[2012] KEHC 768 (KLR)
The court held that once the trial court discovered the respondent lacked capacity to sue, it ought to have struck out the suit. The absence of letters of administration rendered the proceedings a nullity ab initio. The trial court's reliance on section 3A of the Civil Procedure Act was misplaced, as this provision...
Source-derived case information.
- Citation
- [2012] KEHC 768 (KLR)
- Parties
- Appellant: Lilian Achieng Amolloh; Appellant: Eunice Anyango Amollo; Respondent: Gregory Wyclife Odhiambo Amolloh
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 59 of 2012
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed; lower court suit struck out; costs to appellants
- Legal Topics
- Capacity to Sue, Letters of Administration, Striking Out Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lilian Achieng Amolloh
Appellant
Eunice Anyango Amollo
Appellant
Gregory Wyclife Odhiambo Amolloh
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in proceeding with the suit after finding the respondent lacked capacity to sue.
- 2 Whether the trial court should have struck out the suit for want of letters of administration.
- 3 Whether the invocation of section 3A of the Civil Procedure Act was proper in the circumstances.
Ratio Decidendi
The court held that once the trial court discovered the respondent lacked capacity to sue, it ought to have struck out the suit. The absence of letters of administration rendered the proceedings a nullity ab initio. The trial court's reliance on section 3A of the Civil Procedure Act was misplaced, as this provision cannot be invoked where there is an explicit statutory requirement. The appeal was allowed, the lower court suit struck out, and costs awarded to the appellants.
Court Disposition
appeal allowed; lower court suit struck out; costs to appellants
Orders
- The appeal is allowed with costs to the appellants.
- Siaya SPM 82/2011 is struck out with costs to the appellants.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Kisumu
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LILIAN ACHIENG AMOLLOH......................................................1ST APPELLANT
EUNICE ANYANGO AMOLLO....................................................2ND APPELLANT
VERSUS
GREGORY WYCLIFE ODHIAMBO AMOLLOH.............................RESPONDENT
J U D G M E N T
The appellants' Memorandum of Appeal is composed of five grounds. The substance of the same is that the trial magistrate erred at the lower court to proceed despite having found that the plaintiff/respondent did not have the requisite capacity to institute the suit.
When this appeal came up for hearing Mr. Odeny's thrust of his submissions centered on the fact that the trial court having found which it did that the plaintiff/respondent had no capacity to sue ought to have struck out the suit instead of granting time the respondent to get letters of administration and secondly to order a status quo.
From the pleadings on record it is not in dispute that the appellants and the respondent are related. The late Ernest Amolloh Odido was their father. The suit land in dispute is land parcel No. 2144 situated at Rabango.
The counsel for the respondent argued that there was no longer any injunctive reliefs as the 14 days lapsed subsequently. Further, he argued that the trial magistrate had invoked section 3A of the Civil Procedure Act in making his findings.
I have perused the entire proceedings. The trial court obviously erred. It is now settled that one cannot inter meddle with the deceased estate without first having obtained the necessary letters of administration from the court be it limited or otherwise.
Once the trial court had discovered this, which it did, it ought to have disallowed the application and strike it. There was no legitimate reason to have ordered a status quo and further that the parties to proceed to apply for letters of administration. The entire suit was a nullity from the beginning.
The provisions of section 3A of the Civil Procedure Act or the “Oxygen rule”does not aid a situation where there is an explicit provision of the law. In any case contrary to what the respondent argued the trial court did not refer the same.
The upshot of this is that the appeal must succeed. I was informed by the counsel for the respondent that the respondents have since applied for the relevant letters of administration. This is to their advantage and can now proceed to seek the relevant orders if this is indeed true.
The appeal is allowed with costs to the applicant. The lower court case No. Siaya SPM 82/2011 is struck out equally with costs to the appellant and any interim orders are hereby discharged.
Dated, signed and delivered this 15th day of October 2012.
H.K. CHEMITEI
JUDGE
In the presence of:
…...............................for the appellants
…................................for the respondent
HKC/va