Kimoi Ruto & another v Samuel Kipkosgei Keitany & 5 others [2015] KEELC 3 (KLR)
The bottom line
#The Environment and Land Court struck out a family's land claim because they sued over a deceased relative's estate without first getting letters of administration.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs had capacity (locus standi) to institute the suit
The plaintiffs, being neither executors nor administratrixes of the estate of the late Ruto Chesire, lacked the locus standi to sue; the preliminary objection on capacity was upheld.
The registered proprietor, Ruto Chesire, and his donee of power of attorney, Julius Kipyego Ruto, both died in 2003. Under Section 82 of the Law of Succession Act, only personal representatives may enforce causes of action belonging to a deceased's estate. The court found no evidence that the plaintiffs had obtained letters of administration before filing suit, relying on the Trouisik Union decision of the Court of Appeal. The claim in redemption therefore failed for want of capacity.
Whether the suit was res judicata
Res judicata did not apply because the issues in the former suit (adverse possession) differed from the issues in the present suit (fraud), despite the same parties.
Section 7 of the Civil Procedure Act requires that the matter directly and substantially in issue must have been directly and substantially in issue in a former suit between the same parties and heard and finally decided. The court found that the former suit, Eldoret ELC No. 378 of 2012 (formerly HCCC No. 147 of 2007), was an adverse possession claim whereas the present suit was founded on fraud; the issues therefore were not the same and the plea of res judicata failed.
Whether the plaintiffs were estopped from claiming fraud after admitting the 1st Defendant's title in the previous suit
By bringing an adverse possession claim, the plaintiffs acknowledged the defendant's title as good and were estopped from suing on the basis of fraud.
An adverse possession claim is premised on the existence of a valid registered title which the adverse possessor seeks to defeat by passage of time. Having sued in that capacity in the earlier suit, the plaintiffs could not thereafter turn around and challenge the same title as fraudulently obtained. The court held them estopped from pleading fraud against the 1st Defendant's title.
Whether the suit was an abuse of the process of the court
The suit was an abuse of process because it was filed after the dismissal of the earlier suit and was intended to reverse that judgment, which could only be done on appeal or review.
The court reasoned that a party cannot initiate a fresh suit designed to undo an existing judgment; the proper remedy is an appeal or an application for review. Filing the present suit after the dismissal of Eldoret ELC No. 378 of 2012, seeking relief that would reverse that judgment, constituted a flagrant abuse of due process, independently justifying striking out the suit.
Legal principles established
#- A suit on behalf of the estate of a deceased person can only be brought by a holder of a grant of letters of administration; without such a grant the plaintiff lacks locus standi.
- Res judicata does not apply where the issues in the former suit differ from those in the subsequent suit, even if the parties are the same.
- A plaintiff who brings a claim in adverse possession acknowledges the registered proprietor's title and is estopped from thereafter challenging that title as fraudulently obtained.
- A fresh suit intended to reverse a judgment of the court, which can only be reversed on appeal or review, is an abuse of the process of the court.
Court orders
#- 1.The preliminary objection raised by the defendants is upheld.
- 2.The plaintiffs' suit is struck out with costs to the defendants.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (first-instance suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimoi Ruto & another v Samuel Kipkosgei Keitany & 5 others [2015] KEELC 3 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/3/eng@2015-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.