Gichihi & another v Airtel Kenya Limited & 2 others (Environment and Land Case 21 of 2022) [2024] KEELC 5414 (KLR)

Environment and Land Court

12 July 2024

BEB M Eboso

1,841 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~7 min to read original · ~4 min brief

The bottom line

What this practically means

Executive summary

The plaintiffs initiated an originating summons dated 5/9/2022 against Airtel Kenya, seeking a declaration that Airtel unlawfully erected a telecommunication booster on land parcel Ruiru/Ruiru West Block 3/144, plus a permanent injunction, mesne profits and damages for trespass. ATC Kenya Operations Limited (owner/operator of the mast) and George Munderu Muriithi (alleged legal owner of the suit land) were joined as 3rd and 2nd defendants. Two matters fell for determination: Airtel's application to strike out the suit for misjoinder/want of cause of action, and a preliminary objection by the 2nd defendant dated 24/7/2023 on jurisdictional grounds. The court disposed of the preliminary objection first. It found the suit property was registered in the name of the late Nelson Gachihi Gichimu, whose estate was the subject of Muranga High Court Succession Cause No 819 of 2014, with a certificate of confirmation of grant issued by Kimondo J on 26/1/2022. The plaintiffs were beneficiaries but not administrators; the administrators were Sabina Wanjiru Gachihi and George Gichimu Gachihi. The court held the plaintiffs lacked locus standi to represent the estate, and that only the administrators could bring such proceedings. It further held that an originating summons under Order 37 rule 1 is available only to executors, administrators and trustees, and that the plaintiffs' reliance on the repealed Registered Land Act was misconceived; the proper platform was a plaint by the administrators. The preliminary objection was upheld, the suit was struck out with costs to the plaintiffs under Section 27 of the Civil Procedure Act, and Airtel's application was overtaken by events.

Key legal issues

Locus standi of beneficiaries to sue over estate property

Holding

Beneficiaries under a confirmed grant cannot represent the estate; the administrators are the proper parties.

Reasoning

The suit property was registered in the name of the late Nelson Gachihi Gichimu. The persons who initiated the suit were not the administrators - the administrators are Sabina Wanjiru Gachihi and George Gichimu Gachihi. Administration continues until assets vest in beneficiaries. Any dispute over whether the 2nd defendant's title covers estate land should be brought by the administrators. The plaintiffs therefore lacked locus standi.

p. 3

Availability of originating summons under Order 37 as the procedural platform

Holding

Order 37 rule 1 makes an originating summons available to executors, administrators and trustees; the plaintiffs were none of these, and reliance on the repealed Registered Land Act via Order 37 rule 8 was misconceived. The proper platform is a plaint by the administrators.

Reasoning

Order 37 rule 1 confines originating summons to executors, administrators and trustees. Order 37 rule 8 permits applications under the Land Registration Act by originating summons, but the plaintiffs grounded their claim on the Registered Land Act, which was repealed in 2012. Citing a repealed Act long after repeal is a misconception. The claim should be ventilated by plaint by the administrators of the estate.

p. 4

Legal principles established

At the stage of ongoing administration of a deceased's estate, only the duly appointed administrators have locus standi to initiate proceedings concerning estate property.
Reliance on the repealed Registered Land Act long after repeal is a misconception.

Court orders

1.The preliminary objection dated 24/7/2023 is upheld
2.The suit is struck out on the grounds set out in the preliminary objection
3.The plaintiffs shall bear costs of the suit pursuant to Section 27 of the Civil Procedure Act
4.The application by Airtel Kenya Limited dated 4/10/2022 is overtaken by the order striking out the suit

Authorities

Legislation

Law of Succession ActSection 45(1)
Civil Procedure Rules, 2010Order 37 rule 1
Civil Procedure Rules, 2010Order 37 rule 8
Civil Procedure ActSection 27
Registered Land ActSections 120, 128, 133, 138, 143 and 150
Land Registration Act(referenced in Order 37 rule 8)

Jurisdiction invoked: Environment and Land Court jurisdiction over disputes relating to land; suit initiated by originating summons under Order 37 rule 8 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Gichihi & another v Airtel Kenya Limited & 2 others (Environment and Land Case 21 of 2022) [2024] KEELC 5414 (KLR)", Case Analysis (2024). Originating Summons dated 5/9/2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5414/eng@2024-07-12

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