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ELCStruck OutEnvironment & Land Case E41 of 2023· [2023] KEELC 19825 (KLR)

Mwai (Suing as the administrator and legal representative of the Estate of the Late Murugi Mwai Kariuki (Deceased) v Kimani & 3 others

Environment and Land Court
19 September 2023
2,906 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out an entire land suit because the administrator's grant of letters of administration had been revoked when he filed — a valid grant must exist at filing.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (Mwangi Njoroge, J) dealt with the plaintiff's notice of motion dated May 12, 2023 seeking a temporary injunction restraining the 1st defendant from dealing with land parcel Longonot/Kijabe Block 6/781, and the 1st defendant's preliminary objection challenging the plaintiff's locus standi. The plaintiff, administrator of the estate of Murugi Mwai Kariuki, claimed his late mother was member No 388 of the 2nd defendant land buying company, was allocated plots 781, 1572 and 1116, occupied plot 781, and that the 1st defendant fraudulently obtained its title. The 1st and 2nd defendants countered that the 1st defendant lawfully purchased forfeited shares, was balloted plot 781 and holds the title; that the deceased was never allotted land; and that the plaintiff's grant of letters of administration, issued August 29, 2014, was revoked on September 3, 2018 and only reinstated on June 14, 2023 - after the suit was filed. The court upheld the preliminary objection, following Isaya Masira Momanyi v Daniel Omwoyo, holding that capacity to represent a deceased estate requires a valid grant at filing and that lack of a grant is not a mere procedural technicality. The injunction application was not considered on its merits. Both the application and the entire suit were struck out, with each party bearing its own costs given the pending related suit, ELC E36 of 2023, concerning the same property.

Key legal issues

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01

Locus standi of an administrator whose grant was revoked at the time of filing suit

Holding

The plaintiff lacked capacity to file the suit because his grant, issued August 29, 2014, had been revoked on September 3, 2018, and was only reinstated on June 14, 2023, after the suit was filed on May 12, 2023

Reasoning

The court found it undisputed that the grant was revoked before filing and reinstated only after. Following Isaya Masira Momanyi, capacity to represent a deceased estate requires a valid grant at the time of filing. The subsequent reinstatement could not cure the defect, and the objection was upheld without considering the injunction application's merits.

02

Whether lack of a grant is a mere procedural technicality curable under Article 159 of the Constitution

Holding

No - lack of a grant of letters of administration is not a mere procedural technicality

Reasoning

The court adopted the reasoning in Isaya Masira Momanyi that the law expressly requires a deceased's estate to be represented by a duly authorised person, rejecting the plaintiff's submission that revocation was a technicality that should be disregarded in the interest of substantive justice.

p. 5

Legal principles established

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  • A deceased's estate can only be represented in litigation by a person duly authorised by a grant of letters of administration; lack of a grant is not a mere procedural technicality
  • A suit filed without a grant of letters of administration is incompetent, null and void ab initio and cannot be sustained

Court orders

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  1. 1.The plaintiff's notice of motion application dated May 12, 2023 is struck out
  2. 2.The plaintiff's suit filed on May 12, 2023 is struck out
  3. 3.Each party to bear its own costs of the present suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1 and 2
  • Civil Procedure ActSections 1A, 1B and 3A
  • Law of Succession ActSection 73
  • Land Registration ActSection 26

Cases cited (5)

  • Gitau v Kenya Methodist University [2021]

    Plaintiff's submission that revocation of grant was a procedural technicality

  • Stek Cosmetics Limited vs Family Bank Limited & another [2020] eKLR
    [2020] eKLR

    Principles for granting a temporary injunction

  • Banis Africa Ventures Limited vs National Land Commission [2021]
    [2021]

    Irreparable harm where land is alienated

  • Daniel Njuguna Mbugua v Peter Kiarie Njuguna & 2 others [2021] eKLR
    [2021] eKLR

    Locus standi of a party without a grant of letters of administration

  • Isaya Masira Momanyi v Daniel Omwoyo & another [2017] eKLR
    [2017] eKLR

    A suit filed without a grant of letters of administration is incompetent, null and void ab initio; lack of grant is not a mere technicality

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over land disputes (suit concerning Longonot/Kijabe Block 6/781)

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, "Mwai (Suing as the administrator and legal representative of the Estate of the Late Murugi Mwai Kariuki (Deceased) v Kimani & 3 others", Case Analysis (2023). Environment & Land Case E41 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19825/eng@2023-09-19

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