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ELCStruck OutNot stated in the judgment as provided· [2017] KEELC 437 (KLR)

Jane Wanjiru Njane v Peter Njenga Njane [2017] KEELC 437 (KLR)

Environment and Land Court of Kenya
15 December 2017
DOD. O. Ohungo
1,380 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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In Kenya, you cannot sue over land registered in a deceased person's name without letters of administration, even if you obtain them later.

What this practically means

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Executive summary

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The plaintiff, mother of the defendant, filed a plaint dated 27th March 2017 alleging she was the administrator of the estate of Joseph Njane Karuma, the registered proprietor of Mau Summit/Molo Block 15/81 (Ndungu). She accused the defendant, her son, of entering, cultivating and building on the land, and simultaneously sought an injunction restraining him from interfering with the suit property. The defendant filed a Notice of Preliminary Objection dated 25th July 2017 contending the suit was defective because the plaintiff had not taken out letters of administration in respect of the deceased's estate, and urged that it be struck out. He also filed a replying affidavit confirming that no grant had been sought or issued. The application was argued by written submissions. The court considered the objection first since it went to the validity of the suit. Both parties agreed the registered proprietor was the deceased. Applying Trouistik Union International v Jane Mbeyu and Kinyua Koech Ltd v Nairobi Homes (Mombasa) Limited, the court held that only a personal representative holding a grant may competently sue over a deceased person's property. The plaintiff, despite averring she was administrator, produced no grant and did not address the issue in her submissions; she therefore lacked locus standi. Although striking out is a drastic remedy reserved for suits that cannot be saved by amendment, the plaintiff's lack of a grant at filing was a historical fact incurable by a later grant. The court struck out the suit, declined to award costs given the family relationship, and ordered each party to bear their own costs.

Key legal issues

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01

Locus standi of a plaintiff suing over a deceased's property without a grant

Holding

The plaintiff lacks locus standi; only a personal representative may enforce causes of action or claims vesting in a deceased person's estate

Reasoning

The registered proprietor of the suit property is the deceased, as both parties agreed. Relying on Trouistik Union International v Jane Mbeyu, the court held that under sections 2, 3 and 82(a) of the Law of Succession Act only personal representatives, i.e. executors or administrators holding grants, may agitate causes of action vested in the deceased. The plaint averred the plaintiff was administrator, but she produced no grant and remained silent when challenged, so the suit was incompetent.

p. 3
02

Whether the defect could be cured and whether striking out was warranted

Holding

The defect dated back to filing and could not be cured by a later grant; since the suit could not be sustained in any way, striking out was justified notwithstanding that it is a drastic remedy

Reasoning

The court acknowledged that striking out is drastic and should not be resorted to lightly, being appropriate only where a suit cannot be saved by amendment. Here the plaintiff's want of letters of administration at filing was an unalterable historical fact. Consequently the suit could not be 'injected with life', and the objection was upheld with the suit struck out.

p. 3

Legal principles established

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  • A person claiming ownership title or possession of land registered in the name of a deceased person cannot competently commence suit without letters of administration
  • Lack of letters of administration at the date of filing is a historical defect that cannot be cured by obtaining a grant later
  • Striking out is a drastic remedy to be used only where the suit cannot be saved by amendment

Court orders

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  1. 1.The suit herein is struck out
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Law Reform ActNot specified
  • Law of Succession Act (Cap 160)Sections 2, 3 and 82(a)
  • Fatal Accidents ActNot specified

Cases cited (3)

  • Teresia Wairimu Kirima – vs- Father Romeo & Another
    [2013] eKLR
  • Trouistik Union International & another v Jane Mbeyu & another
    [1993] eKLR
  • Kinyua Koech Ltd & 2 others v Nairobi Homes (Mombasa) Limited & 11 others
    [2015] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land; no specific constitutional or statutory provision invoked in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jane Wanjiru Njane v Peter Njenga Njane [2017] KEELC 437 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/437/eng@2017-12-15

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