[2019] KEELC 4558 (KLR)
The court found that the plaintiff had obtained a Limited Grant of Letters of Administration Ad Litem on 8/3/2017, prior to filing the suit on 21/2/2018. Therefore, the plaintiff had the requisite legal capacity to institute the suit as personal representative of the deceased. The omission to include the grant in...
Source-derived case information.
- Citation
- [2019] KEELC 4558 (KLR)
- Parties
- Plaintiff: Abraham Odhiambo Onyango (suing as Personal Rep of Roman Onyango Onyuma); Defendant: Joseph Ochiel Onyango
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 12 of 2018
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- A Kaniaru
- Legal Topics
- Locus Standi, Capacity to Sue, Letters of Administration, Estate of Deceased, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abraham Odhiambo Onyango (suing as Personal Rep of Roman Onyango Onyuma)
Plaintiff
Joseph Ochiel Onyango
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiff had the legal capacity to institute the suit as personal representative of the deceased.
- 2 Whether the absence of the grant in the initial list of documents invalidated the suit.
Ratio Decidendi
The court found that the plaintiff had obtained a Limited Grant of Letters of Administration Ad Litem on 8/3/2017, prior to filing the suit on 21/2/2018. Therefore, the plaintiff had the requisite legal capacity to institute the suit as personal representative of the deceased. The omission to include the grant in the initial list of documents was a curable procedural defect, as the grant was subsequently filed. The preliminary objection, premised on lack of capacity, was thus without merit and could not be upheld.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA IN BUSIA
ENVIRONMENT AND LAND COURT
ELCNO. 12 OF 2018
ABRAHAM ODHIAMBO ONYANGO (suing as
Personal Rep of ROMAN ONYANGO ONYUMA..............................PLAINTIFF
VERSUS
JOSEPH OCHIEL ONYANGO.........................................................DEFENDANT
R U L I N G
1. The Defendant in this matter – JOSEPH OCHIEL ONYANGO – filed a Notice of Preliminary Objection dated 6/4/2018 on 17/4/2018. In the notice, he stated that the Plaintiff has no locus or capacity to bring the suit as filed. He further said that the suit is a non-starter and should be dismissed with costs.
2. On 19/9/2018, the court directed that written submissions be filed. The Defendant’s submissions were filed on 9/10/2018. It is clear that the suit is faulted because the Plaintiff – ABRAHAM ODHIAMBO –has instituted it as personal representative of one ROMAN ONYANGO ONYUMU who is deceased. The Defendant alleged that the Plaintiff does not have the necessary grant from the probate court to enable him to sue on behalf of the estate of a deceased person.
3. The Defendant’s submissions were filed on 16/1/2019. The submissions contains only a one-liner averment as follows: “The Plaintiff by his further list of documents filed on 23/10/2018 confirms he obtained a grant prior to initiating this suit”.
4. I have considered the objection as raised and the rival submissions of both learned counsel. In the Plaintiff’s further list of documents, there is a Limited Grant of Letters of Administration Ad Litem issued to the Plaintiff on 8/3/2017. The suit was filed on 21/2/2018. It is not true therefore to say that the Plaintiff lacks capacity to institute the suit. The suit is properly before the court as the Plaintiff has the necessary grant. The Preliminary Objection therefore cannot be upheld.
5. But the Plaintiff made a small mistake namely: He failed to include the grant in his list of documents when he filed the suit. That however is now cured by the subsequent filing of a list of further documents which included the Grant itself.
6. The Preliminary Objection is therefore found to be without merit and is hereby dismissed. I make no order as to costs.
Dated, signed and delivered at Busia this 20th day of February, 2019.
A. K. KANIARU
JUDGE
In the Presence of:
Plaintiff: Absent
Defendant: Absent
Counsel for Plaintiff: Present
Counsel for Defendant: Absent
Court Assistant: Nelson Odame