[2017] KEELC 1224 (KLR)
The court found that since Fredrick Clarence Kittany was deceased at the time the suit was filed, he lacked the legal capacity to institute the proceedings. The purported instructions from his son, Collins Kipchumba Ngetich Kittany, did not cure the defect as there was no evidence of legal representation or grant of...
Source-derived case information.
- Citation
- [2017] KEELC 1224 (KLR)
- Parties
- Plaintiff: Fredrick Clarence Kittany; Defendant: Eastside Development Limited; Defendant: Nairobi City County
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 102 of 2016
- Procedural Posture
- Notice of Motion / Ruling on Preliminary Objection
- Outcome
- suit struck out and dismissed with costs
- Legal Topics
- Capacity to Sue, Striking Out Suit, Deceased Litigant, Land Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Clarence Kittany
Plaintiff
Eastside Development Limited
Defendant
Nairobi City County
Defendant
Procedural Posture
Notice of Motion / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is competent where the named plaintiff was deceased at the time of filing.
- 2 Whether the suit should be struck out for want of capacity by the plaintiff.
Ratio Decidendi
The court found that since Fredrick Clarence Kittany was deceased at the time the suit was filed, he lacked the legal capacity to institute the proceedings. The purported instructions from his son, Collins Kipchumba Ngetich Kittany, did not cure the defect as there was no evidence of legal representation or grant of letters of administration. Consequently, the suit was a nullity ab initio and could not be sustained in law. The court therefore struck out and dismissed the suit with costs to be borne by the purported plaintiff, as prayed in the Notice of Motion.
Court Disposition
suit struck out and dismissed with costs
Orders
- The Notice of Motion dated 13th January 2017 is allowed in its entirety as per prayers 2, 3, and 4.
- The suit is struck out and dismissed with costs to be borne by the purported plaintiff.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MILIMANI
ELC.NO.102 OF 2016
FREDRICK CLARENCE KITTANY.......PETITIONER/APPLICANT
=VERSUS=
EASTSIDE DEVELOPMENT LIMITED...............1ST DEFENDANT
NAIROBI CITY COUNTY.....................................2ND DEFENDANT
RULING
This is a Notice of Motion dated 13th January 2016, wherein the 2nd Defendant has sought for dismissal of the Plaintiffs suit on allegation that the Plaintiff herein Fredrick Clarence Kittany is deceased as he died on 14th March 2000, at Nairobi Hospital as per attached Death Certificate annexure KT2.
The counsel for the Plaintiff has indeed confirmed that the Plaintiff herein is deceased and that she received instructions from one Collins Kipchumba Ngetich Kittany who is the son of Fredrick Clarence Kittany . If indeed the Plaintiff herein is deceased, then he had no capacity to file this suit. The suit is therefore a non-starter and consequently the same is struck out and the suit dismissed with costs to be borne by the purported Plaintiff as prayed in prayer No. 2 of the Notice of Motion dated 13th January 2017.
Consequently, the Court allows the Notice of Motion dated 13th January 2017, entirely in terms of prayers No.2, 3 and 4.
It is so ordered.
Dated, Signed and Delivered at Nairobi this 3rdday ofMarch 2017
L.GACHERU
JUDGE
In the presence of:-
Mr Maina holding brief for Ms Kwamboka for the Plaintiff
Court Clerk : Kevin
L. GACHERU
JUDGE