Njuguna v Mungai & 3 others (Environment & Land Case E53 of 2022) [2023] KEELC 477 (KLR)
The bottom line
#A Kenyan court struck out a land suit because the plaintiff filed before obtaining letters of administration, so he had no legal authority to sue for the deceased's estate.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff had locus standi to file suit on behalf of a deceased person's estate when the grant ad litem was issued after filing
The plaintiff lacked locus standi at the date of filing because the grant ad litem was issued on October 6, 2022, six days after the suit was filed on September 30, 2022; a grant takes effect only from its date of issue.
Section 80(2) of the Law of Succession Act provides that a grant takes effect only from the date of the grant. The court relied on Isaya Masira Momanyi v Daniel Omwoyo, holding that failure to obtain a grant before filing is not a procedural technicality. The plaintiff's claim that the grant was made on September 12, 2022 was unsupported by evidence, and the annexed grant clearly showed issuance on October 6, 2022. The preliminary objection therefore succeeded.
Burden of proving capacity to sue
The party asserting capacity bears the burden of proving it with evidence; the court will not investigate allegations on a party's behalf.
The plaintiff asserted that the grant ad litem had been made on September 12, 2022 by Hon D Macharia but adduced no evidence in support. The court applied the evidential rule that he who asserts must prove, holding it improper to expect the court to obtain evidence a party ought to have adduced. The documentary evidence before the court showed the grant was issued only on October 6, 2022.
Legal principles established
#- A deceased estate can only be represented in legal proceedings by a person duly authorised, and a grant of letters of administration takes effect only from its date of issue
- Failure to obtain a grant before filing suit is not a mere procedural technicality but goes to capacity and renders the suit void
Court orders
#- 1.The 1st and 2nd defendants' preliminary objection is upheld
- 2.The plaintiff's suit is struck out
- 3.No orders as to costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; ruling on a preliminary objection
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuguna v Mungai & 3 others (Environment & Land Case E53 of 2022) [2023] KEELC 477 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/477/eng@2023-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.