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ELCStruck OutNot stated in the judgment as provided· [2024] KEELC 7046 (KLR)

Abdallah v Realty Brokers Limited & another (Environment & Land Case E048 of 2023) [2024] KEELC 7046 (KLR)

Environment and Land Court
24 October 2024
4,067 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land dispute because the administrator's limited grant did not give her power to sue.

What this practically means

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Executive summary

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The Plaintiff, claiming to be the personal representative of the Estate of Mwanatumu Riziki Mwinyi, sued seeking a declaration that a transfer dated 17th January 1995 over Plot Number 30/IV/MN, CR Number 7234 (approximately 185 acres) was irregular, illegal and fraudulent and void ab initio; an order compelling the 2nd Defendant to rectify the register and revert an apportioned 5 acres; a permanent injunction; and costs. She simultaneously sought a temporary injunction. The 1st Defendant filed a Notice of Preliminary Objection dated 13th May 2024 and a Notice of Motion of even date seeking striking out of the plaint and the Plaintiff's application, on grounds including want of locus standi, failure to disclose a cause of action, defective service on a corporation, and irregularity in representation. The court framed four issues and took the preliminary objection first. Relying on Mukisa Biscuit, IEBC v Cheperenger, Law Society of Kenya v Commissioner of Lands, Elijah Nderitu Gachaga, Julian Adoyo Ongunga and Morjaria v Abdalla, the court held that the Plaintiff's special limited grant ad colligenda bona dated 6th June 2023, confined to collecting and preserving the estate without power of distribution, did not clothe her with capacity to sue; she needed a specific grant tailored to filing suit. Since locus standi goes to the root of the matter, the court did not consider the remaining objections, upheld the preliminary objection, struck out the entire suit and the injunction application with costs to the 1st Defendant, and granted the Plaintiff leave to file a fresh suit when properly clothed with locus standi, subject to limitation of actions. Judgment delivered virtually at Malindi on 24th October 2024 by E. K. Makori, Judge.

Key legal issues

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01

Whether the Plaintiff had locus standi to institute the suit under a special limited grant ad colligenda bona

Holding

The Plaintiff lacked locus standi because her grant ad colligenda bona was limited to collecting and preserving the estate without power of distribution and did not confer power to sue

Reasoning

The court examined the wording of the grant dated 6th June 2023, which was limited to collecting, getting in and receiving the estate and doing acts necessary for preservation without power of distribution. Relying on Section 67 of the Law of Succession Act, Rules 36 and 37 of the Probate and Administration Rules, and authorities including Morjaria v Abdalla, Elijah Nderitu Gachaga and Julian Adoyo Ongunga, the court held the Plaintiff needed a specific grant tailored to file suit.

p. 5
02

Whether the Preliminary Objection was a pure point of law

Holding

Yes - locus standi could be determined from the pleadings and the grant without investigating facts or exercising discretion

Reasoning

Following Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd as restated in Hassan Ali Joho and IEBC v Jane Cheperenger, the court found the objection raised a pure point of law evident from the pleadings and the record. Because locus standi goes to the root of the case, the court disposed of the entire suit in limine without considering the other grounds of the objection.

p. 8
03

Whether the Plaintiff was entitled to an interlocutory injunction

Holding

The injunction application fell with the suit, as it was struck out for want of locus standi

Reasoning

Since the Plaintiff lacked the capacity to institute and maintain the suit, the suit and the injunction application were struck out wholesale. The court nonetheless preserved her ability to file a fresh suit with a proper grant, subject to limitation of actions.

p. 8

Legal principles established

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  • A special limited grant of letters of administration ad colligenda bona, limited to collection and preservation of the estate, cannot be used to institute or defend a suit unless its wording expressly allows it
  • Locus standi goes to the root of a case and a party without it lacks the right to institute and maintain a suit

Court orders

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  1. 1.The Preliminary Objection succeeds and is allowed to the extent that locus standi goes to the root of the matter
  2. 2.The entire suit and the Plaintiff's application for an injunction are struck out with costs to the 1st Defendant
  3. 3.The Plaintiff is at liberty, subject to the limitation of actions, to bring a fresh suit when clothed adequately with the necessary locus standi

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 Rules 1 and 3
  • Civil Procedure RulesOrder 9
  • Law of Succession ActSection 67
  • Probate and Administration RulesRules 36 and 37
  • Law of Succession ActFifth Schedule, paragraph 14

Cases cited (11)

  • DJC v BKL
    (Civil Suit E021 of 2021) [2022] KEHC 10189 (KLR) (27 June 2022)
  • Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd.
    (1969) EA 696
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others
    [2015] eKLR
  • Law Society of Kenya v Commissioner of Lands & 2 others
    [2001] eKLR
  • Elijah Nderitu Gachaga v Francis Gakuu Gachaga & 2 others
    [2019] eKLR
  • Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased)
    [2016] eKLR
  • Morjaria v Abdalla
    [1984] eKLR
  • Kikaya v Mango & 2 Others
    [2023] KEHC 23205(KLR) (Civ) (5 October)
  • Martha Ndiro Odero v Come cons Africa Limited
    [2015] eKLR
  • Macfoy v United Africa Co. Ltd.
    [1961] 3 ALL ER 1169
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - the judgment does not expressly state the provision

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, "Abdallah v Realty Brokers Limited & another (Environment & Land Case E048 of 2023) [2024] KEELC 7046 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7046/eng@2024-10-24

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