[2024] KEHC 11121 (KLR)

Chebutuk v Kimachas & another (Civil Appeal E004 of 2023) [2024] KEHC 11121 (KLR) (19 September 2024) (Judgment)

Neutral citation: [2024] KEHC 11121 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Civil Appeal E004 of 2023

RB Ngetich, J

September 19, 2024

Between

Zablon Kipkoech Chebutuk

Appellant

and

Nancy Chebande Kimachas

1st Respondent

Robinson Ndhiwa

2nd Respondent

(Being an appeal from the Ruling of Honourable Caroline R.T Ateya (SRM) in the Senior Principal Magistrate’s court civil case No. E029 of 2021 delivered on 31st January,2023)

Judgment

Background 1. The Plaintiff filed this suit vide a plaint dated 29th July,2021 and filed on even date seeking judgement against the Defendants jointly and severally for:-a.Kshs.1,000,000 being the estimated value of the damaged rental block.b.Special damages of Kshs.25,890/=.c.General damages.d.Costs of this suit.e.Interest on (1)(2)(3) and (4)f.Any other relief this Honourable court may deem fit and just to grant.

2. The Plaintiff/Appellant avers in the plaint that at all material times to this suit, the 1st Defendant was the registered owner of motor vehicle registration Number KCM 995R Toyota Harrier.

3. That on or about the 1st day of June,2021 at around 2340Hrs along Museum Road within Kabarnet Town, the 2nd Defendant so negligently drove, managed and or controlled the said motor vehicle registration Number KCM 995R Toyota Harrier as a result of which the said motor vehicle veered off the road and rammed into the Plaintiff’s building on plot number Kabarnet Township/389 completely damaging the building and occasioning the plaintiff great loss.

4. The plaintiff sets out the particulars of negligence on the part of the Defendants as follows: -i.driving motor vehicle registration Number KCM 995R Toyota Harrier at a very high speed in the circumstances,ii.driving defective motor vehicle on the roadiii.driving under the influence of alcohol,iv.driving unroadworthy motor vehicle on the road andv.driving on the wrong lane.

5. The plaintiff avers that the defendants are jointly and wholly liable for causing the accident.

6. The defendants on their part entered appearance and filed a statement of defence dated 24th August,2021 wherein the 1st Defendant denied being the registered owner of motor vehicle registration Number KCM 995R at any material times of these proceedings or at all. The Defendants aver that they are strangers to the accident alleged to have occurred on the 1st June, 2021 and denies that the 2nd defendant ever drove and/or managed and/or controlled the alleged motor vehicle at the material time. The defendants further denied the alleged particulars of negligence and invited the plaintiff to strict proof.

7. The defendants further denied that the plaintiff was the lawful or beneficial owner of plot No. Kabarnet Township/389 and aver that the plaintiff lacks the locus standi or legal capacity to bring these proceedings. The defendants further denied the particulars of special and general damages. They aver that if at all the accident occurred as alleged, which is denied, involving any motor vehicle owned by the 1st Defendant and/or driven, managed or controlled by the by the 2nd Defendant, then the same was wholly caused or substantially contributed to by the negligence on the part of a yet to be identified third party rider of an identified motor cycle of unknown registration details.

8. The defendants aver that the alleged accident was an act of vis major and beyond the control of human intervention and/or that the same was an inevitable accident. The defendants prayed that the plaintiff’s suit against them be dismissed with costs.

9. The Defendants subsequently filed a notice of preliminary objection dated 10th May,2022 on the following grounds: -i.That the Land title Number Kabarnet Township/389 which is the subject matter of these proceedings is registered in the name of Chebutuk Koskei who is a separate and distinct person from the plaintiff herein.ii.That under section 25(1) of the Land Registrations Act, the said Chebutuk Koskei holds the rights to the said land together with all privileges and appurtenance belonging thereto, free from all other interests and claims whatsoever and therefore exclusive of any interests alleged by the Plaintiff.iii.That under section 26(1) of the Land Registration Act, the said Chebutuk Koskei is the absolute and indefeasible owner thereof subject only to any encumbrances, easements, restrictions and conditions contained or endorsed in the certificate.iv.That consequently, the plaintiff lacks the locus standi and/or legal capacity to bring these proceedings.

