Agalo (Suing as the personal representative of the Estate of Vitalis Otieno Agalo) v Aludo
The bottom line
#A Kenyan land suit was struck out because the plaintiff's authority to represent the deceased's estate had been revoked, so he could no longer sue.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff had locus standi to prosecute the suit after revocation of the grant ad litem
The plaint was struck out because the plaintiff lacked capacity to represent the estate after the grant was revoked on October 6, 2020, and no evidence showed capacity had been re-established
The plaintiff obtained letters of administration ad litem on June 28, 2019 through Kisii CM Ad Litem Cause No 335 of 2019 and filed suit on February 18, 2020. The grant was revoked on October 6, 2020. The plaintiff claimed he had filed Succession Cause No 18 of 2022 for a fresh grant but annexed no evidence of such filing. Without the grant, he lacked locus standi and the suit served no purpose.
Whether the preliminary objection based on Order 2 Rule 15(2) was valid
Dismissed; the application invoked both subrules (1)(a) and (1)(b), and no prejudice arises from filing an affidavit
The bar on admissible evidence applies only where the application is founded solely on subrule (1)(a) (no reasonable cause of action). Since the application also relied on subrule (1)(b) (scandalous, frivolous, vexatious), affidavit evidence was permissible, and the respondent had the opportunity to respond.
Whether uncertified attachments FOA-1 and FOA-2 could be relied upon
The objection failed; the documents were duly commissioned and did not require certification
FOA-1 was the same grant the plaintiff used to file suit, and FOA-2 was the revocation order which the plaintiff did not dispute. The court held the documents did not have to be certified as true copies of the original.
Legal principles established
#- Upon revocation of a grant of letters of administration ad litem, the person who held it ceases to have capacity to represent the estate and cannot prosecute a suit filed on behalf of the estate
- Where an application under Order 2 Rule 15 is based on subrule (1)(b) as well as (1)(a), affidavit evidence is not barred; the bar on evidence applies only to subrule (1)(a) applications
Court orders
#- 1.The preliminary objection is dismissed with costs
- 2.The application dated February 14, 2023 is allowed and the plaint is struck out for want of capacity
- 3.No orders as to the costs of the main suit
- 4.The defendant is awarded all the costs of the application, which she may tax
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; application under Order 2 Rule 15(1)(a) and (b) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agalo (Suing as the personal representative of the Estate of Vitalis Otieno Agalo) v Aludo", Case Analysis (2023). Environment & Land Case 3 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18389/eng@2023-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.