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ELCStruck OutELC Case No. 205 of 2014· [2018] KEELC 1237 (KLR)

Richard Ongule v Peter Khaukwa Omeno & another [2018] KEELC 1237 (KLR)

Environment and Land Court
16 October 2018
NMN.A. Matheka
1,670 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A grandson lost his land claim in Kakamega because he sued over his late grandfather's estate without first obtaining letters of administration, and the dispute had already been decided earlier.

What this practically means

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Executive summary

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The plaintiff, a grandson of the late Omeno Munyakho alias Andrea (deceased 1968), sued the 1st defendant, a surviving son/heir of the deceased, and the 2nd defendant, administratrix of the estate of the original purchaser. He sought a declaration that the registration of Marama/Shiatsala/1022 in the 1st defendant's name was unlawful, null and void for want of letters of administration, and cancellation of the subdivision titles Marama/Shiatsala/1787 and 1788 so the land could revert for proper succession proceedings. He alleged the 1st defendant had fraudulently and secretly registered the land in his own name, removed a caution, subdivided it, and sold a portion (1788) to the purchaser in or around 1997. The 1st defendant testified he obtained the land through succession and sold it to the 2nd defendant. The 2nd defendant maintained her husband was a bona fide purchaser for value without notice, having paid Ksh. 240,000 in full in 2001 after a diligent search, and challenged the plaintiff's locus standi. The court held that the plaintiff, suing for the benefit of the estate without a grant of letters of administration, lacked locus standi, applying Otieno vs Ougo. It further found the suit res judicata given Kakamega CMC Misc Award No. 171 of 1999 and No. 3 of 2014 between the plaintiff's father and the 1st defendant concerning the suit land. Declining to consider the merits or the counterclaim, the court struck out the suit with no orders as to costs.

Key legal issues

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01

Locus standi of a beneficiary suing without a grant of letters of administration

Holding

The plaintiff, having sued for the benefit of the estate of his deceased grandfather without obtaining a limited or full grant, lacked locus standi and the suit was incompetent from inception

Reasoning

The court applied the principle in Otieno vs Ougo that an administrator cannot bring an action as administrator before taking out letters of administration. The plaintiff admitted he had not obtained either a limited or full grant, yet filed suit on his own behalf and as legal representative of the estate. Accordingly, he lacked the necessary standing to prosecute the claim.

p. 2
02

Res judicata

Holding

The suit was res judicata because the same suit land had been heard and determined in earlier matters before a court of competent jurisdiction

Reasoning

Sections 6 and 7 of the Civil Procedure Act bar trials of matters directly and substantially in issue in prior suits between the same parties or those claiming under them. The plaintiff admitted knowledge of Kakamega CMC Misc Award No. 171 of 1999 and No. 3 of 2014, which were between the plaintiff's father and the 1st defendant touching on the suit land and concerned boundaries. The court found the present suit res judicata.

p. 2

Legal principles established

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  • An administrator cannot bring an action as administrator before taking out letters of administration; such an action is incompetent from inception

Court orders

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  1. 1.The plaintiff's suit is struck out with no orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7

Cases cited (1)

  • Otieno vs Ougo
    1986-1989 E.A.L.R 486
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (land and environment)

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, "Richard Ongule v Peter Khaukwa Omeno & another [2018] KEELC 1237 (KLR)", Case Analysis (2018). ELC Case No. 205 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1237/eng@2018-10-16

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