Elizabeth Wanjira Evans (suing as Administrators of the Estate of Rahab Wanjiru Evans, [Deceased] & 2 others v National Land Commission & another [2021] KEELC 1173 (KLR)
The bottom line
#Kenya's Environment and Land Court threw out an attempt to withdraw a land petition because two of four estate administrators acted without the others.
What this practically means
#Executive summary
#Key legal issues
#Whether M/S Gitonga Muthii & Co. Advocates were properly on record for the estate of the deceased
Not properly on record; the Notice of Appointment was incompetent and expunged.
The Notice of Appointment stated the firm was appointed by 'the estate of Rahab Wanjiru Evans'. The court held an estate is not a legal person able to instruct counsel; only duly appointed administrators may do so. No particulars of the appointing persons were disclosed, nor had the 'estate' previously acted in person as required by Order 9 Rule 7 of the Civil Procedure Rules, 2010, rendering the notice invalid.
Whether the Notice of Withdrawal of Petition dated 30th July 2021 was legitimate and valid
Invalid and a nullity; expunged from the record and the Petition remains alive.
The grant of letters of administration was issued jointly to four persons, conferring a singular, indivisible capacity. Only two administrators (and one apparently misnamed) signed the authority to withdraw, without the involvement of the other co-administrators. Section 81 of the Law of Succession Act permits survivors to act alone only upon the death of other administrators, which was not shown.
Whether a party may be blocked from withdrawing its own petition
No; withdrawal is a right subject only to costs, but the present withdrawal was无效 because the authority and representation were defective.
Relying on the Supreme Court's decision in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others, the court affirmed that a party cannot be denied the right to withdraw its matter, and an aggrieved party's remedy lies in costs. However, this right presupposes a duly instructed counsel and valid authority, which were absent here.
Legal principles established
#- A deceased's estate is not a legal person capable of appointing counsel; only duly appointed administrators may engage an advocate for the estate.
- Co-administrators under a joint grant possess one indivisible capacity and none may act for the estate unilaterally while others live.
- A party's right to withdraw its own matter cannot be barred by a court; the only recourse for an aggrieved party is an order as to costs.
Court orders
#- 1.The law firm of M/s Gitonga Muthii & Co. Advocates are not lawfully on record for the Petitioners or at all.
- 2.The Notice of Appointment of Advocate dated 30th July 2021, filed by the firm of M/S Gitonga Muthii & Co. Advocates is contrary to the provisions of Order 9 Rule 7 of the Civil Procedure Rules, 2010.
- 3.The said Notice of Appointment of Advocate be and is hereby expunged from the record.
- 4.The Notice of Withdrawal dated 30th July 2021, be and is hereby expunged from the Record.
- 5.The Petition herein remains alive and existent and same ought to be determined on the basis of the written submissions that were duly filed and form part of the record, until same is lawfully and/or Legally Withdrawn.
- 6.Costs of the Preliminary proceedings shall abide the course.
- Jurisdiction invoked
- Original constitutional petition jurisdiction of the Environment and Land Court (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Wanjira Evans (suing as Administrators of the Estate of Rahab Wanjiru Evans, [Deceased] & 2 others v National Land Commission & another [2021] KEELC 1173 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1173/eng@2021-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.