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ELCStruck Out(Not stated in judgment)· [2018] KEELC 3519 (KLR)

Peter Kimani Kabachi & another v Jeremiah Kimemia Karuga [2018] KEELC 3519 (KLR)

Environment and Land Court
19 April 2018
JKJ. G. Kemei
1,730 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court struck out a land trust claim because the plaintiffs sued for their fathers' estates without letters of administration, so they lacked legal standing.

What this practically means

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Executive summary

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The Plaintiffs, cousin and nephew respectively, sued the Defendant - the son and legal representative of the estate of Kiruga Waihenya, the registered owner of land parcel Loc.18/Gachocho/653 - seeking dissolution of an alleged trust over the land and its transfer to them. They claimed their grandfather's land had been consolidated and registered in the name of the Defendant's deceased father to hold in trust for himself and his brothers, including their fathers Kabachi Waihenya and Kimuhu Waihenya. The Defendant denied any trust, contending his father bought the land, that it was registered absolutely in 1965, and raised a preliminary objection on locus standi and limitation, arguing the Plaintiffs sued as administrators of their fathers' estates without grants of letters of administration. The court applied the rule that parties are bound by their pleadings and that a party suing for a deceased's estate must hold letters of administration, holding that although the cause of action rested on trust, the Plaintiffs had presented themselves as estate representatives and thus lacked locus standi in the manner pleaded. On limitation, the court held, following Macharia Kihari, that the Limitation of Actions Act does not apply to customary law trusts. Declining to address the substantive trust claim, the court upheld the preliminary objection on the issue of legal capacity and struck out the suit, with each party bearing their own costs.

Key legal issues

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01

Locus standi of Plaintiffs suing as administrators without grants of letters of administration

Holding

The Plaintiffs lack locus standi. Although their cause of action rests on trust, they pleaded and testified that they were legal representatives/administrators of their deceased fathers' estates, and without grants they lacked legal capacity to sue in that capacity.

Reasoning

The court held parties bound by their pleadings. The plaint and witness statements presented the Plaintiffs as administrators of the respective estates, but no evidence of grants of representation was placed before the court. Relying on Julian Adoyo Ongunga and Trolistik Union International, the court found that a party suing for a deceased's estate must hold letters of administration; without a grant the suit is a nullity, equated to a court acting without jurisdiction.

p. 3
02

Whether the trust claim is statute-barred

Holding

The claim is not subject to the Limitation of Actions Act because it is a trust arising under customary law.

Reasoning

The Defendant argued the suit, filed in 2017, came 20 years after the 1st Plaintiff learned of the trust and 9 years after the 2nd Plaintiff's knowledge. Relying on Macharia Kihari v Ngigi Kihari, the court adopted the position that limitation does not apply to customary law trusts, under which land is held in trust for decades even after the right of action accrues. This finding is obiter given the suit was struck out on locus.

p. 3

Legal principles established

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  • A party who sues on behalf of the estate of a deceased person must obtain letters of administration to have locus standi
  • Limitation under the Limitation of Actions Act does not apply to trusts arising under customary law
  • Parties are bound by their own pleadings

Court orders

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  1. 1.The Preliminary Objection is upheld to the extent of the issue of want of legal capacity to file suit
  2. 2.The suit is incompetent and is struck out
  3. 3.Each party to meet their own costs

Authorities

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Legislation

  • Limitation of Actions ActSection 20(2)

Cases cited (4)

  • David Sironga Ole Tukai v Francis Arap Muge & Others
    CA No. 76 of 2014
  • Julian Adoyo Ongunga & Another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased)
    (2016) eKLR
  • Trolistik Union International & Anor. v Mrs. Jane Mbeyu & Anor.
    CA 145 of 1990
  • Macharia Kihari v Ngigi Kihari
    C.A Civil Appeal No. 170 of 1993
Jurisdiction invoked
Original civil jurisdiction over land claims (trust claim over land parcel Loc.18/Gachocho/653); no specific constitutional or statutory provision invoked 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, "Peter Kimani Kabachi & another v Jeremiah Kimemia Karuga [2018] KEELC 3519 (KLR)", Case Analysis (2018). (Not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3519/eng@2018-04-19

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