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ELCDismissed· [2017] KEELC 1925 (KLR)

Agnes Mumbanu Kinako v Attorney General & 5 others [2017] KEELC 1925 (KLR)

Environment and Land Court
22 September 2017
865 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to strike out a landowner's suit, confirming she could sue in her own right over inherited land.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (O.A. Angote, J) on the Defendants' application dated 13th December, 2016 seeking the striking out of the Plaintiff's suit. The application was grounded on three objections: that the Plaintiff lacked capacity to sue on behalf of the Estate of the late Paul Mutemi Kamwaki, her Letters of Administration having allegedly been revoked in Kitui Succession Cause No. 288 of 2015; that the claim for damages of Kshs. 1,578,168 for malicious damage to property was statutorily time barred under the three-year limitation period; and that the Plaint offended the rules of pleadings by combining multiple causes of action and the Plaintiff's dual capacities. The Plaintiff, who described herself as interim administrator of the Estate and claimed the suit land (Nzambani/Maluma/838) by way of a bequest from her late father in 1989, on which she effected developments worth about Kshs. 10,000,000, opposed the application. The court held that the Plaint did not sue on behalf of the Estate but in the Plaintiff's own right claiming the bequeathed land; accordingly, the locus standi objection did not lie. The court declined to determine the limitation issue, holding that when time began to run was a matter for trial. It further held that the claim for land and the connected damages claim did not constitute impermissible multiple causes of action. The application was dismissed with costs.

Key legal issues

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01

Locus standi of the Plaintiff to institute the suit

Holding

The Plaintiff has capacity to sue because the suit, as pleaded, is brought in her own right claiming a bequest of the suit land, not on behalf of the Estate; she is also one of the administrators of the Estate and is entitled to show that the suit land does not form part of the Estate.

Reasoning

The court examined the Plaint and found it did not sue on behalf of the Estate. The Plaintiff's claim rests on a bequest by her late father and her own entitlement to the land, coupled with her possession and development of it. As an administrator, she may also demonstrate that the land should not form part of the Estate or should not have been transferred before conclusion of succession proceedings. The Defendants' locus standi objection therefore failed.

p. 2
02

Whether the claim for damages of Kshs. 1,578,168 is statutorily time barred

Holding

The court declined to determine limitation at this interlocutory stage because when time began to run is a matter for trial.

Reasoning

Although the 4th Defendant argued that the tortious claim for malicious damage should have been filed within three years, the court held that determining when the cause of action accrued requires factual inquiry. Having found that the Plaintiff has locus standi, the court exercised restraint and left the limitation issue to be dealt with at the trial.

p. 2
03

Whether the Plaint combines multiple causes of action and offends the rules of pleadings

Holding

No - the damages claim arises from the same claim to the land, so multiple causes of action do not arise.

Reasoning

The Defendants argued that joining a claim for the land with a claim for damages, and the Plaintiff's dual capacities, offended pleading rules. The court reasoned that the damages claimed flow directly from the Plaintiff's claim of ownership of the land, making the causes of action properly connected. The objection was therefore without merit.

p. 2

Legal principles established

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  • A plaintiff who sues in her own right claiming a bequest of land, and who is also an administrator of the estate, has locus standi to sue without necessarily suing on behalf of the estate
  • A claim for land and a claim for damages arising from the same transaction do not offend the rules against multiple causes of action
  • The question of when time began to run for limitation purposes is a matter for trial, not a striking-out application

Court orders

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  1. 1.The Application dated 13th December, 2016 seeking striking out of the suit is dismissed
  2. 2.Costs of the application awarded to the Plaintiff

Authorities

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Legislation

  • Law of Succession Actnot specified
Jurisdiction invoked
Original jurisdiction over the land dispute; the ruling determines a notice/interlocutory application dated 13th December, 2016 seeking striking out of the suit

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, "Agnes Mumbanu Kinako v Attorney General & 5 others [2017] KEELC 1925 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1925/eng@2017-09-22

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