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ELCDismissedEnvironment & Land Case E010 of 2021· [2023] KEELC 18693 (KLR)

Juma & another v Wepukhulu & another (Both being administrators of the Estate of Wepukhulu Wanambisi Maundende)

Environment and Land Court
4 July 2023
ECE.C. Cherono
1,276 words in judgment
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The bottom line

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A Kenyan court ruled that one estate administrator's admission of a land claim does not bind the other, so the case must go to full hearing.

What this practically means

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Executive summary

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The plaintiffs, Wanambisi Stephen Juma and Teresa Nakhungu Wati, moved the Environment and Land Court at Bungoma by Notice of Motion dated November 9, 2022 under Order 13 Rule 2 of the Civil Procedure Rules, seeking judgment on admission against the defendants, both administrators of the estate of Wepukhulu Wanambisi Maundende. They sought specific performance compelling subdivision of parcel E. Bukusu/N. Sangalo/661 and transfer of 9 1/2 acres to them, or alternatively declarations of adverse possession under sections 7 and 38 of the Limitation of Actions Act and that the defendants hold the land as trustees. The application rested on an affidavit by the 1st defendant, David Wafula Wepukhulu, admitting the plaintiffs' entire claim. The 2nd defendant, Moses Maudende Wephukhulu, opposed through grounds of opposition and submissions, arguing that having been sued as distinct parties he was entitled to deny the claim, that the 1st defendant's admission could not bind him, and that evidence had to be taken at a full hearing to determine what was in the best interest of the estate. He relied on Sironga Ole Tukai v Francis Kiprotich Arap Kirui and section 22(b) of the Land Control Act; the plaintiffs relied on section 79 of the Law of Succession Act and Re Estate of Makokha Idris Khasabuli. The court held that joint administrators may take common or divergent positions, and where they diverge, one administrator's admission does not bind the other; evidence must be tendered to determine the position in the best interest of the estate. The application was dismissed with costs and the suit directed to full hearing.

Key legal issues

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01

Whether an admission by one joint administrator binds the co-administrator

Holding

It does not; each administrator may take a common or different position, and divergent positions require evidence at a full hearing

Reasoning

The court held that although the defendants were sued jointly as administrators, the law allows them to take common or different positions. Where they diverge, the admission of one cannot be treated as the position of the other, and the court must hear evidence to determine which position serves the best interest of the estate.

p. 3
02

Whether judgment on admission under Order 13 Rule 2 CPR was appropriate

Holding

No; with the defendants taking conflicting positions, the suit is suitable to proceed to full hearing rather than interlocutory judgment

Reasoning

Order 13 Rule 2 permits judgment on admissions, but the court found the 2nd defendant had filed a defence denying the claim while the 1st defendant admitted it. Given the divergence between the two administrators, the court could not enter judgment on the 1st defendant's admission alone and directed the matter to hearing.

p. 3

Legal principles established

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  • Where joint administrators of an estate take different positions on a claim, the admission of one does not bind the other and the court must take evidence to determine what is in the best interest of the estate

Court orders

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  1. 1.The Notice of Motion dated November 9, 2022 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 13 Rule 2
  • Law of Succession ActSection 79
  • Limitation of Actions Act (Cap 22)Sections 7 and 38
  • Land Control ActSection 22(b)

Cases cited (2)

  • Re- Estate of Makokha Idris Khasabuli (deceased)
    2019 eKLR
  • Sironga Ole Tukai v Francis Kiprotich Arap Kirui & 2 others
    (2014) eKLR
Jurisdiction invoked
Order 13 Rule 2 of the Civil Procedure Rules (admissions procedure); original jurisdiction of the Environment and Land Court

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, "Juma & another v Wepukhulu & another (Both being administrators of the Estate of Wepukhulu Wanambisi Maundende)", Case Analysis (2023). Environment & Land Case E010 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18693/eng@2023-07-04

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