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ELCDismissedELC Appeal (Vihiga) - Memorandum of Appeal dated 10th October 2023, from Vihiga PM ELC Case No. E035 of 2023· [2024] KEELC 6165 (KLR)

Shikutwa v Mwashi & 4 others (Environment and Land Appeal 8 of 2023) [2024] KEELC 6165 (KLR)

Environment and Land Court
19 September 2024
EAE. Asati
1,419 words in judgment
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The bottom line

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A Kenyan court dismissed a land appeal because one co-administrator of an estate cannot sue alone without the other administrator's written consent.

What this practically means

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Executive summary

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The appellant, who had sued the respondents in Vihiga PM ELC Case No. E035 of 2023 over land parcel Kakamega/Cheptulu/211, sought declarations that the contested land was an easement, that the respondents' actions violated his rights, and a permanent injunction. The respondents filed a preliminary objection contending lack of locus standi, sub-judice under section 6 of the Civil Procedure Act, res judicata, and that the appellant was a vexatious litigant. By a ruling of 5th October 2023 the trial court upheld the objection, finding the appellant lacked locus standi and the suit was sub-judice given an existing succession cause, and struck out the suit and application with costs. The appellant appealed, contending the magistrate failed to consider forgery allegations, criminal case orders nullifying certain parcels, and his letters of administration. In submissions he relied on sections 79, 80(2) and 82 of the Law of Succession Act on vesting of a deceased's property in personal representatives; the respondents relied on Trouistik Union International v Jane Mbeyu on locus standi as a threshold jurisdictional issue. The court held that although the appellant, as a co-administrator of the estate of the registered owner, could have sued for the estate, he sued as proprietor, and the grant having issued to two administrators, he sued alone without evidence of the other administrator's consent, contrary to Order 1 rule 13 CPR and section 82 of the Law of Succession Act, which require administrators to act as one. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Locus standi of a co-administrator suing alone

Holding

The appellant lacked locus standi because he sued in his capacity as proprietor rather than as administrator, and the grant having issued to two administrators, he filed suit alone without the consent of the other administrator

Reasoning

The appellant described himself as proprietor of the suit land, not as administrator of the estate. Although as administrator he could have sued for the estate, the grant was made to two persons - the appellant and Lona Shilwatso Kalia - and there was no evidence of her consent or authority for the suit. Order 1 rule 13 CPR requires written consent and section 82 of the Law of Succession Act requires administrators to act as one.

p. 3
02

Whether the trial court's upholding of the preliminary objection should be disturbed

Holding

No - the trial court correctly found the appellant lacked locus standi and the appeal had no merit

Reasoning

On a first appeal the court considered the record and submissions and found the trial magistrate's finding on locus standi, a threshold jurisdictional-type issue, was correct. The court agreed with the respondents' submission citing Trouistik Union International that lack of capacity renders a suit incompetent, and declined to interfere with the ruling of 5 October 2023.

p. 3

Legal principles established

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  • Locus standi is a fundamental preliminary matter that the court must be satisfied exists before entertaining a matter
  • Where a grant of letters of administration issues to two or more administrators, they must act as one or as a unit, and one administrator cannot sue alone without the written consent of the other(s)

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure Actsection 6
  • Civil Procedure RulesOrder 1 rule 13
  • Law of Succession Actsections 79, 80(2), 82, 82(a), 83

Cases cited (2)

  • Trouistik Union International & Another v Jane Mbeyu & Another
    (2008) 1 KLR 730
  • Re Estate of Makoha Idris
    (2029) eKLR
On appeal from
Principal Magistrate's Court, Vihiga (Environment and Land)
E035 of 2023
Jurisdiction invoked
First appeal to the Environment and Land Court against the ruling of the Principal Magistrate's Court

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, "Shikutwa v Mwashi & 4 others (Environment and Land Appeal 8 of 2023) [2024] KEELC 6165 (KLR)", Case Analysis (2024). ELC Appeal (Vihiga) - Memorandum of Appeal dated 10th October 2023, from Vihiga PM ELC Case No. E035 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6165/eng@2024-09-19

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