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ELCStruck OutEnvironment & Land Case 456 of 2018· [2023] KEELC 17330 (KLR)

Abdul Majid Suleiman v Philan Holdings Ltd & 4 others

Environment and Land Court of Kenya
11 May 2023
11,518 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~46 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a landowner's suit because he sued over a deceased person's property without letters of administration and filed too late.

What this practically means

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Executive summary

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The plaintiff, claiming to be the legal representative and heir of two sons of Memon Mohamed Moti (deceased), sued over L.R No. 209/2566 in Nairobi, seeking declarations that the extension of the lease to the 1st Defendant and the grant I.R 112178 to the 2nd Defendant were fraudulent and void, declarations of pre-emptive rights and legitimate expectation for the heirs, and a mandatory injunction compelling the Chief Land Registrar and the National Land Commission to process renewal of the lease under Section 13 of the Land Act, 2012. The 1st and 2nd Defendants did not participate; the 3rd, 4th and 5th Defendants filed defences and submissions but called no evidence. The court framed four issues. First, it held the plaintiff lacked locus standi, as he produced no grant of letters of administration over the estate of Memon Mohamed Moti, whose trustees held the property, and a suit mounted without a grant is a nullity. Second, on a jurisdictional point raised suo motu, the court held the tort-based fraud claims, accruing by December 2008 and filed in October 2018, were statute barred under Section 3(1) of the Public Authorities Limitations Act and Section 4(2) of the Limitation of Actions Act. Third, it held the court had no jurisdiction to compel the NLC, an independent constitutional commission, to process an application never made to it. Fourth, it held Section 13 of the Land Act, 2012 does not apply retrospectively to a lease that expired on 1 June 2002, so no pre-emptive rights or legitimate expectation arose. The suit was struck out with costs to the 3rd, 4th and 5th Defendants; the 4th Defendant's counter-claim was dismissed with no orders as to costs.

Key legal issues

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01

Locus standi of the plaintiff to sue on behalf of the estate of Memon Mohamed Moti

Holding

The plaintiff had no grant of letters of administration over the estate and therefore lacked locus standi; the suit was a nullity

Reasoning

The suit property was registered in the names of trustees/personal representatives of Memon Mohamed Moti. Only the trustees or, if deceased, a duly appointed personal representative with a grant could sue. The plaintiff never produced any grant of letters of administration over the estate despite claiming to sue as legal representative, so the entire suit fails at the threshold.

p. 11
02

Whether the claims were barred by limitation

Holding

The suit, founded on fraud and tort, was filed on 11 October 2018 in respect of causes of action accruing by December 2008, and was therefore statute barred

Reasoning

The claim was founded on tort of fraud against the Commissioner of Lands and the 2nd Defendant. Section 3(1) of the Public Authorities Limitations Act requires tort claims against public authorities within 12 months, and Section 4(2) of the Limitation of Actions Act requires tort claims within 3 years. The suit filed in 2018 was far outside both periods and the cause of action became extinct.

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Jurisdiction to compel the National Land Commission to process renewal of the lease

Holding

The court lacked jurisdiction to compel the NLC, an independent constitutional commission, and the relief sought was unconstitutional; no application had ever been made to the NLC

Reasoning

The NLC is established under Article 67(1) and is independent and not subject to direction or control under Article 249(2). Its mandate over public land arises under Articles 62(2) and 67(2) and Section 5 of the NLC Act. Compelling it to process an application never made to it would put the wagon before the horse.

