[2019] KEELC 3375 (KLR)
The court found that the plaintiff is suing in her own capacity as the registered proprietor of the suit land, as evidenced by the title deed in her name. The court held that since the property is registered in the plaintiff's name, she does not require letters of administration in respect of her late husband’s...
Source-derived case information.
- Citation
- [2019] KEELC 3375 (KLR)
- Parties
- Plaintiff: Florence Vutangwa Muhonga; Defendant: Andrew Andabwa Makokha; Defendant: Jackton Hannington Nandi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 233 of 2015
- Procedural Posture
- Preliminary Objection / Ruling
- Outcome
- preliminary objection dismissed
- Judges
- NA Matheka
- Legal Topics
- Capacity to Sue, Registered Proprietorship, Letters of Administration, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Florence Vutangwa Muhonga
Plaintiff
Andrew Andabwa Makokha
Defendant
Jackton Hannington Nandi
Defendant
Procedural Posture
Preliminary Objection / Ruling
Legal Issues
- 1 Whether the plaintiff has the legal capacity to institute the suit against the defendants without letters of administration for her late husband’s estate.
Ratio Decidendi
The court found that the plaintiff is suing in her own capacity as the registered proprietor of the suit land, as evidenced by the title deed in her name. The court held that since the property is registered in the plaintiff's name, she does not require letters of administration in respect of her late husband’s estate to institute proceedings. The preliminary objection, which was premised on the lack of capacity due to absence of succession proceedings, was therefore not merited. The court dismissed the preliminary objection with costs to the plaintiff.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated 30th January 2018 is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAKAMEGA
ELC CASE NO. 233 OF 2015
FLORENCE VUTANGWA MUHONGA .......PLAINTIFF
VERSUS
ANDREW ANDABWA MAKOKHA
JACKTON HANNINGTON NANDI .......DEFENDANTS
RULING
The preliminary objection filed by the defendants herein dated 30th January 2018 is on the plaintiff’s capacity to institute this suit. The reason being that succession proceedings have not been carried out to appoint administrators of the estate of the late Ezekiel Muhonga Meyi who was the husband of the plaintiff. Therefore the only question for determination before me is whether the plaintiff has capacity to institute the suit herein as against the defendants.
The plaintiff submitted that, she is the absolute registered proprietor of all that parcel known as Butsotso/shikoti/2853 measuring 0. 69 Ha having been registered as such on 23rd October, 2000 a copy of the title deed which is in the plaintiffs name was filed herein among the plaintiff’s documents. The plaintiff’s clean title now of seventeen good years has never been challenged nor questioned and she has had continuous occupation and quiet user of the said property without interference until the date of the suit hereof against the defendants. It is their submission that indeed at the time of such purchase of the suit land the same was done at the time her late husband Ezekiel Muhonga Meyi was then alive and same was acquired jointly. Upon the plaintiffs husband demise the vendor agreed and to rightfully transferred the said land to her hence the current title deed in her name. The plaintiff holds a good, clean and valid title to the suit property herein and does not need to take out letters of administration in respect of her late husband to institute any legal proceedings against the defendants herein or any other person offending her legal rights over the suit land.
This court has considered the preliminary objection and the submissions herein. I have perused the plaint filed in court on the 24th August 2015. It is clear that the plaintiff is suing on her own behalf and avers that the suit land is registered in her name. I find this preliminary objection is not merited and I dismiss the same with costs.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 7TH DAY OF MAY 2019.
N.A. MATHEKA
JUDGE