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ELCAllowedNot stated in the judgment· [2017] KEELC 673 (KLR)

Mary Nanjala Muhalya v Jane Chelangat Singoei [2017] KEELC 673 (KLR)

Environment and Land Court (as constituted at Kitale)
23 November 2017
MNMwangi Njoroge
686 words in judgment
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The bottom line

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A Kitale court revived a land case and joined a widow as defendant, ruling that a substitution court cannot hear claims that letters of administration ad litem were fraudulently obtained.

What this practically means

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Executive summary

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By an application dated 25/7/2017 the Applicant sought revival of a suit that had abated following the death of the Defendant in 2012, substitution of the Respondent as Defendant in place of the deceased, and costs in the cause. The Applicant relied on Section 54 of the Law of Succession Act and paragraph 14 of the Fifth Schedule, asserting that Letters of Administration ad Litem had been obtained jointly with the Respondent to enable the revival and joinder. The Respondent, the widow of the deceased Defendant, opposed the application through a replying affidavit and submissions. She contended she was not the administrator of the deceased's estate and could not be enjoined; that Order 24 of the Civil Procedure Rules requires substitution only of a personal representative, citing Najeno v Serwanga; that the Limited Grant issued jointly to her and the Applicant was obtained in error and fraudulently, contradicting an order in Citation Cause No. 56 of 2012 directing her to apply for Letters of Administration within 60 days; and that the Applicant had herself previously sought her joinder in 2013 and failed. The court, per Mwangi Njoroge J, held that it lacked jurisdiction to entertain the contention that the Letters of Administration ad Litem were issued in error or fraudulently, and that the Grant having been produced to justify revival and joinder, the application succeeded. The application dated 25/7/2017 was granted as prayed, with costs in the cause.

Key legal issues

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01

Substitution of a deceased litigant by a holder of Letters of Administration ad Litem

Holding

The suit was properly revived and the Respondent joined as Defendant on the strength of the Letters of Administration ad Litem, notwithstanding her objection that she was not an administrator of the estate.

Reasoning

The court noted the Respondent, as widow, was aware of the proceedings leading to the Grant ad Litem. Her challenge to the Grant on grounds of error or fraud was a matter for another forum, as the court lacked jurisdiction to determine it. The Grant having been produced to justify revival and joinder, the application succeeded as prayed.

p. 2
02

Validity of the Limited Grant challenged as fraudulently obtained

Holding

The challenge to the Limited Grant as contradicting the Succession Court order and as fraudulently obtained could not be entertained by this court.

Reasoning

The Respondent argued the Limited Grant issued jointly to Mary Wanjala Muhalya and herself was issued in error and contradicted the order of 26/7/2016 in Citation Cause No. 56 of 2012, and that only a legal administrator could be substituted. The court held that whether the Grant was issued in error or by fraud was outside its jurisdiction, and proceeded on the face of the Grant.

p. 2

Legal principles established

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  • A court seized of a substitution application is not the proper forum to challenge the validity of Letters of Administration ad Litem on grounds of error or fraud; it lacks jurisdiction to make such a determination.

Court orders

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  1. 1.The application dated 25/7/2017 granted as prayed, i.e. revival of the suit, substitution of the Respondent as Defendant in place of the Deceased Defendant, and costs in the cause

Authorities

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Legislation

  • Law of Succession ActSection 54
  • Law of Succession ActFifth Schedule, paragraph 14
  • Civil Procedure RulesOrder 24

Cases cited (1)

  • Najeno -vs- Serwanga
    Civil Appeal No. 45 of 1971 [1974] EA
Jurisdiction invoked
Original civil jurisdiction; application under Section 54 of the Law of Succession Act and paragraph 14 of the Fifth Schedule to the Act, read with Order 24 of the Civil Procedure Rules

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 Nanjala Muhalya v Jane Chelangat Singoei [2017] KEELC 673 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/673/eng@2017-11-23

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