Charity Ngio Nyaga v Zuhura Juma Kavuto & 3 others [2018] KEELC 2441 (KLR)

Environment and Land Court

19 July 2018

YAY.M. Angima

787 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

What this practically means

Executive summary

The 1st and 2nd Defendants filed a preliminary objection dated 10th October 2017 in an Environment and Land Court suit at Embu, contending that the Plaintiff lacked locus standi because the suit property, Title No. Gaturi/Weru/4546, belonged to the late Nyaga Kibande, and that the Plaintiff's claim was premised on her status as a wife or beneficiary of the deceased's estate. They argued that no letters of administration had been obtained under the Law of Succession Act (Cap 160), so the suit was a non-starter and ought to be struck out, relying on Rajesh P. Chudasama v Sailesh P. Chudasama and Jane Wanjiru Njane v Peter Njenga Njane. The Plaintiff responded that she was not suing on behalf of the estate and sought only nullification of allegedly illegal and fraudulent dealings on the property before succession was addressed, and that the objection involved factual or mixed questions, contrary to the Mukisa Biscuits principle that a preliminary objection must be a pure point of law. The court agreed with the Plaintiff. It noted that capacity was never challenged in the pleadings, that the existence of a grant is a factual question requiring evidence, and that the Plaintiff was denied a fair opportunity to meet the objection through pleadings or affidavits. The preliminary objection was dismissed with costs to the Plaintiff.

Key legal issues

Whether the locus standi objection was a proper preliminary objection

Holding

It was not, because it depended on factual investigation of whether a grant of letters of administration exists

Reasoning

Relying on Mukisa Biscuits, the court held that a preliminary objection must raise a pure point of law on undisputed facts. The existence or otherwise of a grant under the Law of Succession Act is a factual question requiring evidence, which cannot be tendered at the preliminary objection stage. Further, the capacity issue was never pleaded by the Defendants, denying the Plaintiff fair notice.

p. 2

Whether the Plaintiff's capacity should have been raised in the pleadings

Holding

The Defendants never pleaded lack of capacity, so the Plaintiff had no fair opportunity to meet it

Reasoning

The court noted that locus standi was raised for the first time in the notice of preliminary objection, not in the defence and counterclaim. A party whose capacity is impugned should be able to respond through pleadings or affidavits; springing the objection at the preliminary stage was procedurally unfair.

p. 2

Legal principles established

A preliminary objection must be a pure point of law; where determination requires factual investigation or additional evidence, it is not a proper preliminary objection
A party facing a challenge to capacity must be accorded a fair opportunity to meet the objection through pleadings or affidavits

Court orders

1.The 1st and 2nd Defendants' notice of preliminary objection dated 10th October 2017 is dismissed
2.Costs of the preliminary objection to the Plaintiff

Authorities

Legislation

Law of Succession ActCap 160

Cases cited (3)

Rajesh P. Chudasama Vs Sailesh P. Chudasama
Mombasa Civil Appeal No. 30 of 2013 [2014] eKLR
Jane Wanjiru Njane Vs Peter Njenga Njane
Nakuru ELC No. 134 of 2017 [2017] eKLR
Mukisa Biscuits Manufacturing Company Ltd Vs West End Distributors Ltd
[1969] EA 696

Jurisdiction invoked: Article 162(2)(b) of the Constitution (Environment and Land Court) - not expressly cited in the ruling; suit filed in the ELC

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Charity Ngio Nyaga v Zuhura Juma Kavuto & 3 others [2018] KEELC 2441 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2441/eng@2018-07-19

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