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ELCStruck OutNot stated in the judgment· [2018] KEELC 2696 (KLR)

Parmenas Kamau Mburu v Susan Waithera Kamau & another [2018] KEELC 2696 (KLR)

Environment and Land Court
28 June 2018
DOD. O. Ohungo
1,288 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a son's land claim because he sued over his late father's estate without first obtaining letters of administration.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (D. O. Ohungo, J) dealt with the plaintiff's Notice of Motion dated 23rd February 2017 seeking a temporary injunction restraining the defendants from entering upon or interfering with Naivasha/Maraigushu Block 9/267 (Kenton), and the defendants' Notice of Preliminary Objection dated 10th March 2017. The plaintiff claimed to be a beneficiary of the suit property, which he alleged belonged to his late father, Paul Mburu Mwangi, and which the 1st defendant, his grandmother, was said to hold in trust for him. He averred that a search revealed the defendants had subdivided the property into plots registered in their names. The defendants objected that the court lacked jurisdiction, that the plaintiff had no authority to sue on behalf of the deceased's estate without letters of administration, and that the suit was an abuse of process. The court first considered the preliminary objection, applying the Mukisa Biscuit test that a preliminary objection must be a pure point of law argued on assumed facts. Adopting Trouistik Union International v Jane Mbeyu and sections 2, 3 and 82(a) of the Law of Succession Act, the court held that only personal representatives may enforce causes of action vested in a deceased person. The plaintiff held no letters of administration, so his case was untenable and was struck out. The injunction application therefore fell away. Given the family relationship between the parties, each party was ordered to bear its own costs. The ruling was delivered on 28th June 2018.

Key legal issues

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01

Whether the plaintiff, claiming as a beneficiary of a deceased's estate, has locus standi without letters of administration

Holding

He does not; the suit is untenable and is struck out

Reasoning

The plaintiff's claim was that the suit property belonged to his late father's estate and that he was entitled to a share as heir. He did not exhibit or even claim to hold letters of administration. Relying on Trouistik Union International v Jane Mbeyu and the Law of Succession Act, only personal representatives (executors or administrators) may enforce causes of action vested in a deceased. Without a grant, the suit could not stand.

p. 2
02

Whether the defendants' preliminary objection was a valid preliminary objection on a point of law

Holding

Yes; it was considered on the assumption that all facts pleaded by the plaintiff were correct, disregarding the replying affidavit

Reasoning

Applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the court applied the tests that a preliminary objection must raise a pure point of law, be argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or discretion exercised. On that basis the objection on locus standi was decided as a pure point of law.

p. 2

Legal principles established

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  • A valid preliminary objection must be on a pure point of law, argued on the assumption that the facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or discretion exercised
  • A beneficiary of a deceased person's estate cannot sue in respect of the estate without first obtaining letters of administration; only personal representatives may enforce causes of action vested in the deceased

Court orders

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  1. 1.The suit is struck out
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Law of Succession ActSection 2
  • Law of Succession ActSection 3
  • Law of Succession ActSection 82(a)
  • Law Reform Actnot specified

Cases cited (2)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Trouistik Union International & another v Jane Mbeyu & another
    [1993] eKLR
Jurisdiction invoked
Not stated in the judgment

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, "Parmenas Kamau Mburu v Susan Waithera Kamau & another [2018] KEELC 2696 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2696/eng@2018-06-28

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