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ELCStruck OutNakuru ELC Case (Plaint dated August 18, 2016)· [2022] KEELC 2502 (KLR)

Njeri (suing as the Administratorof the Estate of the Late Mary Gathoni Kanyingi) v Karimi (sued as the Administrator of the Estate of the Late Eunice Muthoni Kahenia) (Environment and Land Case Civil Suit 334 of 2016) [2022] KEELC 2502 (KLR)

Environment and Land Court
7 July 2022
13,528 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~54 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a landowner's suit and cancelled his title because he had used a limited succession grant to transfer a deceased woman's land to himself.

What this practically means

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Executive summary

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The plaintiff, claiming to be a son and beneficiary of the late Mary Gathoni Kanyingi, sued the defendant for permanent injunction and eviction from land parcel Nakuru Municipality Block 21/309, on which she occupied structures despite being the registered owner of the neighbouring parcel 21/307. The defendant counterclaimed, seeking an order that the plaintiff surrender parcel 307, her eviction and a permanent injunction, asserting a 1985 gentleman's agreement between the two families that each would retain the ground position occupied after a mix-up of plot positions. The defendant died during the pendency of the suit and was substituted by her son, Daniel Karimi Kahenyi. The defence called, among others, Lucy Wangari Kanyingi, who testified with five siblings that Mary Gathoni Kanyingi was their mother, that the plaintiff was an impostor, and that their mother had sold parcel 309 to Samuel Ogero, whose family occupied it. The court framed five issues and found, first, that the plaintiff had no locus standi because the ad litem grant under which he sued had been suspended on 15th August 2018 and revoked by consent on 24th September 2018 in Nakuru HCCC Misc. Application No. 12 of 2018. Secondly, the transfer of the suit land to the plaintiff using the ad litem grant contravened Section 45 of the Law of Succession Act and his title was not protected by Section 26 of the Land Registration Act, being acquired illegally and unprocedurally. The plaintiff's suit was struck out. The court declined the surrender order in the counterclaim as superfluous, upheld the status quo, declared parcel 309 to belong to the estate of Mary Gathoni Kanyingi, ordered rectification of the register, issued a permanent injunction restraining the plaintiff from interfering with parcel 307, and awarded the defendant costs with interest.

Key legal issues

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01

Whether the plaintiff had locus standi to institute and maintain the suit

Holding

The plaintiff had no locus standi because the grant of letters of administration ad litem under which he sued was suspended on 15/8/2018 and revoked by consent on 24/9/2018 in Nakuru HCCC Misc. Application No. 12 of 2018.

Reasoning

The court called for and perused the High Court file in Misc. Application No. 12 of 2018. It found that Justice Mwongo suspended the plaintiff's grant on 15th August 2018 and that on 24th September 2018 the parties recorded a consent allowing the application for revocation and appointing Lucy Wangari Kanyingi as administrator. Since the plaintiff's authority as administrator had been annulled by his own consent before he was cross-examined, he could not sustain the suit as an administrator or at all.

p. 23
02

Whether the plaintiff is the registered owner and/or has beneficial interest in the suit land

Holding

The plaintiff has no beneficial interest; the transfer of Nakuru/Municipality Block 21/309 to him using letters of administration ad litem was illegal and unprocedural and his title is not protected by Section 26 of the Land Registration Act.

Reasoning

The plaintiff admitted transferring the suit land to himself on account of succession cause No. 288 of 2015, under a limited ad litem grant which on its face could only be used for filing suit. The court held this contravened Section 45 of the Law of Succession Act (intermeddling) and, though the title is prima facie indefeasible under Section 26 of the Land Registration Act, it falls within the proviso for titles acquired illegally or unprocedurally. Evidence of defence witnesses that Mary Gathoni Kanyingi had sold the land to Samuel Ogero remained unchallenged.

p. 25
03

Whether the plaintiff was entitled to eviction and permanent injunction orders against the defendant

Holding

Declined, following the findings on locus standi and want of beneficial interest.

Reasoning

Having found the plaintiff lacked capacity and had illegally procured registration of the suit land in his name, the court declined the prayers for eviction and permanent injunction against the defendant, who is the registered owner of parcel 307 and in occupation of it under a long-standing arrangement.

p. 25
04

Whether the defendant was entitled to the orders in the counterclaim

Holding

The counterclaim was rendered largely unnecessary; the court found no need to disturb the status quo but directed that the defendant and the Ogero family regularize their titles to reflect the actual ground positions.

Reasoning

The court found there was a gentleman's agreement dating back to 1985 between the families of Mary Gathoni Kanyingi and Eunice Kahenia that each would retain occupation of the ground position each occupied after a mix-up in plot positions. Since the plaintiff admitted having no claim over parcel 307, the surrender order sought was superfluous. Invoking Section 13(7) of the Environment and Land Court Act, the court issued orders to bring legal and logical conclusion to the dispute.

p. 25

Legal principles established

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  • A preliminary objection on a point of law may be raised at any time while the action is alive, though preferably at the earliest opportunity
  • A party without locus standi lacks the right to institute and/or maintain a suit, and proceedings so instituted are a nullity
  • Letters of administration ad litem are granted only for purposes of filing suit and representing a deceased's estate; using them to transfer the deceased's property is illegal and unprocedural
  • A title acquired illegally or unprocedurally is not protected under Section 26 of the Land Registration Act, 2012

Court orders

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  1. 1.The plaintiff's suit is struck out
  2. 2.An order of permanent injunction restraining the plaintiff by himself, his servants, agents and/or employees from interfering with the defendant's exclusive use, possession and enjoyment of Nakuru Municipality Block no. 21/307
  3. 3.A declaration that land parcel Nakuru Municipality Block no. 21/309 belongs to the estate of the deceased Mary Gathoni Kanyingi
  4. 4.A declaration that land parcel Nakuru Municipality Block no. 21/309 was illegally and unprocedurally transferred to the plaintiff
  5. 5.The Land Registrar shall rectify the register of Nakuru Municipality Block no. 21/309 by deleting the plaintiff's name and restoring the name of Mary Gathoni Kanyingi
  6. 6.The defendant shall have costs of this suit and interest thereon from the date of judgment until payment in full

Authorities

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Legislation

  • Land Registration ActSections 24 and 26(1)
  • Law of Succession ActSection 45
  • Environment and Land Court ActSection 13(7)
  • Civil Procedure Act (Cap. 21)Section 27

Cases cited (6)

  • Alfred Njau & 5 Others vs. City Council of Nairobi
    [1983] eKLR
  • Nguruman Limited Vs Jan Bonde Nielson & 2 Others
    [2014] eKLR
  • Kitamaiyu Limited vs County Government Kiambu & Another
    [2018] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd -vs- West End Distributors Ltd
    (1969) E.A 696
  • Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased)
    [2016] eKLR
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others
    SC. Petition No. 4 of 2012: [2014] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution read with Section 13 of the Environment and Land Court Act (Section 13(7) relied on for power to grant relief)

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, "Njeri (suing as the Administratorof the Estate of the Late Mary Gathoni Kanyingi) v Karimi (sued as the Administrator of the Estate of the Late Eunice Muthoni Kahenia) (Environment and Land Case Civil Suit 334 of 2016) [2022] KEELC 2502 (KLR)", Case Analysis (2022). Nakuru ELC Case (Plaint dated August 18, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2502/eng@2022-07-07

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