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ELCDismissedEnvironment & Land Case 38 of 2019· [2023] KEELC 17211 (KLR)

Meli v Mwela & another; Rono & 3 others (Interested Parties)

Environment and Land Court
5 May 2023
4,597 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a land suit because the plaintiff lacked legal authority to sue and kept refiling rejected applications.

What this practically means

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Executive summary

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The plaintiff, Philip Meli, moved the Environment and Land Court at Kitale by Notice of Motion dated 20/05/2021 seeking an injunction against the 1st Defendant over land parcels LR No. Kwanza/Kwanza Block 5/Korosi/3, 4 and 6, leave to amend his plaint, directions or termination of Kitale CMCC No. 19 of 2020, and review of orders of 24/10/2019 dismissing an earlier injunction application. The 2nd Defendant, the Land Registrar Trans Nzoia, opposed through grounds of objection and submissions, raising abuse of process, lack of locus standi and limitation. Nyagaka J framed seven issues but disposed of the motion on the first two. First, the court found the application an abuse of process: it replicated in every respect an application dismissed on 12/03/2020, and sought review of orders of 24/10/2019 dismissing an earlier injunction application, without the sincerity to apply to set aside those orders. Second, treating the locus standi ground as a preliminary objection on the pleadings, the court held the plaintiff had no capacity to sue: he held no registered power of attorney from his living father, the registered owner of parcels 3, 4 and 7, and no grant of letters of administration over the estate of his late grandfather, registered owner of parcel 6, invoking Section 80(2) of the Law of Succession Act. The court dismissed the application, struck out the entire suit, and awarded costs to the Defendants, describing the plaintiff as a busybody.

Key legal issues

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01

Abuse of the process of the court

Holding

The application was an abuse of process because it replicated, in every material respect, an application dismissed on 12/03/2020, and sought review of orders dismissing an earlier injunction application of 24/10/2019.

Reasoning

The court traced the doctrine through Satya Bhama Gandhi, Agwasim v Ojichie and Muchanga Investments, noting that abuse includes instituting multiplicity of actions on the same subject matter between the same parties. The record showed the applicant had twice previously sought identical injunctive relief over the same parcels, both dismissed. Rather than apply to set aside the dismissal, he filed a near-identical application, which the court found wanting in bona fides and vexatious.

02

Locus standi to sue on behalf of a living registered owner

Holding

The plaintiff had no capacity to sue on behalf of his father, the registered owner of parcels 3, 4 and 7, absent a registered power of attorney given before filing.

Reasoning

The court held that an individual with capacity must sue personally or through a recognised agent; a power of attorney must be granted before filing and registered under Section 4 of the Registration of Documents Act read with Section 19 of the Stamp Duty Act. Relying on Francis Mwangi Mugo v David Kamau Gachago, the court adopted the holding that capacity is not curable retrospectively under Article 159, and that claimed beneficial ownership confers no standing.

p. 8
03

Locus standi to sue on behalf of a deceased's estate

Holding

The plaintiff could not maintain the claim over parcel 6, registered in his late grandfather's name, as he held no grant of letters of administration, limited grant or grant ad litem.

Reasoning

Under Section 80(2) of the Law of Succession Act, a grant takes effect only from the date of grant. Since the plaintiff did not claim to hold any grant over the estate of Chepkwony Misoi, who died on 26/12/1998 and whose estate was undistributed, he lacked capacity to sue on behalf of the estate. The court adopted Hawo Shanko v Mohammed Uta Shanko on the need for a grant before suing.

04

Preliminary objection on locus standi

Holding

The 2nd Defendant's locus standi ground was treated as a preliminary objection going to the root of the suit, determined on the pleadings alone.

Reasoning

Applying the Mukisa Biscuit definition, the court found the objection a pure point of law assumable on the pleaded facts. It limited the point to the pleadings, having already dismissed the application as an abuse of process, and noted that applying it to the application would require ascertaining contentious facts, which a preliminary objection does not permit.

p. 6

Legal principles established

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  • Capacity to sue is not a technicality curable under Article 159 of the Constitution; a suit brought without capacity fails
  • Beneficial ownership is not a recognised basis for bringing suit on behalf of another living person or a deceased's estate
  • A grant of letters of administration takes effect only from the date of the grant; without one, a claimant cannot maintain an action on behalf of an estate
  • Repeatedly filing identical applications previously dismissed constitutes an abuse of the process of the court

Court orders

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  1. 1.The Notice of Motion dated 20/05/2021 is dismissed with costs to the Respondents
  2. 2.The entire suit is struck out
  3. 3.Costs awarded to the Defendants

Authorities

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Legislation

  • Constitution of KenyaArticles 36, 47, 48, 159, 165(6) and (7)
  • Civil Procedure ActSections 1, 3A
  • Civil Procedure RulesOrder 51 Rule 1, Order 45 Rule 1, Order 1 Rule 10(2), (4) and 14, Order 32 Rule 3, Order 32 Rule 15
  • Limitation of Actions ActSection 7
  • Law of Succession ActSection 80(2)
  • Registration of Documents ActSection 4
  • Stamp Duty ActSection 19

Cases cited (10)

  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    [2014] eKLR

    Submissions are only words used by parties to convince the court; the application is determined on its merits

  • Hawo Shanko v. Mohammed Uta Shanko
    [2018] eKLR

    A party lacks locus standi to sue before obtaining a grant of letters of administration

  • Francis Mwangi Mugo v. David Kamau Gachago
    [2017] eKLR

    An unregistered power of attorney confers no capacity; capacity is not curable under Article 159

  • Paul Chebii Chelimo & 15 others v. A.I.C. Kaptabuk & 2 others
    [2022] eKLR

    A plaint barred by limitation is a plaint barred by law

  • Satya Bhama Gandhi v Director of Public Prosecutions & 3 Others
    [2018] eKLR

    Definition and nine instances of abuse of judicial process

  • Agwasim v. Ojichie
    SC. 15/2000

    Pursuing the same matter by two court processes is a gamble on the judicial process

  • Muchanga Investments Limited vs Safaris Unlimited (Africa) Ltd & 2 others
    Civil Appeal No. 25 of 2002 (2009) eKLR 229

    Abuse of court process is a proceeding wanting in bona fides, frivolous, vexatious or oppressive

  • Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd
    (1969) EA 696

    Definition of a preliminary objection as a pure point of law

  • Bashir Haji Abdullahi v Adan Mohammed Noor & 3 others
    [2004] eKLR

    Preliminary objections must be sufficiently particularised to avoid trial by ambush

  • Susan Wairimu Ndiangui V Pauline W. Thuo & Another
    [2005] eKLR

    A preliminary objection should not be vague and must disclose the point of law

Jurisdiction invoked
Articles 36, 47, 48, 165(6) and (7) of the Constitution; Sections 1 and 3A of the Civil Procedure Act; Order 51 Rule 1, Order 45 Rule 1, Order 1 Rule 10(2), (4) and 14 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Meli v Mwela & another; Rono & 3 others (Interested Parties)", Case Analysis (2023). Environment & Land Case 38 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17211/eng@2023-05-05

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