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ELCAllowedNKR ELC 9/22· [2023] KEELC 158 (KLR)

Gichuhi & another v Kassim & another (Environment & Land Case 09 of 2022) [2023] KEELC 158 (KLR)

Environment and Land Court
24 January 2023
MNMwangi Njoroge
763 words in judgment
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The bottom line

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In Kenya, you cannot sue or evict anyone on behalf of a deceased person's estate unless you first obtain a grant of letters of administration.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (Mwangi Njoroge J) on the Defendants' preliminary objection dated June 20, 2022, taken on two grounds: that the application before the court was bad in law, misconceived and an abuse of process, and that the Defendants had no capacity to be sued because the owner of the suit property, UNS 11 COMM (Loc Market Gilgil, Nakuru), Kassim Ibrahim Faraj, died intestate on October 1, 2015 and the Defendants were not his administrators. The Plaintiffs, relying on Gabriel Mbui v Mukindia Maranya and Phyllis Wanjiru Kamau v Wilson Gichuhi Gachagwe, argued that the Defendants were potential legal representatives and heirs who had held themselves out as such. The Defendants, who are the deceased's children, conceded they had never taken out letters of administration and thus had no locus to defend the estate. The court framed the sole issue as whether the Defendants had capacity to be sued. Applying section 79 of the Law of Succession Act, it held that only a personal representative holding a grant - including a limited grant ad litem - may represent a deceased's estate, and since the Defendants had no grant, they lacked locus standi. The court faulted the Plaintiffs for suing without first issuing a citation, leaving no proper defendant joined. It allowed the preliminary objection, struck out the application and the originating summons dated May 12, 2022, barred the Defendants from evicting the Plaintiffs or acting for the estate without a grant, and made no order as to costs.

Key legal issues

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01

Whether the Defendants, heirs of the deceased owner of the suit property who have not taken out letters of administration ad litem, have capacity to be sued on behalf of the estate

Holding

The Defendants lack locus standi to be sued on behalf of the estate; under section 79 of the Law of Succession Act only the executor or administrator granted representation can represent the estate, and no grant existed.

Reasoning

Section 79 of the Law of Succession Act vests the property of the deceased in the executor or administrator to whom representation has been granted. It was not disputed that the owner died intestate on October 1, 2015 and that his children, the Defendants, had not taken out letters of administration ad litem. Since the Plaintiffs instituted the suit without first issuing a citation to secure representation of the estate, no proper defendant was joined, and the Defendants could not be sued for the estate.

p. 2

Legal principles established

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  • The estate of a deceased person must be represented in court proceedings by a personal representative holding a grant, including a limited grant ad litem; heirs without a grant lack capacity to be sued for the estate.
  • A plaintiff must ensure the defendant is a proper party with capacity before instituting suit, e.g. by first issuing a citation to obtain a grant.

Court orders

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  1. 1.The Preliminary Objection dated June 20, 2022 is allowed
  2. 2.The entire application dated May 12, 2022 is struck out
  3. 3.The originating summons dated May 12, 2022 is struck out
  4. 4.The Defendants shall not undertake any eviction or other action in respect of the estate of the deceased against the Plaintiffs without first acquiring a grant
  5. 5.No orders as to costs

Authorities

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Legislation

  • Law of Succession ActSection 79

Cases cited (2)

  • Gabriel Mbui V Mukindia Maranya
    [1993] eKLR
  • Phyllis Wanjiru Kamau V Wilson Gichuhi Gachagwe & 2 Others
    [2019] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; ruling on a preliminary objection

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gichuhi & another v Kassim & another (Environment & Land Case 09 of 2022) [2023] KEELC 158 (KLR)", Case Analysis (2023). NKR ELC 9/22. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/158/eng@2023-01-24

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