Nashon Adede Ogola & another v Joshua Otieno Misadhi & 2 others [2018] KEELC 95 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to strike out a land claim, confirming that limited administration grants let beneficiaries sue and land recovery claims get twelve years.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is barred by the Limitation of Actions Act
The suit is not statute barred because the predominant claim is an action to recover land governed by the twelve-year period under Section 7 of the Limitation of Actions Act, not the six-year period under Section 4
The 3rd defendant argued the claim was time-barred under Section 4 of the Limitation of Actions Act, which prescribes six years. The court noted the plaintiffs pleaded fraud and that proof of fraud requires more than proof on a balance of probability. However, examining the reliefs sought in the plaint, the court found the predominant claim was an action to recover land under Section 7, which allows twelve years. The suit was therefore not statute barred.
Whether the suit is res judicata under Section 7 of the Civil Procedure Act
The suit is not res judicata as there was no evidence of a former suit between the same parties over the same subject matter that was heard and finally determined
The 3rd defendant invoked Section 7 of the Civil Procedure Act. The court examined the pleadings and submissions and found nothing to show that the suit involved parties and subject matter already heard and finally determined in a former suit. The plaintiffs further averred in the plaint that there were no previous proceedings between the parties over the same subject matter. The preliminary objection on res judicata therefore failed.
Whether the plaintiffs have locus standi to file and prosecute the suit
The plaintiffs have locus standi as they obtained a limited grant of letters of administration ad litem which had not been annulled or revoked
The 3rd defendant argued the plaintiffs needed a grant under Section 82 of the Law of Succession Act. The court found the plaintiffs had obtained a limited grant ad litem in Homa-Bay High Court Succession Cause No. 43 of 2014. Limited grants are governed by Section 54 of the Law of Succession Act, and the grants had not been annulled or revoked. Relying on authority that a grant clothes a person with locus standi to sue for an estate, the court held the suit was competent.
Whether the court has jurisdiction to entertain the suit
The court has jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, and the matter squarely falls within its jurisdiction
Citing the Supreme Court's pronouncement that jurisdiction flows from the Constitution or legislation, the court held that its jurisdiction flows from Article 162(2)(b) of the Constitution, reinforced by Section 13 of the Environment and Land Court Act. Given the reliefs sought in the plaint and the existence of unrevoked limited grants, the matter squarely fell within the court's jurisdiction.
Whether the suit is premature, misconceived, discloses no cause of action and is an abuse of process
The suit raises triable issues and should proceed to full hearing, taking into account the right to fair trial under Article 50(1) of the Constitution
The court noted there was no dispute that triable issues were raised in the plaint requiring determination. Invoking the right to fair trial under Article 50(1) of the Constitution, the court held that parties should be given an opportunity to ventilate the issues at the hearing of the suit. The suit was found to be alive and calling for determination on its merits.
Legal principles established
#- A court's jurisdiction flows from the Constitution or legislation or both, and a court cannot arrogate to itself jurisdiction exceeding that conferred by law
- A grant of letters of administration is what clothes a person with locus standi to sue on behalf of the estate of a deceased person
- An action to recover land may not be brought after the end of twelve years from the date the right of action accrued
- The predominant claim in the plaint, not the incidental allegations, determines the applicable limitation provision
Court orders
#- 1.The preliminary objection raised at paragraph 15 of the 3rd defendant's statement of defence is disallowed for want of merit
- 2.Costs of the preliminary objection be in the cause
- 3.Parties may file and serve further or additional documents to be relied upon within thirty (30) days from the date of the ruling
- 4.Hearing of the suit on 17th October 2018
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010 read with Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nashon Adede Ogola & another v Joshua Otieno Misadhi & 2 others [2018] KEELC 95 (KLR)", Case Analysis (2018). Not stated in judgment (plaint dated 21st October 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/95/eng@2018-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.