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ELCDismissedEnvironment & Land Case 4 of 2019· [2022] KEELC 14524 (KLR)

Gitee v Wanjiru & 19 others

Environment and Land Court
3 November 2022
1,728 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court ruled that a widow who claims shares were transferred to her can sue in her own name without Letters of Administration.

What this practically means

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Executive summary

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The 1st, 2nd and 3rd defendants raised a preliminary objection dated October 22, 2021 arguing that the plaintiff, Flora Wanjiku Gitee, lacked capacity to sue because she had not obtained Letters of Administration for the estate of her late husband Gitee, contrary to sections 2 and 82(a) of the Law of Succession Act read with section 2 of the Civil Procedure Act. The plaintiff opposed, contending she sued in her own personal capacity: her late husband's shares in Githunguri Constituency Ranching Co. Ltd were transferred to her under the company's articles (Table A, section 30 of the 1st Schedule adopted under section 9 of the Companies Act), and she was issued share certificate no. 2862 and cleared for a title deed. She argued the objection was not a pure point of law. The defendants relied on Fredrick Wachira Ndegwa, which set aside a judgment where claimants sued for a deceased's estate without Letters of Administration. Applying Mukisa Biscuit, JG Kemei J held that determining whether the shares were validly transferred to the plaintiff requires analysis of the company's Articles of Association and evidence, so the objection fails the pure-point-of-law test. The court distinguished Ndegwa on its facts and dismissed the preliminary objection with no orders as to costs on November 3, 2022.

Key legal issues

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01

Whether the plaintiff's capacity to sue could be determined as a preliminary point of law

Holding

No - determining whether the shares were transferred to the plaintiff requires examination of evidence, so the objection fails the pure-point-of-law test

Reasoning

The objection assails the plaintiff's capacity, contending she should have obtained Letters of Administration. The plaintiff asserts she sued in her own name after the company transferred her late husband's shares to her. To ascertain that transfer and the applicable company law, the court must examine evidence of the company's Articles of Association, ousting the pure-point-of-law test.

p. 4
02

Whether the plaintiff lacked locus standi for failing to obtain Letters of Administration

Holding

The objection was dismissed; the plaintiff claims in her own capacity following transfer of shares, and that claim cannot be resolved without evidence

Reasoning

The court distinguished Fredrick Wachira Ndegwa, where a claimant sued for the deceased's estate without Letters of Administration. Here the plaintiff asserts the suit is in her own name upon transfer of her husband's shares and issuance of a share certificate and ballot number, so the succession-law objection could not be resolved on pleadings alone.

p. 4

Legal principles established

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  • A preliminary objection must raise a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised

Court orders

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  1. 1.The Preliminary Objection dated October 22, 2021 is dismissed with no orders as to costs

Authorities

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Legislation

  • Law of Succession Actsections 2 and 82(a)
  • Civil Procedure Actsection 2
  • Civil Procedure Actsection 27
  • Companies Actsection 9 (adoption of 1st Schedule, Table A, section 30)

Cases cited (2)

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    [1969] EA 696

    Test for a preliminary objection: pure point of law, no facts to be ascertained

  • Fredrick Wachira Ndegwa (Substituting Ndegwa Wachira (Deceased) v Richard Wanjiku Ndanjeru & anor
    [1997] eKLR

    Suit on behalf of a deceased's estate requires Letters of Administration; distinguished on facts

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act

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, "Gitee v Wanjiru & 19 others", Case Analysis (2022). Environment & Land Case 4 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14524/eng@2022-11-03

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