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ELCPartially AllowedNot stated in the extract (Kisii Environment and Land Court suit)· [2022] KEELC 1539 (KLR)

Cleophas Makori Mageto & 3 others v Samwel Omariba Mageto & another [2022] KEELC 1539 (KLR)

Environment and Land Court
8 February 2022
JOJ. M Onyango
2,658 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Four brothers lost their land case because they sued without first getting Letters of Administration for their late father's estate.

What this practically means

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Executive summary

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The Plaintiffs, sons of the late Benson Mageto Omariba, sued their brothers (the Defendants) alleging that the Defendants had clandestinely sub-divided their father's parcel CENTRAL KITUTU/MWONYERERO/178 into three portions and obtained titles to two of them (parcels 1822 and 1823). The Plaintiffs sought an injunction against eviction and a declaration that the sub-division was null and void, claiming the deceased had demarcated the land among his six sons in 2012 in the presence of the Chief and village elders. The Defendants denied the claim and counterclaimed, asserting they had been given their parcels by their father and obtained Land Control Board consent, and sought an injunction against the Plaintiffs' interference, including plucking of tea. The court framed three issues: locus standi, fraudulent sub-division, and entitlement to reliefs. Applying authorities on the necessity of a grant of letters of administration, the court held that the Plaintiffs, who sued as sons without any grant, lacked locus standi, and the suit was incompetent on that ground alone. Further, although fraud was pleaded, no particulars were given and the Plaintiffs failed to prove fraud to the heightened standard required. The suit was dismissed with judgment entered on the Counterclaim. An injunction issued restraining the Plaintiffs from utilizing parcels 1822 and 1823 except where they had constructed houses. As the parties are brothers, each party was ordered to bear their own costs. Judgment delivered at Kisii on 8 February 2022 by J. M Onyango, Judge.

Key legal issues

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01

Locus standi of the Plaintiffs

Holding

Plaintiffs lacked capacity to sue as they had not obtained Letters of Administration in respect of their father's estate.

Reasoning

The Plaint did not state the capacity in which the Plaintiffs sued and no Grant of Letters of Administration was produced. Although they claimed as sons of the deceased, the law requires that a beneficial interest in a deceased's estate be pursued by a legal representative holding a grant, whether full or limited; otherwise the suit is incompetent from inception.

p. 3
02

Alleged fraudulent sub-division of parcel 178

Holding

The claim of fraud failed because no particulars were pleaded and the standard of proof was not met.

Reasoning

Fraud allegations must be strictly proved to a standard above balance of probabilities, and particulars of fraud must appear on the face of the pleading. Although the Plaintiffs pleaded fraud, the Plaint contained no particulars, so no basis was laid and the allegation was not proved to the required standard.

p. 4
03

Defendants' Counterclaim

Holding

The Counterclaim succeeded and judgment was entered for the Defendants with an injunction against the Plaintiffs.

Reasoning

Having dismissed the Plaintiffs' suit, the court found the Defendants had proved their Counterclaim that the Plaintiffs were interfering with parcels 1822 and 1823, and issued an injunction restraining the Plaintiffs from utilizing those parcels except where they had constructed houses.

p. 4

Legal principles established

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  • A claimant to a deceased person's estate must obtain a Grant of Letters of Administration before suing; a suit brought without one is incompetent for lack of locus standi.
  • Fraud must be specifically pleaded with particulars and proved to a standard higher than a balance of probabilities.

Court orders

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  1. 1.An order of injunction restraining the Plaintiffs from utilizing Land Parcel No. Central Kitutu/Monyerero/1822 and 1823, save for the portions where they have constructed their houses
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Law of Succession Actsection 82(a)

Cases cited (7)

  • Charles Ratemo Nyambati Vs Jacton Ocharo & 4 others
    (2016) eKLR
  • Hawo Shanko v Mohamed Uta Shanko
    [2018] eKLR
  • Trouistik Union International vs. Mbeyu & Another
    [1993] eKLR
  • Otieno v Joash Ochieng Ougo & another
    (1987) eKLR
  • Koinange & 13 Others V. Charles Karuga Koinange
    1986 KLR at page 23
  • Ratilal Patel Makanji
    (1957) EA 314
  • Vijay Morjaria .v. Nansingh Madhusingh Darbar & another
    [2000] eKLR (Civil Appeal No. 106 of 2000)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land

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, "Cleophas Makori Mageto & 3 others v Samwel Omariba Mageto & another [2022] KEELC 1539 (KLR)", Case Analysis (2022). Not stated in the extract (Kisii Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1539/eng@2022-02-08

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