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ELCStruck OutCase No 457 of 2016· [2019] KEELC 3653 (KLR)

Salome Wangari Mwaura & another v John Kiage & 4 others [2019] KEELC 3653 (KLR)

Environment and Land Court
30 April 2019
1,137 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Children suing to protect their late father's Kenyan land had their case struck out because they never obtained letters of administration.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (Ohungo J) determined the defendants' Notice of Preliminary Objection dated 27th March 2017 in a suit concerning land known as Njoro/Njoro Block 5/35 (Ngondu), registered in the name of John Mwaura Kibui (deceased). The plaintiffs, alleging to be his children and sole surviving beneficiaries, and relying on a will of their late mother (who had earlier obtained letters of administration in High Court Succession Cause No. 270 of 2003), sought an order to safeguard the estate, an injunction against the defendants, cancellation of the defendants' titles, and damages for trespass, alleging fraudulent processing and sale of the property. The defendants objected that the plaintiffs, not holding letters of administration, lacked locus standi. Applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the court confirmed the objection raised a pure point of law and disregarded the plaintiffs' replying affidavit as an improper response. Relying on George Mbiti Kiebia v Isaya Theuri M'lintari and Hintz v Mwakima, the court held that without a grant no person can bring an action representing a deceased's estate. The plaintiffs' claim of beneficial ownership under a trust was rejected as an afterthought, no declaration of trust being pleaded. The preliminary objection was upheld and the suit struck out with costs to the defendants.

Key legal issues

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01

Whether the plaintiffs have locus standi to sue in respect of a deceased's registered land without letters of administration

Holding

The plaintiffs have no standing; the suit is purportedly brought to preserve the deceased's estate, and only an administrator with a grant can bring such an action. The suit is struck out.

Reasoning

The plaint itself shows the suit is brought to safeguard the estate of John Mwaura Kibui (deceased), whose estate vests in the court until a grant issues. The plaintiffs admit letters of administration were earlier issued to their late mother, and they hold none. Their belated claim of beneficial ownership and trust is an afterthought, as no declaration of trust is pleaded in the plaint; such issues belong in the succession cause.

p. 2
02

Whether an affidavit is a proper response to a preliminary objection

Holding

No; the court disregarded the plaintiffs' replying affidavit

Reasoning

A preliminary objection must be a pure point of law decided on the pleadings. The court stated there is no place for filing an affidavit in response to a preliminary objection and disregarded the plaintiffs' replying affidavit, relying instead on the plaint and the plaintiffs' written submissions.

p. 2

Legal principles established

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  • A preliminary objection must be on a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised
  • Without a grant of letters of administration, no person can bring an action to represent a deceased person's estate; the estate vests in the court until a grant is obtained

Court orders

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  1. 1.The preliminary objection dated 27th March 2017 is upheld
  2. 2.The suit is struck out with costs to the defendants

Authorities

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Legislation

  • Land Registration ActSection 28(b)

Cases cited (3)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • George Mbiti Kiebia & another v Isaya Theuri M'lintari & another
    [2014] eKLR
  • Hintz – v- Mwakima
    (1984) KLR 294
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (statutory basis not expressly cited in the ruling)

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, "Salome Wangari Mwaura & another v John Kiage & 4 others [2019] KEELC 3653 (KLR)", Case Analysis (2019). Case No 457 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3653/eng@2019-04-30

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