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ELCStruck OutNot stated in judgment (Notice of Motion application dated 28th February 2017; Notice of Preliminary Objection dated 3rd April 2017)· [2017] KEELC 2662 (KLR)

John Ouma Daniel v George Okech Oyugi [2017] KEELC 2662 (KLR)

Environment and Land Court
31 May 2017
1,618 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court struck out an entire land suit because the land was still under adjudication and the plaintiff had no grant to sue for a deceased person.

What this practically means

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Executive summary

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The Defendant, George Okech Oyugi, raised a preliminary objection to the Plaintiff's Notice of Motion dated 28th February 2017 and the entire suit, on two grounds: that the court lacked jurisdiction under section 30 of the Land Adjudication Act (Cap 284) because the suit land, Parcel 963 Waware Adjudication Section in Mfangano Island, was undergoing adjudication; and that the Plaintiff lacked locus standi to sue on behalf of the deceased, Daniel Obwogo Onyango, having no grant of letters of administration. The Plaintiff opposed, arguing that adjudication had been attempted, the area chief's arbitration failed, and the suit was a last resort. The court, applying the Mukisa Biscuits definition of a preliminary objection, found that the adjudication register was still open, the adjudication process incomplete, and no written consent or direction of the adjudication officer existed, so the court was debarred from entertaining proceedings concerning that land. Relying on the Owners of Motor Vessel 'Lilian S' doctrine that jurisdiction is everything, the court held it had to down its tools. On locus standi, applying section 54 of the Law of Succession Act, the Probate and Administration Rules and Pim v Morton, the court found that without a grant the Plaintiff could not represent the deceased's estate. The preliminary objection was upheld; the Notice of Motion and the entire suit were struck out with costs to the Plaintiff.

Key legal issues

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01

Jurisdiction in respect of land undergoing adjudication

Holding

The court lacked jurisdiction under section 30 of the Land Adjudication Act because the adjudication process was incomplete and no written consent or direction of the adjudication officer existed; any appeal lies to the Minister whose decision is final

Reasoning

Section 30(1) of the Land Adjudication Act bars the institution and entertainment of civil proceedings concerning land in an adjudication section without the written consent of the adjudication officer until the register becomes final. Both counsel acknowledged adjudication was attempted and ongoing; the register remained open, no consent existed, and the statutory appeal route to the Minister had not been exhausted. The court therefore had to down its tools.

p. 3
02

Locus standi of the Plaintiff to sue on behalf of a deceased person

Holding

The Plaintiff lacked locus standi as no grant of letters of administration (limited or otherwise) had been obtained in respect of the estate of the deceased, Daniel Obwogo Onyango

Reasoning

Under section 54 of the Law of Succession Act and Rules 12, 14 and 40 of the Probate and Administration Rules, a limited grant may issue according to the circumstances of each case. Only an executor or administrator may represent a deceased's estate in suits. No grant had been obtained, so the Plaintiff could not institute the suit on behalf of the deceased, following the dictum in Pim v Morton.

p. 4

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct
  • Where an adjudication register is still open and there is no consent in writing or direction of the adjudication officer, a court is debarred from entertaining proceedings concerning that land
  • Jurisdiction is everything; without it a court must down its tools and its decision is void ab initio
  • In probate and administration causes, only an executor or administrator of a deceased's estate is entitled to represent that estate in suits

Court orders

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  1. 1.Preliminary objection upheld as merited
  2. 2.Notice of Motion application dated 28th February 2017 struck out
  3. 3.Entire suit struck out
  4. 4.Costs of the suit borne by the Plaintiff

Authorities

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Legislation

  • Land Adjudication ActSections 5, 26, 29(1), 29(3), 30
  • Law of Succession ActSections 54, 71
  • Probate and Administration RulesRules 12, 14, 40

Cases cited (7)

  • Mukisa Biscuits Co -Vs- West End Distributors
    (1969) EA 606
  • Samwel Kamau Macharia and Another -Vs- Kenya Commercial Bank and two others
    (2012) eKLR
  • Alice Mweru Ngai -vs- Kenya Power and Lighting Company Ltd
    (2015) eKLR
  • Daniel Kaloki Kioko and Another -vs- Willy Muasya Kioko
    (2009) eKLR
  • Owners of Motor Vessel Lilias "S" -Vs- Caltex Oil Kenya Limited
    (1989) KLR 1
  • Republic -vs- Karisa Chengo and 2 Others
    Petition No. 5 of 2017
  • PIM -Vs- Morton
    (1976-80) KLR 963
Jurisdiction invoked
Original civil jurisdiction; objection grounded on section 30 of the Land Adjudication Act (Cap 284) and section 54 of 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, "John Ouma Daniel v George Okech Oyugi [2017] KEELC 2662 (KLR)", Case Analysis (2017). Not stated in judgment (Notice of Motion application dated 28th February 2017; Notice of Preliminary Objection dated 3rd April 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2662/eng@2017-05-31

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