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ELCStruck OutOriginating Summons dated 4th January 2016 (filed 5th January 2016), Kakamega· [2018] KEELC 4166 (KLR)

Ernest Chaba Ambasa & another v Jane Mboga Aniale [2018] KEELC 4166 (KLR)

Environment and Land Court
8 March 2018
NMN. A. Matheka
1,901 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kakamega struck out a land claim because the plaintiffs sued over a deceased person's property without letters of administration.

What this practically means

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Executive summary

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The plaintiffs filed an originating summons on 5th January 2016 seeking title to land parcel KAKAMEGA/VIGULU/959 by adverse possession, together with a chamber summons for a temporary injunction restraining the defendant, the registered owner since 19th August 2004. The defendant raised a preliminary objection on five grounds, principally that the plaintiffs lacked locus standi because they were not legal representatives of the deceased original proprietors, Philemona Ayuya Kamadi and Jenniffer Andeyo Ayuya, whose rights they purported to pursue, and that the consequent lack of legal capacity deprived the court of jurisdiction. The plaintiffs chose not to oppose or submit on the objection. The court, applying the Mukisa Biscuit definition of a preliminary objection and Mumo Matemu on timing, held that locus standi and legal capacity raise pure points of law properly taken preliminarily. On perusal of the pleadings and supporting affidavit, the court found the suit was in substance a claim of fraud against the defendant by the deceased previous owner, coupled with a declaration of trust in favour of Shem Engaiza Ambasa, rather than a genuine adverse possession claim. Citing Otieno v Ougo, the court held that suing before taking out letters of administration renders an action incompetent from inception. The plaintiffs totally lacked legal capacity. The preliminary objection was upheld; the suit and all applications therein were struck out with costs to the defendant.

Key legal issues

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01

Locus standi of plaintiffs suing on claims of deceased persons without letters of administration

Holding

Plaintiffs lacked locus standi; the suit was incompetent from inception and was struck out

Reasoning

The plaintiffs claimed adverse possession and alleged fraud against the deceased previous owner, seeking a declaration of trust for Shem Engaiza Ambasa. They were not legal representatives of any of the deceased persons whose rights they pursued. Relying on Otieno v Ougo, an action brought before letters of administration are taken out is incompetent as of its inception.

p. 3
02

Propriety of raising locus standi as a preliminary objection

Holding

Locus standi raises a pure point of law, properly raised by preliminary objection

Reasoning

Applying Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd and Mumo Matemu v Trusted Society of Human Rights Alliance, the court held that locus standi/legal capacity is a point of law that does not require ascertainment of facts or exercise of discretion, and should be raised at the earliest opportunity.

p. 2
03

True nature of the suit

Holding

The suit was in substance about fraud on the deceased previous owner, not adverse possession

Reasoning

The pleadings showed the plaintiffs were pursuing recovery of land based on alleged fraud by the defendant against the late Jenniffer Andeyo Ayuya, who died on 29th May 2011, and a declaration of trust in favour of Shem Engaiza Ambasa. Their own witness disclaimed possession. Without legal representation of the deceased, such a claim could not be pursued.

p. 2

Legal principles established

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  • An action brought by an administrator before taking out letters of administration is incompetent from the date of inception
  • Locus standi and legal capacity are pure points of law properly raised as a preliminary objection at the earliest opportunity

Court orders

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  1. 1.The defendant's preliminary objection questioning the plaintiffs' locus standi/legal capacity is upheld
  2. 2.The suit and any applications therein are struck out
  3. 3.Costs to the defendant

Authorities

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Cases cited (3)

  • Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd
    (1969) E.A 696
  • Mumo Matemu vs Trusted Society of Human Rights Alliance & Others
    2014 eKLR
  • Otieno vs Ougo
    1986-1989 E.A.L.R 486
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over title to land parcel KAKAMEGA/VIGULU/959

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, "Ernest Chaba Ambasa & another v Jane Mboga Aniale [2018] KEELC 4166 (KLR)", Case Analysis (2018). Originating Summons dated 4th January 2016 (filed 5th January 2016), Kakamega. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4166/eng@2018-03-08

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