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ELCPartially AllowedCase number not stated in the judgment (ruling on Defendants' Notice of Preliminary Objection dated 11th December, 2023)· [2024] KEELC 6797 (KLR)

Sigei & another (Suing as administrators of the Estate of the Late Kimalel Arap Sigei) v Malel (Sued as the administrator of the Estate of the Late Martha Chepkoech Berenge) & 3 others (Environment & Land Case E012 of 2023) [2024] KEELC 6797 (KLR)

Environment and Land Court of Kenya
17 October 2024
3,372 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan land court kept a family's property suit alive but removed a deceased man's name as plaintiff and refused to overturn High Court succession proceedings.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) determines a Notice of Preliminary Objection dated 11th December, 2023 by which the Defendants sought to strike out the Plaintiffs' suit on four grounds: want of locus standi, lack of jurisdiction (the suit allegedly amounting to an appeal from a court of concurrent jurisdiction), procedural defect, and that the suit was frivolous, vexatious and an abuse of process. The Plaintiffs had sued seeking declarations that the estate of the late Kimalel Arap Sigei is the sole owner of Kericho/Kebeneti/930; that the subdivision of that parcel and resultant titles are null and void; that the Defendants are trespassers; orders for eviction, permanent injunction, special damages and damages for trespass; and, in prayer (e), that the proceedings in Kericho High Court Succession Cause No. 124 of 2013 be declared a nullity. The Defendants also filed a defence and counterclaim seeking dismissal of the suit and eviction of the Plaintiff from 0.20 acres of Kericho/Kebeneti/2144. Applying the Mukisa Biscuit test, the Court held that locus standi is a pure point of law, but found that Ronald Langat held a Grant of Letters of Administration Intestate issued on 20th July, 2023, and therefore had capacity to sue. The deceased's own joinder as plaintiff was held a curable misjoinder under Order 1 Rule 10(2). On jurisdiction, the Court found it could determine ownership of the suit property and the legality of the subdivisions, but had no jurisdiction over prayer (e), which would amount to sitting on appeal over the High Court, a court of concurrent status. The preliminary objection partly succeeded: Kimalel Arap Sigei was struck out as a plaintiff, and costs were ordered to abide the outcome of the suit.

Key legal issues

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01

Whether the Plaintiff Ronald Langat has locus standi to institute and maintain the suit on behalf of the estate of the late Kimalel Arap Sigei

Holding

The objection fails: a Grant of Letters of Administration Intestate was issued on 20th July, 2023 to James Kiplangat Malel and Ronald Langat, giving Ronald Langat capacity to sue on behalf of the estate.

Reasoning

Locus standi is a pure point of law capable of disposing of a suit. The Court perused the record and found a Grant of Letters of Administration Intestate issued by the High Court at Kericho in Succession Cause No. 285 of 2007 to James Kiplangat Malel and Ronald Langat on 20th July, 2023. Accordingly, Ronald Langat had the legal capacity to commence proceedings on behalf of the estate.

p. 5
02

Whether the joinder of the deceased person Kimalel Arap Sigei as a plaintiff renders the suit unsustainable

Holding

The inclusion of the deceased as a plaintiff is a curable misjoinder; his name is struck out under Order 1 Rule 10(2) of the Civil Procedure Rules.

Reasoning

The cause title lists Kimalel Arap Sigei both as a plaintiff and as the deceased on whose behalf the suit is brought. The Court held this is an error that does not affect the sustainability of the suit and is curable by striking out his name under Order 1 Rule 10(2), guided by Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159 of the Constitution, which mandate disregarding technicalities in the interest of substantive justice.

p. 5
03

Whether this Court has jurisdiction over the Plaintiffs' suit, in particular prayer (e) seeking to nullify proceedings in Kericho High Court Succession Cause No. 124 of 2013

Holding

The Court has jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act to determine ownership of the suit property and the legality of its subdivisions (prayers (a) to (d) and (f) to (j)), but has no jurisdiction over prayer (e) which would amount to sitting on appeal over a court of concurrent jurisdiction.

Reasoning

The ELC's jurisdiction is confined to disputes relating to the environment and the use, occupation of, and title to land. Ownership of parcel Kericho/Kebeneti/930 and the challenged subdivisions fall squarely within that jurisdiction. However, prayer (e) seeks to set aside succession proceedings determined by the High Court, a court of concurrent status; the ELC cannot entertain that prayer.

p. 8

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained.
  • Only persons issued with letters of administration have capacity to represent the estate of a deceased person in legal proceedings.
  • A court should not strike out an entire suit solely because it lacks jurisdiction over one of the prayers sought.

Court orders

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  1. 1.Kimalel Arap Sigei is struck out as a Plaintiff in this suit.
  2. 2.Costs of the preliminary objection shall abide the outcome of the suit.

Authorities

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Legislation

  • Law of Succession ActSection 82
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13

Cases cited (10)

  • Alfred Njau vs City Council of Nairobi
    [1983] KLR 625
  • Julian Adoyo Ongunga vs Francis Kiberenge Abano
    Migori Civil Appeal No. 119 of 2015
  • Viktar Maina Ngunjiri & 4 Others v Attorney General & 6 Others
    [2018] eKLR
  • Benjamin Leonard Mcfoy vs United Africa Company Limited
    [1961] ALL ER 1169
  • Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd.
    (1969) EA 696
  • Nitin Properties Ltd v. Singh Kalsi & another
    [1995] eKLR
  • Joseph Muriuki Kithinji v Peterson Ireri Mwaniki & 3 others
    [2021] eKLR
  • Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased)
    [2016] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • Muvokanza Limited v Muri Mwaniki Thige & Kageni Llp & another
    (Environment & Land Case 120 of 2021) [2022] KEELC 2275 (KLR) (16 May 2022) (Ruling)
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sigei & another (Suing as administrators of the Estate of the Late Kimalel Arap Sigei) v Malel (Sued as the administrator of the Estate of the Late Martha Chepkoech Berenge) & 3 others (Environment & Land Case E012 of 2023) [2024] KEELC 6797 (KLR)", Case Analysis (2024). Case number not stated in the judgment (ruling on Defendants' Notice of Preliminary Objection dated 11th December, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6797/eng@2024-10-17

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