Elijah Chepkwony Chirchir v Joel Kipngeno Rop & 5 others [2019] KEELC 4019 (KLR)
The bottom line
#A Kenyan court struck out an eviction suit because the administrator used the wrong type of limited grant, meaning he had no legal right to sue.
What this practically means
#Executive summary
#Key legal issues
#Whether a limited grant ad colligenda bona defuncti confers capacity to institute a suit on behalf of a deceased's estate
No. It is a grant for collection and preservation of assets only; filing suit requires a limited grant under Section 54 read with Form 14 of the 5th Schedule to the Law of Succession Act.
The court distinguished the two types of limited grants under the Law of Succession Act. Section 67(1) read with Rule 36(1) of the Probate and Administration Rules governs grants ad colligenda bona defuncti, which are strictly for collecting and preserving the deceased's assets. Section 54 read with rule 14 of the 5th Schedule provides for administration limited to a suit. Relying on the wrong grant deprives a plaintiff of locus standi.
Whether a preliminary objection on locus standi is a technicality that can be disregarded
No. Locus standi is a pure point of law and cannot be wished away as a technicality.
Applying the Mukhisa Biscuits definition of a preliminary objection as a pure point of law argued on the assumption that all facts pleaded by the other side are correct, the court held that lack of capacity to sue is such a point. Citing Alfred Njau v City Council of Nairobi, it held that a party without locus standi cannot be heard, even on whether he has a case worth listening to.
Whether the suit should be struck out on the preliminary objection
Yes. Having found the preliminary objection merited, the court struck out the suit with costs to the Defendant.
Because the Plaintiff had no capacity to sue on behalf of the estate of Kipchirchir Arap Maina (Deceased), the suit was fatally defective. The court found merit in the preliminary objection dated 7th February 2019 and struck out the Plaint with costs to the Defendant.
Legal principles established
#- A limited grant ad colligenda bona defuncti is for collecting and preserving the estate of the deceased and cannot be used to institute a suit; only a limited grant under Section 54 read with Form 14 of the 5th Schedule to the Law of Succession Act confers locus standi to sue on behalf of a deceased's estate
- Locus standi is a point of law and not a technicality that can be disregarded
- A party without locus standi cannot be heard at all
Court orders
#- 1.The Plaintiff's suit is struck out
- 2.Costs of the suit awarded to the Defendant
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (suit concerning land title L.R No. Kericho/Kabartegan/438)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elijah Chepkwony Chirchir v Joel Kipngeno Rop & 5 others [2019] KEELC 4019 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4019/eng@2019-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.