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ELCStruck OutNot stated in the ruling as provided· [2024] KEELC 476 (KLR)

Migwi (Suing on His Own and Also on Behalf of the Estate of Migwi Mariga - Deceased) v Ngunjiri & another (Environment & Land Case E044 of 2023) [2024] KEELC 476 (KLR)

Environment and Land Court
6 February 2024
MMM.D. MWANGI
1,520 words in judgment
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The bottom line

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A Kenyan court struck out a land case entirely because one co-administrator sued alone without the other's written consent.

What this practically means

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Executive summary

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This ruling by M.D. Mwangi, J of the Environment and Land Court at Nairobi, delivered virtually on 6th February 2024, determines the 1st Defendant's preliminary objection dated 27th October 2023. The Plaintiff, a co-administrator of the estate of Migwi Mariga (deceased) together with Alexander Ngotho Migwi, filed suit on his own behalf and on behalf of the estate, and moved the court under a Notice of Motion dated 7th August 2023. The 1st Defendant objected that under Section 82 of the Law of Succession Act, joint administrators must act jointly, and that the Plaintiff, having sued alone without the co-administrator's authority, lacked locus standi. The 2nd Defendant supported the objection. The Plaintiff countered that the objection was not a pure point of law, that he had a direct personal ½ share interest in the suit property, and that any defect was curable by joining the omitted administrator under Order 1 rule 9 of the Civil Procedure Rules. The court held that capacity to sue is a pure point of law; that joint administrators are obligated to act jointly; that the alleged ½ share was speculative as the estate was undistributed; and that one administrator alone cannot file suit on behalf of an estate. Following Majanja, J in Peter Kimani Nene v Nation Newspapers Ltd and disagreeing with Esther Muthoni Mwangi v Samuel Maina Njaria, the court found the lack of locus standi fatal and incurable, struck out the suit in its entirety, and struck out the Notice of Motion, each with costs to the Defendants.

Key legal issues

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01

Whether a co-administrator may sue alone on behalf of a deceased's estate

Holding

No; administrators must act jointly under Section 82 of the Law of Succession Act, and a suit filed by one alone without written authority of the co-administrator is a nullity

Reasoning

The court held that capacity to sue on behalf of an estate inheres in duly appointed administrators, who under Section 82(a) of the Law of Succession Act are obligated to act jointly in all matters concerning the estate. The Plaintiff filed suit alone without the written authority or consent of his co-administrator. His claimed ½ share interest was speculative since the estate had not been distributed. Following Majanja, J in Peter Kimani Nene, the court found the Plaintiff lacked locus standi, which is fatal and renders the suit a nullity.

p. 3
02

Whether the objection raised a pure point of law

Holding

Yes; capacity to sue is a pure point of law proper for a preliminary objection

Reasoning

The Plaintiff argued the preliminary objection did not qualify as such because it was not a pure point of law. The court rejected this, holding that capacity of a party to sue is a pure point of law not blurred with factual details, since the Plaintiff's capacity was clearly disclosed on the face of the amended plaint. The objection was therefore properly before the court and was considered on its merits.

p. 3

Legal principles established

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  • Joint administrators of a deceased's estate must act jointly; one administrator alone cannot file suit on behalf of the estate.
  • Lack of locus standi is fatal, renders the suit a nullity and is incurable.

Court orders

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  1. 1.The Plaintiff's suit is struck out in its entirety with costs to the Defendants
  2. 2.The Notice of Motion dated 7th August, 2023 is struck out with costs to the Defendants

Authorities

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Legislation

  • Law of Succession ActSection 82(a)
  • Civil Procedure RulesOrder 1 rule 9

Cases cited (5)

  • Republic v Nairobi City County & 3 others ex parte Christine Wangare Gachege suing on behalf of the Estate of Rahab Wanjiru Evans
    [2014] eKLR
  • Hassan Iddi Malambu suing as the administrator of Amina Nanyu Malambu v Bestel Agencies Company Ltd & another
    [2015] eKLR
  • Peter Kimani Nene v Nation Newspapers Ltd
    [2021]
  • Esther Muthoni Mwangi v Samuel Maina Njaria
    [2021] eKLR
  • Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (suing as the administrator of the Estate of Fanuel Evans Amudavi, Deceased)
    2016 eKLR
Jurisdiction invoked
Original jurisdiction; no provision expressly invoked

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Migwi (Suing on His Own and Also on Behalf of the Estate of Migwi Mariga - Deceased) v Ngunjiri & another (Environment & Land Case E044 of 2023) [2024] KEELC 476 (KLR)", Case Analysis (2024). Not stated in the ruling as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/476/eng@2024-02-06

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