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ELCStruck OutEnvironment & Land Case 201 of 2018· [2022] KEELC 15088 (KLR)

Kamau v Kubai

Environment and Land Court
21 November 2022
BEB M Eboso
1,751 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, claiming to be the registered proprietor of three subdivisions (Ndumberi/Riabai/2928, 2930 and 2931) carved out of Ndumberi/Riabai/1911, sued the defendant for a permanent injunction, a declaration of absolute proprietorship, damages for trespass, costs and interest, alleging the defendant forcibly took over the parcels in October 2015. The defendant counterclaimed, contending the parcels formed part of the estate of the late Fredrick Polwarth Kibuthu Kubai, that the subdivision and the plaintiff's acquisition occurred during the subsistence of a High Court preservatory order issued by Aganyanya J on July 31, 1998, and that the titles were fraudulently procured and null and void. He sought declarations of nullity, revocation of the titles, an injunction, damages and mesne profits. The plaintiff asserted he was an innocent purchaser for value from duly registered owners and challenged the defendant's locus standi. The court identified the key question as the validity of the 2002 subdivision and titles issued during the subsistence of the preservatory order, holding that the Succession Court seized of the two consolidated succession causes was the ideal forum, and that it could not pronounce on the validity of the titles without the personal representatives of the deceased and those who procured the subdivision as parties. The plaintiff's suit was struck out with liberty to file appropriate proceedings against all necessary parties. The defendant's counterclaim was struck out because a grandchild of the deceased, even holding a power of attorney from his mother, lacks locus standi to prosecute claims on behalf of the estate; only a court-appointed personal representative may do so. Each party was ordered to bear its own costs.

Key legal issues

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01

Validity of titles issued during the subsistence of a preservatory order

Holding

The court declined to determine the validity of the plaintiff's titles because the necessary parties, particularly the personal representatives of the deceased, were not joined

Reasoning

The key question was whether a valid subdivision and titles could issue during the subsistence of the High Court preservatory order over the estate. The court held the Succession Court seized of the two consolidated succession causes was the ideal forum, and that it could not pronounce on validity without the personal representatives and those who procured the subdivision as parties.

p. 3
02

Locus standi of the defendant to prosecute the counterclaim

Holding

The defendant, a grandchild of the deceased holding a power of attorney from his mother, lacked locus standi to prosecute the counterclaim on behalf of the estate

Reasoning

Being a grandchild of the deceased does not confer standing to sue on behalf of the estate. A power of attorney donated by the defendant's mother, herself an administrator of a son of the deceased, does not vest in the defendant the standing to prosecute a claim belonging to the estate; only a court-appointed personal representative may do so.

p. 3
03

Adjudicability of the trespass claim

Holding

The trespass claim, being anchored on the validity of the titles, could not be effectually adjudicated without determining the validity of the titles

Reasoning

The plaintiff's claim for damages for trespass depended on his being a valid registered proprietor. Since the validity of the titles could not be determined in the absence of the personal representatives and those who procured the subdivision, the trespass claim could not be effectually adjudicated and fell with the suit.

p. 3

Legal principles established

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  • A court cannot pronounce on the validity of titles derived from a deceased person's estate without the personal representatives of the estate being parties to the suit
  • Only a court-appointed personal representative has locus standi to initiate and prosecute claims on behalf of a deceased's estate; a grandchild or a donee of a power of attorney from a beneficiary does not

Court orders

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  1. 1.The plaintiff's suit is struck out for failure to join the personal representative of the deceased and the persons who procured the impugned subdivisions and titles
  2. 2.The defendant's counterclaim is struck out for lack of locus standi
  3. 3.Liberty granted to the plaintiff to initiate appropriate proceedings in the appropriate court against all necessary parties including the personal representative of the deceased
  4. 4.Each party to bear their respective costs of the primary suit and the counterclaim

Authorities

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Legislation

  • Law of Succession Act

Cases cited (1)

  • In the matter of the Estate of Fredrick Polwarth Kibutha Kubai (deceased)
    Nairobi High Court Succession Cause No 1940 of 1996

    Confirmed grant of letters of administration to the estate administrators on March 4, 1998

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over disputes relating 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, "Kamau v Kubai", Case Analysis (2022). Environment & Land Case 201 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15088/eng@2022-11-21

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