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ELCStruck OutNot stated in judgment (Originating Summons dated 8th May 2023)· [2024] KEELC 1407 (KLR)

Sule (Suing in his Capacity as the Legal Representative and Next of Kin of Sule Obuola, Deceased) v Hayer & 2 others (Enviromental and Land Originating Summons E017 of 2023) [2024] KEELC 1407 (KLR)

Environment and Land Court
7 March 2024
1,379 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kisumu struck out a family land claim because the son suing had no Letters of Administration and the claim came decades too late.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kisumu (E. Asati, J) determined a Notice of Motion dated 2nd October 2023 by the 1st and 2nd Defendants seeking to strike out an Originating Summons dated 8th May 2023 in which the plaintiff, suing as legal representative and next of kin of Sule Obuola (deceased), sought recovery of parcels Kisumu/Ojola/1766 and 1767 allegedly unlawfully registered in the Defendants' names. The application, founded on section 7 of the Civil Procedure Act and sections 7 and 9(2) of the Limitation of Actions Act, was unopposed. Relying on section 3 of the Law of Succession Act, the court held that the plaintiff, who exhibited no Grant of Letters of Administration and described himself merely as 'son and heir beneficiary', lacked capacity to sue for the estate, rendering the suit incompetent. The court further held that the claim, filed in May 2023 over registrations effected in 1988 and 1995, was time-barred under section 7 of the Limitation of Actions Act. Thirdly, a consent decree in Kisumu HCCC No. 63 of 2006, in which the estate was represented by an administrator and was estopped from challenging the Defendants' titles, rendered the suit res judicata. All three grounds justified striking out. The application was allowed, the suit struck out, with costs to the 1st and 2nd Defendants.

Key legal issues

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01

Locus standi and capacity to sue for a deceased's estate

Holding

The plaintiff lacked capacity as he had not taken out Letters of Administration; the suit was incompetent

Reasoning

A personal representative under section 3 of the Law of Succession Act is an executor or administrator, that is a person granted Letters of Administration. The plaintiff described himself only as 'son and heir beneficiary' and exhibited no grant. Failing to comply with the Law of Succession Act before filing, he could not sue on behalf of the estate, rendering the suit incompetent.

p. 3
02

Limitation of actions

Holding

The claim to recover land was statutorily time-barred under section 7 of the Limitation of Actions Act

Reasoning

The cause of action arose in 1988 and 1995 when the certificates of lease were issued to the Defendants. A suit filed in May 2023 to recover land registered to the Defendants some 28 years earlier fell outside the limitation period for recovery of land and was therefore time-barred.

p. 3
03

Res judicata

Holding

The suit was res judicata as ownership of the suit lands had been finally determined by consent decree in Kisumu HCCC No. 63 of 2006

Reasoning

Annexture JBA2 showed a decree in KSM HCC No. 63 of 2006 in which the estate, represented by an administrator, was estopped from challenging the Defendants' titles to the suit parcels. In view of the former suit and the consent decree exhibited, the present suit was barred by res judicata under section 7 of the Civil Procedure Act.

p. 3

Legal principles established

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  • Only persons who have taken out Letters of Administration under the Law of Succession Act are recognised as personal representatives of deceased persons and may sue on behalf of the estate
  • A suit filed by a person without capacity is incompetent
  • A suit to recover land filed decades after the cause of action arose is time-barred under section 7 of the Limitation of Actions Act

Court orders

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  1. 1.The suit is struck out
  2. 2.Costs to the 1st and 2nd Defendants

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)section 7
  • Limitation of Actions Act (Cap 22)sections 7 and 9(2)
  • Law of Succession Act (Cap 160)sections 2(1), 3 and 80(2)

Cases cited (2)

  • Alfred Njau v City Council of Nairobi
    (1983) KLR 625
  • Julian Adoyo Ongung'a v Francis Kiverenge Abano
Jurisdiction invoked
Original civil jurisdiction over land disputes; application under section 7 of the Civil Procedure Act (Cap 21) and sections 7 and 9(2) of the Limitation of Actions Act (Cap 22)

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, "Sule (Suing in his Capacity as the Legal Representative and Next of Kin of Sule Obuola, Deceased) v Hayer & 2 others (Enviromental and Land Originating Summons E017 of 2023) [2024] KEELC 1407 (KLR)", Case Analysis (2024). Not stated in judgment (Originating Summons dated 8th May 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1407/eng@2024-03-07

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