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ELCStruck OutNot stated in judgment· [2018] KEELC 2057 (KLR)
Julius Mwabonje Murima & 2 others v Garama Kathengi & 3 others [2018] KEELC 2057 (KLR)
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·~3 min to read original · ~4 min briefThe bottom line
#A Kenyan court struck out a land dispute suit because the plaintiffs sued for their late brother's estate without first obtaining letters of administration.
What this practically means
#Executive summary
#The three Plaintiffs sought an injunction to restrain the four Defendants from trespassing on, encroaching, sub-dividing, selling, constructing upon, alienating or wasting an unregistered parcel of land at Kadzuhoni within Gongoni, Kilifi County. Their case was that their late brother, Nelson Mwachilumo Mrima, had purchased the land from one Katana Mkonge in 1981 and had used it since, and that the Defendants had embarked on destructive salt extraction on the land. The Defendants, in a replying affidavit sworn by the 2nd Defendant Johanna Kathengi, denied encroachment, asserting that their late father Kathengi Mkamba had owned 5.5 acres and sold one acre to Katana Mkonge in 1978, and contended that the Plaintiffs, as siblings of the deceased, had no authority to sue because they lacked letters of administration for the estate. The Plaintiffs did not contest that they had no grant at the time of filing. Relying on the Court of Appeal decision in Otieno v Ougo, the court held that a litigant is clothed with locus standi in succession matters only upon obtaining a limited or full grant of letters of administration, and that an action brought before the grant is incompetent from inception. In the absence of proof that the Plaintiffs had obtained the requisite grant before instituting the suit, the court struck out both the application dated 5th October 2017 and the entire suit filed on 9th October 2017, with costs to the Defendants/Respondents. The substantive dispute over the land was therefore never determined.
Key legal issues
#01
Whether the Plaintiffs had locus standi to sue on behalf of the estate of their deceased brother without a grant of letters of administration
Holding
The suit was incompetent from inception for want of letters of administration.
Reasoning
The Plaintiffs did not contest that they had no grant when they filed the suit. Relying on Otieno v Ougo, the court held that in intestate succession a litigant is clothed with locus standi only upon obtaining a limited or full grant. Absent proof of the grant before instituting proceedings, the suit and the injunction application were incompetent and had to be struck out.
p. 2
Legal principles established
#- A litigant seeking to sue on behalf of a deceased person's estate has locus standi only upon obtaining a limited or full grant of letters of administration; an action brought before the grant is incompetent from inception.
Court orders
#- 1.The Plaintiffs' application dated 5th October 2017 struck out
- 2.The entire suit as filed on 9th October 2017 struck out
- 3.Costs awarded to the Defendants/Respondents
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes concerning land in Kilifi County (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Mwabonje Murima & 2 others v Garama Kathengi & 3 others [2018] KEELC 2057 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2057/eng@2018-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.