04

Whether the heirs of Memon Mohamed Moti had pre-emptive rights to renewal of the lease

Holding

No pre-emptive rights existed; Section 13 of the Land Act 2012 is not retrospective and did not apply to a lease that expired on 1 June 2002 under the Government Lands Act regime

Reasoning

The lease expired on 1 June 2002 when the Government Land Act Cap 280 governed extension and renewal, with no pre-emptive rights provision. Section 13 of the Land Act 2012, which introduced pre-emptive rights for immediate past holders, came into operation on 2 May 2012 and cannot apply retrospectively. The claim was therefore built on quicksand.

p. 20

Legal principles established

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  • A suit on behalf of the estate of a deceased person cannot be commenced or maintained without a grant of letters of administration; such a suit is a nullity ab initio
  • Limitation is a jurisdictional question which a court may raise and determine suo motu even where no party has pleaded it
  • The court has no jurisdiction to compel the National Land Commission, an independent constitutional commission, to consider or process an extension or renewal of a lease where no application has been made to it
  • Section 13 of the Land Act, 2012 conferring pre-emptive rights on immediate past lessees does not apply retrospectively to leases that expired before its commencement

Court orders

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  1. 1.The entire suit be and is hereby struck out with costs to the 3rd, 4th and 5th Defendants only, such costs to be agreed upon and in default taxed and certified by the Deputy Registrar
  2. 2.The counter-claim filed on behalf of the 4th Defendant is dismissed, with no orders as to costs

Authorities

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Legislation

  • Law of Succession ActSection 82(1)
  • Public Authorities Limitation ActSection 3(1)
  • Limitation of Actions ActSection 4(2)
  • Constitution of Kenya, 2010Articles 40(6), 62(2), 67(1), 67(2), 249(2)
  • Land ActSections 12, 13, 14
  • National Land Commission ActSection 5(2)
  • Government Lands ActSection 3
  • Land (Extension and Renewal of Lease) Rulesnot specified

Cases cited (14)

  • Diana Kethi Kilonzo & Another versus Independent Electoral & Boundaries Commission & 10 others
    (2013)eKLR

    Doctrine of legitimate expectation (cited by plaintiff)

  • Kenya Industrial Estate Ltd versus Ann Chepsiror & 5 others
    (2015)eKLR

    Doctrine of legitimate expectation (cited by plaintiff)

  • Julian Adoyo Onguma & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi)
    (2016)eKLR

    Locus standi is cardinal; a party without it cannot maintain a suit and proceedings are a nullity

  • Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama
    [2014] eKLR

    A litigant is clothed with locus standi upon obtaining a limited or full grant of letters of administration

  • Daykio Plantations Ltd v National Bank of Kenya Ltd & 2 others
    (2019)eKLR

    Locus standi in succession matters (cited by 3rd and 5th Defendants)

  • Virginia Edith Wamboi Otieno versus Joash Ochieng Ohugo & another
    (1987)eKLR

    An action brought by an administrator before taking out letters of administration is incompetent at inception

  • Alfred Njau & 5 others versus City Council of Nairobi
    [1983] eKLR

    Distinction between cause of action and locus standi

  • Gathoni versus Kenya Cooperative Creameries
    (1982)eKLR

    Law of limitation protects defendants against unreasonable delay in bringing suits

  • Deposit Protection Fund Board in Liquidation of Euro Bank Limited (In Liquidation) vs Rosaline Njeri Macharia & Another
    [2016] eKLR

    Effect of limitation; suit filed outside the limitation period is time barred

  • Bosire Ogero versus Royal Media Services
    [2015] eKLR

    Limitation goes to jurisdiction; a court cannot entertain a statute-barred suit even if no party raises it

  • In The Matter of National Land Commission
    (2015)eKLR

    NLC's mandate to administer public land and power of alienation with consent of national or county government

  • Cordison International (K) Limited versus Chairman National Land Commission & 44 others
    [2019] eKLR

    It is the role of the Commission, not a county government, to allocate public land subject to statutory procedure

  • Samuel Kamau Macharia versus Kenya Commercial Bank & Another
    (2012)eKLR

    A court's jurisdiction flows from the Constitution or legislation and cannot be expanded by judicial craft

  • Suleiman Murunga v Nilestar Holding ltd & Another
    (2014)eKLR

    Property reverting to Government on expiry of lease; Section 13(1) Land Act has no application to leases expired before its commencement

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act (suit concerning L.R No. 209/2566)

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, "Abdul Majid Suleiman v Philan Holdings Ltd & 4 others", Case Analysis (2023). Environment & Land Case 456 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17330/eng@2023-05-11

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