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ELCPartially AllowedNot stated in extract (suit instituted by Plaint dated 27th May 2019)· [2021] KEELC 241 (KLR)

Kipngetich Kalya Kones (Suing as the Administrator of the estate of Kipkalya Kiprono Kones (deceased) v Wilson Kiplangat Kones [2021] KEELC 241 (KLR)

Environment and Land Court
16 December 2021
MOM.C. Oundo
2,070 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out an estate lawsuit because the plaintiff only held a limited grant, not full letters of administration, so he had no legal standing to sue.

What this practically means

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Executive summary

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The Plaintiff sued by Plaint dated 27 May 2019 seeking eviction of the Defendant and an injunction restraining interference with the deceased's share of land parcel LR No. 9932/3, registered in the name of Sambut Tea Limited, the deceased having been a shareholder holding 125 acres. The Defendant filed a Notice of Motion dated 13 October 2021 under Order 51 rule 1(3)(4) of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Sections 47 and 73 of the Law of Succession Act, seeking striking out of the suit for want of the Plaintiff's legal capacity. He argued that full Letters of Administration had been issued to the deceased's widows, Pauline Cherono Kones and Lily Chepkemoi Kones, on 25 September 2009 in Nairobi High Court Succession Cause No. 2923 of 2008, so the Limited Grant ad Litem issued to the Plaintiff on 22 May 2019 by the Senior Principal Magistrate's Court at Bomet was illegal, unprocedural and overtaken by events. The Plaintiff countered that the defect was curable by amendment, that striking out would be draconian, and that Article 159(2)(d) required justice without undue regard to technicalities. The court held that the estate had vested in the full administrators under Sections 80(2) and 82 of the Law of Succession Act, that Section 82 powers belong to substantive administrators alone, and that the Plaintiff, holding only a limited grant, lacked locus standi. Lack of locus standi is a fatal, non-curable defect that Article 159(2)(d) could not salvage. The suit was struck out with costs to the Defendant.

Key legal issues

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01

Whether the holder of a Limited Grant ad Litem has locus standi to sue for the estate where a full Grant of Representation is already subsisting

Holding

No. The estate had vested in the full administrators, and only a substantive administrator may exercise the Section 82 powers; the Plaintiff's Limited Grant was overtaken and gave him no capacity to sue, rendering the suit incompetent.

Reasoning

The court found that full Letters of Administration were issued to Pauline Cherono Kones and Lily Chepkemoi Kones on 25 September 2009 in Nairobi High Court Succession Cause No. 2923 of 2008. Under Section 80(2) of the Law of Succession Act those grants took effect from issuance, vesting the estate in them. Relying on Trouistik Union International v Jane Mbeyu, the power to sue on causes of action vesting in the deceased confers on personal representatives alone. The Plaintiff's Limited Grant ad Litem issued on 22 May 2019 during the subsistence of the full grant could not confer locus standi, so the suit was struck out notwithstanding Article 159(2)(d).

p. 3

Legal principles established

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  • The powers in Section 82 of the Law of Succession Act can only be fully exercised by a substantive administrator holding a full grant, not a limited grant
  • Only personal representatives may agitate by suit causes of action vested in the deceased at death
  • Lack of locus standi goes to the root of the suit and renders it fatally defective; it is not a curable procedural technicality

Court orders

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  1. 1.The suit is struck out
  2. 2.The Defendant/Applicant's Notice of Motion dated 13th October 2021 succeeds with costs to the Defendant/Applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 rule 1(3)(4)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Law of Succession ActSections 3(1), 47, 54, 73, 79, 80(2), 82, 82(a), 83
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (5)

  • Helena Wangeci Njoroge (deceased) [2015] eKLR
    [2015] eKLR
  • Alfred Njau & Others v City Council of Nairobi [1982-88] 1 KAR 229
    [1982-88] 1 KAR 229
  • Trouistik Union International & Another v Jane Mbeyu & Another (2008) IKLR (G&F) 730
    (2008) IKLR (G&F) 730
  • Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & Another (1982-99) 1 KAR
    (1982-99) 1 KAR
  • Morjaria v Abdalla [1984] KLR 490
    [1984] KLR 490
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; application under Order 51 rule 1(3)(4) of the Civil Procedure Rules, Sections 1A, 1B, 3A of the Civil Procedure Act and Sections 47 and 73 of the Law of Succession Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Kipngetich Kalya Kones (Suing as the Administrator of the estate of Kipkalya Kiprono Kones (deceased) v Wilson Kiplangat Kones [2021] KEELC 241 (KLR)", Case Analysis (2021). Not stated in extract (suit instituted by Plaint dated 27th May 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/241/eng@2021-12-16

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