Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEnvironment and Land Appeal 44 of 2019· [2023] KEELC 21678 (KLR)

Musilili Kilonzo & another v Josphine Sele Juma (Suing on Behalf of Mbithe Mutyambai - Deceased)

Environment and Land Court of Kenya
22 November 2023
5,812 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

#

A Kenyan court struck out a land suit filed without the adjudication officer's consent and without letters of administration, ruling it was a nullity from the start.

What this practically means

#

Executive summary

#
This was a first appeal to the Environment and Land Court at Machakos against the judgment of Hon. Z. J. Nyakundi (SPM) in Mutomo SPM Land Case No. 7 of 2018, which had allowed the respondent's claim over unregistered plots 519 and 532 in Kaatene Adjudication Section, holding that Kisyu Mutyambai had no capacity to sell land belonging to the estate of his deceased mother, Mbithe Mutyambai, and ordering permanent injunction, declarations, deletion of the appellants' names from the adjudication register and refund of Kshs. 28,400. The appellants challenged the judgment on jurisdiction, limitation and innocent purchaser grounds. Nyukuri J held that the dispute concerned land within an adjudication section, so section 30(1) of the Land Adjudication Act applied: no suit may be instituted without the adjudication officer's prior written consent. The consent produced was dated 21st November 2018, while the plaint was filed on 11th September 2018, so the suit was a nullity ab initio which no amendment could cure. Further, the respondent's limited grant of letters of administration ad litem was issued on 24th October 2018, after institution, so she lacked locus standi when filing. The court also held that jurisdiction may be raised for the first time on appeal. Allowing the appeal, the court set aside the trial judgment and substituted an order striking out the suit, with costs of both the suit and the appeal to the appellants.

Key legal issues

#
01

Whether the trial court had jurisdiction under section 30(1) of the Land Adjudication Act

Holding

The trial court had no jurisdiction because the suit was instituted on 11th September 2018 before the adjudication officer's written consent of 21st November 2018

Reasoning

Section 30(1) bars institution of civil proceedings concerning an interest in land in an adjudication section without the written consent of the adjudication officer. Proof of consent at the date of institution is a question of jurisdiction. The consent here post-dated the plaint by two months and eleven days, so the suit was a nullity ab initio and amendment could not revive it.

02

Whether the respondent had capacity to sue for the deceased's estate

Holding

The respondent lacked locus standi at institution because the limited grant ad litem was issued on 24th October 2018, after the suit was filed

Reasoning

Section 82(1) of the Law of Succession Act vests power to sue on behalf of a deceased's estate only in a personal representative. The grant was obtained over a month after institution, so the plaint was incurably incompetent and the December 2018 amendment could not breathe life into it.

p. 10
03

Whether jurisdiction can be raised for the first time on appeal

Holding

Yes; the court must satisfy itself of jurisdiction whether or not parties raised it

Reasoning

Jurisdiction is the power of the court derived from law, not from the parties. Silence or waiver by parties cannot confer jurisdiction. The court relied on Owners of the Motor Vessel 'Lillian S' and Samuel Kamau Macharia to hold that jurisdiction must exist before any determination is made.

p. 8

Legal principles established

#
  • A suit concerning land in an adjudication section must be instituted only with the prior written consent of the adjudication officer; consent obtained after institution cannot cure the defect
  • A suit filed as a nullity cannot be cured by amendment
  • A plaintiff must have locus standi, including a grant of letters of administration, at the time of instituting a suit on behalf of a deceased's estate
  • Jurisdiction may be raised for the first time on appeal; parties' silence cannot vest a court with jurisdiction it does not have

Court orders

#
  1. 1.The appeal is allowed
  2. 2.The judgment of the learned trial magistrate in Mutomo Land Case No. 7 of 2018 is set aside and substituted with an order striking out the suit
  3. 3.Costs of the suit in the trial court awarded to the defendants
  4. 4.Costs of the appeal awarded to the appellants

Authorities

#

Legislation

  • Land Adjudication ActSection 30(1)
  • Land Adjudication ActSections 9, 15, 16, 19, 21, 22, 26, 29
  • Law of Succession ActSections 45, 82(1)
  • Evidence ActSection 107
  • Limitation of Actions ActSection 7
  • Land Registration ActSection 80

Cases cited (12)

  • Edward Moonge Lengusuranga v James Lanaiyara & Another
    [2019] eKLR

    Section 7 of the Limitation of Actions Act bars a claim for land after 12 years

  • National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 Others
    Civil Appeal No. 656 of 2022

    Where a court has no jurisdiction all proceedings are a nullity; jurisdiction may be raised at any stage even on appeal

  • Isaac Katambani Iminya v Firestone East Africa (1969) Limited
    [2015] eKLR

    Uncontroverted evidence should be deemed credible

  • Morris Mwiti Mburugu v Denis Kimathi M'Mburungu
    [2016] eKLR

    Without a grant of letters of administration a person cannot sell property of a deceased person

  • In Re the Matter of David Julius Nturibi Míthinji (Deceased)
    [2012] eKLR

    Without a grant of letters of administration a person cannot sell property of a deceased person

  • Antony Ted Andrew Hoareau v Mary Muthoni Wanjohi
    [2018] eKLR

    Bona fide innocent purchaser defence unavailable where purchaser did no due diligence and seller had no title

  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR

    A court's jurisdiction flows from the Constitution or legislation or both

  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another
    [2014] eKLR

    Submissions are not pleadings and cannot place an issue before the court for determination

  • Isaiah Mbaabu & 2 Others v Land Adjudication & Settlement Officer Igembe South District & 4 Others
    [2020] eKLR

    Section 30 of the Land Adjudication Act - adjudication officer's consent for filing suit

  • Gitobu Imanyara & 2 Others v Attorney General
    [2016] eKLR

    Duty of a first appellate court to reanalyse, reassess and reconsider the evidence

  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR

    First appellate court's role to re-evaluate and re-analyse the record

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    (1989) KLR

    Jurisdiction is everything; a court downs its tools the moment it holds it is without jurisdiction

On appeal from
Senior Principal Magistrate's Court at Mutomo
Mutomo SPM Land Case No. 7 of 2018
Jurisdiction invoked
First appeal to the Environment and Land Court under the Environment and Land Court Act against the judgment of the Senior Principal Magistrate's Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Musilili Kilonzo & another v Josphine Sele Juma (Suing on Behalf of Mbithe Mutyambai - Deceased)", Case Analysis (2023). Environment and Land Appeal 44 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21678/eng@2023-11-22

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