[2018] KEELC 2166 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MACHAKOS

ELC. CASE NO. 145 OF 2017

ABUBAKAR JUMA ZAIDA(Suing as legal representative

and/or beneficiary of the Estate ofZAIDA

ABBUBKAR SHAABAN ....................................................PLAINTIFF

VERSUS

MBUKONI HOLDINGS LIMITED........................1ST DEFENDANT

JERUSHA WANJIKU MACHARIA.......................2ND DEFENDANT

RULING

1. This Ruling is in respect of the Plaintiff’s Application dated 31st March, 2017 in which the Plaintiff has sought for the following orders:

a. That a temporary injunction be issued restraining the 1st Defendant by its servants, employees or agents or otherwise howsoever from encroaching and/or trespassing and/or invading the Plaintiff’s land, or doing any acts that would alienate with the Plaintiff’s quiet enjoyment, use and management of the suit land being Title Number Mavoko Town Block 12/7594, pending hearing and determination of the suit.

b. That a temporary injunction be issued restraining the 2nd Defendant whether by herself, her servants, employees or agents or otherwise howsowever from selling, leasing, gifting, disposing off, and/or invading the Plaintiff’s land or doing any acts that would alienate with the Plaintiff’s quiet enjoyment, use and management of the suit land being Title No. Mavoko Town Block 12/7593, pending the determination of the suit.

c. That the costs of this Application be in the cause.

2. The Application is supported by the Affidavit of the Plaintiff who deponed that he is the co-administrator and sole beneficiary of the Estate of the late Zaida Abubakar Shaaban and specifically land known as Mavoko Town Block 12/7593; that the late Zaida was a member of the 1st Defendant via membership number 810 and was allotted plot numbers 20 and 21 by the 2nd Defendant; that after the sub-division of the 1st Defendant’s parcel number Mavoko Town Block 12/53, plot numbers 20 and 21 got new numbers being parcel numbers 7593 and 7594 and that the 1st Defendant has declined to transfer the suit land to him.

3. The Plaintiff finally deponed that when he conducted an official search, he discovered that the suit land had been transferred to the 2nd Defendant.

4. In response, the 2nd Defendant deponed that the suit against her is incompetent; that the Affidavit in support of the Motion is supported by the Affidavit of “Abubakar Zaida Juma” who is not a named administrator of the Estate of Zaida Abubakar Shaaban; that there is no claim against her land which is parcel number 7593; that parcel number 7594 is registered in the name of the 1st Defendant and that she purchased her parcel of land from the 1st Defendant.

5. The Plaintiff’s advocate submitted that the Plaintiff was shortchanged by the 1st Defendant who colluded with, and transferred the parcel number 7593 to the 2nd Defendant; that the 2nd Defendant has admitted that she intends to buy parcel number 7594 and that an injunctive order should issue.

6. The 2nd Defendant’s advocate submitted that it is the legally appointed administrators of the deceased’s Estate who have the capacity to jointly file a suit for the Estate of the deceased; that the suit is incompetent because it was filed by one administrator and that the Plaintiff is not a proper person to have filed this suit.

7. Counsel submitted that by the time the alleged payments were made by the Plaintiff to the 1st Defendant, the 2nd Defendant was already the registered proprietor of parcel number 7593; that a title document is prima facie evidence of ownership of land and that the Plaintiff’s allegations of fraud and collusion are baseless.

8. The 2nd Defendant’s counsel submitted that the Plaintiff has not established his entitlement to the suit properties and cannot therefore suffer any irreparable loss; that the 2nd Defendant is in possession of the suit land and that the balance of convenience tilts in her favour.

9. In the Supporting Affidavit of the Plaintiff, he has described himself as “a co-administrator and sole beneficiary of the Estate of the late Zaida Abubakar Shaaban,” the owner of parcel of land known as Mavoko Town Block 12/7593. The Plaintiff has given the same description of himself in the Plaint.

10. The Plaintiff has annexed on his affidavit the Grant of Letters of Administration Intestate which was issued by the court in Nairobi Succession Cause No. 421 of 2012 on 11th July, 2012. According to the said Grant, the Estate of Zaida Abubakar Shabaan was to be administered by Suleiman Abubakar Shaaban and Abubakar Juma Zaida.

11. Indeed, the Plaintiff has admitted in his pleadings that he is a co-administrator of the Estate of the late Zaida. However, he has not explained in his Affidavit why the other co-administrator is not a party to the suit. Although the Plaintiff has deponed that he has the authority of his co-administrator to file the suit, that authority was not filed in this matter.

12. It is trite that where there are two or more administrators of an Estate of the deceased, then all the administrators have to be enjoined in the suit as parties, and if not, an explanation has to be offered by the suing administrator. That explanation has not been offered in this matter.

13. The legally appointed administrators of the deceased’s Estate have the capacity to jointly file a suit for the Estate since the Estate devolves upon them by law. As was held by the court in Nairobi Misc. Civil Application Number 103B of 2013, R vs. Nairobi City Council, the administrators of an Estate of a deceased person act jointly at all times, and where one is not enjoined in the suit, then the rest will lack capacity to bind the missing one. Indeed, the requirement that all the administrators be involved in a suit is not without good reason-the decision on how to manage the Estate of the deceased cannot be taken by some administrators to the exclusion of the others, unless they obtain the leave of the court to do so.

14. In the absence of the leave of the court allowing the Plaintiff to file this suit alone, and in view of the fact that there is no written authority by the Plaintiff’s co-administrator allowing him to file the suit on behalf of the Estate of the late Zaida Abubakar Shaaban, I find that the Plaintiff lacks capacity to file this suit.

15. Having found that the Plaintiff did not have the locus standi to commence the current proceedings, it follows that he does not have a prima facie case with chances of success in so far as the suit property is concerned. Consequently, I dismiss the Application dated 31st March, 2017 with costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 27TH DAY OF JULY, 2018.

O.A. ANGOTE

JUDGE