Plaintiff’s land LR No. Kericho/Kipchimchim/1068 in the 1960’s, the Plaintiff could sue to recover it from the 1st Defendant, but only if he did so within twelve years after the said encroachment.
20.The Plaintiff needed to commence his claim within the time prescribed under Section 7 of the Limitation of Actions Act. It follows therefore that by the time the Plaintiff filed this suit, the claim was already statute barred.
21.In the case of Bosire Ongero vs Royal Media Services  eKLR the court had held that the issue of limitation goes to the jurisdiction of the court to entertain claims and therefore if a matter is statute barred the court has no jurisdiction to entertain the same.
23.On the second issue raised in the preliminary objection, the 1st Defendant’s concern was that the Plaintiff had brought suit on his behalf when the subject property namely LR No. Kericho/Kipchimchim/1068 was registered to a deceased person to whom no letters of Administration had been procured.
24.Again I have gained sight of the Plaintiff’s pleadings at paragraph 2 of the Plaint wherein he confirmed that the suit was filed by him in his capacity as ‘’one of the administrators of the estate of Tabelga W/O Kirui (now deceased)’’. I have gained sight of the Plaintiff’s grounds of opposition to this limb of the preliminary objection wherein he had deponed to have been a proper party to the suit having had taken out letters of Administration ad Litem for the Estate of Kipyegon Arap Kirui. I have further gained sight of the documents attached to the Plaintiff’s plaint and in particular the green card to land parcel No. LR No. Kericho/Kipchimchim/1068 and find that the same had been registered to Tabelga W/O Kirui on the April 1, 1971, that it had then been transferred through transmission to Sammy Kiprono Yegon, Reuben Kipkemoi Yegon, and the Plaintiff Wesley Malakwen Yegon on the July 23, 1984 wherein it had been subsequently closed upon its subdivision into parcels of land No. 1777, 1778, 1779, 1780 and 1781 on the July 5, 1984.
25.I have also gained sight of the letters of Administration dated the December 15, 2020 issued to the Plaintiff in the Chief Magistrates Court Kericho in Succession Cause No. 135 of 2020 in the Matter of the Estate of Kipyegon Arap Kirui as well as the letters of Administration ad litem issued on the December 11, 2020 by the Kericho High Court Ad litem Cause No 44 of 2020 in the Matter of the Estate of Kipyegon Arap Kirui.
26.Of importance to note is that the said letters of Administration ad litem was limited to:
27.From the above, it is my findings that the Land parcel LR No. Kericho/Kipchimchim/1068 having been registered to Tabelga W/O Kirui on the April 1, 1971 as a first registration, the Plaintiff ought to have sought letters of Administration ad litem in respect to her estate, which unfortunately ceased to exist the moment it was subdivided and transferred through transmission. Secondly the letters of Administration ad litem so relied upon by the Plaintiff was specific and clear in what respect it was to be applied and clearly, it was not to be applied in respect to the matter in question. Third it is clear that both the letters of Administration issued in Kericho Succession Cause No. 135 of 2020 and Kericho High Court Ad litem Cause No 44 of 2020 were in relation to the Estate of Kipyegon Arap Kirui who was not the proprietor of the suit land and further the same had been issued after the commencement of the suit. The summation of my finding therefore is that the Plaintiff herein lacked the locus standi to file the current proceedings on behalf of the estate of Tabelga W/O Kirui (now deceased).
29.Locus standi is a primary point of law almost similar to that of jurisdiction and is therefore within the first principle in the Mukisa Biscuit Manufacturing Co. Ltd. vs West End Distributors Ltd. (1969) EA 696 case. It is a point of law capable of disposing a suit.
30.Since the court has found that the Plaintiff lacked the capacity to sue on behalf of the estate of Tabelga W/O Kirui (now deceased), the pleadings herein filed by him render the suit incompetent.
32.The court therefore finds that since the issue of locus standi is a point of law which goes to the root of any suit whereby its absence renders a suit fatally defective, lack of it cannot therefore be termed as a mere technically and therefore the provisions of Article 159 (2) (d) of the Constitution cannot in such circumstance salvage the suit.
33.In summation thereof I find that the Plaintiff’s suit was a nonstarter from the word go, the 1st Defendant’s Preliminary Objection has merit on the two points herein above captioned and the same succeeds with the result that the Plaintiff’s suit is herein struck out with costs to the 1st Defendant.