[2017] KEHC 2083 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISII

CASE NO. 167 OF 2016

ISAYA MASIRA MOMANYI

(Suing on behalf of the late MASIRA ONSASE)...PLAINTIFF

VERSUS

DANIEL OMWOYO...........................................1ST DEFENDANT

KEBUNGO ORINA............................................2ND DEFENDANT

R U L I N G

1. The plaintiff, Isaya Masira Momanyi vide a plaint dated 8th June 2016 filed in court on 10th June 2016 brought the instant suit on behalf of the family of the late Masira Onsanse. The plaintiff amended the plaint on 8th July 2016. The plaintiff claims they are the sons of the late Masira Onsanse and dependants of the estate of original owner of all that land herein known as LR No. Bassi/Masige/1908 registered in the name of the late Masire Onsase who died on the 1st April 1981 (intestate). The plaintiff claims that land parcel LR No. Bassi/Masige/1908was fraudulently subdivided into land parcels Bassi/Masige/2514 and 2515 without the process of subdivision being undertaken.

2. The plaintiff inter alia seeks orders:

(i) For the annulment and cancellation of the subdivision and the resultant titles Bassi/Masige/2514 and 2515.

(ii) For the rectification and reversion of the suit property to the original land parcel LR No. Bassi/Masige/1908.

(iii) An order of eviction of the 1st and 2nd defendants and payment of general damages for trespass and mesne profits.

3. The 1st and 2nd defendants have filed their respective defences to the plaintiff’s claim. The 1st defendant has denied that the original land parcel Bassi/Masige/1908 has ever been registered in the name of Masira Onsase deceased and/or that the same was illegally and/or unlawfully subdivided. Further the 1st defendant avers that the plaintiff lacks any locus standi to bring the suit on behalf of the estate of the late Masira Onsase, he having not obtained grant of letters of administration to represent the deceased estate. Similarly, the 2nd defendant has denied that the plaintiff has the locus standi to bring the instant suit.

4. The 1st defendant by a notice of motion brought under Order 2 Rule 15(1) (b), (c) and (d) and Order 50 Rule (1) of the Civil Procedure Rules dated 5th August 2016 which is the subject of this ruling seeks the following orders:-

1. That this honourable court be pleased to strike out the plaintiff/ respondent’s suit.

2. That costs of and incidental to this application and the main suit be provided for.

5. The application is supported on the grounds set out on the face of the application and the affidavit sworn in support thereof by the 1st defendant. Principally the 1st defendant contends that the plaintiff lacks the locus standi to institute the instant suit on behalf of the estate of the late Masira Onsanse as at the time of instituting the suit he had not obtained and/or taken out grant of letters of administration for the deceased estate. The 1st defendant further contends that land parcel LR No. Bassi/Masige/1908 has never been registered in the name of Masira Onsase (deceased) but was rather registered in the name of Moraa Masira alias Minsa Masira who is also deceased.

6. In response to the 1st defendant’s application the plaintiff filed grounds of opposition on 26th October 2016 thus:-

1. A defective procedure which does not go to the jurisdiction and does not occasion any failure of justice, cannot invalidate proceedings.

2. Judicial discretion has to be exercised judicially, not oppressively or capriciously.

3. The application is uncompetent and does not have merit.

4. Article 159(2) (d) of the Constitution of Kenya provides that justice shall be administered without undue regard to procedural technicalities.

5. Striking out the suit on technicality is not a solution to substantial justice.

7. It is trite law that the estate of deceased person can only be represented in any legal proceedings by a person who is duly authorized to do so on behalf of the estate. Only a person who has been issued grant of letters of administration has capacity to represent the estate of a deceased person. The powers of the personal representative are set out under Section 82 of the Law of Succession Act, Cap 160 of the Laws of Kenya which provides as follows:

82. Personal representatives shall subject only to any limitation imposed by their grant, have the following powers:-

(a) to enforce, by suit or otherwise, all causes of action which by virtue of any law, survive the deceased or arising out of his death for his personal representative;

(b) to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them as they think best:

(i) Any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and

(ii) No immovable property shall be sold before confirmation of the grant;

(c) To assent, at any time after confirmation of the grant to the vesting of a specific legacy in the legatee thereof;

(d) ………………………………..

8. The granted letters of administration takes effect from the date when it is issued as provided under Section 80 (2) of the law of Succession Act which provides as follows:-

80(2) A grant of letters of administration, with or without the will annexed shall take effect only as from the date of such grant.

A party can thereof not commence a suit on behalf of the estate of a deceased person without letters of administration and thereafter obtain the letters of administration subsequently. Where a suit is commenced without letters of administration in respect of a deceased estate such a suit is null and void abinitio and cannot be cured by a party subsequently obtaining the letters of administration.

9. In the instant matter, the issue is whether or not at the time the plaintiff filed the instant suit he had obtained the requisite letters of administration to the estate of the deceased to clothe him with capacity or locus standi to represent the estate of the deceased. The plaintiff did not file any affidavit to respond to the 1st defendant’s assertions that he had not obtained grant of letters of administration to enable him to bring the instant suit. The plaintiff instead filed grounds of opposition set out earlier in this ruling through which he appears to view failure to obtain a grant of letters of administration before filing suit as a mere procedural technicality which the court can overlook. With respect I do not agree that failure to obtain a grant of letters of administration to a deceased estate to enable one to acquire capacity to file a suit on behalf of the deceased estate would be a mere procedural technicality. The law is express that a deceased estate can only be represented by a person who is duly authorized to do so.

10. In his filed submissions the plaintiff has unprocedurally annexed as “Ex.4” a copy of letters of administration to the estate of Marisa Onsase dated 20th July 2016 issued to Isaya Masira Momanyi in CMC Succ. Cause No. 219 of 2016. The letters of administration are to the plaintiff in the present suit meaning that as at 8th June 2016 when he filed the suit he never had any letters of administration to the deceased estate. He definitely did not have any capacity and/or locus standi to file the suit on behalf of the deceased estate. The suit is incompetent and filed in abuse of the process of the court. The suit was null and void abinitio and cannot be sustained.

11. I accordingly order the suit by the plaintiff initiated vide a plaint dated 8th June 2016 struck out in its entirety. I award the costs of the application dated 5th August 2016 and of the main suit to the 1st defendant.

Orders accordingly.

Ruling dated, signedand deliveredat Kisii this 10th day ofNovember, 2017.

J. M. MUTUNGI

JUDGE

In the presence of:

N/A for the plaintiff

N/A for the 1st and 2nd defendants

Ruth court assistant

J. M. MUTUNGI

JUDGE