[2014] KEHC 2750 (KLR)
The court found that although the plaintiffs had not obtained letters of administration, the land was no longer registered in the name of the deceased but in the name of the 1st defendant. The plaintiffs, as persons in occupation and with an interest in the property, had locus standi to seek cancellation of the...
Source-derived case information.
- Citation
- [2014] KEHC 2750 (KLR)
- Parties
- Applicant: Selipha Jadeya Kinadira; Applicant: Beatrice Kavulani Kinadira; Respondent: Epainito Kimiya Kinadira; Respondent: Epainitus Endechi Luvita
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 57 of 2013
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- SJ Chitembwe
- Legal Topics
- Locus Standi, Succession Proceedings, Injunctive Relief, Title Cancellation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Selipha Jadeya Kinadira
Applicant
Beatrice Kavulani Kinadira
Applicant
Epainito Kimiya Kinadira
Respondent
Epainitus Endechi Luvita
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiffs have locus standi to institute the suit regarding land belonging to a deceased person.
- 2 Whether the court has jurisdiction to entertain the suit in the absence of letters of administration.
- 3 Whether the preliminary objection raises pure points of law capable of disposing of the suit.
Ratio Decidendi
The court found that although the plaintiffs had not obtained letters of administration, the land was no longer registered in the name of the deceased but in the name of the 1st defendant. The plaintiffs, as persons in occupation and with an interest in the property, had locus standi to seek cancellation of the defendant's title. The preliminary objection did not raise pure points of law that could dispose of the suit at this stage. Therefore, the objection was not merited and was dismissed with costs.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs to the plaintiffs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
LAND & ENVIRONMENT NO: 57 OF 2013
SELIPHA JADEYA KINADIRA...........................................1ST APPLICANT
BEATRICE KAVULANI KINADIRA.....................................2ND APPLICANT
VERSUS
EPAINITO KIMIYA KINADIRA.......................................1ST RESPONDENT
EPAINITUS ENDECHI LUVITA.....................................2ND RESPONDENT
R U L I N G
The plaintiffs in their plaint dated 15/2/2013 are seeking orders of injunction against the defendants in relation to plot number KAKAMEGA/BUGONDA/1213. They also seek to be declared the proprietors of the suit land. The defendants filed a notice of preliminary objection to the plaintiff’s suit.
Mr. Musiega counsel for the defendants/applicants contend that plaintiffs lack locus standi to litigate over the suit land as it belongs to a deceased person. The court lacks jurisdiction to entertain the suit as the remedies being sought are not available. The suit is an abuse of the court process. The applicants did not obtain letters of administration before filing the suit and are therefore not the legal representatives of the deceased owner of the suit land counsel relies on the case of WILLIE VS MUCHUKU & 2 OTHERS (2002) 2 KLR 357. It is further contended that the plaintiff’s prayer to be declared as the proprietors of the suit land cannot be granted as the land belongs to a deceased person.
Mr. Wekesa, Counsel for the plaintiff’s maintain that the defendants unlawfully transferred the land to the 1st defendant in 2011 before succession was done. The land belonged to the plaintiff’s father who died in 1988. The plaintiffs reside on the suit land allowing the preliminary objection would be tantamount to sanctioning the unlawful acts of the defendants. The pleadings herein show that the parties are relatives in the defence, it is contended that he 1st defendant was the recognized and registered owner of the suit land. The official search dated 4/2/2013 shows that the land was transferred to the 1st defendant on 23/8/2011. The plaintiffs maintain that the land belonged to their father who died in 1988. The 1st defendant does not explain how he got registered as the proprietor of the suit land. Given the pleadings herein, it is clear to me that the 1st defendant has a duty to explain how the land was transferred to him with succession proceedings as contested by the plaintiff’s. The plaintiff maintains that they live on the suit property. They are entitled to seek injunctive orders against the defendant. Since the land is not currently registered in the names of the deceased, I do find that the plaintiffs have the locus standi to seek cancellation of the defendant’s title. Thereafter, in the event that they are successful, then the land can revert to the names of the deceased and succession proceedings can commence.
I do find that the objection herein is not one that will settle the parties dispute.
In the end , I do find that the preliminary objection is not merited and the same is dismissed with costs.
Dated, delivered and signed at Kakamega this 16th day of September 2014
SAID J. CHITEMBWE
JUDGE