10. The preliminary objection proceeded by way of written submissions and the trial court delivered its ruling on the 31st day of January,2023 wherein the court found that the plaintiff in this matter has not obtained any grant on behalf of the estate of the deceased. That the suit property and the rights he seeks to enforce were in the name of his deceased father and without a grant of representation, the plaintiff has no locus to sue on behalf of the estate of the deceased and dismissed the suit with costs to the defendants.

11. The Plaintiff/Appellant dissatisfied with the ruling of the trial court has approached this court vide a memorandum of appeal dated 9th February,2023 and filed in court on even date listing the following grounds: -i.That the learned trial magistrate erred in law and fact in dismissing the Appellant’s suit on the ground that the said Appellant had no locus standi to file the above stated suit.ii.That the learned trial magistrate erred in law and fact in failing to make a finding that the suit before her was not for ownership of property but seeking for damages.iii.That the trial magistrate erred in law and in fact in arriving into a conclusion that the Appellant bought the suit on behalf of the estate of his late father.iv.That the trial magistrate erred in law and fact in failing to appreciate that the damaged properties belonged to him and not the estate of his late father.v.That the learned trial magistrate erred in law and fact in dismissing the Appellants suit on a preliminary objection based on land Registration Act but failed to appreciate the fact that the damaged property squarely belonged to the Appellant.

12. The Appellant prays that the lower court ruling be set aside and the suit to proceed to full trial.

Submissions 13. The appeal was canvassed by way of written submissions. The Respondents filed written submissions. They submit that the Appeal raises two issues for determination:i.Whether the learned trial Magistrate erred in law by finding that the Appellant had no locus standi to prosecute the suitii.If the answer to the above is answered in the negative, what orders ought to be made?

14. On the first issue, the Respondents submit that an issue of locus standi is an issue of law which is capable of disposing the suit. That its determination needs not to involve an extrinsic assessment of facts but law and therefore the same can be dispensed with as a preliminary objection and relied on the case of Daykio Plantations Limited v National Bank of Kenya Limited & 2 others [2019] eKLR.

15. That in the instant case, the Appellant through his submissions, just like before the trial court, advanced a case that plot no Kabarnet Township/389 is currently registered in the name of his late father Chebutuk Koskei and being a beneficiary, he has been utilizing the parcel of land and it is on that basis that he should be allowed to prosecute his case. That it is further apparent on the face of the plaint that the suit sought damages for destruction attendant to a building erected on the above-mentioned plot.

16. The Respondents submit that the ownership of the plot was further crystallized, upon presentation by the Appellant, a copy of the certificate of search dated 9th June, 2021 which disclosed that the lessor of plot no Kabarnet Township/389 is County Council of Baringo while the Lessee is Chebutuk Koskei. That vide the said registration, a presumption is to be made pursuant to section 25 (1) of the Land Registration Act that the plot is prima facie owned by the said Chebutk Koskei as a Lessee.

17. The Respondent further argue that therefore no dispute that the plot belongs to the deceased Chebutuk Koskei and the Appellant claims to be a beneficiary of the deceased and under the law of succession, it is trite law that dealings with respect to the estate of a deceased person vest only in the estate legal representative or administrator.

18. And when it comes to prosecuting causes of action arising out of the estate of the deceased, the same can only be done through a personal representative of the estate subject to such limitation(s) set out on the grant. That Section 82 (a) of the Law of Succession Act provides that:“Personal representatives shall, subject only to any limitation imposed by grant, have the following powersa.to enforce, by suit or otherwise, all causes of action which, by virtue of the law, survive the deceased or arise out of his death for his estate:"

19. That further at page 58 - 59 of the Record of Appeal the trial magistrate considered the provisions of Sections 82(a) of the Law of Succession’s Act. In the case of Joseph Oginga Onyoni & 2 others vs Attorney general & 2 Others (2016) eKLR citing with the approval in the case of Troustik Union International & Another vs Mbeyu & Another (1993) eKLR the court held that the estate of a deceased person is vested in the legal representative and it is only the legal representative who has capacity to represent the estate.

20. Further that in the case of Oman Kaburi vs ICDC (2007) eKLR Lady Justice Wanjiru Karanja (as she then was) held as follows: -“The law is that the grant is what clothes a person with locus standi to stand in and sue on behalf of the estate of the deceased..."

21. The Respondents submit that in this matter, the plaintiff has not obtained any grant on behalf of the estate of the deceased and therefore the suit property and the rights he seeks to enforce were in the name of his deceased father and without a grant of representation, the plaintiff has no locus to sue on behalf of the estate.

