Obiayo v Okoth (Civil Appeal 146 of 1990) [1992] KECA 61 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a land suit filed before obtaining letters of administration is fatally defective and a later grant cannot fix it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a plaint filed by a deceased's heir without a grant of letters of administration is validated by a grant obtained after filing
- 2.Whether the trial judge erred in refusing to strike out the plaint and allowing amendment
Key legal issues
#Effect of a grant of letters of administration obtained after filing of suit
The grant operates prospectively only and does not cure the incompetence of a plaint filed by a person without legal capacity to represent the estate.
Under section 82(a) of the Succession Act only personal representatives may enforce causes of action surviving the deceased for the estate. Section 80 provides that a grant takes effect only from the date of the grant. The respondent, an heir suing personally, lacked capacity when the plaint was filed on 5th August 1987; the later grant could not relate back. The trial judge therefore erred in upholding the plaint.
Legal principles established
#- A grant of letters of administration takes effect only from the date of the grant and cannot validate a plaint filed before the grant; a suit by an heir without a grant at filing is incompetent and liable to be struck out.
Court orders
#- 1.Appeal allowed
- 2.Ruling of the superior court set aside
- 3.Plaint struck out
- 4.Costs of the appeal and of the court below to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (superior court)
- Jurisdiction invoked
- First appeal to the Court of Appeal (statutory appellate jurisdiction; no specific provision quoted in judgment)
Relief refused
#Respondent's leave to amend the plaint
The plaint was incompetent for want of a grant at filing and was struck out, rendering the amendment untenable
Costs
Costs of this appeal and in the Court below to the appellant
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.
We therefore hold that the plaint was incompetent and ought to have been struck out.
a grant of letters of administration, with or without the will annexed, shall take efiect only as from the date of the grant.
We allow the appeal, set aside the ruling of the superior court and strike out the plaint with costs of this appeal and in the Court below to the appellant.
Issues in the judgment
#Case number and neutral citation do not appear anywhere in the judgment copy supplied
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Obiayo v Okoth (Civil Appeal 146 of 1990) [1992] KECA 61 (KLR)", Case Analysis (1992). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1992/61/eng@1992-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.