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ELCStruck OutNot stated in the judgment as provided· [2018] KEELC 12 (KLR)

Michael Otieno Okongo (Suing as the Legal administrator of the Estate of Odua Gigo, Deceased) v Lameck Odoyo Obola & 4 others [2018] KEELC 12 (KLR)

Environment and Land Court
29 May 2018
GOG. M. A. Ongondo
2,013 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 a land fraud suit because the plaintiff sued people claiming to represent a deceased's estate without any grant of representation.

What this practically means

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Executive summary

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The plaintiff sued the 1st to 3rd and 4th to 5th defendants by a plaint dated 6th May 2014, seeking a declaration that the sale, transfer and registration of land parcel LR No. Kamagambo/Kongudi/537 in favour of Peter Davidson Otieno (deceased) on 20th September 1991, after the death of Odua Gigo on 15th April 1989, was fraudulent, illegal, null and void, together with cancellation of the registration and rectification of the register. The defendants filed statements of defence denying the claim and raised a preliminary objection dated 26th February 2015 on four grounds: lack of locus standi to be sued on behalf of a deceased's estate; non-compliance with Order 4 Rule 4 of the Civil Procedure Rules; failure to disclose a reasonable cause of action; and filing outside the limitation period without leave. Parties canvassed the objection by written submissions. The court framed two issues: whether the grounds of the preliminary objection were sustainable and who should bear its costs. Relying on the decision of J.G. Kemei J in Muriithi Ngweya v Gikonyo Macharia Mwangi, the court held that a person may only represent a deceased's estate where a grant of representation has been made, and no material established the 1st defendant's capacity as administrator. Grounds (i) to (iii) were upheld, but ground (iv) on limitation failed because the fraud was discovered upon an official search in 2013, making the 2014 suit timely. The court struck out the entire suit with costs to the defendants.

Key legal issues

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01

Whether the defendants lacked locus standi to be sued on behalf of the estate of a deceased person

Holding

Grounds (i) to (iii) of the preliminary objection were found tenable because no material showed the 1st defendant was the legal representative/administrator of the estate of Peter Davidson Otieno.

Reasoning

The court adopted the position of J.G. Kemei J in Muriithi Ngweya v Gikonyo Macharia Mwangi that representation of a deceased person's estate requires a grant of representation under the Law of Succession Act. Section 79 vests property in the personal representative named in the grant. As no grant or citation proceedings were exhibited, the plaintiff's claim against parties not shown to be administrators of the deceased's estate failed on capacity.

p. 3
02

Whether the suit offended Order 4 Rule 4 of the Civil Procedure Rules and disclosed no reasonable cause of action

Holding

Grounds (ii) and (iii) of the preliminary objection were upheld together with ground (i).

Reasoning

Order 4 Rule 4 requires a plaint to state the capacity in which a party sues or is sued and how that capacity arises. The plaintiff pleaded that the 1st defendant was the duly constituted legal administrator of the estate of Peter Davidson Otieno, but counsel for the defendants submitted that no material had been presented to establish how that capacity arose. The court found these grounds tenable on the cited provisions.

p. 3
03

Whether the suit was filed outside the limitation period

Holding

Ground (iv) of the preliminary objection failed; the suit was filed within time because fraud was discovered upon an official search in 2013.

Reasoning

A certificate of official search dated 22/8/2013 revealed that the alleged fraud was discovered upon search in 2013. Since the suit was filed on 9th May 2014, the court held that the claim was brought within the prescribed period and the limitation ground lacked foundation.

p. 3

Legal principles established

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  • A person can only represent the estate of a deceased person where a grant of representation has been made in respect of that estate under the Law of Succession Act.

Court orders

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  1. 1.The preliminary objection dated 26th February 2015 is upheld on grounds (i) to (iii)
  2. 2.The plaintiff's suit filed on 9th May 2014 by way of a plaint dated 6th May 2014 is struck out
  3. 3.Costs of the suit to the defendants

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 4 Rule 4
  • Civil Procedure Rules, 2010Order 24 Rule 5
  • Civil Procedure Rules, 2010Order 1 Rules 9 and 10(2)
  • Limitation of Actions Act (Cap 22)Section 7
  • Limitation of Actions Act (Cap 22)Section 4(2)
  • Limitation of Actions Act (Cap 22)Section 26
  • Law of Succession Act (Cap 160)Section 79
  • Public Authorities Act (Cap 39)Section 3(1)
  • Civil Procedure Act (Cap 21)Section 2

Cases cited (5)

  • Igra -v- Makerere University
    (1972) EA 65
  • Tom Onyango Oketch –v- Kenyatta National Hospital
    (2016) eKLR
  • Skair Associates Architect –v- Evangelical Lutharan Church of Kenya and 4 others
    (2015) eKLR
  • Milton Maina Musa Kiuru –v- Elijah Kigundu Kiuru and 4 others
    (2016) eKLR
  • Muriithi Ngweya –v- Gikonyo Macharia Mwangi
    (2017) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel LR No. Kamagambo/Kongudi/537

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, "Michael Otieno Okongo (Suing as the Legal administrator of the Estate of Odua Gigo, Deceased) v Lameck Odoyo Obola & 4 others [2018] KEELC 12 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/12/eng@2018-05-29

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