[2011] KEHC 2114 (KLR)
The Plaintiff failed to demonstrate legal capacity to bring the suit or the application, as he did not produce a grant of letters of administration for the estate of the deceased owner of the suit land. Without such capacity, the Plaintiff cannot maintain the suit or seek injunctive relief. Furthermore, the...
Source-derived case information.
- Citation
- [2011] KEHC 2114 (KLR)
- Parties
- Applicant: Isaac Arusei Mulwa; Respondent: Paul Kinuthia Thiga and Nganga Ole Parkesui (as personal representatives of Sika Ole Parkesui, deceased); Respondent: Dominic Toromi
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Case 76 of 2010
- Procedural Posture
- Civil Case / Ruling on Interim Injunction Application
- Outcome
- application struck out
- Legal Topics
- Interim Injunctions, Capacity to Sue, Administration of Estates, Invalid Land Sale
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Arusei Mulwa
Applicant
Paul Kinuthia Thiga and Nganga Ole Parkesui (as personal representatives of Sika Ole Parkesui, deceased)
Respondent
Dominic Toromi
Respondent
Procedural Posture
Civil Case / Ruling on Interim Injunction Application
Legal Issues
- 1 Whether the Plaintiff has legal capacity to bring the suit as a personal representative of the deceased owner of the suit land.
- 2 Whether the Plaintiff is entitled to an interim injunction restraining the Defendants from trespassing or dealing with the suit land.
- 3 Whether the sale of the suit land to the 2nd Defendant was valid.
Ratio Decidendi
The Plaintiff failed to demonstrate legal capacity to bring the suit or the application, as he did not produce a grant of letters of administration for the estate of the deceased owner of the suit land. Without such capacity, the Plaintiff cannot maintain the suit or seek injunctive relief. Furthermore, the purported sale of the suit land to the 2nd Defendant was invalid, as the vendor lacked authority to sell or transfer title. The application for interim injunction is therefore incompetent and must be struck out.
Court Disposition
application struck out
Orders
- The Chamber Summons application dated 3/11/2010 is struck out.
- No orders as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
CIVIL CASE NO. 76 OF 2010
ISAAC ARUSEI MULWA..........................................................................................................APPLICANT
AND
PAUL KINUTHIA THIGA AND NGANGA OLE PARKESUI being sued as personal
representatives ofSIKA OLE PARKESUI (deceased)........................................1ST RESPONDENT
DOMINIC TOROMI......................................................................................................2ND RESPONDENT
RULING
The Plaintiff, Isaac Arusei Mulwa, seeks interim injunction in his Chamber Summons application dated 3/11/2010 to restrain the Defendants, their agents, and/or servants from trespassing upon the suit land known as Plot 19 M/E which is also referred to as Plot No. 19 Lower Majengo within Narok Township. Among the grounds stated for seeking the injunction order is the fact that the Plaintiff is the administrator and beneficiary of the estate of Cherehi Rono alias Gogo (deceased) who was the registered allotee of the said piece of land. As a further ground for making the application the applicant states that the 1st Defendant has attempted to sell the suit land to the 2nd Defendant while the suit was still pending for hearing.
The Plaintiff filed this suit against “the personal representatives of one Sika Ole Parkesui, deceased, the owner of the suit land, seeking their eviction and the eviction of the 2nd Defendant from the suit land as the latter claims to have purchased the land on 1/7/2009 from one Nganga Ole Parkesuiwhoostensibly sold qua administrator of the estate of the late Seka Ole Parkesui who was the owner of the suit property prior to his demise. The suit property is now part of his estate.
In the supporting affidavit sworn by the Plaintiff on 3/11/2010, the Plaintiff has not shown that he holds a grant of letters of Administration to the estate of the late Seka Ole Parkesui, deceased who died leaving the suit land. It is not clear on what legal basis the Plaintiff claims to be a personal representative of the said deceased who died owning the suit land. The Plaint has alluded in paragraph 6 that there exists suit No. 97 of 2007 involving the 1st Defendant and the Plaintiff regarding the suit land. But the pleadings in that suit were not annexed as exhibits.
The 2nd Defendant purports to have purchased the suit land on 1/7/2009 after the death of the original allottee, Seka Ole Parkesui, deceased. Such sale cannot be valid as the purported seller does not appear to have been the personal administrator of the estate of Seka Ole Parkesui.
In effect therefore, the Plaintiff has failed in the Chamber Summons application to show his legal capacity by exhibiting a copy of the grant of letters of administration. The suit clearly seems to be incompetent on this ground. By the same token, the application is incompetent. The sale of the suit land to the 2nd Defendant, Dominic Torome alias Dominic Saruni Torome is clearly null and void as the vendor lacked capacity to sell to him or to transfer title. I have no hesitation but to strike out the application which I hereby do.
I make no orders as to costs.
DATEDat KERICHO this 23rd Day of MARCH, 2011
G B M KARIUKI, SC
RESIDENT JUDGE
COUNSEL APPEARING
Mr. W. R. Kiprono, Advocate, for Mr. J.M. Motanya, Advocate for the Applicant
Mr. Ochego Onduso, Advocate, for the Respondents
Mr. Bett, Court clerk