Benson Losialima Lokere & another (Suing as Executors of the Will of Lokoriongor Lokore) v Julius Tong'okwang & 2 others
The bottom line
#Kenya's Environment and Land Court confirmed that executors named in a will can sue to protect estate land without first obtaining probate.
What this practically means
#Executive summary
#Key legal issues
#Whether executors of a will must obtain probate before instituting a suit on behalf of the estate
No - an executor's title derives from the will itself, and Section 80(1) of the Law of Succession Act validates the will and the executor's acts from the date of death
The court distinguished the defendants' authorities, which concerned intestacy, and applied Section 80 of the Law of Succession Act. Subsection (1) validates the will and the executor's intermediate acts from the date of death, whereas subsection (2) applies to administrators of intestate estates. Relying on Bentley-Buckle and Osman Tahir Sheikh Said, the court held executors may sue before probate.
Whether the preliminary objection was a pure point of law
The court treated it as a point of law but found it unmeritorious on the succession law analysis
The court restated the Mukisa Biscuit definition of a preliminary objection and cautioned that such objections must not depend on contested facts or evidence. It then proceeded to interpret Sections 54, 67 and 80 of the Law of Succession Act and paragraph 14 of the 5th Schedule, concluding the objection was baseless.
Legal principles established
#- An executor named in a will derives authority from the will itself and may sue on behalf of the estate before obtaining a grant of probate
Court orders
#- 1.The Preliminary Objection by the Defendants is dismissed with costs to the Plaintiffs
- 2.The suit to be mentioned virtually on May 8, 2023 for further directions
- 3.The interim orders of injunction granted on December 20, 2022 remain in force until the mention date
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over land in West Pokot
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Losialima Lokere & another (Suing as Executors of the Will of Lokoriongor Lokore) v Julius Tong'okwang & 2 others", Case Analysis (2023). Environment & Land Case 37 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16904/eng@2023-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.