[2014] KEHC 4121 (KLR)
The court held that the applicant, as a grandson of the deceased registered owner, qualifies as an heir under Order 37 Rule 1 of the Civil Procedure Rules and is therefore entitled to bring the suit by originating summons. The court reasoned that if the drafters intended only persons with letters of administration...
Source-derived case information.
- Citation
- [2014] KEHC 4121 (KLR)
- Parties
- Applicant: Kizito Wekesa Sifuna; Respondent: Florian Wamalwa; Respondent: Francis Wafula; Respondent: Peter Mulati; Respondent: Titus Sitiraki Mukopi
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 23 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Legal Topics
- Locus Standi, Originating Summons, Succession and Heirship, Injunctions, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kizito Wekesa Sifuna
Applicant
Florian Wamalwa
Respondent
Francis Wafula
Respondent
Peter Mulati
Respondent
Titus Sitiraki Mukopi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the applicant has locus standi to bring the suit regarding the estate of the deceased.
- 2 Whether letters of administration are mandatory before an heir can commence proceedings by originating summons under Order 37 of the Civil Procedure Rules.
Ratio Decidendi
The court held that the applicant, as a grandson of the deceased registered owner, qualifies as an heir under Order 37 Rule 1 of the Civil Procedure Rules and is therefore entitled to bring the suit by originating summons. The court reasoned that if the drafters intended only persons with letters of administration to commence such suits, they would have excluded heirs from the list of eligible persons. The respondents themselves admitted the estate is yet to be administered and have leased the land, which raises questions about their own capacity. The court found the preliminary objection on locus standi to be without merit and dismissed it, affirming the applicant's standing to bring the...
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection is dismissed with costs to the applicant.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
LAND AND ENVIRONMENT CASE NO. 23 OF 2014
KIZITO WEKESA SIFUNA ….................................................... APPLICANT
VERSUS
FLORIAN WAMALWA
FRANCIS WAFULA
PETER MULATI
TITUS SITIRAKI MUKOPI …........................................... RESPONDENTS
RULING
1. KIZITO WEKESA SIFUNAhas filed an originating summons to bring his claim against the four respondents. Together with the O.S, he filed an application dated 6th February 2014 in which he sought temporary orders of injunction to restrain the respondents from utilizing land parcel no. W. Bukusu/S. Mateka/3066. When the application came up for hearing inter partes, the respondents, through their advocate raised a preliminary point of law. The preliminary objection is to the effect that the applicant herein lacks the locus standi to bring this suit.
2. Both advocates submitted in favour of and against the point of law on locus. Mr. Wamalwa for the respondents avers that the suit parcel W. Bukusu/S. Mateka/3066 is registered in the name of Margutalin Nanjala Namachanja – deceased. The applicant has not taken out letters of administration in respect of the deceased estate as required by the law of succession before bringing this suit and is therefore unqualified to do so. Mr. Were for applicant submits that the provisions of Order 37 1 (a) and (b) of the Civil Procedure Rules do not make it mandatory to take out letters of grant before commencing a suit. That the law provides for heirs to come to court by way of originating summons. He submits further that the 4th respondent currently building on the land is a stranger to the applicant and his family.
3. Under Order 37 (I) provides the category of people who can file suits to include;
i. Executors or administrators of a deceased person.
ii. Trustees under any deed or instrument.
iii. Any person claiming to be interested in the relief sought as
(a). Creditor
(b). Devisee
(c). legatee
(d) Heir
(e). Legal representative of the deceased person.
(f). Cestui que trust under the terms of any deed/instrument.
4. The applicant is described as the grandson of the registered owner of the suit land. The 1st – 3rd respondents are the applicant’s paternal uncle as can be deduced from their replying affidavit. In my view being a grandson confers the applicant title of a heir in the family tree of Margutalin Nanjala Namachanja – deceased. He qualifies under Order 37 (1) of the rules to bring this suit as such as he is interested in the reliefs sought as regards use of the suitland. If the drafters of the Order 37 were keen to state that only persons with letter of grant would qualify to commence suit, they would have specifically said so, and not include both category of heir and legal representative. In subrule (i) referred to, heir is specifically mentioned as one of the persons permitted to commence a suit by an originating summons.
5. In paragraph 7 of the replying affidavit, the 1 – 3 respondents admit the deceased estate is yet to be administered. In paragraph 14, the 1st – 3rd respondents have denied selling the land to the 4th respondent but depose they have only leased it to him. It is interesting the respondents feel they have capacity to lease the portion of the land in dispute but which capacity they submit the applicant lacks. In the case of Heptulla vs. Noor Mohammed [1984] KLR 580 at holding no. 4the court of appeal said,
“No court ought to enforce an illegal contract where the illegality is brought to its notice and the person invoking the aid of the court is himself implicated in the illegality.”
I find that the applicant has brought to the notice of the court the property of the deceased is being disposed of before letters of administration of the estate are taken out and which illegality this court cannot ignore. I also find the applicant as the grandson is a heir to that estate and he falls within the category of people order 37 of Civil Procedure Rules refers to. The preliminary point of law raised is lacking in merit and I do hereby dismiss it with costs.
DATED, SIGNED and Delivered in Bungoma this 8th day of July 2014
A. OMOLLO
JUDGE.