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ELCDismissedPetition dated 2nd January 2015 (Siaya)· [2015] KEELC 829 (KLR)

Eunice Dolly Sande v Siaya County Government & 3 others [2015] KEELC 829 (KLR)

Environment and Land Court
5 November 2015
SKS.M. Kibunja
2,016 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 dismissed a woman's land petition because she lacked letters of administration to sue over her deceased grandfather's estate.

What this practically means

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Executive summary

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The Siaya County Government, as 1st Defendant, raised a preliminary objection arguing that the petitioner, Eunice Dolly Sande, lacked locus standi to file a constitutional petition concerning land parcel South Gem/Kaudha/301 because she had not taken out letters of administration. The 1st Defendant relied on section 2(3) of the Law Reform Act and the Law of Succession Act, contending that capacity to sue over a deceased's estate requires a grant. The petitioner countered that constitutional petitions are sui generis, that sections 2(3) of the Law Reform Act was ultra vires articles 22 and 258 of the Constitution, and that she sued on her own behalf and for her family members whose proprietary rights were threatened by the construction of ECD classrooms for Kaudha Chapel Primary School. The court framed four issues: the capacity in which the petitioner sued, her capacity absent a grant, whether the petition should be struck out, and costs. It found the land was still registered in the name of the deceased grandfather, Jakobo/Jacob Oti, and that no grant had been obtained. Holding that both counsel agreed a grant is a prerequisite to suing over a deceased's estate, and that the grievances could be redressed under the Law of Succession Act, the court upheld the preliminary objection, dismissed the petition as an abuse of process, ordered each party to bear their own costs, and granted leave to appeal.

Key legal issues

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01

Whether locus standi requires a grant of letters of administration when the petition is a constitutional petition

Holding

The court upheld the preliminary objection: the petitioner, suing over land registered in the name of her deceased grandfather, needed a grant and could not bypass the Law of Succession Act via a constitutional petition.

Reasoning

The court acknowledged the Constitution's liberal standing rules but noted both counsel agreed that suing over a deceased's estate requires a grant. The registered proprietor was the deceased grandfather Jakobo/Jacob Oti, and no grant existed. Since the grievances (declarations, trespass damages, eviction) could be pursued after obtaining a grant under the Law of Succession Act, that legislative framework, not the Constitution, was the appropriate avenue. The petition was therefore an abuse of process.

p. 5

Legal principles established

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  • Where infringement can be redressed within a legislative framework, proceedings should be taken under that framework and not under the Constitution unless the framework provides no efficacious remedy
  • Section 45 of the Law of Succession Act forbids intermeddling with a deceased person's free property without authority of a grant
  • A person suing or being sued in respect of a deceased person's estate must be clothed with capacity through a grant of letters of administration

Court orders

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  1. 1.The preliminary objection raised by counsel for the 1st Defendant is upheld
  2. 2.The petition is dismissed for being an abuse of the court's process
  3. 3.Each party to bear their own costs
  4. 4.Leave to appeal granted

Authorities

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Legislation

  • Law Reform ActSection 2(3)
  • Law of Succession Act, Chapter 160 of Laws of KenyaSection 45
  • Constitution of Kenya, 2010Articles 2(4), 20(3), 22(1), (2) & (3), 24, 25, 258, 27(3) & (4), 28, 29(d) & (f), 31, 40, 42, 47

Cases cited (8)

  • Samuel Angasa Onuko – V – Speaker County Assembly Kisii County & 4 others
    {2014} eKLR
  • Marbury – V – Madison
    5 U.S. 137 (1803)
  • Israel Kabwa – V – Martin Banoba Musiga
    Civil Appeal No.52 of 1995 {1996} UGSC
  • Solo David & Another – V – Pagali Abda & Another
    HCT – 04 – CV – CA -0027 – 2009 {2010} UGHC 160
  • Joseph Owino Mudiesia & another – V – NEMA & 2 Others
    Busia Petition No.1 of 2014
  • Joseph Ojwang Ovude – V – NEMA & 8 Others
    Busia Petition No.8 of 2014
  • Republic - V - National Environmental Tribunal & 2 others Exparte Abdulhafidu Sheikh Ahmed Zubeidi
    Nairobi Misc. Civil Application No.155 of 2012, [2013} eKLR
  • Republic – V – National Environmental Tribunal & 2 Others Exparte Busia Sugar Industry Ltd & another
    Busia H.C. MISC. Application No.84 of 2015
Jurisdiction invoked
Articles 22(1), (2), (3), 258 of the Constitution of Kenya, 2010 (Bill of Rights enforcement jurisdiction)

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, "Eunice Dolly Sande v Siaya County Government & 3 others [2015] KEELC 829 (KLR)", Case Analysis (2015). Petition dated 2nd January 2015 (Siaya). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/829/eng@2015-11-05

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