Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedHCA 164 of 2014· [2015] KEELC 598 (KLR)

Nancy Wamaitha Muriithi & another v Loise Wanjiru [2015] KEELC 598 (KLR)

Environment and Land Court of Kenya at Nakuru
10 March 2015
1,921 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Suing on behalf of a deceased person's estate before getting letters of administration makes the whole case a nullity from the start.

What this practically means

#

Executive summary

#
This was a first appeal to the Environment and Land Court at Nakuru against the refusal by the Chief Magistrate's Court (Hon. J. Komongoi SPM) to grant an injunction in Nakuru CMCC No. 578 of 2014. The appellants, describing themselves as administrators of the estate of Mary Wamuringo Nyaga (deceased), sued the respondents claiming she had been allocated plot No. 681 by the 2nd respondent company and sought a perpetual injunction, a declaration of ownership, and general damages. They alleged trespass, fencing of the land, threats of eviction and denial of access. The respondents denied any allocation of plot 681, asserting the ballot paper was stolen, that the company was executing a court decree in Nakuru HCCC No. 561 of 1996 settling members per shareholding, and that the appellants had been settled elsewhere. The trial magistrate dismissed the injunction application, finding the plaintiffs lacked locus standi. On appeal, Munyao Sila J noted the suit was filed on 18 June 2014 while letters of administration ad litem were granted only on 27 June 2014, and that the plaintiffs sued on behalf of the estate, not themselves. Applying Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama, quoting Otieno v Ougo, the court held an administrator cannot sue before taking out letters of administration; such a suit is incompetent from inception. The appeal was dismissed with costs. Exercising powers under Order 42 Rule 32, the court went further and struck out the underlying suit as untenable, with costs.

Key legal issues

#
01

Locus standi of administrators who file suit before obtaining letters of administration

Holding

A suit filed by plaintiffs as administrators before the grant of letters of administration is incompetent from inception; the trial magistrate correctly found the plaintiffs lacked locus standi

Reasoning

The suit was filed on 18 June 2014, but the letters of administration ad litem were only issued on 27 June 2014. The plaintiffs sued on behalf of the estate of the deceased, not on their own behalf. Counsel's claim of a mistake in the date on the grant was unsupported by evidence. Following Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama, quoting Otieno v Ougo, an administrator cannot sue before taking out letters of administration.

p. 3
02

Whether the appeal against refusal of an injunction could succeed

Holding

The appeal was dismissed; the trial magistrate was correct in dismissing the injunction application because no prima facie case could exist without locus standi

Reasoning

The appellate court needed to be satisfied that the trial magistrate was wrong on the material tendered. Since the main reason the application failed was the want of locus standi, and the plaintiffs had none at filing, the magistrate's refusal of the injunction could not be faulted. Although the magistrate delved into other procedural technicalities, her core holding on locus was correct.

p. 3
03

Exercise of the appellate court's power under Order 42 Rule 32 to strike out the suit

Holding

The court exercised its power under Order 42 Rule 32 to strike out the underlying suit as untenable for want of locus standi at filing

Reasoning

The court held that the suit, filed when the plaintiffs lacked locus standi, served no purpose at all. Invoking Order 42 Rule 32, which permits the appellate court to pass any decree or order which ought to have been passed or made, the judge went beyond dismissing the appeal and struck out the suit with costs.

p. 3

Legal principles established

#
  • An administrator cannot bring an action as administrator before taking out letters of administration; a suit so filed is incompetent from inception
  • The appellate court may, under Order 42 Rule 32, pass any decree or make any order which ought to have been passed or made

Court orders

#
  1. 1.The appeal is dismissed with costs
  2. 2.The suit (Nakuru CMCC No. 578 of 2014, referred to in the order as No. 580 of 2014) is struck out with costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 42 Rule 32

Cases cited (2)

  • Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama
    (2014) eKLR
  • Otieno v Ougo
    (1986-1989) EALR 468
On appeal from
Chief Magistrate's Court at Nakuru
Nakuru CMCC No. 578 of 2014
Jurisdiction invoked
First appellate jurisdiction over the Magistrate's Court, exercising the powers under Order 42 Rule 32 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nancy Wamaitha Muriithi & another v Loise Wanjiru [2015] KEELC 598 (KLR)", Case Analysis (2015). HCA 164 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/598/eng@2015-03-10

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