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ELCDismissedEnvironment & Land Case 2 of 2022· [2023] KEELC 18519 (KLR)

Mwenda v Butt & another

Environment and Land Court
3 July 2023
PNP.M. Njoroge
1,036 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The 1st defendant, Farooq Asif Butt, raised a three-ground preliminary objection against Lucy Mwenda's suit and her notice of motion application dated June 20, 2022: (1) the plaintiff lacked locus standi having not taken out letters of administration for the deceased's estate on whose behalf she sued; (2) the suit documents were drawn, signed and filed by an unqualified person, advocate Kenneth Muthomi Kirimi, contrary to section 9 of the Advocates Act; and (3) the suit was res judicata Isiolo CMCC ELC No 31 of 2020 between Farooq Asif Butt, Ismael Hassan and Lucy Mwenda. The 2nd defendant, Isiolo County Government, did not respond despite being given several opportunities. The plaintiff argued she had long been in possession of the suit property, that the earlier judgment was obtained through collusion and should have been appealed, that the filing advocate was properly qualified, and that this suit concerned adverse possession, a different cause of action. The court held that ground 2 was not a pure point of law since it invited factual argument on whether the advocate held a practising certificate, and dismissed it. Grounds 1 and 3 raised pure points of law and were proved by the 1st defendant on a balance of probability; the plaintiff did not dispute lacking letters of administration. The court dismissed the application (except ground 2) and the entire suit, awarding costs to the 1st defendant.

Key legal issues

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01

Locus standi to sue for a deceased's estate

Holding

Ground 1 of the preliminary objection succeeded; the plaintiff admitted she had not obtained letters of administration

Reasoning

The court found the authorities cited by the 1st defendant good law binding on it where facts are appropriate. The plaintiff's advocate did not dispute the allegation that she had not obtained letters of administration concerning the deceased's estate, so she lacked capacity to institute the suit.

p. 2
02

Filing by advocate without practising certificate

Holding

Ground 2 failed as it was not a pure point of law, requiring factual inquiry into whether the advocate held a practising certificate

Reasoning

The court held the ground invited arguments on whether advocate Kenneth Muthomi Kirimi had a practising certificate when filing, and neither side proffered evidence on the point; hence it could not be determined on a preliminary objection.

03

Res judicata

Holding

Ground 3 succeeded; the suit was held res judicata Isiolo CMCC ELC No 31 of 2020

Reasoning

The court found grounds 1 and 3 raised pure points of law and that the 1st defendant had proved them on a balance of probability. The plaintiff's contention that the cause of action (adverse possession) differed from the earlier claim did not prevail.

Legal principles established

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  • A litigant who has not obtained letters of administration cannot prosecute a matter involving the estate of a deceased person
  • An unqualified person (advocate without a practising certificate) cannot file pleadings on behalf of a litigant
  • A preliminary objection ground that invites factual argument is not a pure point of law

Court orders

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  1. 1.The application dated June 20, 2022 is dismissed except for ground 2
  2. 2.This suit is dismissed
  3. 3.Costs are awarded to the 1st defendant

Authorities

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Legislation

  • Advocates Actsection 9

Cases cited (9)

  • Shanko versus Mihamed Uta Shanko
    [2010] eKLR

    A litigant without letters of administration cannot prosecute a matter involving a deceased person's estate

  • Trouistic Union International & another versus Mrs Jane Mbegu & Alice Mbegu
    Civil Appeal No 145 of 1990

    Same proposition on lack of capacity without letters of administration

  • Peter Karuiru Gachira versus Leonard Wanjohi Murage & another
    [2016] eKLR

    An advocate without a practising certificate cannot properly file suit

  • Belgo Holdings Limited versus Esmael
    [2017] eKLR

    An unqualified person cannot act as an advocate

  • Kenya Power & Lighting Co Ltd Versus Chris Mahinda t/a Nyeri Trade Centre
    CA 148 of 2004

    Unqualified person cannot file pleadings

  • Standard Chartered Bank Versus Mechanical Engineering Plant & others
    [2009] EA 404

    Unqualified person cannot file pleadings

  • Ibrahim M Njihia Versus IEBC & 2 others
    [2009] eKLR

    Unqualified person cannot file pleadings

  • Independent Electoral & Boundaries Commission Versus Maina Kiai & others
    [2017] eKLR

    Res judicata

  • Nicholas Njeru Versus the Attorney General & 8 others
    Civil Appeal No 110 of 2011 CA [2013] EKLR

    Res judicata

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act

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, "Mwenda v Butt & another", Case Analysis (2023). Environment & Land Case 2 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18519/eng@2023-07-03

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