Joram Adala Okubi v Samuel Malera Lukiri (suing for and on behalf of the estate of Musa Oundo Musala) [2019] KEELC 2373 (KLR)
The bottom line
#A Kenyan court struck out a land suit because the plaintiff's limited grant did not authorise him to sue for the deceased's estate.
What this practically means
#Executive summary
#Key legal issues
#Capacity to sue on behalf of a deceased person's estate
The Plaintiff lacked capacity because the grant ad litem he relied on was expressly limited to defending ELC No. 80/2011 and CMCC No. 32/2002, and this suit is not one of those cases
The court considered the pleadings, the replying affidavit and rival submissions. The Applicant relied on Sections 82 and 80(2) of the Succession Act (Cap 160) and the case of Otieno v Ougo & Another. The court held that the grant produced was purpose-specific, that the suit before it fell outside that purpose, and that the Plaintiff therefore had no legal capacity to institute it. The Plaintiff's submissions on the merits were irrelevant at this stage.
Striking out a suit for want of capacity under Order 2 Rule 15(1)(b)(c) and (d)
The application to strike out was merited and the suit was struck out with costs
The court found the Plaintiff's response ineffective, unfocussed and jumbled, and that he was labouring under a serious misdirection in thinking his grant entitled him to file the suit. Since capacity is the gateway to the action and the Plaintiff had none, the suit was struck out rather than heard on the merits, with costs to the Defendant.
Legal principles established
#- A party cannot bring a case in respect of the estate of a deceased person without first obtaining the requisite grant from a competent court enabling the action, and a purpose-specific grant ad litem does not confer capacity to institute other proceedings
Court orders
#- 1.The application dated 7/9/2018 is allowed
- 2.The Plaintiff's suit is struck out (prayer 1)
- 3.The Respondent/Plaintiff is to pay the costs of the suit (prayer 2)
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute concerning land parcel SAMIA/LUCHULULO/BUKHULUNGU/1269; application brought under Order 2 Rule 15(1)(b)(c) and (d) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joram Adala Okubi v Samuel Malera Lukiri (suing for and on behalf of the estate of Musa Oundo Musala) [2019] KEELC 2373 (KLR)", Case Analysis (2019). Not stated in the judgment (arising from a suit over parcel SAMIA/LUCHULULO/BUKHULUNGU/1269). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2373/eng@2019-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.