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ELCStruck OutNot stated in judgment (plaint dated 2nd September 2016)· [2018] KEELC 2778 (KLR)

Beatrice Wambui Kiarie & v Beatrice Wambui Kiarie & 9 others [2018] KEELC 2778 (KLR)

Environment and Land Court
3 July 2018
4,499 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Suing over a deceased person's Kenyan land without letters of administration gets your case struck out, as this Nyahururu court confirmed.

What this practically means

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Executive summary

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The Plaintiffs, siblings of the 1st Defendant, filed a suit on 2nd September 2016 seeking cancellation of titles arising from the subdivision of land parcel Nyandarua/Silbwet/24, registered in the name of their deceased mother, and reinstatement of the parcel into her name. The Defendants raised a preliminary objection on three grounds: lack of locus standi, lack of jurisdiction, and limitation. The court applied the Mukisa Biscuits test and determined the objection on written submissions. On locus standi, the court held that the Plaintiffs, having neither applied for nor obtained letters of administration, lacked capacity to espouse a cause of action vested in the deceased, following Trouistik Union International v Jane Mbeyu and section 82(a) of the Law of Succession Act. On jurisdiction, although the Environment and Land Court has unlimited original jurisdiction over disputes relating to title to land under Article 162(2)(b), the court found that the plaint, on its own pleadings and annexures, raised a succession dispute properly before the High Court or Chief Magistrate's Court. On limitation, applying section 7 of the Limitation of Actions Act, the cause of action accrued on 22nd December 1992 upon subdivision and transfer, and the suit filed in 2016, some twenty-four years later, was statute barred; section 26 (fraud discovery) did not save it, and limitation as substantive law could not be displaced by sections 1A and 1B of the Civil Procedure Act. The preliminary objection succeeded in its entirety and the Plaintiffs' suit was struck out with costs to the Defendants.

Key legal issues

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01

Locus standi of beneficiaries who have not taken out letters of administration

Holding

Plaintiffs lacked capacity to sue; the suit was incompetent

Reasoning

The court found it uncontested that the Plaintiffs had neither applied for nor obtained letters of administration over their late mother's estate. Relying on Trouistik Union International v Jane Mbeyu and section 82(a) of the Law of Succession Act, only personal representatives may enforce causes of action vested in the deceased. The Plaintiffs' claim espoused the deceased's estate without capacity.

p. 5
02

Whether the Environment and Land Court had jurisdiction over the dispute

Holding

The dispute was a succession dispute outside the court's jurisdiction

Reasoning

Although the ELC has unlimited original jurisdiction over disputes relating to use and occupation of and title to land under Article 162(2)(b), the court found on the plaint and annexures that the real issue was who inherits the deceased's estate, a matter reserved for the High Court or Chief Magistrate's Court under the Law of Succession Act.

p. 5
03

Whether the claim was time barred under the Limitation of Actions Act

Holding

The claim was statute barred, the cause of action having accrued on 22nd December 1992

Reasoning

Under section 7 of the Limitation of Actions Act, an action to recover land must be brought within twelve years of accrual. The subdivision and transfer occurred on 22nd December 1992 and the suit was filed on 2nd September 2016, some twenty-four years later. Section 26 (fraud discovery) did not assist on the pleadings, and no extension of time was exhibited.

p. 6

Legal principles established

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  • Only personal representatives of a deceased may enforce causes of action vested in the deceased
  • A court without jurisdiction must down its tools
  • Limitation is substantive law and cannot be overridden by the overriding-objective provisions of the Civil Procedure Act

Court orders

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  1. 1.The preliminary objection succeeds in its entirety
  2. 2.The Plaintiffs' suit is struck out with costs to the Defendants

Authorities

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Legislation

  • Law of Succession Act, Cap. 160Sections 3, 47, 48, 82(a)
  • Limitation of Actions ActSections 4(2), 7, 9(2), 26(a)
  • Environment and Land Court ActSections 4, 13, 26
  • Civil Procedure ActSections 1A, 1B, 3
  • Civil Procedure RulesOrder 1 Rule 1; Order 11
  • Constitution of KenyaArticles 40, 162(2)(b), 162(3), 165(2)(a), 165(5)

Cases cited (10)

  • Geoffry Muguna Mburugu vs Attorney General
    [2005] eKLR
  • David Rummage and 4 others vs The Cabinet Secretary, Ministry of Energy and Pet and 7 others
    (2017) eKLR
  • Malindi Law Society vs Attorney General and 4 others
    (2016) eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Salome Wambui Njau Suing as the administratrix of the Estate of Peter Kiragu Njuguna (deceased) v Caroline Wangui Kiguru
    [2013] eKLR
  • Justus Tureti Obara vs Peter Koipetai Nengisoi
    [2014] eKLR
  • Mukisa Biscuits Manufacturing Ltd vs West End Distributors
    (1969) EA 696
  • Trouistik Union International & Another v Jane Mbeyu & Another
    (2008) IKLR (G&F) 730
  • Alfred Njau & Others v City Council of Nairobi
    [1982-88] 1 KAR 229
  • Bosire Ongero vs Royal Media Services
    [2015] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and the Environment and Land Court Act

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, "Beatrice Wambui Kiarie & v Beatrice Wambui Kiarie & 9 others [2018] KEELC 2778 (KLR)", Case Analysis (2018). Not stated in judgment (plaint dated 2nd September 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2778/eng@2018-07-03

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