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ELCOtherNot stated in judgment· [2013] KEELC 56 (KLR)

Charles Kiprop & 6 others v Lazaro Chebii Chepkaitany & 2 others [2013] KEELC 56 (KLR)

Environment and Land Court (High Court), Mombasa
18 October 2013
1,285 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court froze a disputed family land parcel, ruling no party can touch a deceased person's property until an estate administrator is appointed.

What this practically means

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Executive summary

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Land parcel no. 1055 (original number 1013/2, Sec. VI/MN) was registered in the names of Lazaro Chebii Chepkaitany (the 1st defendant, since deceased intestate on 29 January 2011) and his widow, the 2nd defendant. The plaintiffs, the deceased's children, had sued before his death for an injunction restraining sale or alienation of the property, and obtained orders including deposit of the title in court. The 2nd defendant then applied on 8 February 2012 for a temporary injunction restraining the plaintiffs from developing, leasing, transferring, constructing on or otherwise interfering with the property, alleging the plaintiffs were leasing it out and constructing permanent structures - a fact the plaintiffs did not deny, saying they developed it 'on need basis'. The plaintiffs objected that the application was fatally defective because the 2nd defendant held no letters of administration, that she had unclean hands for non-compliance with the deposit order, and that she used a forged death certificate. The court held that although an action on behalf of a deceased requires letters of administration (citing Otieno v Ougo), the 2nd defendant was not a stranger: she was the deceased's legal wife, already a party, a dependant under section 29 of the Succession Act ranking first in priority, with a life interest under section 35, and had herself filed a succession cause. The plaintiffs had not sought letters ad colligenda bona. The court held the suit could not proceed until administrators were ascertained. It ordered the status quo maintained, restraining all parties from any dealing with the property until the succession cause was determined, stood the suit over generally, and made no order as to costs.

Key legal issues

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01

Whether the 2nd defendant, as widow but not administratrix, could apply for injunctive relief protecting the deceased's estate

Holding

Her lack of letters of administration did not disqualify her, as she was already a party to the suit, the deceased's legal wife, and a dependant with a duty to protect the estate pending the succession cause

Reasoning

The court held the applicant was not a stranger to the proceedings, having been sued as a defendant before the deceased's death. Her position as legal wife is recognized by the Succession Act, and she has filed a succession cause. As a dependant under section 29 she has a duty to protect the estate until the succession cause is determined. The plaintiffs themselves, who objected, had not sought letters ad colligenda bona.

p. 2
02

Maintainability of the suit and further orders pending appointment of an administrator

Holding

No further orders could be made in the suit regarding the property until administrators of the estate were ascertained or appointed; the application was stood over generally

Reasoning

The subject property is registered in the name of the deceased 1st defendant. With a succession cause already pending in the family division, the court declined to appoint administrators itself (though it would have appointed the parties jointly had none been pending) and held the suit must await that determination.

p. 3
03

Interim protection of the suit property from dealing by any party

Holding

The court ordered maintenance of the status quo, restraining all parties from construction, leasing, development or any other interference with the property until the succession cause is determined

Reasoning

Given the ongoing development of the property by the plaintiffs 'on need basis' while beneficiaries' shares were undetermined, which the court found undesirable, and the absence of administrators, the court preserved the property by a mutual status quo order binding all parties and their agents pending the succession cause.

p. 2

Legal principles established

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  • For one to bring an action on behalf of a deceased person, one must have letters of administration of his estate
  • A suit concerning property of a deceased person cannot proceed until the administrator of the estate is identified or appointed by the court
  • A legal wife of the deceased is a dependant under section 29 of the Law of Succession Act with priority, entitled to personal and household effects and a life interest in the residue under section 35

Court orders

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  1. 1.Status quo pertaining on land parcel subdivision number 1055 (original number 1013/2/VI/MN) CR. No. 9403 to be maintained
  2. 2.No further construction, leasing, developing or any other interference with the suit property by any of the parties, their agents, servants, licencees or any other person until the succession cause is determined and/or further orders of the court
  3. 3.The suit stood over generally pending the determination of the succession cause
  4. 4.No order as to costs
Jurisdiction invoked
Original civil jurisdiction of the High Court over land disputes, read with the Law of Succession Act (Cap. 160); no specific constitutional provision invoked

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Charles Kiprop & 6 others v Lazaro Chebii Chepkaitany & 2 others [2013] KEELC 56 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/56/eng@2013-10-18

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