[2022] KEELC 495 (KLR)
The court found that the order issued on 08/02/2019 in Kisii Succession Cause No. 240 of 2014 did not provide for automatic revocation of the grant ad litem upon expiry of the 30-day period for taking out citation proceedings. Instead, the order required further action by the Succession Court to declare the grant...
Source-derived case information.
- Citation
- [2022] KEELC 495 (KLR)
- Parties
- Plaintiff: Joseph Ombati Nyamwembe (Suing as administrator of estate of Oigoro Nyamike, deceased); Defendant: Joseph Mogeni Nyangweso
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 28 of 2021
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Validity of Grant Ad Litem
- Outcome
- preliminary objection dismissed
- Judges
- CM Kamau
- Legal Topics
- Revocation of Grant, Succession Proceedings, Title Cancellation, Administrator Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ombati Nyamwembe (Suing as administrator of estate of Oigoro Nyamike, deceased)
Plaintiff
Joseph Mogeni Nyangweso
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Validity of Grant Ad Litem
Legal Issues
- 1 Whether the grant ad litem issued to the plaintiff had lapsed or been revoked due to non-compliance with a prior court order.
- 2 Whether the suit should be struck out for want of locus standi if the grant ad litem is deemed revoked.
Ratio Decidendi
The court found that the order issued on 08/02/2019 in Kisii Succession Cause No. 240 of 2014 did not provide for automatic revocation of the grant ad litem upon expiry of the 30-day period for taking out citation proceedings. Instead, the order required further action by the Succession Court to declare the grant revoked if the condition was not met. Since there was no evidence that the Succession Court had made such a declaration or order of revocation, the grant ad litem remained in force. Consequently, the plaintiff retained locus standi to prosecute the suit, and the preliminary objection seeking to strike out the suit for want of locus standi was not sustainable at this stage.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- The suit shall proceed to hearing on merits.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NYAMIRA
ELC CASE NO. 28 OF 2021
{Formerly at Environment and Land Court at Kisii Case No. 228 of 2015)
JOSEPH OMBATI NYAMWEMBE
(Suing as administrator of estate of OIGORO NYAMIKE(deceased)...PLAINTIFF/APPLICANT
VERSUS
JOSEPH MOGENI NYANGWESO..................................................DEFENDANT/RESPONDENT
RULING
This suit was commenced by a Plaint filled on 30/06/2015 same dated 29/06/2015 for the following orders: -
(a) An order of cancellation of certificate of Title issued in the name of the Defendant Joseph Mogeni Nyangweso fraudulently.
(b) Costs of the suit and interest.
(c) Any further relief this Honourable Court may deem fit to grant.
He sued in his capacity as the Administrator of the Estate of OIGORO NYAMIKE who died on 19/01/1985 having obtained letters of administration Ad litem from the High court Kisii in Succession Cause No. 240 of 2014 on 19/3/2015. The suit is defended vide statement of Defence dated 10/08/2015. The Defendant has raised a Preliminary Objection to the effect that on 08/02/2019 the Plaintiff was ordered to take out Succession proceedings in respect to the Estate of the deceased within 30 days from the aforesaid date in default of which the Grant ad Litem issued on 19/03/2015 would lapse or be deemed to have been revoked. The Plaintiff defaulted. On 08/02/2019 Justice D.S. Majanja made the following Ruling in the High court Kisii Succession Cause No. 240 of 2014: -
(i) The Administrator ad litem shall take out citation proceedings for the Estate of the deceased (Oigoro Nyamike) and serve all the interested parties within 30 days.
(ii) Thereafter the grant herein shall lapse or shall be deemed to have been revoked.
This order was given in court in the presence of Mr. Morigori for the Petitioner Joseph Ombati Nyamwembe and Mr. Soire for the Objector. I interpret the order to mean that as soon as the Administrator ad litem took out citation proceedings for the Estate of the deceased, Oigoro Nyamike, which was to be done within 30 days with effect from 08/02/2019, then the Grant would lapse or be deemed to have been revoked. The orders were framed in mandatory terms. We are not told whether the order was complied with or not. What if it was not complied with? The Objector ought to move the Succession court and have an order that since the orders were not complied with then the court should consider the Grant ad litem revoked.
I find myself in a situation that until and unless the Administrator ad litem has taken out citation proceedings for the Estate, the Grant ad litem issued remains in force. Although time limit was given, the same is yet to be revoked. If the order had been made in the following terms: -
(i) If no citation proceedings are taken out within 30 days, the Grant shall stand revoked;
I would find reason to strike out this suit. But now I understand the order to mean that until and unless the citation proceedings are taken out, the Grant stands. I would therefore hesitate to strike out this suit unless the Succession Court in Kisii declares the Grant ad litem revoked.
RULING DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 24TH DAY OF MARCH, 2022.
MUGO KAMAU
JUDGE
IN THE PRESENCE OF: -
COURT ASSISTANT: SIBOTA
PLAINTIFF: N/A
DEFENDANT: MR. SOIRE FOR THE DEFENDANT