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ELCDismissedSummons dated 8th December 2014 (Nyeri ELC)· [2017] KEELC 1340 (KLR)

Nancy Wanjiku Makau v Speranza Njeri Mathenge [2017] KEELC 1340 (KLR)

Environment and Land Court
11 October 2017
LWL N Waithaka
1,599 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 tea bushes dispute, ruling only a deceased person's appointed administrator can sue over estate property.

What this practically means

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Executive summary

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The plaintiff sued her sister-in-law over 1000 tea bushes on LR No. Thegenge/Gathuthi/453, grown under tea growers licence No. 089109 issued to the plaintiff's deceased mother, Beth Muthoni. The plaintiff claimed to be the beneficial owner, alleging the deceased had executed a 2012 will bequeathing the bushes to her, had operated a joint account with her for sharing proceeds, and that after the mother's death in 2014 the defendant forcibly took over the bushes and their proceeds. She sought a permanent injunction restraining the defendant from dealing with the bushes, mesne profits from May 2014, delivery of accounts and restitution. The defendant admitted taking possession with the area chief's authority, claimed entitlement to half the property, and challenged the plaintiff's locus standi as a non-administrator, contending the deceased held no registrable interest in the land. The plaintiff relied on Halbury's Laws of England and Betha Kanini v. Agnes Ithiru Njoka on possessory rights. The court held the dispute raised succession issues properly reserved to a Succession Court under Sections 2, 45 and 82 of the Law of Succession Act: only an administrator or personal representative can enforce surviving causes of action, and the plaintiff's entitlement depended on propounding the will in succession proceedings, of which there were none. Both parties' possession was held to violate Section 45. The court declined the orders sought, directed the Public Trustee to administer the tea bushes pending succession proceedings, and ordered each party to bear their own costs as a family dispute.

Key legal issues

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01

Locus standi of a non-administrator to sue over a deceased's estate

Holding

The plaintiff, not being an administrator or personal representative, lacked capacity to enforce the claims relating to the deceased's property; such claims must be brought through succession proceedings

Reasoning

Under Sections 2, 45 and 82 of the Law of Succession Act, only an administrator or personal representative may enforce causes of action surviving the deceased. The will relied upon required propounding in succession proceedings, which had not been commenced. Both parties' possession was therefore unlawful under Section 45.

p. 3
02

Propounding of the will

Holding

Whether the plaintiff was bequeathed the tea bushes under the 2012 will could only be determined through the propounding process under the Law of Succession Act, not in this suit

Reasoning

The plaintiff's entitlement depended on the validity and effect of the will allegedly executed in 2012. The court held that determining that entitlement requires the statutory process of propounding the will within succession proceedings, which were absent, so the claim could not be sustained in the ELC.

p. 3
03

Protection of the subject matter pending succession proceedings

Holding

The court directed the Public Trustee to administer the tea bushes pending succession proceedings

Reasoning

To prevent further dissipation of the tea bushes and their proceeds while neither party lawfully held them, the court invoked protective powers and placed administration with the Public Trustee until succession proceedings determine the estate.

p. 4

Legal principles established

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  • It is an administrator or personal representative who has power to enforce causes of action surviving the deceased or arising out of his estate
  • Possession and use of a deceased person's property by non-representatives violates Section 45 of the Law of Succession Act

Court orders

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  1. 1.Declined to grant the permanent injunction and other orders sought in the summons
  2. 2.Directed that administration of the subject matter (the tea bushes) be carried out by the Public Trustee pending filing and determination of succession proceedings
  3. 3.Ordered each party to bear their own costs

Authorities

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Legislation

  • Law of Succession Act (LSA), Cap 160 Laws of KenyaSection 2
  • Law of Succession Act (LSA), Cap 160 Laws of KenyaSection 45
  • Law of Succession Act (LSA), Cap 160 Laws of KenyaSection 82

Cases cited (1)

  • Betha Kanini v. Agnes Ithiru Njoka
    (2011) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land/property on land (LR No. Thegenge/Gathuthi/453); the court nonetheless held the substantive issues fall under the Law of Succession Act, Cap 160

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, "Nancy Wanjiku Makau v Speranza Njeri Mathenge [2017] KEELC 1340 (KLR)", Case Analysis (2017). Summons dated 8th December 2014 (Nyeri ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1340/eng@2017-10-11

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