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ELCStruck OutNot stated in judgment (plaint dated 25th September 2013)· [2017] KEELC 3327 (KLR)

Thomas Omondi Owako & another v David Oscar Owako & 2 others [2017] KEELC 3327 (KLR)

Environment and Land Court
29 March 2017
1,456 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 struck out a family land dispute because challenges to inherited estate property must go through the succession court, not the land court.

What this practically means

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Executive summary

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The plaintiffs, siblings of the 1st Defendant, sued him as alleged administrator of the estates of their late parents, together with the 2nd and 3rd Defendants as purchasers of estate properties, by a plaint dated 25th September 2013 with a notice of motion of even date. The 1st Defendant raised a preliminary objection contending lack of locus standi, res judicata by reason of Kisumu H.C. Succession Causes Nos. 452 and 453 of 2008, abatement following the 1st Plaintiff's death on 15th December 2015, and lack of jurisdiction as the dispute was a succession matter. The court framed five issues and held that the plaint raised questions of the validity of the grants and distribution of the estates, matters reserved to the High Court sitting as a succession court under Section 2(1) of the Law of Succession Act. Until the confirmed grants were revoked, the court could not fault the 1st Defendant's transactions, as that would amount to sitting on appeal over the High Court. The death of the 1st Plaintiff was undisputed; no substitution application was made within one year, so his case abated against all Defendants under Order 24 Rule 3(3) of the Civil Procedure Rules. As the Plaintiffs were strangers to the sale agreements and the grants remained unchallenged, they lacked capacity against the 2nd and 3rd Defendants. The preliminary objection was upheld and the plaint and notice of motion were struck out with costs.

Key legal issues

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01

Locus standi of the Plaintiffs to sustain the suit

Holding

The Plaintiffs lack locus; the suit against the 2nd and 3rd Defendants cannot be sustained as the grants under which the 1st Defendant derived his rights remain unchallenged

Reasoning

The court noted the Plaintiffs were not parties to the sale agreements between the Defendants and that the confirmed grants underpinning the 1st Defendant's rights to the properties had not been successfully challenged. Consequently, the Plaintiffs had no capacity to maintain the suit against the purchasers, the 2nd and 3rd Defendants.

p. 3
02

Jurisdiction over succession matters

Holding

The court lacks jurisdiction; the plaint raises questions of validity of grants and distribution of estates, which belong to the succession court

Reasoning

Paragraphs 4 to 12 of the plaint questioned the grants obtained by the 1st Defendant in the two succession causes and accused him of meddling with estate properties. Such matters fall under Section 2(1) of the Law of Succession Act and must be determined by the High Court sitting as a succession court, not the Environment and Land Court.

p. 2
03

Abatement of the suit upon death of the 1st Plaintiff

Holding

The 1st Plaintiff's case abated against all three Defendants, no substitution application having been made within one year of his death on 15th December 2015

Reasoning

The 1st Defendant's contention that the 1st Plaintiff died on 15th December 2015 was undisputed. Under Order 24 Rules 1 and 2 the suit survives against the surviving plaintiff, but Rule 3(1) requires an application to substitute a deceased party; none was made, so under Rule 3(3) the 1st Plaintiff's case abated after more than one year elapsed.

p. 3
04

Res judicata by reason of the succession causes

Holding

The preliminary objection was upheld on locus and jurisdiction grounds; the court did not found its decision on res judicata, noting that until the grants are revoked it cannot fault transactions based on the confirmed grants

Reasoning

Counsel for the Plaintiffs argued that revocation proceedings were ongoing, but no party availed copies of the revocation proceedings. The court held that faulting the 1st Defendant's transactions on the strength of confirmed certificates of grant would be akin to sitting on appeal over a High Court decision.

p. 3

Legal principles established

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  • Issues of validity of grants of letters of administration and distribution of estates fall within the jurisdiction of the High Court sitting as a succession court, not the Environment and Land Court
  • Until grants are revoked, a court cannot fault transactions done on the strength of confirmed grants, as that would amount to sitting on appeal over the High Court's decision
  • Under Order 24 Rule 3(3) of the Civil Procedure Rules, a deceased plaintiff's cause abates where no application for substitution is made within one year of death

Court orders

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  1. 1.The 1st Defendant's preliminary objection dated 16th September 2016 is upheld on grounds of want of locus and want of jurisdiction
  2. 2.The Plaintiffs' suit commenced through the plaint dated 25th September 2013 and the notice of motion of even date are struck out with costs

Authorities

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Legislation

  • Law of Succession ActSection 2(1)
  • Civil Procedure RulesOrder 24 Rules 1 and 2
  • Civil Procedure RulesOrder 24 Rule 3(1)
  • Civil Procedure RulesOrder 24 Rule 3(3)
Jurisdiction invoked
Environment and Land Court jurisdiction; suit struck out for want of jurisdiction, matters falling 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, "Thomas Omondi Owako & another v David Oscar Owako & 2 others [2017] KEELC 3327 (KLR)", Case Analysis (2017). Not stated in judgment (plaint dated 25th September 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3327/eng@2017-03-29

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