Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutEnvironment and Land Case E004 of 2022· [2023] KEELC 17169 (KLR)

Aridi (Suing as the Administrator of the Estate of Samwel Aridi Ongwede) v Agik & 3 others

Environment and Land Court
4 May 2023
AKA. Y. Koross
2,734 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Siaya struck out a land fraud claim because the plaintiff sued the wrong parties, filed too late, and brought no documents.

What this practically means

#

Executive summary

#
The plaintiff, administrator of the estate of Samwel Aridi Ongwede, sued four defendants alleging that parcels 1685, 2417 and 1683/Nyamonye/Abidha Village were fraudulently and irregularly hived off from the suit property, parcel 1684/Nyamonye/Abidha Village, of which the deceased was the alleged registered proprietor. He sought a permanent injunction, declarations of fraud, revocation and reversal of the subdivisions, eviction and costs. The 1st to 3rd defendants filed a defence and counterclaim; the 4th defendant did not participate. The court first expunged the defence and counterclaim for want of a verifying affidavit. It then framed five issues. On competency, it held the 1st defendant could not be sued personally despite being an administratrix, the 2nd defendant lacked locus standi as she was not George's administratrix, and the suit against the 3rd defendant, who died in 2020 before the 2022 filing, was a nullity from inception; the suit against the 1st to 3rd defendants was therefore struck out. On limitation, the fraud claim filed about nine years after the 2013 discovery of fraud was statute-barred, and the claim against the 4th defendant, a public body, exceeded the twelve-month period under the Public Authorities Limitation Act. On the merits, the plaintiff produced no title documents, adjudication records or maps, and the defence evidence of first registrations was credible. The entire suit was struck out with costs to the 1st and 2nd defendants.

Key legal issues

#
01

Competency of suit against 1st to 3rd defendants

Holding

Suit was a nullity: 1st defendant sued personally though administratrix, 2nd defendant lacked locus standi, and 3rd defendant was deceased when suit was filed

Reasoning

The plaint sued the defendants personally despite alleging they were administratrices. Under Order 3 Rule 7 and Kasuve, the proper defendant is the estate through its legal representative. The 3rd defendant died in 2020, two years before filing, so the suit against him was a nullity from inception.

02

Limitation

Holding

Claim was statutory barred - filed about 9 years after discovery of fraud in 2013, and 12 months limitation applied to the 4th defendant as a public body

Reasoning

Fraud claims carry a 3-year limitation from discovery under Section 26 of the Limitation of Actions Act. The plaintiff discovered the fraud in 2013 but filed in 2022. Against the 4th defendant, a public body, the Public Authorities Limitation Act imposes 12 months, and it subsumes Section 26.

03

Proof of fraud and ownership

Holding

Plaintiff failed to prove his claim; produced no adjudication records, maps or title documents

Reasoning

The plaintiff bore the burden under Sections 107 and 109 of the Evidence Act to distinctly prove fraud. He produced no documents establishing ownership of the suit property or that the subdivisions emanated from it. Defence evidence of first registrations was consistent and credible; the land adjudication officer confirmed no subdivision or challenge.

04

Expungement of defence and counterclaim

Holding

Defence and counterclaim expunged for want of a verifying affidavit

Reasoning

The defence and counterclaim were not accompanied by a verifying affidavit as required by Orders 4 Rule 1(2) and 7 Rule 5(a) of the Civil Procedure Rules, rendering them incompetent and improperly on record.

p. 2

Legal principles established

#
  • A suit against a deceased person is a nullity from inception and a legal representative cannot be joined in the course of proceedings
  • Fraud must be pleaded, particularized and proved to a standard higher than a balance of probabilities
  • Submissions are arguments, not evidence

Court orders

#
  1. 1.The plaintiff's suit is hereby struck out
  2. 2.The plaintiff shall bear the 1st and 2nd defendants costs of this suit

Authorities

#

Legislation

  • Civil Procedure ActSection 2
  • Civil Procedure RulesOrder 4 Rule 1(2); Order 7 Rule 5(a); Order 3 Rule 7
  • Land Registration ActSection 26
  • Limitation of Actions ActSection 26
  • Public Authorities Limitation ActSection 3(1)
  • Evidence ActSections 107, 109
  • Law of Succession ActSection 45
  • Land Adjudication Act

Cases cited (9)

  • Re Estate of John Gakunga Njoroge
    [2015] eKLR

    A person can only deal with a deceased's estate pursuant to a grant of representation; court's protective jurisdiction under section 45

  • Kennedy Nyamumbo Sese v. Settlement Fund Trustees & 2 others
    [2017] eKLR

    Burden of proof under section 109 of the Evidence Act lies on the person who wishes the court to believe in a fact's existence

  • Vijay Morjaria v. Nansingh Madhusingh Darbar & another
    [2000] eKLR Civil Appeal Number 106 of 2000

    Fraudulent conduct must be distinctly alleged and distinctly proved; fraud cannot be inferred from facts

  • Titus Mutuku Kasuve v Mwaani Investments Limited & 4 others
    [2004] eKLR

    The proper defendant to a claim on a deceased's estate is the estate through its legal representative, not the beneficiaries

  • Viktar Maina Ngunjiri & 4 others v Attorney General & 6 others
    (2018) eKLR

    A suit against a deceased person is a nullity from inception

  • Pratap Chand Mehta v Chrisna Devi Mehta
    AIR 1988 Delhi 219

    Persuasive authority that a suit against a deceased person is a nullity

  • Richard Oduol Opole v Commissioner of Lands & 2 Others
    (2015) eKLR

    The Public Authorities Limitation Act incorporates Part III of the Limitation of Actions Act including section 26

  • Kinyanjui Kamau v George Kamau Njoroge
    [2015] eKLR (Civil Appeal No 132 of 2005)

    Fraud must be pleaded, particularized and proved to a standard higher than balance of probabilities

  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others
    [2015] eKLR

    Standard of proof for fraud allegations

Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Environment and Land Court Act); suit filed by plaint dated 4/02/2022

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Aridi (Suing as the Administrator of the Estate of Samwel Aridi Ongwede) v Agik & 3 others", Case Analysis (2023). Environment and Land Case E004 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17169/eng@2023-05-04

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