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ELCOtherELC Case (Thika) - Plaint dated 12/2/2024· [2024] KEELC 7216 (KLR)

Ndungu & another v Mwaura (Environment & Land Case E025 of 2024) [2024] KEELC 7216 (KLR)

Environment and Land Court
31 October 2024
JKJ G Kemei
1,737 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A limited grant to merely collect and preserve a deceased's estate does not allow you to sue over that estate in Kenya's courts.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Thika disposes of the Defendant's Notice of Preliminary Objection dated 17/5/2024. The Defendant argued that the Plaintiffs, suing as administrators ad litem of the estate of Ndungu Kimani Wachaga, lacked locus standi because they held only a limited grant ad colligenda bona issued on 28/2/2020 in Kikuyu SPMC Succession Cause No. 56 of 2020, restricted to collecting and preserving the estate. The Plaintiffs, who claim beneficial interests in ancestral land allegedly held in trust and fraudulently excluded from the Defendant's confirmed grant in Nairobi Succession Cause No. E285 of 2021, countered that an ad litem grant cloths administrators with standing to sue. Applying the Mukisa Biscuits test, the court (J G Kemei, Judge) found the objection raised a pure point of law. Examining the wording of the grant, the court held it was limited to collecting and preserving the estate and did not contemplate filing suit; the Plaintiffs were therefore not clothed with locus to institute and maintain the suit. Relying on Chudasama, Ongunga, the court's own decision in Elijah Nderitu Gachaga, and Macfoy, the court held that lack of locus is fatal and a nullity ab initio, not a mere technicality. The objection was upheld, the entire suit struck out, and costs awarded to the Defendant.

Key legal issues

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01

Whether the Plaintiffs have locus standi to sue on behalf of the estate of Ndungu Kimani Wachaga under a limited grant ad colligenda bona

Holding

The objection succeeded; the Plaintiffs lacked locus standi and the suit was struck out

Reasoning

The Plaintiffs' grant issued on 28/2/2020 was expressly limited to collecting and preserving the estate. Nothing in its wording contemplated filing a suit. Following the Court of Appeal in Chudasama and the court's own decision in Elijah Nderitu Gachaga, a litigant needs a limited or full grant tailored to include filing suit. A suit filed without standing is a nullity ab initio, and the defect is not a mere technicality but goes to the root of the case.

p. 4
02

Whether the preliminary objection raised a pure point of law

Holding

Yes; locus standi is a pure point of law, and the objection was argued on the pleaded facts without need to ascertain facts or exercise discretion

Reasoning

Applying the Mukisa Biscuits test, the court found the objection satisfied the criteria: it raised a pure point of law, assumed the correctness of the Plaintiffs' pleaded facts, required no ascertainment of fact, and, if successful, would dispose of the entire suit. The court therefore struck out the suit and awarded costs to the Defendant.

p. 4

Legal principles established

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  • A limited grant ad colligenda bona, limited to collecting and preserving a deceased's estate, does not confer locus standi to institute and maintain a suit
  • Locus standi is a pure point of law and its absence renders proceedings a nullity
  • A preliminary objection must raise a pure point of law and if successful dispose of the suit

Court orders

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  1. 1.The Preliminary Objection succeeds and the Plaintiffs' suit is struck out
  2. 2.Costs awarded to the Defendant

Authorities

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Legislation

  • Law of Succession ActSection 82

Cases cited (5)

  • Elijah Nderitu Gachaga Vs. Francis Gakuu Gachaga & 2 Others
    [2019] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd Vs. West End Distributors Ltd
    [1969] EA 696
  • Rajesh Pranjivan Chudasama Vs. Sailesh Pranjivan Chudasama
    [2014] eKLR
  • Julian Adoyo Ongunga Vs. Francis Kiberenge Abano
    CA No. 119 of 2015
  • Macfoy Vs. United Africa Co. Ltd.
    [1961] 3 ALL ER 1169 at 1172
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; ruling on a Notice of Preliminary Objection dated 17/5/2024

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, "Ndungu & another v Mwaura (Environment & Land Case E025 of 2024) [2024] KEELC 7216 (KLR)", Case Analysis (2024). ELC Case (Thika) - Plaint dated 12/2/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7216/eng@2024-10-31

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