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ELCStruck OutEnvironment and Land Judicial Review Case E004 of 2021· [2023] KEELC 17487 (KLR)

Republic v County Surveyor Vihiga County; Egosangwa (Exparte Applicant); Luhunza (Interested Party)

Environment and Land Court of Kenya
23 May 2023
2,272 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a land dispute case because the applicant never obtained letters of administration for his late father's estate.

What this practically means

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Executive summary

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The ex parte applicant, Tom Mahagwa Egosangwa, obtained leave on July 12, 2021 to apply for judicial review orders against the County Surveyor Vihiga County concerning a decision made on March 16, 2021 over land parcels S/Maragoli/Buyonga/855, 854, 785 and a road cutting through plot S/Maragoli/Buyonga/853. His Notice of Motion dated November 5, 2021 sought certiorari to quash the surveyor's decision, mandamus to open an alternative access road and close the road reserve between parcels 855 and 854, and prohibition against implementation of the decision. The causes ELC Misc No E015 of 2021 and ELCJR No E004 of 2021 were consolidated. The applicant deposed that he was administrator of his late father's estate and that the surveyor's decision was made without jurisdiction and in breach of natural justice. The respondent and the interested party opposed, the respondent contending the applicant lacked locus standi for want of a grant of letters of administration. After the applicant's death, his brother was substituted. Ohungo J dealt first with locus standi, holding that since the applicant never produced a grant of letters of administration, he could not agitate his deceased father's cause, only personal representatives being entitled to do so under the Civil Procedure Act and Law of Succession Act, applying Trouistik Union International v Jane Mbeyu. The court therefore lacked jurisdiction to determine the motion and struck it out with costs to the respondent and the interested party. The merits of the survey decision were not reached.

Key legal issues

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01

Locus standi of an applicant suing on behalf of a deceased person's estate

Holding

The ex parte applicant, having produced no grant of letters of administration, lacked locus standi to agitate his deceased father's cause, and the court therefore lacked jurisdiction to determine the motion.

Reasoning

The applicant claimed to be administrator of his late father's estate but never produced a grant of letters of administration even after the issue was raised. Relying on section 2 of the Civil Procedure Act and the Court of Appeal's decision in Trouistik Union International v Jane Mbeyu, the court held that only personal representatives - executors or administrators - may agitate causes of action vested in a deceased person. Absent such capacity, the proceedings are a nullity and the court has no jurisdiction.

p. 4

Legal principles established

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  • To validly agitate by suit any cause of action vested in a deceased person, the claimant must be an executor or administrator of the estate; without a grant of letters of administration the applicant lacks locus standi and the court lacks jurisdiction.

Court orders

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  1. 1.Notice of Motion dated November 5, 2021 struck out
  2. 2.Costs of the application awarded to the respondent and the interested party
Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court (leave granted under order for judicial review; Land Registration Act mandate of County Surveyor and Land Registrar)

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, "Republic v County Surveyor Vihiga County; Egosangwa (Exparte Applicant); Luhunza (Interested Party)", Case Analysis (2023). Environment and Land Judicial Review Case E004 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17487/eng@2023-05-23

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