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ELCStruck OutNot stated in the judgment ( Kerugoya Environment and Land Court suit filed 30th January 2013)· [2017] KEELC 563 (KLR)

Mary Wambui Kibe & 4 others v James Whittington Njoroge & 2 others [2017] KEELC 563 (KLR)

Environment and Land Court
3 November 2017
1,350 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The defendants raised a preliminary objection in their defences challenging the plaintiffs' locus standi and this Court's jurisdiction. On the first limb, the Court held that the plaintiffs, having sued in their own capacities and not on behalf of the Estate of Antony Wanjohi Njoroge, required no grant of letters of administration; that limb was dismissed. On the second limb, the Court found that although the dispute concerns land parcel Kiine/Ruiru/1497, the plaint in substance attacks the grant and distribution in Kerugoya Principal Magistrate's Succession Cause No. 47 of 2001, alleging that the defendants fraudulently obtained the grant and left out Antony Wanjohi Njoroge's share. The Court held that under Section 13 of the Environment and Land Court Act it had no jurisdiction to reverse the findings and orders of the Succession Court; the plaintiffs' remedy was to apply for annulment of the grant or appeal within that forum. Noting that no claim of trust or adverse possession was pleaded, the Court upheld the objection on jurisdiction, struck out the suit with costs to the 1st and 2nd defendants. The ruling was delivered at Kerugoya on 3rd November 2017 by B.N. Olao J.

Key legal issues

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01

Locus standi of plaintiffs without letters of administration

Holding

The objection was dismissed because the plaintiffs sued in their own capacities, not on behalf of the estate, and therefore did not need a grant.

Reasoning

The plaint filed on 30th January 2013 shows the plaintiffs did not institute the suit in a representative capacity. Although the 1st plaintiff describes herself as the wife of the deceased and the others as his children, they claim in their own right. Consequently, the requirement of letters of administration as a condition of locus standi did not arise, and that limb of the preliminary objection failed.

p. 2
02

Jurisdiction of the Environment and Land Court over a claim attacking distribution made in a succession cause

Holding

The Court lacks jurisdiction because the suit, though framed as a civil land claim, in substance questions the findings and orders of the Succession Court in Kerugoya Principal Magistrate's Succession Cause No. 47 of 2001.

Reasoning

The plaint pleads that the defendants fraudulently obtained the grant and that distribution of Kiine/Ruiru/94 left out the deceased Antony Wanjohi Njoroge. The relief sought is cancellation of titles and vesting of shares. Such relief would reverse the Succession Court's distribution. The proper avenues were annulment of the grant or appeal in the succession cause. Land being involved does not automatically attract Section 13 jurisdiction where no trust or adverse possession claim is pleaded.

p. 3

Legal principles established

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  • Plaintiffs suing in their own capacities, not in a representative capacity for a deceased's estate, do not require a grant of letters of administration to have locus standi.
  • The mere fact that a dispute involves land does not confer jurisdiction on the Environment and Land Court where the claim in substance challenges the distribution of a deceased's estate in a succession cause; the proper remedy is annulment of the grant or appeal in that forum.
  • A preliminary objection must consist of a point of law pleaded or arising by clear implication from the pleadings which may dispose of the suit.

Court orders

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  1. 1.The Preliminary Objection on lack of locus standi dismissed
  2. 2.The Preliminary Objection on jurisdiction upheld
  3. 3.This suit struck out with costs to the 1st and 2nd defendants

Authorities

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Legislation

  • Environment and Land Court ActSection 13

Cases cited (1)

  • MUKISA BISCUIT CO. WEST END DISTRIBUTORS LTD
    1969 E.A 696
Jurisdiction invoked
Section 13 of the Environment and Land Court Act

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, "Mary Wambui Kibe & 4 others v James Whittington Njoroge & 2 others [2017] KEELC 563 (KLR)", Case Analysis (2017). Not stated in the judgment ( Kerugoya Environment and Land Court suit filed 30th January 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/563/eng@2017-11-03

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