Teresia Nyambura & 3 others v Virginia Waithera Gathuku & 5 others [2022] KEELC 590 (KLR)

The court relied on Muchelule J's ruling in High Court Succession Cause No 30 of 1979 that a suit to recover land from those who acquired the estate without due process requires capacity to sue under Section 82(a) of the Law of Succession Act. The Plaintiffs admitted in their supporting affidavit that they had not been granted Letters of Administration, and therefore lacked capacity to institute the suit.

The Defendants argued under Section 7 of the Limitation of Actions Act that the cause of action arose in 1980. The Plaintiffs relied on Section 26 (fraud discovery). The court found from the Amended plaint that the Plaintiffs became aware of the alleged fraud in 1980, making the suit time barred.

Order 5 rules 1(3) and (5) of the Civil Procedure Rules require every summons to be accompanied by a copy of the plaint and filed with the plaint in mandatory terms. The Plaintiffs admitted non-compliance and had neither extracted nor served summons eleven months after filing. Following Nzamba Kavili, the suit was struck out.

Relying on IEBC v Stephen Mule, the court held parties are bound by their pleadings. The notice of motion sought a temporary injunction, but the plaint and Amended plaint contained no injunctive or preservatory prayer, so the application was unsupported by the pleadings.

The Defendants argued the plaint was riddled with succession and probate claims and should have been filed in the High Court Family Division. The court rejected this ground, holding that the Environment and Land Court Act and Article 162(2)(b) of the Constitution confer jurisdiction on the ELC over the land claim.