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ELCStruck OutELC Case of 2020 (Murang'a)· [2021] KEELC 4105 (KLR)

Daniel Njuguna Mbugua v Peter Kiarie Njuguna & 2 others [2021] KEELC 4105 (KLR)

Environment and Land Court
4 March 2021
JKJ.G. Kemei
3,479 words in judgment
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The bottom line

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A Kenyan court struck out a grandson's land suit because he lacked letters of administration for the deceased's estate, confirming that suing without a grant is illegal intermeddling.

What this practically means

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Executive summary

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The Plaintiff, a grandson of the late Njuguna Kiarii, sued the Defendants claiming that the 1st Defendant fraudulently acquired the suit land LOC1/MUGUMOINI/1026 in exclusion of other beneficiaries of the deceased's unsucceeded estate. He sought an injunction, declarations that the 1st Defendant's title was fraudulent and null, and cancellation with reversion to the deceased's name. The 1st Defendant opposed and counterclaimed, seeking cancellation of the 1989 subdivisions of the mother title. The 1st Defendant then applied under Order 2 Rule 15 to strike out the suit for want of a reasonable cause of action and as an abuse of process, contending the Plaintiff lacked letters of administration in the estate of Njuguna Kiarii, whose estate was subject to pending succession cause No 330 of 2008 at Thika. The Plaintiff relied on letters of administration in the estate of his deceased mother, Violet Njoki Mbugua, arguing his mother's beneficial interest devolved to him. The court held that the Plaintiff had no locus standi: the suit land was not part of his mother's confirmed estate, his earlier grant in the Kiarii estate had been revoked, and filing suit without a grant constituted intermeddling under Section 45 of the Law of Succession Act. Want of letters was held not a mere technicality and could not be cured by amendment. Although striking out is a drastic remedy, the defect was plain. The suit was struck out with costs to the 1st Defendant, the parties being left to pursue the succession cause in the probate court.

Key legal issues

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01

Whether letters of administration in a beneficiary's estate (Violet Njoki Mbugua) confer standing to sue in respect of the unsucceeded estate of Njuguna Kiarii

Holding

They do not; the suit land was not part of the mother's confirmed estate and the plaintiff had no grant in the estate of Njuguna Kiarii at filing

Reasoning

The court found the estate of Njuguna Kiarii unsucceeded and noted the plaintiff's grant in his mother's estate covered only LOC1/MUGUMOINI/1027, not the suit land. Since beneficiaries' shares were undetermined, the mother's interest had not devolved in a way capable of conferring standing on the plaintiff. Revocation of his earlier grant in the Kiarii estate on 30/6/2020 removed any capacity he once had, and amendment could not cure the defect.

p. 4
02

Whether the suit should be struck out under Order 2 Rule 15

Holding

Yes; the application was meritorious despite the drastic nature of striking out

Reasoning

Although striking out is drastic and reserved for plain and obvious cases per D T Dobie v Muchina, the court found the defect was not curable: the plaintiff plainly lacked locus and no cause of action was exhibited. The parties were left to pursue succession in the probate court, where preservatory orders could be sought. The application was therefore allowed with costs to the 1st Defendant.

p. 5

Legal principles established

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  • Filing suit or dealing with a deceased's free property before obtaining a grant amounts to intermeddling under Section 45 of the Law of Succession Act
  • Want of letters of administration goes to the heart of a suit concerning a deceased's estate and cannot be cured by amendment
  • A party without locus standi lacks the right to institute or maintain a suit even where a valid cause of action subsists

Court orders

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  1. 1.The Plaintiff's suit is struck out with costs to the 1st Defendant/Applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 3 Rule 7
  • Civil Procedure RulesOrder 2 Rule 15
  • Law of Succession ActSection 45
  • Law of Succession ActSection 82

Cases cited (9)

  • Bolton Vs Salim Khanoi
    (1958) EA 360
  • Isaya Masira Momanyi Vs Daniel Omwoyo & Anor
    ELC 167 of 2016
  • Alfred Njau –Vs- City Council of Nairobi
    [1983] KLR 625
  • Julian Adoyo Ongunga –vs- Francis Kiberenge Abano
    Migori Civil Appeal No.119 of 2015
  • D T Dobie K Limited Vs Muchina
    (1982) KLR
  • Estate of Ibrahim Hassan alias Sheikh Ibrahim Hassan
    Succ cause No 36 of 2017
  • Estate of Joseph Namayi Lukongo
    Succ cause No 457 of 2005
  • Estate of M'Chokera Ramare
    Succ cause No 457 of 2010
  • Drummond Jackson – Vs – Britain Medical Association
    (1970) 2 WLR 688
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes; court declined to entertain matters reserved to the probate court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (21)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Daniel Njuguna Mbugua v Peter Kiarie Njuguna & 2 others [2021] KEELC 4105 (KLR)", Case Analysis (2021). ELC Case of 2020 (Murang'a). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4105/eng@2021-03-04

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