Koech v Attorney General & 3 others (Environment & Land Case 64 of 2003) [2022] KEELC 2221 (KLR)
The bottom line
#A Kenyan court struck out a land suit because the plaintiff had lost his legal authority to represent a deceased person's estate when a newer grant was issued to someone else.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff had locus standi to sue as administrator of the estate
The Plaintiff lacked locus standi; letters of administration issued to Anna Cheruto Melile and confirmed on 24th November 2014 took effect under Section 80(2) of the Law of Succession Act, ending the Plaintiff's capacity as personal representative
The court found two grants were issued over the same estate: one to Anna Cheruto Melile, Catherine Melile and the Plaintiff on 26th March 2003 (unconfirmed), and another to Anna Cheruto Melile alone, subsequently confirmed. Section 80(2) provides grants take effect from the date of issue, and Section 3 defines a personal representative. The later confirmed grant displaced the Plaintiff, who could therefore not sustain the suit on behalf of the estate.
Whether the absence of a Replying Affidavit rendered the Plaintiff's submissions ineffectual
Yes; following Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli, the Plaintiff's written submissions of 25th April 2022 were of no effect without a Replying Affidavit
The Plaintiff chose not to file a response to the Preliminary Objection but only filed written submissions. Relying on the Supreme Court's holding that a Replying Affidavit is the foundational pleading on which submissions are based, the court held the submissions had no effect, leaving the Objection effectively uncontroverted on evidence.
Whether the objection was a proper preliminary objection and whether the overriding objective could save the suit
The lack of locus standi is a pure point of law within the Mukisa Biscuit first principle, capable of disposing of the suit, and Article 159(2)(d) could not salvage it
Applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the court held locus standi is a primary point of law almost similar to jurisdiction. Because it goes to the root of the suit and its absence renders it fatally defective, it is not a mere technicality, and the oxygen/overriding objective principles invoked by the Plaintiff could not resuscitate an incompetent suit.
Legal principles established
#- Where a fresh grant of letters of administration is issued to another person, the prior administrator ceases to be a personal representative and lacks capacity to maintain suit on behalf of the estate
- Lack of locus standi is a point of law that renders a suit incompetent and cannot be cured by Article 159(2)(d) of the Constitution
Court orders
#- 1.The suit is struck out
- 2.The Preliminary Objection dated 22nd November 2021 is allowed with costs to the 3rd and 4th Defendants
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; the judgment does not cite a specific enabling provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koech v Attorney General & 3 others (Environment & Land Case 64 of 2003) [2022] KEELC 2221 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2221/eng@2022-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.