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ELCDismissedCivil Suit No 301 of 2013· [2024] KEELC 4272 (KLR)

Menza & another v Kipoto & 8 others (Civil Suit 301 of 2013) [2024] KEELC 4272 (KLR)

Environment & Land Court
2 May 2024
2,989 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to let brothers replace a deceased land plaintiff because they held the wrong estate's grant, stressing correct legal standing.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (L.L. Naikuni, J) determined an amended Notice of Motion dated 31st May, 2023 brought under Order 24 Rule 3 of the Civil Procedure Rules, 2010, seeking the substitution of the deceased Plaintiff, Ngumbao Ali Menza, by his brothers Mohamed Ali Menza and Kaingu Ali Menza, with costs in the cause. The 1st to 9th Defendants opposed through grounds of objection, contending that the suit had abated, that the application offended Order 24 Rule 4, that the deceased had sued in his personal capacity as registered owner and not on behalf of the estate of Birya Masha, and that the application was an abuse of process. The court framed three issues: merit, entitlement to relief, and costs. It held that the suit had not abated since the Plaintiff died around 17th October, 2022 and less than a year had elapsed before the application. However, it found the Applicants lacked locus standi: although they rightly obtained a full grant, that grant was in respect of their father Birya Masha's estate rather than the estate of the deceased Plaintiff, whose rights as initial proprietor had been extinguished by his own grant. The court held they ought to have obtained a grant or ad litem limited grant in respect of the former Plaintiff's estate to seek substitution. The application was dismissed as defective, null and void and bad in law, with costs awarded to the Defendants, and the main suit was fixed for mention on 12th June, 2024 for directions.

Key legal issues

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01

Whether the suit had abated by reason of the death of the sole Plaintiff more than one year before the substitution application.

Holding

The suit had not abated because the Plaintiff died around 17th October, 2022 and less than a year had lapsed when the application was filed on 31st May, 2023.

Reasoning

Although no death certificate was produced, the court proceedings of 17th October, 2022 showed the Plaintiff was deceased around that time. The application of 31st May, 2023 was therefore filed within one year of death, so Order 24 Rule 3(2) on abatement did not apply and the Defendants' argument that the suit had abated was misleading.

p. 5
02

Whether the Applicants had locus standi to seek substitution of the deceased Plaintiff.

Holding

The Applicants lacked locus standi because their full grant of letters of administration was in respect of their father Birya Masha, not the estate of the deceased Plaintiff Ngumbao Ali Menza.

Reasoning

Under section 82(a) of the Law of Succession Act only personal representatives of the deceased Plaintiff can enforce causes of action surviving him. The Applicants obtained the wrong grant - for their father's estate, though the father's rights had been extinguished when the former Plaintiff obtained his own grant. They needed a grant or ad litem limited grant in respect of Ngumbao Ali Menza's estate to sustain the substitution application.

p. 5
03

Who bears the costs of the application.

Holding

The Defendants/Respondents were entitled to costs as the application lacked merit.

Reasoning

Under section 27(1) of the Civil Procedure Act costs are discretionary and follow the event unless the court directs otherwise. Having found the application to lack merit, the court exercised its discretion in favour of the Defendants who successfully opposed it, awarding them costs of the application.

p. 6

Legal principles established

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  • Only the personal representative of a deceased party, holding a grant in respect of that deceased's estate, may be substituted for the deceased in a pending suit.
  • A person without locus standi cannot be heard even on the merits of his case.
  • Costs follow the event unless the court for good reason otherwise directs.

Court orders

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  1. 1.The Notice of Motion application dated 31st May, 2023 be and is hereby found to lack merit and hence dismissed.
  2. 2.There shall be a mention of the main suit on 12th June, 2024 to ascertain the actual status of the matter and further direction.
  3. 3.Costs of the Notice of Motion application dated 31st May, 2023 awarded to the 1st to 9th Defendants/Respondents.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 24 Rule 3
  • Civil Procedure Rules, 2010Order 1 Rule 14
  • Civil Procedure Rules, 2010Order 24 Rule 4
  • Law of Succession Act, Cap. 160Sections 55 to 71
  • Law of Succession Act, Cap. 160Section 82(a)
  • Probate and Administration RulesNot specified
  • Constitution of Kenya, 2010Article 159(1) and (2)
  • Civil Procedure Act, Cap 21Section 27(1)

Cases cited (5)

  • Trouistik Union International & Another v Jane Mbeyu & Another
    (2008) I KLR (G&F) 730
  • Alfred Njau & Others v City Council of Nairobi
    [1982 - 88] 1 KAR 229
  • Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & Another
    (1982-99) 1 KAR
  • Morjaria v Abdalla
    [1984] KLR 490
  • Republic v Rosemary Wairimu Munene, Ex-Parte Applicant v Ihururu Dairy Farmers Co-operative Society Ltd
Jurisdiction invoked
Order 24 Rule 3 of the Civil Procedure Rules, 2010; Article 159(1) and (2) of the Constitution of Kenya, 2010

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, "Menza & another v Kipoto & 8 others (Civil Suit 301 of 2013) [2024] KEELC 4272 (KLR)", Case Analysis (2024). Civil Suit No 301 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4272/eng@2024-05-02

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