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ELCStruck Out· [2020] KEELC 3897 (KLR)

Julius Muthungu Mukanda v Mbulung’a Kituma [2020] KEELC 3897 (KLR)

Environment and Land Court
28 January 2020
1,093 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a land claim because the plaintiff sued the wrong person instead of the deceased owner's estate through its legal representative.

What this practically means

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Executive summary

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The Defendant filed a notice of preliminary objection on 29 October 2018 seeking the striking out of the Plaintiff's suit on the grounds that he had been sued in his personal capacity rather than as legal representative of the estate of Kituma Nganda Musau, the registered owner of the suit land Ukia/Utaati/449; that the Makueni District Land Dispute Tribunal lacked capacity over registered land; and that no cause of action existed. The court directed disposal by written submissions. The Defendant's counsel, relying on Mukisa Biscuits, Oraro v Mbaja and Mary Nanjala Muhalya, argued that the land formed part of the deceased's estate and that the proper party was the estate's legal representative under the Law of Succession Act. The Plaintiff's counsel contended the Defendant was sued in both personal and representative capacities for his occupation and use of the land. The court held that the plaint showed the Defendant was sued only in his personal capacity, and that the orders sought - cancellation of the title, rectification of the register and registration of the land in the Plaintiff's name - could not issue against him personally. Agreeing with the Defendant's counsel, the court found the preliminary objection meritorious and struck out the Plaintiff's suit with costs to the Defendant. Judgment delivered at Makueni on 28 January 2020 by Mbogo C.G., J.

Key legal issues

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01

Whether the Defendant was properly sued in his personal capacity

Holding

The plaint shows the Defendant was sued in his personal capacity, yet the substantive relief (cancellation of title and rectification of the register) could only issue against the estate through its legal representative; the suit was therefore defective.

Reasoning

The court compared the orders sought with the capacity in which the Defendant was sued. Since the suit land remained registered in the name of the deceased, Kituma Nganda Musau, and formed part of his estate, orders cancelling the title and rectifying the register could not issue against the Defendant personally. No proof was presented that he held a grant of letters of administration.

p. 2
02

What constitutes a valid preliminary objection

Holding

A preliminary objection must be a pure point of law not dependent on ascertainment of facts or exercise of judicial discretion, per Mukisa Biscuits and Oraro v Mbaja.

Reasoning

The court adopted the settled definitions: a preliminary objection raises a point of law argued on the assumption that all pleaded facts are correct; any objection bearing factual aspects requiring proof is not a true preliminary objection. The defendant's objection that the proper party had not been sued was treated as a point of law going to the competence of the suit.

p. 1

Legal principles established

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  • A suit against a defendant in his personal capacity over land registered in the name of a deceased person, where relief such as cancellation of title and rectification of the register can only issue against the estate through its legal representative, is defective and may be struck out.

Court orders

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  1. 1.The Plaintiff's suit is struck out
  2. 2.Costs to the Defendant

Authorities

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Legislation

  • Law of Succession ActSection 3
  • Civil Procedure ActDefinition of legal representative (section not specified)

Cases cited (4)

  • Football Kenya Federation vs. Kenya Premier League Ltd and 4 others
    [2015] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd
    [1969] EA 696
  • Oraro vs. Mbaja
    (2005) eKLR
  • Mary Nanjala Muhalya vs. Ambrose Kipruto
    [2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (specific provision not stated in the judgment)

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, "Julius Muthungu Mukanda v Mbulung’a Kituma [2020] KEELC 3897 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3897/eng@2020-01-28

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