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ELCDismissedThika ELC Case No 14 of 2022 (OS)· [2023] KEELC 337 (KLR)

Jane Njeri Muriuki v Peter Munyui Njoroge & Another

Environment and Land Court
20 January 2023
BEB M Eboso
1,608 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Thika disposed of a preliminary objection dated April 28, 2022 raised by the 2nd respondent, seeking to strike out an originating summons filed by Jane Njeri Muriuki, the Ad Litem Administrator of the estate of the late Mutura Muriuki. The suit sought a declaration that a trust existed over land parcel Kiambaa/Waguthu/2xx, co-owned by three deceased siblings, and transfer of a one-third interest to the applicant's estate, alleging illegal alterations to the parcel register had reduced the deceased's share. The 2nd respondent, through counsel Mr Gachie, contended that the applicant's grant was invalid because the deceased's widow was alive and the applicant, being only a daughter-in-law, was ineligible under Section 39 of the Law of Succession Act. Mr Karanja, for the applicant, countered that the grant was duly issued and unchallenged and that the ELC was not the forum to attack it. The court, per B M Eboso J, framed a single question: whether the applicant had legal capacity to institute the suit. It held that jurisdiction to invalidate a grant vests in the issuing court or a court exercising review or appellate jurisdiction over it, and the ELC is neither. It further held that Section 39 was the wrong provision; Section 66 of the Act governs appointment of administrators and vests final discretion in the succession court, which may appoint a daughter-in-law. The court dismissed the preliminary objection and ordered the objector to bear its costs.

Key legal issues

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01

Whether the applicant, a daughter-in-law holding a grant of letters of administration ad litem, has locus standi to sue on behalf of the deceased's estate

Holding

She has locus standi so long as her grant remains unrevoked; challenges to the grant lie in the succession court, not the ELC

Reasoning

The court held that invalidation of a grant is a matter for the issuing court or a court with review/appellate jurisdiction over it, which the ELC is not. Further, the objection was anchored on the wrong provision; Section 66 of the Law of Succession Act governs the preference for administrators and vests wide discretion in the succession court, which is not precluded from appointing a daughter-in-law.

p. 4
02

Whether Section 39 of the Law of Succession Act is the correct framework governing eligibility to apply for a grant

Holding

No - the correct framework is Section 66, which gives the succession court final discretion

Reasoning

Section 39 addresses devolution of intestate estates where there is no surviving spouse or children; it does not govern who may be appointed administrator. Section 66 sets out the order of preference but vests final discretion in the succession court, which may appoint a daughter-in-law where appropriate.

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Legal principles established

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  • A grant of letters of administration not yet revoked vests in the holder the legal capacity to institute a suit on behalf of the estate
  • Jurisdiction to invalidate a grant lies with the issuing court or a court exercising review or appellate jurisdiction over it

Court orders

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  1. 1.The preliminary objection dated April 28, 2022 is dismissed.
  2. 2.The objector shall bear costs of the preliminary objection.

Authorities

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Legislation

  • Law of Succession ActSection 39
  • Law of Succession ActSection 66
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - not expressly quoted in the ruling

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, "Jane Njeri Muriuki v Peter Munyui Njoroge & Another", Case Analysis (2023). Thika ELC Case No 14 of 2022 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/337/eng@2023-01-20

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