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ELCStruck OutEnvironment & Land Case 137 of 2018· [2023] KEELC 15950 (KLR)

Bomett (As administrator of the Estate of Eric Bomett (Deceased) v Post Bank Credit Ltd (In Liquidation)

Environment and Land Court
2 March 2023
1,888 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a widow's bid to stop a land auction because her letters of administration had been revoked, leaving her unable to represent the estate.

What this practically means

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Executive summary

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This is a ruling by A Ombwayo, J of the Environment and Land Court at Nakuru on the plaintiff's notice of motion dated August 3, 2022, which sought cancellation and prohibition of an auction of LR No 10302/02 (approximately 1,600 acres) scheduled for September 6, 2022, and an injunction restraining Post Bank Credit Ltd (In Liquidation) and its auctioneers from selling, transferring or interfering with the suit land. The plaintiff, suing as administrator of the estate of Eric Bomett, argued the consent order of February 14, 2020 fixed the debt at Kshs 11.4 million, yet the notices claimed over Kshs 22 million in breach of the in duplum rule; that the land advertised was not the charged 400-acre parcel; and that statutory notices were defective, concurrent rather than consecutive, and unsupported by valuation. The defendant relied on Stanley M Milimu's affidavit asserting issuance of all statutory notices, a valuation of November 29, 2021, and that it was exercising its statutory power of sale. The court framed two issues: the plaintiff's locus standi and her entitlement to the orders. Relying on Isaya Masira Momanyi v Daniel Omwoyo, it held that since the High Court in Nakuru Succession Cause No 488 of 2006 had revoked her grant of letters of administration, she lacked capacity to represent the estate. It declined to determine the substantive issues and struck out the application with costs. Questions of notice validity and in duplum remain open if the grant is reinstated.

Key legal issues

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01

Whether the plaintiff, whose grant of letters of administration was revoked, retains locus standi to prosecute the application

Holding

She does not; revocation of the grant removes her capacity to represent the estate, and the application is struck out on that basis alone.

Reasoning

The plaintiff instituted the suit as administrator of the estate of her late father. The High Court in Nakuru Succession Cause No 488 of 2006 revoked her grant and temporarily appointed another administrator; her reinstatement application is pending. Relying on Isaya Masira Momanyi v Daniel Omwoyo, the court held that lack of capacity to represent a deceased estate is no mere procedural technicality, so she cannot file the application. The court expressly declined to determine the substantive entitlement to injunction.

p. 4
02

Whether the plaintiff is entitled to injunctive relief against the intended sale of LR No 10302/02

Holding

Not determined; the court declined to address the second issue after finding want of locus standi.

Reasoning

The plaintiff sought to prohibit an auction of a 652.4 Ha parcel (LR No 10302/02) allegedly different from the 400-acre charged land, alleging in duplum breaches, defective and concurrent statutory notices, no valuation, and recovery of Kshs 22 million against a consent-fixed debt of Kshs 11.4 million. The defendant asserted compliance with statutory notice requirements and valuation. The court did not adjudicate these contentions.

p. 4

Legal principles established

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  • A deceased estate can only be represented in litigation by a person duly authorised, i.e. holding a valid grant of letters of administration; revocation of the grant divests the applicant of locus standi.

Court orders

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  1. 1.The plaintiff's application dated August 3, 2022 is struck out with costs

Authorities

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Legislation

  • Civil Procedure ActSection 34(1)

Cases cited (4)

  • Owners and Masters of the Motor Vessel 'Joey' versus Steve B
    [2007] eKLR

    Court's jurisdiction to determine the pending application

  • Kiplangat Korir vs Dennis Kipngeno Mutai
    [2006] eKLR

    Court's jurisdiction over the application

  • Lydia Nyambura Mbugua vs Diamond Trust Bank Kenya Ltd & another
    [2018] eKLR

    Court's jurisdiction over disputes involving charges and chargee's statutory power of sale

  • Isaya Masira Momanyi v Daniel Omwoyo & another
    [2017] eKLR

    A deceased estate can only be represented by a duly authorised person; lack of grant is no mere technicality

Jurisdiction invoked
Environment and Land Court jurisdiction over disputes involving charges to land and chargee's exercise of statutory power of sale (asserted under the plaintiff's submissions; Section 34(1) Civil Procedure Act invoked)

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, "Bomett (As administrator of the Estate of Eric Bomett (Deceased) v Post Bank Credit Ltd (In Liquidation)", Case Analysis (2023). Environment & Land Case 137 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15950/eng@2023-03-02

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