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ELCStruck OutNot stated in the judgment (Notice of Motion dated 4/5/2021 filed 5/5/2021)· [2021] KEELC 2980 (KLR)

David Mbugua Kang’ong’a v Steve Karanja Kang’ong’a & 2 others [2021] KEELC 2980 (KLR)

Environment and Land Court
9 June 2021
1,646 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kitale struck out a son's land suit against his siblings, ruling the family property dispute belongs in succession proceedings, not a land claim.

What this practically means

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Executive summary

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By a Notice of Motion dated 4/5/2021, the plaintiff, a son and administrator ad litem of the late Salome Wanjiku Kang'ong'a, sought temporary injunctions restraining the defendants from trespassing on, occupying, constructing on or interfering with suit land title number Kitale Municipality Block 4/182, pending hearing of the suit in which he sought eviction and a permanent injunction. The defendants filed a replying affidavit and a preliminary objection contending that the pleadings disclosed a succession dispute between siblings over the deceased's estate, which only a succession court could handle, no succession cause having been filed. The court first disposed of the objection, holding that jurisdiction is the first and most important issue. It found the plaintiff had standing on the basis of his Grant of Letters of Administration Ad Litem (Kitale CMCC 27 of 2021). However, since the deceased died on 22/12/2019 and no substantive grant had been raised, all beneficiaries enjoyed equal entitlement to access the estate properties before distribution. The court noted the plaintiff's failure to deny the 1st defendant's allegations that he and a brother were dealing with estate properties and income without involving the 1st defendant, whose ad litem grant did not authorize such disposal. Granting an injunction over one property would bar the 1st defendant from the estate while condoning the plaintiff's alleged failings, exacerbating familial dissension. The court, while not declining jurisdiction under Section 13 of the Environment and Land Court Act, held that the parties should seek a substantive grant for distribution, and that the same grounds defeating the application required the suit to fail in limine. Both the application and the plaint were struck out with costs.

Key legal issues

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01

Standing of an administrator ad litem

Holding

The plaintiff has proper standing to institute the suit on the basis of the ad litem grant.

Reasoning

A copy of the Grant of Letters of Administration Ad Litem in Ad Litem Cause No. Kitale CMCC 27 of 2021 was attached to the plaint and issued to the plaintiff to file suit. The court therefore held that the plaintiff, though limited by the terms of the ad litem grant, was entitled to approach the court for relief under Section 13 of the Environment and Land Court Act and was not declining jurisdiction on standing grounds.

p. 2
02

Whether temporary injunction should issue over estate property where no substantive grant exists

Holding

The injunction was refused because the dispute is fundamentally a succession matter and the court cannot distribute the estate; the orders would favour the plaintiff while barring the 1st defendant beneficiary from the estate.

Reasoning

The deceased died on 22/12/2019 and no substantive grant had been raised. All beneficiaries have an equal entitlement to access estate properties before distribution. The ad litem grant does not authorize disposal of estate income, and the plaintiff did not deny allegations of dealing with estate properties. Granting an injunction over one property would condone the plaintiff's alleged failings and exacerbate familial dissension; justice must be seen to be done.

p. 3
03

Fate of the suit where interlocutory relief is denied on grounds going to the root

Holding

Since the same grounds defeating the injunction render the suit futile, the plaint was struck out in limine.

Reasoning

The court reasoned that an interlocutory injunction mandatorily depriving a defendant-beneficiary of his place of abode cannot issue before distribution pursuant to a confirmation of grant, and that there was nothing beyond an interlocutory preservation order left to agitate. Accordingly both the application and the plaint were struck out with costs.

p. 3

Legal principles established

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  • Jurisdiction is the first and most important issue; where a court lacks jurisdiction it must down its tools immediately
  • A plaintiff holding an ad litem grant has standing to sue for limited remedies but cannot obtain relief that amounts to distribution of the estate
  • Section 45 of the Law of Succession Act prohibits intermeddling with free property of a deceased person except as authorized by a grant of representation

Court orders

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  1. 1.The application dated 4/5/2021 is struck out
  2. 2.The plaint dated 4/5/2021 is struck out
  3. 3.Costs to the defendants

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A & 63(e)
  • Civil Procedure RulesOrder 40 Rule 2 and 4(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Law of Succession ActSection 45
  • Environment and Land Court ActSection 13
Jurisdiction invoked
Sections 1A, 1B, 3, 3A & 63(e) Civil Procedure Act; Order 40 Rules 2 and 4(1) Civil Procedure Rules; Article 159(2)(d) Constitution; Section 13 Environment and Land Court Act

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, "David Mbugua Kang’ong’a v Steve Karanja Kang’ong’a & 2 others [2021] KEELC 2980 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 4/5/2021 filed 5/5/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2980/eng@2021-06-09

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