Ojwang Kombudo & another v Clement Otieno Ondiek & another [2017] KEELC 2845 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Locus standi of the Defendants to prosecute a counterclaim for the estates of deceased persons
The preliminary objection on locus standi to the counterclaim was upheld; the Defendants, not being appointed legal representatives or administrators, lacked capacity
The Defendants admitted in paragraphs 14 and 15 of their defence and counterclaim that no grant had been obtained for the estates of the late Okongo Randa and Ondiek Randa. Their counterclaim sought cancellation of entries in favour of the Plaintiffs and reversion of the land to the deceaseds' names, which required capacity under the Law of Succession Act. Lacking a grant, they could not prosecute the counterclaim for the estates.
Whether the defence should be struck out
The defence was not struck out; it raises triable issues of fraud and adverse possession
The Defendants have an automatic right to defend the suit filed against them. The defence pleads fraud in the manner the Plaintiffs obtained registration of the suit land and, alternatively, adverse possession. Since these raise triable issues, the defence could not be struck out even though the counterclaim prayers failed on locus standi.
Whether the counterclaim is statute barred under Section 7 of the Limitation of Actions Act
The court declined to decide the limitation issue as it was unnecessary after the finding on capacity
Having found the Defendants lacked locus standi to prosecute the counterclaim for the deceaseds' estates, the court considered it unnecessary to pronounce on limitation. Deciding a hypothetical limitation question before the issue of capacity was resolved would, in the court's view, amount to putting the cart before the horse.
Legal principles established
#- A person who has not obtained a grant of letters of administration lacks capacity to file and prosecute a counterclaim on behalf of a deceased's estate
- A defendant served with a plaint has an automatic right to defend the suit, and a defence raising triable issues should not be struck out
Court orders
#- 1.Prayers 1 and 2 of the counterclaim are struck out with costs to the Plaintiffs
- 2.The Defendants are directed to file and serve an amended defence and counterclaim within 21 days
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land parcel Kisumu/Dago/670
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ojwang Kombudo & another v Clement Otieno Ondiek & another [2017] KEELC 2845 (KLR)", Case Analysis (2017). Not stated in judgment (plaint dated 13th May 2016, filed 16th May 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2845/eng@2017-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.