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ELCStruck OutCivil Suit (Plaint dated 30/9/2016, filed 19/10/2016)· [2019] KEELC 4707 (KLR)

Mary C Kitur v County Government of Trans-Nzoia [2019] KEELC 4707 (KLR)

Environment and Land Court
14 February 2019
MNMwangi Njoroge
1,739 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A widow's land claim against Trans Nzoia County failed because she sued alone instead of joining all four estate administrators, as Kenyan procedure requires.

What this practically means

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Executive summary

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The plaintiff, Mary C. Kitur, sued the County Government of Trans Nzoia claiming she was the legitimate owner of Plot No. 293, a 2-acre portion of LR. No. 5777/3 Chepkorok Farm at Sikhendu shopping centre, Trans Nzoia, as administrator of her late husband Silas Kimugei Kitur's estate. She alleged that in March 2016 the defendant invaded, fenced and constructed a market on the land without her consent, without purchase, lease or compulsory acquisition, and sought a declaration of no proprietary rights in the defendant, demolition of structures, a permanent injunction, costs and interest. The defendant denied the claim, asserting it was a bona fide purchaser for value from third parties who derived title from the original allottee, and that it took possession in 2014 and built a permanent market to benefit local residents. The plaintiff testified and produced letters of administration, a confirmed grant, an area list, clearance certificate, receipts and photographs; the defendant called no evidence. The court identified three issues: competence of the suit, whether the defendant acquired the land by purchase, and appropriate orders. Before reaching the merits, the court noted sua sponte that the grant showed four administrators of the deceased's estate, only one of whom sued, contrary to Order 31 Rule 2 of the Civil Procedure Rules, which requires all administrators to be parties absent exemption. Following its own decision in Joram Kaberia and Raffaella Adiyakhiso Ntotoi, the court found no evidence the other three administrators were dead or outside Kenya, held the suit improperly presented and incompetent, and struck it out with no orders as to costs, without determining the merits of the competing claims to the land.

Key legal issues

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01

Competence of a suit brought by only one of several administrators

Holding

The suit was improperly presented and incompetent because only one of four administrators of the deceased's estate sued, with no evidence the others were dead or outside Kenya.

Reasoning

Order 31 Rule 2 requires all trustees, executors and administrators to be made parties to a suit by or against them. The grant of letters of administration disclosed four administrators, yet only the widow brought the suit. Relying on Joram Kaberia and Raffaella Adiyakhiso Ntotoi, the court found the suit irregular and struck it out without considering the merits.

p. 3

Legal principles established

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  • Where a suit is commenced by several trustees, executors or administrators, they must all be enjoined as parties unless an exemption under Order 31 Rule 2 applies.

Court orders

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  1. 1.The suit is struck out with no orders as to costs.
Jurisdiction invoked
Original jurisdiction over the land dispute; suit struck out for non-joinder under Order 31 Rule 2 of the Civil Procedure Rules

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, "Mary C Kitur v County Government of Trans-Nzoia [2019] KEELC 4707 (KLR)", Case Analysis (2019). Civil Suit (Plaint dated 30/9/2016, filed 19/10/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4707/eng@2019-02-14

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