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ELCStruck OutNotice of motion dated 29th September 2015 (in a suit commenced by plaint dated 29th September 2015, filed 1st October 2015)· [2017] KEELC 3374 (KLR)

Alice Akinyi Ogindo v David Odang Oginde & 3 others [2017] KEELC 3374 (KLR)

Environment and Land Court
22 March 2017
SKS.M. Kibunja
1,473 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan widow's land suit was struck out because she filed it after her 90-day limited administration grant expired.

What this practically means

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Executive summary

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The Plaintiff, administrator of the estate of the late Melkizedek Ogindo Ogalo, sought a temporary injunction under a notice of motion dated 29th September 2015 restraining the Defendants from trespassing on, fencing, selling, disposing of or otherwise interfering with parcel Kisumu/Kogony/4672, which had been subdivided into parcels 6382 and 6383. The application was opposed by the 1st to 3rd Defendants, whose principal contention was that the Plaintiff lacked locus standi because the 90-day period within which she was authorised, by a grant of letters of administration ad litem issued on 2nd June 2015, to commence suit had expired before the plaint was filed on 1st October 2015. Counsel for the Plaintiff argued that the court vacation between 1st August and 15th September 2015 should be excluded from the computation, but the court found the gazette notice governing the vacation expressly kept registries open to the public, so there was no basis for exclusion. Applying Rule 8 of Order 50 of the Civil Procedure Rules, the court computed the 90 days exclusively of the first day and found they lapsed on or about 31st August 2015. The Plaintiff was therefore without capacity when she filed the suit and the motion. On 22nd March 2017 the court struck out both the suit and the notice of motion and ordered the Plaintiff to pay the costs of the 1st to 3rd Defendants. The merits of the underlying land dispute, including the regularity of the transfers following the deceased's death in 2002, were not determined.

Key legal issues

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01

Whether a grant of letters of administration ad litem limited to 90 days survives past its expiry for purposes of instituting suit

Holding

The 90-day period is computed exclusively of the first day and inclusively of the last day, excluding vacation days; the grant lapsed before the plaint was filed, so the Plaintiff had no locus standi

Reasoning

The grant ad litem issued on 2nd June 2015 authorised the Plaintiff to file suit within 90 days. Rule 8 of Order 50 of the Civil Procedure Rules requires time to be counted exclusively of the first day and inclusively of the last day, so the 90 days lapsed on or about 31st August 2015. The court vacation argument failed because the gazette notice showed registries remained open during vacation. The plaint filed on 1st October 2015 was therefore filed by a person without capacity.

02

Whether court vacation days are excluded in computing the 90-day period under a grant ad litem

Holding

Vacation days are not excluded where the gazette notice shows court registries remain open to the public during the vacation

Reasoning

Counsel for the Plaintiff urged that the vacation period of 1st August to 15th September 2015 be excluded from the computation. The court perused Gazette Notice No.5277 of 24th July 2015 and found it expressly provided that court offices including registries would be open to the public from 8.00 am to 5.00 pm on weekdays during the vacation. There was thus no legal basis for excluding the vacation period, and the Plaintiff failed to establish one.

p. 3
03

Consequence of filing suit without capacity under a lapsed grant ad litem

Holding

A suit and a notice of motion founded on it, filed by a person without capacity, must be struck out

Reasoning

Having found that the Plaintiff's authority under the grant ad litem had expired before the plaint was filed, the court held she was without capacity to file suit on behalf of the estate. The plaint and the interlocutory application predicated upon it could not stand. The court accordingly struck out both the suit and the notice of motion and awarded costs to the 1st to 3rd Defendants, without reaching the merits of the injunction.

p. 3

Legal principles established

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    Court orders

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    1. 1.Both the suit, commenced through the plaint dated 29th September 2015, and the notice of motion of even date are struck out
    2. 2.The Plaintiff to pay the costs of the 1st to 3rd Defendants

    Authorities

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    Legislation

    • Law of Succession ActChapter 160 of the Laws of Kenya
    • Civil Procedure RulesOrder 50, Rules 4 and 8
    • Gazette Notice No.527724th July 2015 (court vacation)
    Jurisdiction invoked
    Original jurisdiction of the Environment and Land Court over land parcel Kisumu/Kogony/4672 and applications for interlocutory relief

    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, "Alice Akinyi Ogindo v David Odang Oginde & 3 others [2017] KEELC 3374 (KLR)", Case Analysis (2017). Notice of motion dated 29th September 2015 (in a suit commenced by plaint dated 29th September 2015, filed 1st October 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3374/eng@2017-03-22

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