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ELCPartially Allowed· [2018] KEELC 3482 (KLR)

Alphonse Odhiambo v George Awiti Adhola & 6 others [2018] KEELC 3482 (KLR)

Environment and Land Court
2 May 2018
1,994 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Before the Environment and Land Court were two cross-applications. The 2nd to 6th Defendants, through M/S Rachier & Amollo Advocates, moved by notice of motion dated 13th April 2017 to strike out the amended plaint as disclosing no cause of action against them, arguing inter alia that the 2nd Defendant died before suit, that the suit parcel West Asembo/Siger/3319 no longer existed, that the Plaintiff's ad litem grant gave him no locus standi over parcels not belonging to his father's estate, that the 3rd to 6th Defendants were innocent purchasers for value, and that the court lacked jurisdiction over a succession dispute since the widow was still alive. The Plaintiff opposed and cross-applied by notice of motion dated 17th May 2017 to strike out the 2nd Defendant's statement of defence as an abuse of process. The court framed four issues: disclosure of cause of action, jurisdiction, whether the 2nd Defendant was alive at filing, and costs. Examining green cards, the court found the parcels held by the Defendants were subdivisions of the deceased's parcel, effected between 2008 and 2014 after his death on 31st March 2000, and that pleaded fraud and illegality disclosed a reasonable cause of action. A certificate of death showed the 2nd Defendant died on 28th June 2013, rendering the suit against him a non-starter; his defence and the notice withdrawing it could not stand, a dead person being incapable of instructing counsel. The suit was held to be a land-tracing claim, not a distribution dispute, and within the court's jurisdiction. The claim against the 2nd Defendant was struck out with no orders as to costs; the Defendants' application was dismissed with costs.

Key legal issues

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01

Whether the amended plaint discloses a reasonable cause of action against the 2nd to 6th Defendants

Holding

The plaint disclosed a reasonable cause of action against the 1st and 3rd to 7th Defendants, but none against the 2nd Defendant who died before suit.

Reasoning

The court examined green cards for the suit parcel West Asembo/Siger/3319 and its subdivisions. The parent title, registered in the name of the deceased Peter Adhola Okelo who died on 31st March 2000, was closed in 2008 and subdivided into parcels later transferred to the various Defendants between 2009 and 2014. Since the Plaintiff pleaded illegality, collusion and fraud including knowledge by the 2nd to 6th Defendants, and the subdivisions occurred after the registered proprietor's death, the amended plaint disclosed a reasonable cause of action and the suit should proceed to hearing on merit.

p. 3
02

Whether the 2nd Defendant was alive or dead when the suit was filed

Holding

The 2nd Defendant died on 28th June 2013, about three years before the suit, so the claim against him was a non-starter and was struck out together with his defence and the notice withdrawing it.

Reasoning

The 3rd Defendant annexed a certificate of death No.242490 showing Edward Ogaya Ngoma, the 2nd Defendant, died on 28th June 2013. A dead person is incapable of issuing instructions to counsel, so the statement of defence dated 28th June 2016 and the notice of withdrawal of that defence could not stand, unless issued through the estate's legal representative. The court struck out the claim against the 2nd Defendant rather than the entire plaint.

03

Whether this court has jurisdiction over the suit

Holding

The court had jurisdiction because the suit was not an administration or distribution dispute but a land claim to trace and restore estate property allegedly fraudulently taken.

Reasoning

The Defendants argued that the court lacked jurisdiction over what they said was a purely succession dispute, the widow Angelina Adhola still being alive. The court rejected this, holding that the suit was not about administration and distribution of the estate of Peter Adhola Okelo but about the Plaintiff's efforts to trace estate land allegedly illegally and fraudulently taken by the 1st Defendant and transferred after subdivision to other Defendants. Such a dispute falls within the Environment and Land Court's jurisdiction.

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Legal principles established

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  • A suit against a person shown by certificate of death to have died before the filing of the suit is a non-starter and the claim against such defendant must be struck out; a dead person cannot instruct counsel to file a defence, and a notice of withdrawal of such a defence cannot stand for lack of instructions.
  • A suit by an administrator ad litem to trace and restore estate land allegedly fraudulently transferred is not a succession dispute over distribution of the estate and falls within the jurisdiction of the Environment and Land Court.
  • Where fraud, collusion and illegality in dealings with registered land are pleaded with particulars and supported by green card evidence showing subdivisions and transfers after the death of the first registered proprietor, the plaint discloses a reasonable cause of action and should not be struck out.

Court orders

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  1. 1.The Plaintiff's notice of motion dated 17th May 2017 seeking to strike out the 2nd Defendant's defence was settled with an order that the Plaintiff's claim against the 2nd Defendant be and is hereby struck out with no orders as to costs, for reason that the said Defendant had died about three years before the filing of the suit
  2. 2.The notice of motion dated 13th April 2017 and filed on 19th April 2017, by the 2nd to 6th Defendants seeking striking out of the amended plaint, was found without merit and dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 4 Rule 2
Jurisdiction invoked
Article 162(2)(b) of the Constitution read with the Environment and Land Court Act (land dispute; court held the suit 'falls squarely within the jurisdiction of this court')

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, "Alphonse Odhiambo v George Awiti Adhola & 6 others [2018] KEELC 3482 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3482/eng@2018-05-02

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