REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATES COURT OF KENYA AT NAKURU
CM ELC NO. E150 OF 2024
MENENGAI HILL FARMERS & MARKETING
COOPERATIVE SOCIETY LTD…………………………………...…………...PLAINTIFF
-VERSUS-
DAVID NGANGA NJUGUNA
(Sued as legal representative of PETER NJUGUNA NGUGI............................DEFENDANT
NOTICE OF PRELIMINARY OBJECTION
TAKE NOTICE that the Defendant herein shall at the hearing of the Suit herein, raise a
preliminary objection on the following grounds:
1. THAT the Defendant lacked the locus standi to be sued on behalf of the estate of PETER
NJUGUNA NGUGI (Deceased) since he was not the administrator of the said estate at the
time of instuting the suit, therefore the suit violated Section 82 (a) of the Law of Succession
Act.
2. We are guided by the holding in Chumo v Korir & another (Environment and Land
Appeal E002 of 2022) [2024] KEELC 3877 (KLR) (16 May 2024) (Judgment) where the
court held that :
The issue on locus standi is a primary point of law almost similar to that of jurisdiction and
since the Appellant lacked the capacity to sue on behalf of her deceased husband’s estate, it
rendered her suit incompetent. Indeed the Court of Appeal authoritatively delivered itself on
the issue of locus standi in Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & Another
(1982-99) 1 KAR and Morjaria v Abdalla [1984] KLR 490 to the effect that Locus standi was
a primary point of law almost similar to that of jurisdiction since the lack of capacity to sue
or be sued would render the suit incompetent.
3. THAT the term “legal representative” is defined in section 2 of the Civil Procedure Act as-“a
person who in law represents the estate of a deceased person, and where a party sues or is
sued in a representative character the person on whom the estate devolves on the death of the
party so suing or sued.”
4. We are guided by the holding in Gichuhi & another v Land Registrar, Naivasha & 4 others
(Environment & Land Case E024 of 2024) [2025] KEELC 246 (KLR) (Environment and
Land) (30 January 2025) (Ruling) , where the court struck out a suit where a case was
instated against parties who had not obtained letters of administration. The court held as
follows:
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In his ruling of 24th January 2023, the Hon Judge had held as follows;
[Link] the instant case, it is not in dispute that the owner of the suit property died on October
1, 2015 and his heirs have been sued as the Defendants’ in this case. It is also not in dispute
that the Defendants’ have not taken out letters of administration ad litem. The Defendants’
therefore ought to have gained capacity to be sued first before the Plaintiffs’ filed this case
against them. It appears that the Plaintiffs’ have shot themselves on the foot since they are
the ones who have instituted the present suit against the Defendants who have no locus
standi. They ought to have first issued a citation to the Defendants before instituting the
instant suit but they did not. There is therefore no person properly joined as defendant in
this suit. In order for one to be joined to a suit, he must be a proper [Link] view of the
foregoing, it is this court’s view that the Defendants’ lack the locus standi to be sued in this
case. They indeed have no capacity to be sued in court on behalf of the said Estate of the
deceased.13.I accordingly allow the Preliminary Objection and strike out the entire
application dated May 12, 2022. In view of what has been stated above, the plaintiffs’ suit
cannot stand and therefore the originating summons dated May 12, 2022 is also struck out.’’
5. THAT the suit is statutory barred by virtue of Section 7 of the Limitation of Actions Act, which
provides as follows;
“An action may not be brought by any person to recover land after the end of twelve years
from the date on which the right of action accrued to him or, if it first accrued to some
person through whom he claims, to that person.
The cause of action arose in the year 2001; 22 years had since elapsed before the filing of the
instant suit.
6. THAT the suit is fatally defective, incompetent, barred in law and an abuse of the Court
process and should be struck out with costs to the Defendant.
DATED at NAKURU this……15th ........Day of………………April………………2025
………………………………………….
GORDON OGOLA
M/s Gordon Ogola & Associates
ADVOCATES FOR THE DEFENDANT
Admission No: P105/4054/99
Practice No: LSK/2025/008035
DRAWN & FILED BY:
M/s Gordon Ogola & Associates,
Maragoli Avenue, Milimani Road,
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Next to Alps Hotel Nakuru,
Tel. No. +254 (51) 22101473,
Email: goadvocates25@[Link]
GO@[Link]
P. O Box 17580 – 20100,
NAKURU
TO BE SERVED UPON:
Mangera, Lang’at& Co
Advocates,
KFA Roundabout,
Ministry of Public Works,
Gaplink International Headquarters
P.O BOX 14957-20100,
NAKURU.
Email: momanyidella@[Link]
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