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ELCOtherNotice of Motion dated 5th July, 2013 (Nakuru ELC suit; L.R Nakuru/Sururu/404)· [2014] KEELC 248 (KLR)

Hillary Kipngetich Langat v Eric Kiprotich Terez [2014] KEELC 248 (KLR)

Environment and Land Court
11 July 2014
1,085 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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You cannot sue someone as administrator of a deceased person's land estate in Kenya unless they hold letters of administration - sue them personally instead.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Nakuru on a Notice of Motion dated 5th July 2013 by the plaintiff, Hillary Kipngetich Langat, seeking a temporary injunction restraining the defendant, Eric Kiprotich Terez, from trespassing on, entering, cultivating, building on or dealing with L.R Nakuru/Sururu/404 pending the hearing of the suit. The plaintiff claimed to be the registered owner in continuous possession, alleging the defendant entered the land on 4th July 2013 through agents and began erecting a temporary structure. The defendant swore a replying affidavit under protest, asserting that his late brother, Paul Kimutai Koech, was the absolute registered owner having been allocated the land in 1995 and issued a title deed in 1997, and that the defendant, having not taken out letters of administration, was not the administrator of the deceased's estate and should not be sued in that capacity. The court framed three issues: whether the defendant was properly sued, whether the injunction conditions were met, and costs. It held that a person without letters of administration lacks capacity to be sued as legal representative of a deceased's estate, and that the plaintiff should amend his pleadings to sue the defendant personally. Invoking Section 100 of the Civil Procedure Act and Order 8 Rule 5 of the Civil Procedure Rules, and guided by AAT Holdings Ltd and Central Kenya Ltd, the court ordered the plaintiff to amend within 30 days, failing which the plaint and application would stand struck out, and awarded costs of the application to the defendant. The injunction itself was not substantively determined.

Key legal issues

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01

Whether the defendant is properly sued as legal representative of the estate of Paul Kimutai Koech

Holding

The defendant is improperly sued in a representative capacity because he holds no letters of administration; the proper course is for the plaintiff to amend and sue him in his personal capacity.

Reasoning

The defendant deponed that the suit land was allocated to and registered in the name of his late brother Paul Kimutai Koech, who received a title deed in 1997, and that he had not taken out letters of administration. The court applied the principles of locus standi, holding that a suit against him as administrator of the estate was misconceived since he had no such capacity. It directed amendment under Section 100 CPA and Order 8 Rule 5 CPR rather than immediate dismissal.

p. 2
02

Whether the applicant satisfied the conditions for grant of a temporary injunction

Holding

The court did not reach a substantive determination on the injunction; instead it directed amendment of pleadings within 30 days, failing which the plaint and application would stand struck out.

Reasoning

Because the first issue - the defendant's capacity - undermined the framing of the suit as one against the deceased's estate, the court addressed that threshold matter first. Rather than ruling on the interlocutory injunction conditions, it invoked its power to allow amendment of pleadings, effectively suspending determination of the injunction pending the plaintiff's amendment to sue the defendant personally.

p. 3

Legal principles established

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  • A person who has not taken out letters of administration lacks capacity to be sued as the legal representative of a deceased person's estate.
  • The court may, on its own motion and in the interest of justice, allow parties to amend pleadings under Section 100 of the Civil Procedure Act and Order 8 Rule 5 of the Civil Procedure Rules to bring the real question in controversy before it.

Court orders

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  1. 1.The plaintiff to make the necessary amendments to his pleadings within 30 days from the date of the ruling, failing which the plaint and the application will stand struck out
  2. 2.Costs of the application awarded to the defendant

Authorities

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Legislation

  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 8 Rule 5 (Order 8(5)(1))

Cases cited (3)

  • BV Navayana Reddy Vs State Kamataka Air
    (1985) (KAN99)
  • AAT Holdings Limited V Diamond Shields International Limited
    NBI HCCC No. 442 of 2013
  • Central Kenya Ltd V Trust Bank Ltd & 5 Others
    Civil Appeal No. 222 of 1998
Jurisdiction invoked
Inherent jurisdiction under the Civil Procedure Act, Section 100, and Order 8 Rule 5 of the Civil Procedure Rules (interlocutory injunction application in a land suit)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Hillary Kipngetich Langat v Eric Kiprotich Terez [2014] KEELC 248 (KLR)", Case Analysis (2014). Notice of Motion dated 5th July, 2013 (Nakuru ELC suit; L.R Nakuru/Sururu/404). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/248/eng@2014-07-11

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