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ELCDismissedNot stated in the excerpt· [2024] KEELC 6879 (KLR)

Magak & another v Owuor & 6 others (Environment and Land Case Civil Suit E028 of 2022) [2024] KEELC 6879 (KLR)

Environment and Land Court
17 October 2024
2,235 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that a limited grant ad litem gives administrators standing to sue, and dismissed attempts to strike out a land fraud claim.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kisumu (S. Okong'o, J) delivered on 17th October 2024 on two notices of preliminary objection in a land dispute. The Plaintiffs, administrators of the estate of Dan Onyango Magak (deceased, registered owner of Kisumu/Kakola/39), sued the 1st and 2nd Defendants for trespass and fraud, alleging that 2.5Ha of the suit property was fraudulently excised, amalgamated with Plot No. 7384, and fraudulently registered in the name of the 1st Defendant's deceased husband after his death. The 1st Defendant objected that she lacked capacity to be sued as she was not her deceased husband's administrator; the 4th to 7th Defendants (state/registration officers) objected that the Plaintiffs lacked locus standi. Applying Hassan Ali Joho, Mukisa Biscuit and Oraro v Mbaja, the court held that the Plaintiffs' Limited Grant of Letters Administration Ad Litem (30th September 2022) conferred standing, disposing of the second objection. As to the 1st Defendant, the court found her objection was not raised in good faith: court records showed she obtained a grant over her husband's estate in Nyando Succession Cause No. 32 of 2018, confirmed in 2019 with Plot No. 7384 bequeathed wholly to her, and she had lodged an adverse possession counter-claim. Both objections were dismissed with costs to the Plaintiffs; the main suit proceeds to hearing.

Key legal issues

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01

Whether the Plaintiffs had locus standi

Holding

The objection failed because the Plaintiffs produced a Limited Grant Ad Litem issued for the purpose of filing the suit

Reasoning

The court noted the Plaintiffs' bundle included a Limited Grant of Letters Administration Ad Litem in respect of the estate of Joseph Onyango Magak aka Dan Onyango Magak issued on 30th September 2022 for the purposes of filing a suit. That grant answered the 4th to 7th Defendants' contention that the Plaintiffs had not been appointed administrators and accordingly conferred standing to bring the suit on behalf of the estate.

p. 4
02

Whether the 1st Defendant could be sued over Plot No. 7384

Holding

The objection was rejected: she was in fact the administrator and beneficial owner of Plot No. 7384, and was personally alleged to have committed fraud

Reasoning

The court found the alleged fraud occurred after the death of the 1st Defendant's husband, and the Plaintiffs were entitled to sue the 1st Defendant for her alleged acts of fraud. A court search revealed the 1st Defendant obtained a grant in Nyando Succession Cause No. 32 of 2018, confirmed in 2019, with Plot No. 7384 bequeathed wholly to her; her claim of lack of capacity was therefore not in good faith and abused the court process.

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Whether the objections were true preliminary objections in law

Holding

The court applied the Mukisa Biscuit and Oraro v Mbaja tests in assessing the objections

Reasoning

The court restated the principle that a preliminary objection raises a pure point of law on the assumption that all facts pleaded by the other side are correct, and cannot succeed if any fact has to be ascertained. Determining whether the parties held grants or had capacity required inquiry into fact, and the objections were considered against those principles before being dismissed.

p. 4

Legal principles established

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  • A preliminary objection must raise a pure point of law on assumed facts and cannot be raised where facts must be ascertained or discretion exercised
  • An objection bearing factual aspects calling for proof is not a true preliminary objection
  • A Limited Grant of Letters Administration Ad Litem confers locus standi to sue on behalf of a deceased's estate

Court orders

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  1. 1.The Defendants' preliminary objections are dismissed with costs to the Plaintiffs

Authorities

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Legislation

  • Law of Succession ActGrants of Letters of Administration (including Ad Litem)

Cases cited (3)

  • Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 others
    [2014] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd. Vs West End Distributors
    (1969) EA 696
  • Oraro v. Mbaja
    [2005] 1 KLR 141
Jurisdiction invoked
Original civil jurisdiction over land disputes (Environment and Land Court); rulings on preliminary objections to locus standi and capacity to be sued

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, "Magak & another v Owuor & 6 others (Environment and Land Case Civil Suit E028 of 2022) [2024] KEELC 6879 (KLR)", Case Analysis (2024). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6879/eng@2024-10-17

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