Theresa Wanjiro (Suing as the administrator of the Estate of Joseph Gichuki Riunge v Andrew Kimata Gachanga & another; George Mwai Mburu (3rd Party) [2021] KEELC 2362 (KLR)
The bottom line
#Kenya's High Court struck out a land suit because one co-administrator sued alone and the claim was filed four years past the twelve-year deadline.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff, one of four co-administrators, had locus standi to sue alone
She lacked capacity; administrators act jointly and no authority to sue on behalf of the co-administrators was produced
The certificate of confirmation of grant named four administrators, but the plaintiff filed suit alone without explanation or authority from her co-administrators. Relying on Simon Kamau Muhindi, which adopted Majanja J's decision in Republic v Nairobi City Council, the court held administrators act jointly at all times. The defect was held fatal and not curable by amendment, since the proposed amendment sought to enjoin the co-administrators as defendants for alleged complicity in fraud.
Whether the suit was statute barred under sections 7 and 9(2) of the Limitation of Actions Act
The suit was time barred, having been filed four years after the twelve-year period expired
The deceased died on 9th March 2001 and was the registered owner of the suit property. Under section 9(2), the right of action to recover land of a deceased person who was in possession and last entitled accrues on the date of death. Section 7 allows twelve years to recover land. The third party's interest was registered in July–August 2006, and the suit filed on 4th October 2018 was four years out of time.
Whether defects of pecuniary jurisdiction and pleading (Order 2 rule 10, Order 3 rule 2) warranted striking out
Those defects were curable (by transfer under section 18 and amendment) but the option was unavailable because the suit failed independently on capacity and limitation
The court accepted the plaintiff's argument that the High Court could transfer the suit under section 18 of the Civil Procedure Act and that pleading deficiencies could be cured by amendment under sections 99 and 100. However, since the suit was already fatal on the grounds of lack of capacity and limitation, these curable defects did not alter the outcome.
Legal principles established
#- One administrator out of several lacks capacity to file suit alone on behalf of the estate without the co-administrators, and the defect cannot be cured by amendment
- Where a deceased person was in possession of land and last entitled to it, the right of action to recover the land accrues on the date of death, and limitation runs for twelve years
Court orders
#- 1.The preliminary objection is upheld
- 2.The suit is struck out with costs to the defendants and third party
- Jurisdiction invoked
- Original civil jurisdiction of the High Court; Civil Procedure Act (sections 1A, 1B, 3A, 18 cited by plaintiff)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Theresa Wanjiro (Suing as the administrator of the Estate of Joseph Gichuki Riunge v Andrew Kimata Gachanga & another; George Mwai Mburu (3rd Party) [2021] KEELC 2362 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2362/eng@2021-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.