22. That Having relied on the above statutory provision, and the holding in the case of Joseph Oginga Onyoni & 2 others vs Attorney General & 2 others (2016) eKLR, it is their submission that the learned trial Magistrate properly directed herself in finding that the Appellant having no requisite letters of administration or grant to represent the deceased estate in the present proceedings, had no footing upon which to prosecute the Claim.

23. The respondents further submit that when it comes to survival of actions, section 3 of the Law Reform Act provides that all causes of action subsisting against or vested deceased shall survive against, or, as the case may be, for the benefit of, his estate and submit that the learned trial Magistrate properly directed herself in finding that the cause of action relates to the deceased estate and could only be sustained for the benefit of the estate through the estate's legal representative. In view of the above, the respondents urged this court to dismiss this appeal with costs to the Respondents.

Analysis And Determination 24. The Appellant challenges the trial court’s ruling allowing the Respondents preliminary objection which suit sought dismissal of suit for want of lack of locus standi by the plaintiff/Appellant to institute suit for failing to obtain Grant of letters of administration before filing suit. The plaintiff/Appellant argued that the damaged property in plot number Kabarnet Township/389 belonged to him and not the estate of his late father. He availed a search which showed that the said plot is registered in the name of Chebutuk Koskei who is his deceased father. The plaintiff maintains that he developed the plot and erected the damaged rental premises hence his claim is for the damaged property and not the land.

25. The Defendants/Respondents on their part maintains that the damaged building is erected in plot no Kabarnet Township/389 which is registered in the name of a different person other than the Plaintiff/Appellant hence the Plaintiff/ Appellant lacks the locus standi to file the suit. I have perused the documents filed and confirm that indeed the certificate of official search shows that the plot no Kabarnet Township/389 is registered in the names of Chebutuk Koskei.

26. It is not disputed that the damaged property stood in plot no Kabarnet Township/389 which is registered in the names of Chebutuk Koskei. Section 82(a) of the Law of Succession Act lists the powers of a personal representative to include –“To enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arise out of his death for his estate.”

27. In the case of In Re estate of Helena Wangechi Njoroge (Deceased) (2015) eKLR, the court referring to a Grant Ad litem held that:-“It was limited to the purpose of filing suit to preserve the three assets of the estate. It is what is called a grant of letters of administration ad Litem. The suit envisaged to be filed on the strength of a grant ad litem is not a probate or succession case, or an interlocutory application within a probate or succession cause, but rather a civil suit. Indeed, one need not obtain a grant of any sort to enable him file a succession cause. A grant of representation is only necessary where one intends to file a civil suit to protect or defend the estate against third parties.”

28. Further in the case Julian Adoyo & another vs Francis Kiberenge Bondeva [2016] eKLR Mrima J discussed the importance of taking out the limited grant before instituting a suit and stated that;“A party without locus standi in a civil suit lacks the right to institute and/or maintain that suit even where a valid cause of action subsists. Locus standi relates mainly to the legal capacity of a party. The impact of a party in a suit without locus standi can be equated to that of a court acting without jurisdiction since it all amounts to null and void proceedings. It is also worth-noting that the issue of locus standi becomes such a serious one where the matter involves the estate of a deceased person since in most cases the estate involves several other beneficiaries or interested parties.”

29. In view of the above, there is no doubt that in view of the fact that the property alleged to have been damaged stood in plot registered in the name of plaintiff’s deceased father, he ought to have obtained letters of administration to give him authority to institute suit.

30. The plaintiff did not produce in court letters of administration authorizing him to file suit in respect to property which stood in his deceased’s father’s plot. Failure to obtain grant of letters of administration deprive the plaintiff locus standi to institute suit herein. From the foregoing I find that the appeal herein lacks merit and proceed to dismiss with costs to the Respondents.

31. Final Orders: -1. This appeal is hereby dismissed.2. Costs of the appeal to the Respondent.

JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT ELDAMA RAVINE HIGH COURT (SUB-REGISTRY) THIS 19TH DAY OF SEPTEMBER 2024. RACHEL NGETICHJUDGEIn the presence of:* Karanja – Court Assistant.* Ms. Mwangi holding brief for Mr. Oduor for Respondent.* No appearance for Appellant.