Julius Omondi Odeny v Clerk County & 3 others [2016] KEELC 786 (KLR)
The bottom line
#A Kenyan court struck out an entire land suit because the man suing over his father's estate filed the case before getting letters of administration, with costs against him.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff had capacity to institute the suit before obtaining the grant of letters of administration
The plaint and notice of motion filed on 12th October 2012 predated the grant made on 5th February 2013 and issued on 7th February 2013, so the Plaintiff had no capacity and the suit was struck out.
The court noted the Plaintiff described himself as suing as administrator of the deceased's estate. Capacity to sue for a deceased's estate follows acquisition of a grant under the Law of Succession Act. The grant annexed to the further affidavit (JOO-1) showed it was made on 5th February 2013 and issued on 7th February 2013, more than three months after the suit was filed. Filing suit without the grant was a lack of capacity, a pure point of law, rendering the suit unsustainable.
Whether capacity could be raised as a ground of preliminary objection though not in the notice dated 24th September 2014
Yes; the issue had been raised earlier in the grounds of opposition dated 18th February 2013, and the notice could be treated as a further reply; capacity is an issue of law.
The Defendants had raised the capacity issue in their grounds of opposition under Order 51 Rule 14 of the Civil Procedure Rules, which permits a respondent to file a replying affidavit, grounds of opposition or preliminary objection. The notice of intention dated 24th September 2014 could be taken as a further reply to the notice of motion. Counsel also agreed the preliminary objection be dealt with first. Capacity to sue is an issue of law and may be pursued even if advanced on a different ground from the notice.
Whether the 1st Defendant is a non-existent entity
The ground in the notice was that the 1st Defendant was a non-existent entity, but the Defendants pursued the capacity ground instead; the court pronounced itself only on the ground pursued.
Although the notice dated 24th September 2014 raised the 1st Defendant's non-existence, the Defendants' counsel's submissions addressed the Plaintiff's capacity, which had been raised in the grounds of opposition. The court held a party may abandon grounds and pursue others, and confined itself to the ground pursued. The Plaintiff argued the 1st Defendant was properly sued under Section 59 of the Urban Areas and Civic Act (Cap 275) governing continuation of suits involving former local authorities, but the court did not determine this.
Legal principles established
#- A person attains capacity to sue for the estate of a deceased person only upon acquisition of a grant under the Law of Succession Act.
- A suit and any application founded on it filed before the plaintiff obtained the grant of letters of administration is a nullity and must be struck out.
- Capacity to sue is a pure point of law that may properly be raised by preliminary objection.
- A party who raises several grounds may pursue only one or more of them and abandon the rest.
Court orders
#- 1.The preliminary objection raised by the Defendants' counsel on the Plaintiff's lack of capacity is upheld
- 2.The plaint dated and filed on 12th October 2012 is struck out
- 3.The notice of motion dated and filed on 12th October 2012 is struck out
- 4.Costs of the preliminary objection awarded to the Defendants
- Jurisdiction invoked
- Environment and Land Court jurisdiction over the suit land (Plot No.20 Ramula); not expressly stated by provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Omondi Odeny v Clerk County & 3 others [2016] KEELC 786 (KLR)", Case Analysis (2016). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/786/eng@2016-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.