[2022] KEELC 2042 (KLR)
The court found that the plaintiffs lacked capacity to institute the proceedings because the grant of letters of administration, which conferred such capacity, had been revoked. The court distinguished between the revocation of a grant and a certificate of confirmation, holding that only the grant's revocation...
Source-derived case information.
- Citation
- [2022] KEELC 2042 (KLR)
- Parties
- Plaintiff: Rakau Ole Neseder; Plaintiff: Meritei Ole Kateri; Defendant: Shapanisha Moilo Lengaras; Defendant: Osilalei Group Ranch; Defendant: Land Adjudication and Settlement Officer; Defendant: The Hon. Attorney General; Defendant: Nadupoi Ene Risa; Defendant: Mempei Kateri Neseded; Defendant: Majaliwa Ole Kateri; Defendant: Kiraka Ole Neseper
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 36 of 2020
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- suit struck out for want of capacity; preliminary objection upheld
- Judges
- JE Gicheru
- Legal Topics
- Capacity to Sue, Letters of Administration, Revocation of Grant, Probate and Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rakau Ole Neseder
Plaintiff
Meritei Ole Kateri
Plaintiff
Shapanisha Moilo Lengaras
Defendant
Osilalei Group Ranch
Defendant
Land Adjudication and Settlement Officer
Defendant
The Hon. Attorney General
Defendant
Nadupoi Ene Risa
Defendant
Mempei Kateri Neseded
Defendant
Majaliwa Ole Kateri
Defendant
Kiraka Ole Neseper
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiffs had legal capacity to institute proceedings on behalf of the estate of the deceased.
- 2 Whether the revocation affected the grant of letters of administration or only the certificate of confirmation.
Ratio Decidendi
The court found that the plaintiffs lacked capacity to institute the proceedings because the grant of letters of administration, which conferred such capacity, had been revoked. The court distinguished between the revocation of a grant and a certificate of confirmation, holding that only the grant's revocation affects the legal standing of administrators. The court relied on statutory provisions and case law to conclude that the plaintiffs' authority to act on behalf of the estate ceased upon revocation of the grant, rendering the suit incompetent. Consequently, the preliminary objection was upheld and the suit struck out.
Court Disposition
suit struck out for want of capacity; preliminary objection upheld
Orders
- The suit is struck out for want of capacity on the part of the plaintiffs.
- Costs awarded to the defendants.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAJIADO
ELC CASE NO. 36 OF 2020 (OS)
RAKAU OLE NESEDER AND
MERITEIOLE KATERI (suing as administrators ofthe Estate of
KILULI OLE NESEDERalias OLE NESEDER (deceased)...................PLAINTIFFS
-VS-
SHAPANISHA MOILO LENGARAS...............................................1ST DEFENDANT
OSILALEI GROUP RANCH.............................................................2ND DEFENDANT
LAND ADJUDICATION AND SETTLEMENT OFFICER..........3RD DEFENDANT
THE HON. ATTORNEY GENERAL...............................................4TH DEFENDANT
NADUPOI ENE RISA........................................................................5TH DEFENDANT
MEMPEI KATERI NESEDED........................................................6TH DEFENDANT
MAJALIWA OLE KATERI.............................................................7TH DEFENDANT
KIRAKA OLE NESEPER................................................................8TH DEFENDANT
RULING
This ruling is on the Preliminary Objection raised by the 3rd and 4th Respondents dated 22/7/2020 which is to the effect that the Plaintiffs herein namely Rakau Ole Neseder and Meritei Ole Kateri lack capacity to institute their proceedings on behalf of the Estate of the late Kiluli Ole Neseder as the grant of letters of administration was revoked on 30th July, 2019.
For the above reasons, the 3rd and 4th Defendants pray that the suit be struck out with costs.
The Plaintiffs’ Counsel filed written submissions dated 28/9/2021 in which he urges that what was revoked was not the grant but the Certificate of Confirmation of Grant. In further support of this proposition, counsel cited the case of the Estate of Joel Cheruiyot Ronoh (2016) eKLRwhich expounded on the difference between a Grant of Representation and a Certificate of Confirmation.
On the other hand, counsel for the 3rd and 4th Defendants urged in her submissions dated 11/6/2021 that what the Lower Court revoked was the Grant not the Certificate of Confirmation.
I have considered the Preliminary Objection in its entirety including the grounds, submissions, the authorities relied upon and the entire record.
Section 76of theLawofSuccession Act (cap 160)and Rule 44of theProbateandAdministration Rulesprovide for the Revocation or Annulment of a Grant and not the Certificate of Confirmation.
The authority cited by the Plaintiffs’ Counsel i.e the Estate of Joel Cheruiyot Ronoh (2016) eKLRsuccinctly put it that a Certificate of Confirmation of Grant can never be revoked, only a grant can.
I uphold the Preliminary Objection dated 22/7/2020 and strike out the suit on the ground that the Plaintiffs have no capacity to file it. Costs to the Defendants.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 18TH DAY OF JANUARY, 2022.
M.N. GICHERU
JUDGE