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Court of AppealPartially AllowedCivil Appeal (Nairobi ELC Appeal) arising from Nairobi ELC No. 814 of 2000

Kihanya & 4 others v Gichuri & another (Civil Appeal 15 of 2019) [2024] KECA 852 (KLR)

Court of Appeal of Kenya
12 July 2024
SKS. ole KantaiFTF. TuiyottJMJ. Mativo
3,692 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Suing over a dead person's land in Kenya without first getting letters of administration makes your entire case a nullity, no matter how strong it is.

What this practically means

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Executive summary

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This is a first appeal against the judgment of Okong'o, J. of the Environment & Land Court delivered on 17th November 2017 in Nairobi ELC No. 814 of 2000, in which the respondents, children of the late Gichuri Mwaniki, obtained declarations that the registration of the suit parcel in the name of Kihanya Gichuri and its subsequent subdivision into six parcels in favour of the appellants was fraudulent, and orders cancelling the titles and reverting the land to the deceased's name pending succession proceedings. The appellants raised eight grounds, principally that the suit was time barred, that the respondents lacked locus standi having not taken out letters of administration before filing, and that the trial court lacked jurisdiction to determine beneficiaries of a deceased's estate. The Court of Appeal (Kantai, Tuiyott and Mativo, JJA) framed three issues and, applying the settled rule that a suit concerning a deceased's estate filed without a grant is a nullity ab initio, held that the respondents' 2000 suit was incompetent because the limited grant ad litem was only obtained in 2007, seven years later, and could not cure the nullity. The Court allowed the appeal, struck out the respondents' suit for want of locus standi, but in the interests of justice granted the respondents leave to institute fresh proceedings before the ELC, and ordered each party to bear its own costs. The Court did not determine the limitation or beneficiaries issues on the merits.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents' suit was time barred
  2. 2.Whether the respondents had the locus standi to institute the suit
  3. 3.Whether the learned judge had the jurisdiction to make findings on beneficiaries of the estate of Gichuki Mwaniki

Key legal issues

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01

Whether the respondents had locus standi to institute the suit on behalf of the deceased's estate

Holding

The respondents lacked locus standi because they filed suit in 2000 before obtaining the limited grant ad litem in 2007; the suit was a nullity ab initio and the later grant could not cure it

Reasoning

The suit property was registered in the name of the deceased, who died intestate in 1966. Under section 82 of the Law of Succession Act only personal representatives may enforce causes of action surviving the deceased. Decided authority establishes that proceedings filed relating to a deceased's estate without a grant are null and void. The respondents only obtained a limited grant ad litem in 2007, seven years after filing, which was incapable of curing the nullity.

p. 6
02

Whether issues of jurisdiction and locus standi could be raised for the first time on appeal

Holding

Yes; jurisdiction and locus standi are fundamental and may be raised at any stage, even for the first time on appeal

Reasoning

Relying on Kenya Port Authority v Modern Holding, the Court held that jurisdiction is such a fundamental matter that it can be raised at any stage of proceedings and even on appeal. The failure to raise locus standi before the trial court was not fatal. The Court therefore addressed locus standi first, since a negative answer would dispose of the appeal on that ground alone.

p. 5
03

Whether the trial judge had jurisdiction to determine beneficiaries of the deceased's estate

Holding

The Court did not determine this issue on the merits because its finding on locus standi disposed of the appeal

Reasoning

The Court found there were critical issues requiring proper adjudication which it could not delve into owing to its finding on locus standi. Rather than determine the beneficiaries question, it struck out the suit but granted the respondents leave to institute fresh proceedings so the dispute could be determined on the merits.

p. 7

Legal principles established

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  • A suit relating to a deceased person's estate instituted without a grant of letters of administration is a nullity ab initio, and a grant obtained later cannot cure it
  • A party must obtain a grant of letters of administration before instituting or defending a suit on behalf of a deceased person's estate
  • An objection based on jurisdiction or locus standi may be raised for the first time on appeal

Court orders

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  1. 1.The appellants' appeal be and is hereby allowed
  2. 2.The respondent's suit before the ELC being ELC No. 814 of 2000 is hereby struck out for want of locus standi to institute the proceedings
  3. 3.For the interests of justice and in order to have the dispute determined on merits, the respondents are hereby granted leave to institute fresh proceedings before the ELC
  4. 4.Each party shall bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SK
majority
FT
majority
JM
majority
On appeal from
Environment & Land Court
Nairobi ELC No. 814 of 2000 (Veronica Ngatha Gichuri & Another vs Joseph Kuria Kihanya & 4 Others)
Jurisdiction invoked
First appellate jurisdiction under Rule 31(1)(a) of the Court of Appeal Rules, 2022 (formerly Rule 29(1) of the Court of Appeal Rules, 2010)

Relief refused

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Respondents' claim for cancellation of titles and declaration of beneficiaries of the deceased's estate

The suit was a nullity for want of locus standi, having been instituted before any grant of letters of administration was obtained

p. 6

Costs

Each party shall bear its own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The appellants' appeal be and is hereby allowed. The respondent's suit before the ELC being ELC No. 814 of 2000 is hereby struck out for want of locus standi to institute the proceedings.
p. 7Final orders - appeal allowed and suit struck out
For the interests of justice and in order to have the dispute determined on merits, the respondents are hereby granted leave to institute fresh proceedings before the ELC.
p. 7Final orders - leave to file fresh proceedings
Each party shall bear its own costs.
p. 3Final orders - costs
A suit instituted by a person without the legal capacity is a nullity ab initio and is unsustainable.
p. 6Locus standi - nullity for want of grant
an administrator is not entitled to bring any action as administrator before he has taken out letters of administration. If he does, the action is incompetent as of the date of inception.
p. 6Competence of suits filed before grant of letters of administration
The failure to raise the issue locus standi before the trial court is not fatal nor is there a bar to the said issue being raised at this stage.
p. 5Raising locus standi for the first time on appeal

Issues in the judgment

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minor

The judgment refers to the deceased inconsistently as 'Gichuhi Mwaniki', 'Gichuri Mwaniki', 'Mwaniki' and 'Gichuki Mwaniki', and the suit parcel variously as Gatamaiyu/Gatimaiyu/Gitamaiyu and Nyandarua/Nyanduma

minor

The list of issues framed by the trial court omits issue (d), jumping from (c) to (e)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kihanya & 4 others v Gichuri & another (Civil Appeal 15 of 2019) [2024] KECA 852 (KLR)", Case Analysis (2024). Civil Appeal (Nairobi ELC Appeal) arising from Nairobi ELC No. 814 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/852/eng@2024-07-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.