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ELCPartially AllowedNot stated in judgment· [2021] KEELC 4019 (KLR)

Geoffrey Kairithia (Deceased) v Harriet Karandu M’Itwerandu (sued as the administrator of the Estate of Twerandu Igunda); Catherine Ntiriitwa Murugu & another (applying as the legal representative of the Estate of Geofrey Kairithia (Applicants) [2021] KEELC 4019 (KLR)

Environment and Land Court
17 March 2021
LMLucy N. Mbugua
1,596 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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When two relatives compete to substitute a deceased land plaintiff in Kenya, the earlier grant usually wins—especially if the later applicant hid it from the court.

What this practically means

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Executive summary

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The deceased plaintiff, Geoffrey Kariithia, had obtained a judgment on 17.10.2017 in an adverse possession suit awarding him 2 acres to be excised from land parcel No. Nyaki/Thuura/1295, with no costs awarded. He died on 10.1.2018 before execution, prompting two rival substitution applications by holders of limited grants ad litem: Catherine Ntiriitwa Murugu (grant from the Meru High Court dated 4.3.2020), who described herself as the deceased's customary-law wife married in 1993 and mother of his two children, and Susan Karoki (grant from Meru CMC Misc. Succ. No. E4 of 2020 dated 2.10.2020), who described herself as the deceased's sister and said the suit land belonged to their father, the family having chosen the deceased then her to represent it. The defendant did not oppose either application. Relying on Sections 54 and 55 of the Law of Succession Act and the Supreme Court's admonition that procedure should not trump substantive justice, the court held that Susan Karoki, who knew of the earlier grant yet obtained her own months later without disclosing it, was guilty of material non-disclosure and her application was dismissed. Catherine Ntiriitwa's application was allowed. The court directed that the 2 acres be registered in the name of the deceased, leaving distribution of the estate to the succession court, as the ELC lacks jurisdiction over beneficiary questions. Each party was ordered to bear their own costs of the applications.

Key legal issues

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01

Rival limited grants ad litem for substitution of a deceased plaintiff

Holding

The earlier grant (Catherine Ntiriitwa, 4.3.2020) prevails; the later grantee (Susan Karoki) who knew of it and obtained her own grant without disclosure is dismissed.

Reasoning

Both applicants held limited grants ad litem, but the court is not tasked with determining beneficiaries. Susan Karoki knew of the earlier grant when she sought hers months later; she should have challenged it rather than obtain a parallel grant. Her alleged interests were adverse to the estate. Substantive justice favored allowing the first application.

p. 2
02

In whose name the decretal 2 acres should be registered

Holding

The 2 acres must be registered in the name of the deceased plaintiff, Geoffrey Kairithia; distribution of the land is a matter for the succession court.

Reasoning

The judgment of 17.10.2017 directed that the 2 acres excised from parcel Nyaki/Thuura/1295 be registered in the plaintiff's name. The court's decree must be executed as worded. Questions of how the registered land should then be distributed among beneficiaries fall under the Law of Succession Act and the Family court's jurisdiction, not the ELC.

p. 2

Legal principles established

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  • Procedure and form should not trump the primary object of dispensing substantive justice; the court must consider all relevant circumstances of the particular case.
  • Matters of ownership and entitlement to a deceased person's property, including land, are governed by the Law of Succession Act and fall to the Family court, not the ELC.
  • A party aware of an existing limited grant ad litem for representation in a suit who obtains a later grant without disclosing the earlier one is guilty of material non-disclosure.

Court orders

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  1. 1.The application by Susan Karoki dated 5.10.2020 is dismissed
  2. 2.The application by Catherine Ntiriitwa dated 25.7.2020 is allowed
  3. 3.The two acres to be excised from parcel No. Nyaki/Thuura/1295 are to be registered in the name of the deceased Geoffrey Kairithia
  4. 4.Each party to bear their own costs of the applications

Authorities

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Legislation

  • Law of Succession ActSections 54 and 55; Fifth Schedule (14); Section 2(1)
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (2)

  • PLR -vs- JNR & Another
    (2013) eKLR
  • Raila Odinga and Others v IEBC and Others
    SCK Petition No. 5 of 2013 [2013] eKLR
Jurisdiction invoked
Sections 54 and 55 of the Law of Succession Act (Fifth Schedule para 14) - limited grants ad litem for substitution of a deceased party in a pending suit

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, "Geoffrey Kairithia (Deceased) v Harriet Karandu M’Itwerandu (sued as the administrator of the Estate of Twerandu Igunda); Catherine Ntiriitwa Murugu & another (applying as the legal representative of the Estate of Geofrey Kairithia (Applicants) [2021] KEELC 4019 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4019/eng@2021-03-17

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