Surum & another v Cheruiyot (Environment & Land Case 22 of 2019) [2023] KEELC 688 (KLR)
The bottom line
#A Kenyan court struck out adverse possession claims because buyers sued someone who had no legal authority over the deceased landowner's estate.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant, who is not an administrator of the deceased registered proprietor's estate, could be sued in a claim for adverse possession against that estate
The defendant had no locus standi to be sued on behalf of the deceased's estate since no letters of administration had been issued, and the suit was therefore incompetent and struck out
The suit land remained registered to the deceased Cheruiyot Arap Matui, and no succession proceedings had been conducted nor grants issued. Under section 38 of the Limitation of Actions Act an adverse possessor must apply to the High Court for registration in place of the registered proprietor, which required suing the estate's administrator. Section 82(a) of the Law of Succession Act confers the power to agitate a cause of action vested in the deceased on personal representatives alone. The defendant was neither executor nor administrator, so the suit against him was a nullity.
Whether the preliminary objection was sustainable in law
Yes - locus standi is a point of law going to the root of the suit, and its absence renders the suit fatally defective, justifying striking out
Applying Mukisa Biscuit principles, the objection was a pure point of law capable of disposing of the suit. The court held that locus standi runs through the heart of a case and its absence equates to a court acting without jurisdiction, amounting to null and void proceedings that cannot be dismissed as a mere technicality. The objection was unopposed, as the plaintiffs filed neither a response nor submissions.
Whether the defendant had capacity to contract over the suit land (argued by the defendant)
Recorded as the defendant's submission that the sale agreements were null and void for lack of capacity, but the suit was disposed of on the locus standi point without determining this issue
The defendant argued that the land was registered to the deceased, succession was pending, and he could only contract once he received his share of the estate; further that no Land Control Board consent was tendered under section 6(1) of the Land Control Act. The court did not make a finding on this issue, disposing of the matter on capacity to be sued instead.
Legal principles established
#- A preliminary objection must consist of a point of law capable of disposing of the suit
- Locus standi is a primary point of law akin to jurisdiction; lack of capacity to sue or be sued renders a suit incompetent
- A party without locus standi cannot maintain or defend a suit, and the defect amounts to null proceedings, not a mere technicality
Court orders
#- 1.Preliminary objection allowed
- 2.Plaintiffs' suits struck out
- 3.Costs to the defendant
- Jurisdiction invoked
- Sections 1B and 3A of the Civil Procedure Act; section 38 of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Surum & another v Cheruiyot (Environment & Land Case 22 of 2019) [2023] KEELC 688 (KLR)", Case Analysis (2023). Consolidated Originating Summons dated April 5, 2019 (Kericho ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/688/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.