1.The plaintiffs filed an originating summons before this court on September 27, 2021 seeking orders that this court finds the 2nd to 4th defendants (who are directors in the 1st defendant) trustees of the estate of Pastor Stephenson Maturi (deceased) and that the 1st defendant holds the titles LR Bassi/Masige/4727 and Central Kitutu/Daraja Mbilia/2960 in trust for the deceased’s beneficiaries. The plaintiffs sought to have the trust created determined and the matter be remitted to the probate and administration court.
2.The factual background to the suit was that the deceased was the registered owner of LR Bassi/Masige/4727 and Central Kitutu/Daraja Mbilia/2960 until 2010 and 2015 respectively, when the 2 parcels were transferred to the 1st defendant. The plaintiffs contend that they live in the United States of America and were not aware of the transfer of the suit properties and subsequent registration in favour of the 1st defendant. The 1st plaintiff in his affidavit in support of the suit contends that he built his house on the suit property in 1995 and later built a second house. The 1st plaintiff averred that in 2021 when he came back to the country he was surprised to find tenants in his house and experienced hostility from the 3rd defendant who was managing the house. The 1st plaintiff could not access his house and avers that the deceased only intended that the 1st defendant holds the house in trust for his beneficiaries.
3.The 1st and 3rd defendants entered appearance and filed a replying affidavit dated October 29, 2021. They also filed a preliminary objection on the following grounds:1.That the suit as filed can only be a suit by the 1st plaintiff since no written authority by the 2nd plaintiff has been filed as mandatorily required by order 1 rule 13 of the Civil Procedure Rules 2010.2.That the honourable court lacks jurisdiction to entertain any of the questions and/or orders sought in the originating summons as all those questions are by didn’t of the Constitution of Kenya 2010 and the relevant statutes reserved for the Environment and Land Court.3.That the plaintiff’s lack locus standi to institute and prosecute this suit to the extent that this suit seeks to be agitating rights and/or interests of Pastor Stephenson Maturi (deceased) since neither of the plaintiffs is an administrator of the said Pastor Stephenson Maturi (deceased).4.That it consequently follows from this that the issue raised in the plaintiffs’ originating summons do not disclose any cause of action against any of the defendants except the 1st defendant, thereby, making the suit against the 2nd – 4th defendants a clear abuse of the process of the court.
6.The respondents also argued that the suit by the 2nd plaintiff ought to be struck out for being filed without a written authority authorizing the 1st plaintiff to plead on behalf of his co-plaintiff as mandatorily required by order 1 rule 13 of the Civil Procedure Rules 2010.
7.The plaintiffs failed to file submissions on the preliminary objection.
Analysis and Determination
10.Article 162(2) (b) of the Constitution of Kenya provides that the Environment and Land Court shall hear and determine disputes relating to the environment, the use and occupation of land and title to land. Section 13(2) of the Environment and Land Court Act gives power to ELC to hear and determine disputes relating to inter alia, environment, land use planning, title, boundary disputes, land administration and management, choses in action or other instruments granting enforceable interests in land among other related issues.
11.The plaintiff’s main contention raised in the suit relates to the ownership and occupation of LR Bassi/Masige/4727 and LR Central Kitutu/Daraja Mbilia/2960. This is an issue reserved for the environment and land court by virtue of article 162(2) (b) of the Constitution of Kenya and section 13(2) of the Environment and Land Court Act. The plaintiffs concerns revolve around ownership of the suit properties and the appropriate forum for resolution of the issues raised will be the environment and land court. I am therefore constrained to agree with the argument of the defendants that indeed this court lacks jurisdiction to entertain the suit.
13.It is not in dispute that the plaintiffs have not obtained grant of letters of administration and therefore lack the legal right to sue on behalf of the deceased’s estate. Since the plaintiffs did not obtain grant of letters of administration or a grant limited to the filing of the suit, I do find that the suit herein cannot be sustained.
14.I also note that the originating summons was supported by an affidavit in support of the summons where the 1st plaintiff averred that he had the authority of the 2nd plaintiff to swear the affidavit. Order 1 rule 13 of the Civil Procedure Rules provides that:
15.Although the 1st plaintiff deposed that he had the authority of the 2nd plaintiff to make and swear the affidavit, he failed to annex the written and signed authority in his affidavit. The effect of a party’s failure to comply with order 1 rule 13 of the Civil Procedure Rules was discussed in Savala & another v Ndanyi (Environment and Land Case Civil Suit 248 of 2021)  KEELC 2536 (KLR) (5 July 2022) (Ruling) where the court stated: