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ELCStruck OutNot stated in judgment· [2018] KEELC 1531 (KLR)

Miriam Rajab suing thro’ John Nchiroine Konchellah v Erick Kipen Konchellah & 3 others [2018] KEELC 1531 (KLR)

Environment and Land Court
28 September 2018
681 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A widow's land claim collapsed because she obtained a fresh administration grant over an estate already fully administered, so the court struck out her suit.

What this practically means

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Executive summary

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This was a first-instance ruling of the Environment and Land Court at Narok on the defendants' Notice of Motion dated 23rd November 2017, brought under Sections 1A and 1B of the Civil Procedure Act and Order 2 Rule 15(1)(b) and (c) of the Civil Procedure Rules, seeking to strike out the plaintiff's suit. The defendants argued that the plaintiff lacked locus standi, being neither an administrator nor a beneficiary of the estate of John Nchiroine Konchellah; that she had fraudulently obtained interim letters of administration ad litem in Narok despite the estate having been fully administered in Nairobi High Court Succession Cause No. 314 of 1994, in which the 1st Defendant and Lawrence Konchellah held a confirmed grant; and that the court lacked jurisdiction over succession disputes. The plaintiff opposed, averring she was the wife of the deceased Edward Konchellah, whose share the defendants had sold, and that she obtained the Narok ad litem grant because the Nairobi succession cause was concluded. Justice Mohammed Noor Kullow framed the sole issue as the plaintiff's locus standi. He held that although the claim concerned land (within the ELC's jurisdiction as the dominant cause of action), the plaintiff's obtaining of an interim grant over an estate where a competent court had already confirmed a grant was unprocedural, and she had not explained why she had not applied to the court that made the confirmed grant. The court struck out the suit with costs to the defendants.

Key legal issues

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01

Whether the plaintiff had locus standi to institute the suit

Holding

The plaintiff lacked the requisite locus standi because she obtained interim letters of administration ad litem in Narok over an estate whose grant had been confirmed in Nairobi High Court Succession Cause No. 314 of 1994.

Reasoning

The court noted that the defendants' grant was confirmed on 24th March 1994, while the plaintiff obtained her interim grant ad litem on 25th July 2017. The plaintiff did not explain why she did not apply to the court that made the confirmed grant to stake her claim or seek revocation. Obtaining a parallel interim grant over a fully administered estate was therefore unprocedural and robbed her of capacity to sue.

p. 2
02

Whether the Environment and Land Court had jurisdiction over the dispute

Holding

The court held that although the matter touched on a succession estate, the dominant cause of action concerned land, over which the ELC has jurisdiction; the court was not determining entitlement to the estate.

Reasoning

The judge acknowledged that the court was not the Family Court and was not determining whether the plaintiff had a share in the estate. However, the substantive claim concerned land, which is the dominant cause of action, and land disputes fall within the ELC's jurisdiction under Article 162(2)(b) of the Constitution.

p. 2

Legal principles established

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  • A litigant cannot obtain fresh interim letters of administration over an estate in which a competent court has already confirmed a grant; such a litigant lacks capacity to sue.

Court orders

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  1. 1.The plaintiff's suit is struck out
  2. 2.Costs of the application awarded to the defendants

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B
  • Civil Procedure RulesOrder 2 Rule 15(1)(b), (c)
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes; application brought under Sections 1A, 1B of the Civil Procedure Act and Order 2 Rule 15(1)(b), (c) of the Civil Procedure Rules

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, "Miriam Rajab suing thro’ John Nchiroine Konchellah v Erick Kipen Konchellah & 3 others [2018] KEELC 1531 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1531/eng@2018-09-28

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