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ELCDismissedEnvironment and Land Miscellaneous Application E004 of 2023· [2023] KEELC 21357 (KLR)

Rutto (Suing as a Grandson on behalf of the Estate of Teriki Chepkunur (Deceased) v Estate of Kibiego Cherugut (Deceased) & 7 others

Environment and Land Court
9 November 2023
EOE. O. OBAGA
1,363 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to extend time for a late land appeal, ruling you cannot sue deceased people's estates without appointed personal representatives.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Eldoret (EO Obaga, J) determined a notice of motion dated 1 August 2023 in which the Applicant, suing as a grandson on behalf of the estate of Teriki Chepkunur, sought extension of time to file an appeal against a National Land Commission decision of 10 May 2023 dismissing his historical land injustice claim. The Applicant argued he was never notified of the ruling date, that the NLC had his email and phone number, and that he only learned of the decision through a Commissioner. The 5th and 6th Respondents opposed, contending the application was brought 90 days late, that several Respondents were deceased, that the land had been subdivided with purchasers long in occupation, and that there was no arguable appeal. The court framed three issues: whether proceedings can be brought against deceased persons, whether the extension-of-time threshold was met, and costs. It held that proceedings against the 1st, 3rd, 4th, 7th and 8th Respondents were a nullity since they were deceased and were sued without personal representatives, citing the Machakos High Court decision in Rodah Wangikuyu Mutunga. Applying the Salat and Wambua principles, the court found the nearly three-month delay unexplained, the Respondents would be greatly prejudiced as long-standing title holders, and no arguable appeal was disclosed. The application was dismissed with costs to the 5th and 6th Respondents.

Key legal issues

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01

Whether proceedings can be brought against deceased persons without suing their personal representatives

Holding

Proceedings against the 1st, 3rd, 4th, 7th and 8th Respondents, who are deceased and were sued without their personal representatives, are a nullity

Reasoning

The Applicant admitted that the 1st and 7th Respondents were deceased and purported to sue their estates without personal representatives. The Respondents demonstrated that the 3rd, 4th and 8th Respondents had also died. Following the Machikas High Court authority, a suit cannot be maintained against a dead person or estate unless a personal representative or executor has been appointed.

p. 2
02

Whether the Applicant met the threshold for extension of time

Holding

The Applicant failed to give a satisfactory explanation for the delay of almost three months and had no arguable appeal; extension refused

Reasoning

Applying the Salat and Wambua principles (length and reason for delay, arguability, prejudice), the court found the delay of almost three months unexplained: the NLC ruling was published on its website and parties were later sent copies. The Respondents, long-standing purchasers with titles dating back to 1994-2015, would be greatly prejudiced, and the memorandum of appeal disclosed no arguable appeal.

p. 3

Legal principles established

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  • A suit cannot be maintained against a dead person or his estate unless a personal representative or executor has been appointed
  • Extension of time is an equitable remedy available only to a deserving party at the court's discretion, requiring a satisfactory explanation for the delay

Court orders

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  1. 1.The Applicant's application for extension of time to file an appeal against the NLC decision is dismissed
  2. 2.Costs of the application awarded to the 5th and 6th Respondents

Authorities

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Cases cited (3)

  • Rodah Wangikuyu Mutunga & 4 others – Vs- Kitole Mutinda & another (sued as the widows & personal Representatives of William Mutinda Kahahi, deceased
    (2012) eKLR

    A suit cannot be maintained against a dead person or estate unless a personal representative or executor is appointed

  • Nicholas Kiptoo Korir ARap Salat –Vs- IEBC & 7 others
    (2014) eKLR

    Principles for exercise of discretion to extend time

  • John Musili Wambua –vs- Attorney General & 2 others
    (2015) eKLR

    Factors for extension of time: length and reason for delay, chances of appeal succeeding, prejudice

On appeal from
National Land Commission
Jurisdiction invoked
Inherent jurisdiction to extend time to file an appeal against a decision of the National Land Commission

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, "Rutto (Suing as a Grandson on behalf of the Estate of Teriki Chepkunur (Deceased) v Estate of Kibiego Cherugut (Deceased) & 7 others", Case Analysis (2023). Environment and Land Miscellaneous Application E004 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21357/eng@2023-11-09

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