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ELCStruck OutNot stated in the extract (plaint dated 11/5/2021; preliminary objection dated 27/6/2023)· [2024] KEELC 6286 (KLR)

Njuguna & 2 others v Njihia & 14 others (Environment & Land Case 55 of 2021) [2024] KEELC 6286 (KLR)

Environment and Land Court
19 September 2024
1,909 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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In Kenya, you cannot sue to protect a deceased relative's land without first obtaining a grant of letters of administration from a succession court.

What this practically means

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Executive summary

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This is a ruling on a preliminary objection dated 27/6/2023 raised by the 1st, 2nd and 3rd defendants, supported by the 6th, 7th and 11th defendants, in a land suit filed on 19/5/2021 by the children of the late Njuguna Kerero Mbuthia against parties they alleged had fraudulently caused the subdivision and disposal of land in Ruiru Kiu Block 2 (Githunguri) 2239 originally registered in the deceased's name. The defendants contended the plaintiffs lacked locus standi because they had no grant of letters of administration when they sued, and that the suit was an abuse of process. Counsel for the plaintiffs argued they sued as shareholders of Githunguri Constituency Ranching Company Ltd to whom the deceased's shares had been transferred, and that the objection was not a pure point of law. The court, B M Eboso J, applied the Mukisa Biscuits test and found the objection was a pure point of law since it rested solely on the plaintiffs' pleadings and the law. On capacity, the court held that under Sections 45 and 82 of the Law of Succession Act, only duly appointed personal representatives could transfer the deceased's shares or institute proceedings to protect the estate's interest. Noting the plaintiffs had themselves obtained a limited grant on 22/11/2023 in Ruiru SPMC Succession Cause No E093 of 2023, the court upheld the objection, struck out the suit for want of locus standi, and granted liberty to the personal representatives, subject to limitation, to file a proper suit. The plaintiffs were ordered to bear the participating parties' costs under Section 27 of the Civil Procedure Act.

Key legal issues

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01

Threshold of a preliminary objection

Holding

The locus standi objection met the Mukisa Biscuits threshold as a pure point of law arising from the pleadings.

Reasoning

The court applied the classic definitions by Law JA and Sir Charles Newbold P in Mukisa Biscuits, holding that a preliminary objection must be a pure point of law argued on the assumption that the plaintiff's pleaded facts are correct. Since the objectors did not go outside the plaintiffs' pleadings and the law, the objection was properly raised and could be disposed of without ascertaining facts.

p. 3
02

Locus standi of plaintiffs suing on behalf of a deceased's estate

Holding

The plaintiffs, being children of the deceased without a grant at the time of filing, lacked capacity to institute the suit.

Reasoning

The plaintiffs' own pleadings and witness statement admitted the suit land belonged to their deceased father. Under Sections 45 and 82 of the Law of Succession Act, only duly appointed personal representatives may effect transfers of, or institute proceedings over, a deceased's property. The plaintiffs' later limited grant (22/11/2023) could not cure the defect at inception, so the suit was struck out.

p. 5

Legal principles established

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  • A suit on behalf of a deceased's estate can only be instituted by a duly appointed legal representative holding a grant under the Law of Succession Act.
  • No effective inter vivos or testamentary transfer of a deceased's property may occur without a grant issued to the personal representatives.

Court orders

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  1. 1.The preliminary objection dated 27/6/2023 is upheld
  2. 2.The suit is struck out on the ground that it was initiated by people who lacked locus standi
  3. 3.The personal representatives of the deceased are at liberty, subject to the Law of Limitation, to initiate a proper suit to ventilate the estate's claim
  4. 4.The plaintiffs to bear the costs of the parties who entered appearances and participated in the suit

Authorities

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Legislation

  • Law of Succession ActSection 45
  • Law of Succession ActSection 82
  • Civil Procedure ActSection 27

Cases cited (1)

  • Mukisa Biscuits Ltd v West End Distributors Ltd
    (1969) EA 696
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; Civil Procedure Act (Section 27 on costs)

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, "Njuguna & 2 others v Njihia & 14 others (Environment & Land Case 55 of 2021) [2024] KEELC 6286 (KLR)", Case Analysis (2024). Not stated in the extract (plaint dated 11/5/2021; preliminary objection dated 27/6/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6286/eng@2024-09-19

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