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ELCPartially AllowedEnvironment & Land Case 3 of 2020· [2023] KEELC 18389 (KLR)

Agalo (Suing as the personal representative of the Estate of Vitalis Otieno Agalo) v Aludo

Environment and Land Court of Kenya
21 June 2023
1,479 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land suit was struck out because the plaintiff's authority to represent the deceased's estate had been revoked, so he could no longer sue.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

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Executive summary

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This is a ruling of the Environment and Land Court at Kisii on the defendant's application dated February 14, 2023, brought under Order 2 Rule 15(1)(a) and (b) of the Civil Procedure Rules seeking striking out of the plaint for disclosing no reasonable cause of action and for being scandalous, frivolous, vexatious and an abuse of process. The plaintiff, suing as personal representative of the estate of Vitalis Otieno Agalo, had obtained letters of administration ad litem on June 28, 2019 in Kisii CM Ad Litem Cause No 335 of 2019 and filed suit on February 18, 2020, claiming that the defendant fraudulently caused herself to be registered as proprietor of West Kitutu/Bogusero/139, registered in the deceased's name at his death on October 18, 1998, and seeking cancellation of her title. The defendant pleaded she had purchased the land from the deceased. The grant ad litem was revoked on October 6, 2020. The plaintiff opposed the application through a preliminary objection (that the application offended Order 2 Rule 15(2)) and a replying affidavit, contending the annexures were uncertified and that he had filed Succession Cause No 18 of 2022 for a fresh grant. The court dismissed the preliminary objection, held the documents needed no certification, and found that upon revocation of the grant the plaintiff lost capacity to represent the estate, with no evidence of re-established capacity. The application was allowed, the plaint struck out for want of capacity, the preliminary objection dismissed with costs, costs of the application awarded to the defendant, and no orders made on the costs of the main suit.

Key legal issues

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01

Whether the plaintiff had locus standi to prosecute the suit after revocation of the grant ad litem

Holding

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

Reasoning

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.

p. 3
02

Whether the preliminary objection based on Order 2 Rule 15(2) was valid

Holding

Dismissed; the application invoked both subrules (1)(a) and (1)(b), and no prejudice arises from filing an affidavit

Reasoning

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.

p. 2
03

Whether uncertified attachments FOA-1 and FOA-2 could be relied upon

Holding

The objection failed; the documents were duly commissioned and did not require certification

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The preliminary objection is dismissed with costs
  2. 2.The application dated February 14, 2023 is allowed and the plaint is struck out for want of capacity
  3. 3.No orders as to the costs of the main suit
  4. 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

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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, "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.