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ELCStruck OutNot stated in the judgment· [2018] KEELC 543 (KLR)

Priscilla Jesang Koech v Rebecca Koech & 3 others [2018] KEELC 543 (KLR)

Environment and Land Court
19 December 2018
MOM. A. ODENY
2,888 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 case was struck out because she lacked letters of administration to sue over her late husband's property.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (M. A. Odeny, J) determined a Notice of Motion dated 2 February 2018 in which the plaintiff, a widow of the late Wilson Kiptanui Koech (registered owner of land parcel SOY/KIPSOMBA/BLOCK 8 (KOECH PARTNERS)/48, known as Kapsumbeiwet Farm), sought temporary injunctions restraining the defendants from trespassing on, ploughing, utilizing or alienating the suit parcel pending hearing of the application and the suit. Counsel agreed to canvass the application and a preliminary objection on capacity and locus standi by written submissions. The plaintiff argued she had a life interest in the matrimonial property under the Law of Succession Act and section 28 of the Land Registration Act, relying on Bob Njoroge Ngarama v Mary Wanjiru Ngarama. The defendants contended the suit land remains registered in the deceased's name, no succession cause had commenced, and that only personal representatives under section 82(a) of the Law of Succession Act may sue; they also argued the ELC lacks jurisdiction over estate matters under Article 162(2) and section 47 of the Law of Succession Act, citing PLR v JNR and Trouistik Union International v Jane Mbevu. The court held that spousal overriding interests were deleted from section 28 of the Land Registration Act by the Land Laws (Amendment) Act 2016, and that the widow's asserted life interest did not confer standing; she should have obtained a limited grant, which could be procured within a day under certificate of urgency. Relying on Law Society of Kenya v Commissioner of Lands and Hawo Shanko v Mohamed Uta Shanko, the court found the plaintiff had no locus standi, struck out the suit with costs to the defendants, and granted her liberty to pursue the appropriate forum once properly clothed with capacity.

Key legal issues

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01

Whether the plaintiff, as widow claiming a life interest in the deceased's land, has locus standi to sue without letters of administration

Holding

She has no locus standi; a life interest does not clothe her with capacity to sue, and she should have obtained at least a limited grant.

Reasoning

The court held that the widow's asserted life interest under the Law of Succession Act did not confer standing. Section 82(a) of the Act vests power to enforce causes of action surviving the deceased in personal representatives alone. A limited grant (e.g. ad colligenda bona defuncti under Rule 36(1) of the Probate and Administration Rules) could have been obtained quickly under a certificate of urgency, and the plaintiff failed to take that route.

p. 4
02

Effect of the Land Laws (Amendment) Act 2016 on spousal overriding interests under section 28 of the Land Registration Act

Holding

Spousal rights over matrimonial property were deleted as automatic overriding interests and must now be noted on the register.

Reasoning

The court noted that section 11 of the Land Laws (Amendment) Act 2016 deleted subsections (a) and (f) of section 28 of the Land Registration Act, removing spousal rights as automatic overriding interests. Section 31 replaced section 93, so property acquired during marriage is matrimonial property dealt with under the Matrimonial Property Act 2013, a framework for living spouses rather than disputes over a deceased's estate.

p. 3
03

Whether the ELC has jurisdiction over a dispute concerning entitlement to a deceased person's land

Holding

The defendant argued the High Court's family division has exclusive jurisdiction under sections 45 and 47 of the Law of Succession Act, but the court did not reach a definitive holding since the suit was struck out on locus standi.

Reasoning

Counsel for the defendants relied on Article 162(2) of the Constitution, section 47 of the Law of Succession Act and the PLR v JNR decision to contend that entitlement to a deceased person's estate falls to the Family Court. The court dealt with the preliminary objection on locus standi first and, having struck out the suit, did not rule definitively on jurisdiction.

p. 3

Legal principles established

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  • A widow does not acquire locus standi to sue over a deceased's registered land merely by virtue of a claimed life interest; she requires a grant of letters of administration (which may be a limited grant) to institute such a suit.
  • Spousal rights over matrimonial property are no longer automatic overriding interests over registered land following the Land Laws (Amendment) Act 2016 deletion of section 28(a) and (f) of the Land Registration Act.
  • Locus standi goes to the root of a suit and is a point of law capable of disposing of a matter preliminarily.

Court orders

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  1. 1.The suit is struck out with costs to the defendants
  2. 2.The plaintiff is at liberty to choose the relevant court to go to when she has obtained the requisite locus standi

Authorities

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Legislation

  • Law of Succession ActSections 3, 28, 35, 37, 40, 45, 47, 67, 82(a)
  • Land Registration ActSections 28, 93
  • Land Laws (Amendment) Act 2016Sections 11, 31
  • Probate and Administration RulesRule 36(1), Rule 73
  • Environment and Land Court Act No. 9 of 2011Section 4(1)
  • Constitution of KenyaArticle 162(2)
  • Matrimonial Property Act2013

Cases cited (7)

  • Giella v Cassman Brown Ltd [1973] EA 358
    [1973] EA 358
  • Bob Njoroge Ngarama v Mary Wanjiru Ngarama & another [2014] eKLR
    [2014] eKLR
  • PLR v JNR & another [2013] eKLR
    [2013] eKLR
  • Trouistik Union International & Another v Jane Mbevu & Another (2008) 1 KLR (G&F) 730
    (2008) 1 KLR (G&F) 730
  • Beatrice Wambui Kiarie & 2 Others v Tabitha Wanjiku Ng'ang'a & 9 others, Nyahururu ELC Case No. 265 of 2017
    Nyahururu ELC Case No. 265 of 2017
  • Law Society of Kenya v Commissioner of Lands and Others, Nakuru High Court Civil Case No. 464 of 2000
    Nakuru High Court Civil Case No. 464 of 2000
  • Hawo Shanko v Mohamed Uta Shanko [2018] eKLR
    [2018] eKLR
Jurisdiction invoked
Environment and Land Court established under Article 162(2) of the Constitution and the Environment and Land Court Act No. 9 of 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Priscilla Jesang Koech v Rebecca Koech & 3 others [2018] KEELC 543 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/543/eng@2018-12-19

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