Chrysantus Wafula v Silas Maruti & Sammy K. Ngeywo [2014] KEHC 5278 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 172 OF 2013

CHRYSANTUS WAFULA    ….............................................     PLAINTIFF

VERSUS

SILAS MARUTI

SAMMY K. NGEYWO   ..…...............................................   DEFENDANTS

R U L I N G

Before the hearing of this suit could commence, a Preliminary Objection was taken don behalf of the defendants on the ground that  the plaintiff has no locus standi to bring this suit and that it should  therefore be struck out.

The plaintiff had filed this suit on behalf of his late brother Clement Simiyu Manamana (deceased).  The plaintiff contends in the plaint  that the defendants entered the deceased's land and that his efforts to  have them move out has failed.

The defendants contend that since the plaintiff has not taken out letters of administration in respect of the deceased, he cannot purport to sue the defendants.

The plaintiff responded to the submissions by counsel for the  defendants that he had been selected to take care of the deceased's family and that therefore he has capacity to bring the suit on behalf  of the deceased.

The only issue for determination is whether the plaintiff has capacity  to bring this suit against the defendants. The plaintiff has admitted in  the plaint that plot No. 429 at Kapkoi Settlement Scheme belongs to the deceased.  The plaintiff has not taken out letters of administrationin respect of the estate of the deceased.  He therefore has no capacity            to sue the defendants.  The plaintiff's suit cannot be maintained.The  preliminary objection is allowed with the result that the suit herein is struck out with costs to the defendants.

It is so ordered.

Dated, signed and delivered at Kitale on this 6th day of May, 2014.

E. OBAGA,

JUDGE

In the presence of Mr Nyakundi for Mr Nyamu for defendant and plaintiff in person. Court Clerk – Kassachoon.

E. OBAGA,

JUDGE

6/5/2014