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ELCStruck OutPetition dated 19th July, 2019 (number not stated in judgment)· [2021] KEELC 4081 (KLR)
Vikash Kamalkumar Devishi Shah v Abdalla Abdulrman & 3 others [2021] KEELC 4081 (KLR)
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·~11 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Petitioner, son of the late Kamalkumar Devshi Shah, filed this Petition on 19th July 2019 on behalf of his father's estate and its beneficiaries. He discovered in mid-2019 that the suit property (LR. MN/I/9779, C.R. 28688, Mombasa), registered in his deceased father's name and valued at over Kshs. 46,000,000, had been transferred to the 1st Respondent pursuant to a decree in Mombasa CMCC No. 462 of 2018 (O.S), an adverse possession suit filed some three years after the deceased's death, in which judgment was entered by substituted service. The Petitioner sought declarations that the 1st Respondent and his counsel acted fraudulently and in breach of Articles 10, 21, 22, 27, 40, 47, 50 and 159 of the Constitution, that the deceased's name was wrongfully removed from the register, an order for rectification of the register, and prohibitory orders. The 1st Respondent denied the claims and contended the Petitioner lacked locus standi, no grant of letters of administration having been obtained, and that the Petition was an impermissible attempt to review or appeal the subordinate court's decision. The 2nd to 4th Respondents filed grounds of opposition alleging abuse of process. The court framed two issues: whether the Petitioner had locus standi and, if so, whether the orders sought could issue. Relying on Sections 80(2) and 82 of the Law of Succession Act and the Otieno v Ougo decision, the court held that only a holder of a grant may represent a deceased's estate; the Petitioner had merely exhibited a Petition for a grant, not the grant itself. The suit was therefore null and void ab initio and was struck out in its entirety with costs to the Respondents.
Key legal issues
#01
Whether the Petitioner had locus standi to petition on behalf of a deceased's estate without a grant of letters of administration
Holding
He did not; the suit was incompetent and a nullity ab initio
Reasoning
The court held it is trite law that only a person issued with a grant of letters of administration has capacity to represent a deceased's estate, citing Section 82 of the Law of Succession Act. The Petitioner had only exhibited a Petition for letters of administration in Succession Cause No. 36 of 2019, not the grant itself. Under Section 80(2), a grant takes effect only from its date of issue. A suit commenced without the grant is null and void ab initio and cannot be cured by a subsequent grant. The Petition was therefore struck out with costs to the Respondents.
p. 4
Legal principles established
#- An estate of a deceased person can only be represented in legal proceedings by a holder of a grant of letters of administration; a suit commenced without such a grant is null and void ab initio and cannot be cured by a subsequent grant
- A person without locus standi cannot be heard even on whether he has a case worth listening to
Court orders
#- 1.The suit by the Petitioner initiated vide a Petition dated 19th July 2019 struck out in its entirety
- 2.Costs of the suit awarded to the Respondents
- Jurisdiction invoked
- Articles 23(1), 258 and 259 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vikash Kamalkumar Devishi Shah v Abdalla Abdulrman & 3 others [2021] KEELC 4081 (KLR)", Case Analysis (2021). Petition dated 19th July, 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4081/eng@2021-03-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.