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ELCStruck OutKisii CM Miscellaneous Application No. 94 of 2008 (related suit; judgment does not print the present suit's number)· [2020] KEELC 534 (KLR)

Mary Nyambeki Ondiega v Charles Okachi Obwaya & another [2020] KEELC 534 (KLR)

Environment and Land Court / High Court of Kenya at Kisii (judgment does not state court heading)
19 November 2020
JOJ.M. Onyango
1,792 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan widow's land suit was struck out because she never obtained letters of administration for her late husband's estate before suing.

What this practically means

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Executive summary

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By a plaint dated 9th May 2009, the Plaintiff sought a declaration that the proceedings, award and decree in Kisii CM Miscellaneous Application No. 94 of 2008 - by which the Suneka Land Disputes Tribunal's ex-parte award was adopted as a judgment - were irregular, wrongful and a nullity, plus an injunction restraining the 1st Defendant from claiming under that decree. The 1st Defendant filed a Defence with a notice of a Preliminary Objection, contending inter alia that the Plaintiff lacked locus standi and had squandered the statutory avenues of appeal to the Provincial Appeals Committee or judicial review. The court framed three issues: locus standi, jurisdiction, and competency of the suit. On the first issue, it found that neither party had locus standi before the Tribunal, since both were litigating over the estate of Omwaya Omwaya (deceased) without grants; the 1st Defendant had since obtained a grant, but the Plaintiff never had, and the suit property was registered in her late husband's name. On the second issue, the court, following the Court of Appeal in Johana Nyokwoyo Buti and Section 47 of the Evidence Act, held that it nonetheless possessed declaratory jurisdiction under Order 111 Rule 9 to nullify a judgment founded on a tribunal award lacking jurisdiction, notwithstanding lapsed appeal and judicial review timelines. The Preliminary Objection was therefore sustained solely on the ground of want of locus standi, not any absence of the court's own jurisdiction, and the suit was struck out. Each party was ordered to bear its own costs, both having initially lacked locus standi.

Key legal issues

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01

Whether the Plaintiff lacked locus standi to bring the suit

Holding

Yes - the Plaintiff had not obtained a grant of letters of administration over her late husband's estate, whose name the suit property was registered in, so the suit was unsustainable and was struck out.

Reasoning

Both parties sued and defended at the Land Disputes Tribunal without grants. The 1st Defendant later obtained a grant, but the Plaintiff never did. Since the suit property was registered in the name of her deceased husband, only a duly appointed personal representative could litigate over it. Her incapacity alone rendered the suit unsustainable and the Preliminary Objection was sustained on this ground, without the court finding any want of its own jurisdiction.

p. 3
02

Whether the court had jurisdiction to hear the declaratory suit despite lapsed appeal and judicial review timelines

Holding

The court held it had jurisdiction under Order 111 Rule 9 of the Civil Procedure Rules, 2010 to make a binding declaration that a tribunal-derived judgment was a nullity for want of jurisdiction or fraud.

Reasoning

Following the Court of Appeal in Johana Nyokwoyo Buti v Walter Rasugu Omariba & Others, the court found that a declaratory suit is not barred by the expiry of the 30-day appeal period to the Provincial Appeals Committee or the six-month judicial review window. Section 47 of the Evidence Act permits a judgment to be impeached for lack of competence or fraud. The Preliminary Objection was thus not sustained on jurisdictional grounds.

p. 2

Legal principles established

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  • A party suing over a deceased person's estate must first obtain letters of administration, failing which the suit is unsustainable for want of locus standi.
  • The court may, under declaratory jurisdiction, nullify a decision founded on a tribunal award made without jurisdiction, even after the statutory appeal and judicial review periods have elapsed.
  • A judgment may be impeached in fresh proceedings on grounds of jurisdiction or fraud.

Court orders

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  1. 1.The Preliminary Objection is sustained and the Plaintiff's suit is struck out
  2. 2.Each party shall bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 111 Rule 9
  • Law of Succession ActCap 160, section 45
  • Evidence ActSection 47
  • Land Disputes Tribunal ActSection 8(1)

Cases cited (3)

  • Johana Nyokwoyo Buti v Walter Rasugu Omariba & Others
    Civil Appeal No. 182 of 2006
  • Jonesco v Beard
    (1930) AC 293
  • Kuwait Airways Corporation v Iraqi Airways Co & Another (No. 2)
    [2001] 1 WLR 429
Jurisdiction invoked
Order 111 Rule 9 of the Civil Procedure Rules, 2010 (declaratory jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mary Nyambeki Ondiega v Charles Okachi Obwaya & another [2020] KEELC 534 (KLR)", Case Analysis (2020). Kisii CM Miscellaneous Application No. 94 of 2008 (related suit; judgment does not print the present suit's number). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/534/eng@2020-11-19

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