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ELCStruck Outnot stated in judgment (Busia)· [2021] KEELC 2255 (KLR)

Judith Nerima Ogombe & another v Leonard Otuba Sanya [2021] KEELC 2255 (KLR)

High Court of Kenya
2 August 2021
AOA. OMOLLO
1,168 words in judgment
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The bottom line

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The High Court in Busia struck out a land suit because the plaintiffs' titles came from a succession grant that had been revoked, removing their legal standing.

What this practically means

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Executive summary

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The Defendant filed an application dated 15th October 2020 under section 3A of the Civil Procedure Act seeking dismissal of the plaintiffs' land suit on the ground that the cause of action had ceased to exist. He deposed that the plaintiffs' titles to Samia/Budongo/2577 and 2578 were issued on the strength of a certificate of confirmation of grant dated 28th July 2006 in Busia HCA P&A No. 92 of 2015, which grant was revoked on 4th February 2020, reverting the parcels to Samia/Budongo/99 in the name of Wilmina Apondi. The Plaintiffs/Respondents opposed, explaining that rival succession causes had been filed in Nairobi (HC Suc No. 684 of 1986) and Busia (No. 92 of 2015) over the estate of Cosmas Ogombe, that the Nairobi cause has been transferred to Busia, and that an application to revoke the Nairobi grant is pending. In written submissions the Defendant argued the plaintiffs lacked locus standi since their grant was annulled. Relying on Daykio Plantations Ltd v National Bank of Kenya Ltd and related authorities, A. Omollo J held that locus standi is the right to be heard, and that revocation of the grant took away, by operation of law, the plaintiffs' capacity to prosecute a suit founded on the revoked rights, particularly as no stay of the revocation order had been obtained. The court struck out the suit for want of locus standi, ordered each party to bear their own costs of the suit (the intervening event not being of the plaintiffs' making), and awarded the Defendant the costs of the application, which had been defended.

Key legal issues

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01

Whether plaintiffs whose titles derive from a revoked grant retain locus standi to prosecute a land suit

Holding

No - the revocation of the grant deprived them of capacity to prosecute the suit

Reasoning

The plaintiffs' titles to Samia/Budongo/2577 and 2578 were carved out of Samia/Budongo/99 on the strength of a certificate of confirmation of grant dated 28th July 2006. That grant was revoked on 4th February 2020 and the parcels reverted to the estate administration under Nairobi HC Succession No. 684 of 1986. Without a stay of the revocation order, the plaintiffs lost the rights on which the suit is founded.

p. 2
02

Whether pending objection proceedings in the succession cause preserve the plaintiffs' capacity

Holding

No, absent a stay of the revocation order

Reasoning

The court held that ongoing proceedings in the succession court do not alter the plaintiffs' position because they did not obtain an order staying execution of the revocation order issued on 4th February 2020. Their remedy lies in a fresh claim after the objection proceedings are concluded.

p. 2

Legal principles established

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  • Locus standi signifies a right to be heard; a person must have sufficiency of interest to sustain standing to sue in a court of law
  • Revocation of the grant under which a party obtained title takes away, by operation of law, that party's capacity to prosecute a suit founded on those rights

Court orders

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  1. 1.The current suit is struck out for want of locus standi to prosecute the suit
  2. 2.Each party to bear their own costs of the suit
  3. 3.The Defendant is awarded the costs of the application dated 15th October, 2020

Authorities

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Legislation

  • Civil Procedure ActSection 3A

Cases cited (4)

  • Daykio Plantations Limited v. National Bank of Kenya Limited & 2 others
    [2019] eKLR
  • Law Society of Kenya vs. Commissioner of Lands & Others
    Nakuru High Court Civil Case No.464 of 2000
  • Alfred Njau and Others vs City Council of Nairobi
    (1982) KAR 229
  • Quick Enterprises Ltd vs. Kenya Railways Corporation
    Kisumu High Court Civil Case No.22 of 1999
Jurisdiction invoked
Section 3A of the Civil Procedure Act (inherent jurisdiction of the court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Judith Nerima Ogombe & another v Leonard Otuba Sanya [2021] KEELC 2255 (KLR)", Case Analysis (2021). not stated in judgment (Busia). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2255/eng@2021-08-02

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