Joseph Kuria Kariri v H-Young & Co (EA) Limited [2018] KEELC 4541 (KLR)
The bottom line
#A Kenyan High Court blocked an estate administrator from getting an injunction because he sued alone without his co-administrator.
What this practically means
#Executive summary
#Key legal issues
#Nature of a preliminary objection
The objection that the Plaintiff lacked locus standi under Section 82 of the Law of Succession Act is a pure point of law arising from the pleadings and qualifies as a proper preliminary objection
Applying the Mukisa Biscuit definition and Quick Enterprises, the court held that a preliminary objection raises pure points of law on the assumption that pleaded facts are correct, requires no ascertainment of facts, stems from the pleadings, and is capable of disposing of the matter. The objection here rested solely on the pleadings showing the Plaintiff was a joint administrator suing alone.
Locus standi of a joint administrator suing alone
A joint administrator cannot unilaterally file suit; the suit contravened Section 82 of the Law of Succession Act and the Plaintiff had no locus standi
The court observed that the suit was filed by the Plaintiff alone, not jointly with co-administrator Margaret Wanjiru Wainaina, and in his own name rather than on behalf of the Estate of Francis Wainaina Ngene. Following Simon Kamau Muhindi, administrators act jointly at all times and one administrator alone lacks capacity to file suit on behalf of the estate.
Whether the suit should be struck out
The court declined to strike out the suit because the omissions are curable by amendment
Relying on DT Dobie and Francis Kamande v Vanguard Electrical Services, the court held that striking out is a draconian step reserved for plain and obvious, incurable cases. The Plaintiff's failure to sue on behalf of the estate and to involve the co-administrator could be cured by amending the pleadings, so the suit was not a candidate for striking out.
Legal principles established
#- A joint administrator of a deceased's estate must institute proceedings jointly with the co-administrator and on behalf of the estate; a sole suit by one administrator lacks capacity
- A suit should not be struck out where the defect is curable by amendment; striking out is reserved for plain and obvious cases
Court orders
#- 1.The Defendant's Notice of Preliminary Objection is upheld as merited
- 2.The suit is not struck out; the defect may be cured by amendment of the pleadings
- 3.The Notice of Motion dated 5th May 2017 is dismissed entirely with costs to the Defendant
- 4.If the Applicant intends to proceed with the main suit, he is to amend the suit accordingly
- Jurisdiction invoked
- Order 40 Rules 1, 2 & 3 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (inherent jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kuria Kariri v H-Young & Co (EA) Limited [2018] KEELC 4541 (KLR)", Case Analysis (2018). Not stated in the judgment (Notice of Motion dated 5th May 2017 within a pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4541/eng@2018-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.