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ELCStruck OutNyeri ELC (unnumbered on record; originating summons dated 14th June, 2019)· [2021] KEELC 2429 (KLR)

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)

Environment and Land Court
28 July 2021
3,638 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, holding a limited grant ad litem from Nyeri Succession Cause No. 54 of 2019, filed an originating summons dated 14th June 2019 under Section 80 of the Land Registration Act and Sections 7 and 38(1) of the Limitation of Actions Act, seeking rectification of the register for Kirimukuyu/Kiria/638 and cancellation of entries transferring the land from her late father Gathambo Gacheche to his son Gacheche Hosea (deceased), alleging fraudulent acquisition. The 1st Defendant, administrator of Hosea's estate, raised a preliminary objection that the suit was res judicata, citing Nairobi Succession Cause No. 1869 of 1999 and Nyeri CMCC No. 196 of 2018. The Plaintiff also applied for leave to amend the summons to state the capacity in which she sued. The court framed four issues and held: first, the suit was res judicata, since the identical allegation of fraudulent acquisition had been litigated and dismissed by Musyoka J in the succession cause on 20th January 2017, and again struck out by the magistrate's court on 14th June 2019; adding parties and re-styling the claim could not evade the doctrine. Second, the suit was incompetent from inception because the Plaintiff had no grant of representation when she filed on 14th June 2019, and the limited grant obtained on 30th August 2019 could not operate retrospectively. Third, leave to amend was futile given the suit's incompetence. The court upheld the preliminary objection, disallowed the amendment application, struck out the originating summons with costs, and awarded costs of the preliminary objection to the 1st Defendant and costs of the application to all Defendants.

Key legal issues

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01

Res judicata

Holding

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

Reasoning

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.

p. 4
02

Locus standi

Holding

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

Reasoning

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.

p. 4
03

Leave to amend

Holding

Leave to amend was refused as unnecessary and futile

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The 1st Defendant's notice of preliminary objection dated 16th July, 2019 is hereby upheld.
  2. 2.The Plaintiff's notice of motion dated 18th February, 2021 is hereby disallowed.
  3. 3.The Plaintiff's originating summons dated 14th June, 2019 is hereby struck out with costs for being incompetent and res judicata.
  4. 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.

Authorities

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Legislation

  • Land Registration Act, 2012Section 80
  • Limitation of Actions Act (Cap. 22)Sections 7 and 38(1)
  • Civil Procedure Act (Cap. 21)Sections 1A, 3A, 7 and 27 (proviso)
  • Civil Procedure Rules, 2010Order 1 rules 9 and 10; Order 8 rule 3

Cases cited (10)

  • Kimunye v The Pioneer General Assurance Society Ltd
    [1971] EA 263
  • Green-hailgh v Mallard
    [1947] 2 ALL ER 255
  • Jadva Karsan v Harnam Singh Bhogal
    (1953) 20 EACA 74
  • ET v AG and Another
    Nairobi Petition No. 212 of 2012
  • Omondi v National Bank of Kenya Limited and Others
    [2001] EA 177
  • Njangu v Wambugu and Another
    Nairobi HCCC No. 2340 of 1991 (unreported)
  • Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama
    [2014] eKLR
  • Hawa Shanko v Mohamed Uta Shanko
    [2018] eKLR
  • Otieno v Ougo
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.