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ELCDismissedMiscellaneous Application dated 13.8.2019· [2019] KEELC 469 (KLR)

Stephen Kiriinya & 6 others v Attorney General & 2 others [2019] KEELC 469 (KLR)

Environment and Land Court
4 December 2019
LMLucy N. Mbugua
730 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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By a notice of motion dated 13.8.2019, the applicants sought leave to file an application pending summons for a limited grant of letters of administration ad litem, an order compelling the 2nd respondent to rectify the register and cancel subdivisions of land parcel No. Tutua/Rwarera/14, and an order restraining the District Land Registrar at Meru Central from issuing further title deeds. They alleged that their late father, M'Mungania M'Marete, held the land in trust for the family under Kimeru custom, the parcel having been allocated to their mother, Zipporah Kanono M'Mungania, by the late Minister of Lands Jackson Angaine, and that the 2nd respondent fraudulently subdivided the land and allocated portions to strangers, discriminating against the applicants and denying them a hearing. The application was served but unopposed. The court held that succession to immovable property in Kenya is governed by the Law of Succession Act (section 4(1)(a)), and that the applicants, claiming a deceased person's land, could not bypass obtaining a grant of letters of administration, which is the legal platform for stepping into the deceased's shoes; no reasons were given for not applying for the grant, there was no evidence of when death occurred, and it was unclear whether the property belonged to the mother or father. The court further held that the substantive prayers could not be brought via a miscellaneous application. The application was dismissed with no orders as to costs.

Key legal issues

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01

Locus standi of applicants claiming a deceased person's land

Holding

The applicants lacked locus standi because they had not obtained letters of administration for their father's/mother's estate, and no explanation was given for the omission

Reasoning

The applicants claim their deceased parents' land and intend to seek a limited grant ad litem, but have filed the application before obtaining any grant. Section 4(1)(a) of the Law of Succession Act governs succession to immovable property. The grant is the legal platform allowing them to step into the deceased's shoes, and the annexed Chief's letter of 11.7.2018 confirmed family members but gave no evidence of when death occurred. It was also unclear whether the property belonged to the mother or father.

p. 2
02

Whether substantive reliefs can be granted in a miscellaneous application

Holding

Substantive prayers such as rectification of the register and injunctive relief must be sought in a substantive suit, not a miscellaneous application

Reasoning

The court noted that the prayers sought - rectification of the register, cancellation of subdivisions and an injunction against issuance of title deeds - are substantive in character. Such reliefs can only be granted in a properly constituted suit where the substantive dispute is determined, not through a miscellaneous application predicated on contemplated proceedings.

p. 2

Legal principles established

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  • Succession to immovable property in Kenya of a deceased person is regulated by the law of Kenya, i.e. the Law of Succession Act
  • Claimants to a deceased person's land must first obtain a grant of letters of administration to acquire locus standi; they cannot bypass that step
  • Substantive prayers cannot be sought through a miscellaneous application but must be pursued in a substantive suit

Court orders

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  1. 1.The application dated 13.8.2019 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Law of Succession ActSection 4(1)(a)
Jurisdiction invoked
Not stated in the reproduced judgment (Environment and Land Court jurisdiction invoked via a miscellaneous application)

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, "Stephen Kiriinya & 6 others v Attorney General & 2 others [2019] KEELC 469 (KLR)", Case Analysis (2019). Miscellaneous Application dated 13.8.2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/469/eng@2019-12-04

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