Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment as provided· [2021] KEELC 39 (KLR)

Joseph Muriuki Kithinji v Peterson Ireri Mwaniki & 3 others [2021] KEELC 39 (KLR)

Environment and Land Court
9 December 2021
AKA.K. Kaniaru
4,136 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

A Kenyan court threw out a landowner's suit because he sued without letters of administration and used the wrong court procedure to challenge a Minister's land decision.

What this practically means

#

Executive summary

#
This is a ruling on a preliminary objection dated 15.8.2019 raised by the 1st defendant, Peterson Ireri Mwaniki, against a suit by Joseph Muriuki Kithinji challenging the Minister for Lands' dismissal of an adjudication appeal concerning parcel Gichiche/Gichiche/279 and seeking declaratory orders nullifying the decision of 10.12.2018 and declaring the plaintiff absolute owner. The 1st defendant objected on four grounds: want of letters of administration ad litem; that the challenge to a quasi-judicial decision should have been by judicial review; absence of leave; and limitation. The court applied the Mukisa Biscuit test, held that locus standi is a pure point of law, and found from the adjudication proceedings that the appellant before the Minister was the plaintiff's father and the respondent the 1st defendant's brother. Relying on Section 82 of the Law of Succession Act and case authority, it held a grant (full or ad litem) is a prerequisite to suing for a deceased's estate, and the plaintiff's authorities on communal land were distinguishable as this was individual land. On procedure, the court held that Section 29 of the Land Adjudication Act renders the Minister's decision final, and per the Fair Administrative Action Act the only avenue for challenge is judicial review, not a plaint seeking declaratory orders; the plaintiff's cited authorities were distinguished or found not binding. The preliminary objection was allowed and the suit dismissed with costs to the defendants.

Key legal issues

#
01

Whether lack of letters of administration ad litem deprives a plaintiff of locus standi

Holding

Yes. The proper parties to the proceedings impugned were the deceased fathers/brothers; the plaintiff, having no grant, lacked capacity and the 1st defendant was wrongly sued.

Reasoning

The court examined the adjudication and appeal proceedings and found the appellant before the Minister was the plaintiff's father and the respondent the 1st defendant's brother. Section 82 of the Law of Succession Act empowers only duly appointed personal representatives to enforce causes of action surviving a deceased. The Exparte Kiema Muasya authority relied on by the plaintiff concerned communal land and was distinguishable as this was individual land.

p. 3
02

Whether the Minister's decision under the Land Adjudication Act can be challenged by plaint seeking declaratory orders

Holding

No. Section 29 of the Land Adjudication Act makes the Minister's order final; the proper avenue is judicial review under the Fair Administrative Action Act.

Reasoning

The court considered the plaintiff's authorities (Jamin Kiombe Lidodo and Nicholas Njeru). It noted the Jamin Kiombe ruling relied upon was contradicted by a later judgment in the same suit and thus not binding, and that Nicholas Njeru merely affirmed the High Court's jurisdiction to grant declaratory orders. Relying on Vincent Narisa Krop, the court held the Minister's decision is final save for judicial review to correct procedural defects.

p. 5

Legal principles established

#
  • A party suing on behalf of the estate of a deceased person must first obtain a grant (full or limited ad litem); without it they lack locus standi and the proceedings are a nullity.
  • A challenge to the Minister's decision under the Land Adjudication Act, being a quasi-judicial decision, must be brought by way of judicial review and not by plaint.
  • An objection that a party lacks locus standi is a pure point of law capable of disposing of a suit.

Court orders

#
  1. 1.The preliminary objection dated 15.8.2019 is allowed
  2. 2.The suit is dismissed with costs to the defendants

Authorities

#

Legislation

  • Civil Procedure RulesOrder 53 rule 2
  • Limitation of Actions ActSection 4(4)
  • Law of Succession ActSection 82
  • Land Adjudication ActSection 29(1)
  • Fair Administrative Action ActNot specified

Cases cited (11)

  • Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd
    (1969) EA 696
  • Quick Enterprises Ltd v Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • Alfred Njau and Others v City Council of Nairobi
    (1982) KAR 229
  • R Vs Minister of Lands & Another Exparte Kyema Muasya
    [2019] eKLR
  • Nicholas Njeru Vs AG & 8 others
    [2013] eKLR
  • Jamil Kiombe Vs Emily Jerono & Another
    E&L 218 of 2012
  • Julian Adoyo Ongunga & Another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi (Deceased)
    eKLR
  • Hawo Shanko v Mohamed Uta Shanko
    [2018] eKLR
  • Jamin Kiombe Lidodo Vs Emily Jerono Kiomber & another
    [2013] eKLR
  • Jamin Kiombe Lidodo v Emily Jerono Kiombe & another (on behalf of Soy Land Disputes Tribunal and District Land Registrar, Uasin Gishu)
    [2018] eKLR
  • Vincent Narisa Krop & 3 others v Martin Semero Limakou & 12 others
    [2020] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a suit concerning land parcel Gichiche/Gichiche/279

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (10)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Joseph Muriuki Kithinji v Peterson Ireri Mwaniki & 3 others [2021] KEELC 39 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/39/eng@2021-12-09

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