Amala (Suing As Personal Representative of Joseph Amala Okuthe - Deceased) v Ochar & 4 others
The bottom line
#A Kenyan court struck out a land suit because the family suing a deceased man's estate had no letters of administration when they filed the case.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of a plaintiff suing as personal representative without a grant
The suit is incompetent at inception where the plaintiff had no grant when filing; a grant obtained later cannot cure the defect
Relying on Section 80(2) of the Law of Succession Act and Virginia Edith Wamboi Otieno, the court held that an administrator can do nothing before letters of administration are granted. The doctrine of relation back cannot render a suit filed before the grant competent. The grant here was also obtained over five years after death and only after the preliminary objection was filed.
Whether the mistake of counsel should be visited on the litigant
No - mere inaction by counsel is not a mistake excusable in law
The court adopted Dilpack Kenya Ltd v Kitonyi, quoting Berber Alibhai Mawji, that inaction by an advocate as opposed to an error of judgment or slip is not excusable. The previous counsel's failure to apply for a grant ad litem was inaction, not a curable mistake, so the plaintiff could not benefit from Article 159(2)(d).
Legal principles established
#- A litigant suing as personal representative of a deceased's estate must hold a grant of letters of administration at the date of filing; a later grant cannot validate the suit
- A defect in locus standi of a plaintiff suing without a grant is substantive and not curable under Article 159(2)(d)
Court orders
#- 1.The 1st and 2nd defendants' Preliminary Objection dated 30th May 2023 is merited
- 2.The plaintiff's suit instituted by way of an amended plaint dated 15th February 2022 is struck out
- 3.Costs to the 1st and 2nd defendants
- 4.All consequential orders attendant thereto vacated
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amala (Suing As Personal Representative of Joseph Amala Okuthe - Deceased) v Ochar & 4 others", Case Analysis (2023). Civil Suit 32 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21809/eng@2023-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.