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ELCOtherNot stated in the judgment (plaint dated 1st March 2016, Nyeri)· [2017] KEELC 2787 (KLR)

Lucy Wamuyu Marubu v Mercy Njoki Irungu [2017] KEELC 2787 (KLR)

Environment and Land Court
7 March 2017
LWL N Waithaka
1,173 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 plaintiff sued for vacant possession of Loc 7/Gakoigo/783, eviction of the defendant, a permanent injunction, general damages and costs, alleging the defendant wrongfully entered land she claimed by transmission through Nyeri High Court Succession Cause No. 1042 of 2012. Together with the plaint she sought temporary and permanent injunctive relief and demolition of structures erected by the defendant. The defendant opposed through grounds of opposition, a replying affidavit and a preliminary objection arguing that Mativo J had revoked the plaintiff's grant of letters of administration on 22nd September 2016, and that the plaintiff therefore lacked locus standi to maintain the suit. The defendant relied on Njoya v Attorney General, while the plaintiff argued she had locus when filing, warned of res judicata if the suit were dismissed, and sought a stay pending the succession matter. Applying the Mukisa Biscuit test, the court held the objection raised pure points of law. Noting the revocation of the grant and guided by the decisions of Mutungi J and Gacheru J that a grant of letters of administration is what confers capacity to sue for an estate, the court held that the plaintiff, stripped of her rights as administrator, lacked locus standi, and that there was no guarantee she would be reappointed. The preliminary objection was upheld, striking out the suit, with each party bearing their own costs.

Key legal issues

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01

Whether the objection was a proper preliminary objection

Holding

The objection raised pure points of law

Reasoning

Applying the Mukisa Biscuit definition, the court found that the issue of locus standi following revocation of the grant was a question of law arising from the pleadings, not a matter requiring ascertainment of facts or exercise of discretion.

p. 2
02

Whether revocation of the grant deprived the plaintiff of locus standi

Holding

Yes; the plaintiff lacked locus standi to maintain the suit

Reasoning

Mativo J had revoked the plaintiff's grant for concealment of material facts. Since the grant was the source of her authority to represent the estate, its revocation stripped her of the capacity to sue, and her future reappointment as administrator could not be guaranteed.

p. 3

Legal principles established

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  • A party cannot sue on behalf of a deceased person's estate without a grant of letters of administration; the grant confers locus standi
  • A preliminary objection must raise a pure point of law, assuming the facts pleaded are correct

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The suit is struck out
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Law of Succession Act (Cap 160)Sections 76, 82, 83

Cases cited (4)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    [1969] EA 696
  • Njoya v Attorney General & Another
    [2002] 1 KLR 232
  • Irine Mwango Anasi v Jared Tom Ngiti Opande & 4 others
    [2016] eKLR
  • Teresia Waithira K Njuguna v John Otieno Nyandew & another
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over the suit property Loc 7/Gakoigo/783; ruling on a notice of preliminary objection

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lucy Wamuyu Marubu v Mercy Njoki Irungu [2017] KEELC 2787 (KLR)", Case Analysis (2017). Not stated in the judgment (plaint dated 1st March 2016, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2787/eng@2017-03-07

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