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ELCDismissedOriginating Summons dated 12/3/2019· [2019] KEELC 1305 (KLR)

In re Richard Muthee Njeru and Lucy Wagatwe Thiong’o (Ex-Parte Applicants) [2019] KEELC 1305 (KLR)

Environment and Land Court
16 October 2019
974 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a bid to extend time to sue over land because the applicants failed to prove they were the estate's administrators.

What this practically means

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Executive summary

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Richard Muthee Njeru and Lucy Wagatwe Thiongo filed an ex-parte originating summons dated 12/3/2019 seeking an extension of time to file suit concerning Land Reference Number 36/1/14. They intended to contest two conveyances of 1978 and 1986 which they alleged were fraudulent, claiming they discovered the fraud in 1989 but could not act due to financial constraints and, later, a succession cause that took 23 years to conclude, culminating in their appointment as administrators of the estate of Njeru Munge on 6th March 2018. Counsel also sought, from the bar, to introduce a claim in nuisance, which the court rejected as unsupported by any substantive motion or evidence. Applying Sections 7 and 26 of the Limitation of Actions Act, the court found that the extension jurisdiction could only be properly exercised by administrators of the estate. The exhibited certificate of confirmation of grant named Richard Muthee Njeru alone, did not show when the grant was issued, and was not the appropriate evidential instrument for the purpose; the grant itself was not annexed. Lucy Wagatwe Thiongo's locus was unknown. The court therefore could not exercise its Section 26 jurisdiction and dismissed the originating summons for lack of merit on 16th October 2019. No costs order was recorded in the judgment.

Key legal issues

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01

Whether the applicants had the locus to invoke Section 26 of the Limitation of Actions Act for extension of time

Holding

The application failed because the applicants did not demonstrate that they were joint administrators; the grant itself was not exhibited and the certificate of confirmation did not show when the grant was issued.

Reasoning

The originating summons was taken out jointly by two applicants, but the exhibited certificate of confirmation of grant named only Richard Muthee Njeru and did not indicate when it was issued. Lucy Wagatwe Thiongo's locus was unknown. The court could not exercise its Section 26 jurisdiction without evidence of joint administration and the date of the grant, both of which were missing.

p. 2
02

Whether counsel's oral submissions on a claim in nuisance could be considered

Holding

Submissions made from the bar, not anchored on any substantive motion or evidential material, were rejected.

Reasoning

Counsel stated from the bar that the claim would be premised on the tort of nuisance with a claim for damages. The court held that such submissions, having no anchorage in the application or supporting evidence, could not inform its decision on the extension application.

p. 1

Legal principles established

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  • An application to extend the limitation period for actions to recover land ought to be brought by the administrator(s) of the estate, whose locus must be demonstrated by evidence including the grant of letters of administration itself
  • Submissions made from the bar without a substantive motion or evidential material cannot be considered by the court

Court orders

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  1. 1.The originating summons dated 12/3/2019 is dismissed for lack of merit

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Limitation of Actions ActSection 26
Jurisdiction invoked
Section 26 of the Limitation of Actions Act

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, "In re Richard Muthee Njeru and Lucy Wagatwe Thiong’o (Ex-Parte Applicants) [2019] KEELC 1305 (KLR)", Case Analysis (2019). Originating Summons dated 12/3/2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1305/eng@2019-10-16

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