Alice Nyakinyua Gathambo v Elizabeth Muthoni Gacheche Jeane Wanjiku Gacheche Andrew Gathambo Gacheche (Sued as Administrators of the Estate of Gacheche Hosea (Deceased) & 2 others [2021] KEELC 2429 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Res judicata
The suit is res judicata, the alleged fraudulent acquisition of the suit property having been determined in the succession cause and in Nyeri CMCC No. 196 of 2018
The Plaintiff had earlier sought revocation of the grant in Succession Cause No. 1869 of 1999 on the same allegation of fraud, which Musyoka J dismissed on 20th January 2017. Her subsequent suit in Nyeri CMCC No. 196 of 2018 on the same matters was struck out as res judicata. Adding the 2nd and 3rd Defendants and changing the form of the claim did not disguise the same grievances.
Locus standi
The suit was incompetent from inception because the Plaintiff lacked a grant of representation when filing on 14th June 2019; the limited grant obtained on 30th August 2019 could not operate retrospectively
Relying on Rajesh Pranjivan Chudasama and Hawa Shanko, and Otieno v Ougo, the court held that a litigant is clothed with locus standi upon obtaining a limited or full grant. Filing before obtaining the grant renders the action incompetent as of inception, and the subsequent limited grant could not cure the defect.
Leave to amend
Leave to amend was refused as unnecessary and futile
Since the suit was found res judicata and incompetent from inception, amending it to reflect the Plaintiff's capacity as legal representative would serve no useful purpose. The court declined to consider the issue substantively given its prior findings.
Legal principles established
#- A suit filed on behalf of a deceased's estate without a grant of letters of administration is incompetent from inception, and a later limited grant cannot cure the defect
- Re-framing or adding parties cannot evade res judicata where the substance of the claim was previously adjudicated
- A succession court is competent to deal with issues incidental to succession, including ownership of estate property
Court orders
#- 1.The 1st Defendant's notice of preliminary objection dated 16th July, 2019 is hereby upheld.
- 2.The Plaintiff's notice of motion dated 18th February, 2021 is hereby disallowed.
- 3.The Plaintiff's originating summons dated 14th June, 2019 is hereby struck out with costs for being incompetent and res judicata.
- 4.The 1st Defendant is hereby awarded costs of the preliminary objection whereas all the Defendants are awarded costs of the application dated 18th February, 2021.
- Jurisdiction invoked
- Section 80 of the Land Registration Act, 2012 and Sections 7 and 38(1) of the Limitation of Actions Act (Cap. 22)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alice Nyakinyua Gathambo v Elizabeth Muthoni Gacheche Jeane Wanjiku Gacheche Andrew Gathambo Gacheche (Sued as Administrators of the Estate of Gacheche Hosea (Deceased) & 2 others [2021] KEELC 2429 (KLR)", Case Analysis (2021). Nyeri ELC (unnumbered on record; originating summons dated 14th June, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2429/eng@2021-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.