[2019] KEELC 469 (KLR)
The court found that the applicants lacked locus standi to bring the application as they had not obtained a grant of letters of administration ad litem, which is a mandatory prerequisite for litigating on behalf of a deceased person's estate. The court further held that the substantive orders sought regarding...
Source-derived case information.
- Citation
- [2019] KEELC 469 (KLR)
- Parties
- Applicant: Stephen Kiriinya; Applicant: Hellen Ntiring’a & 5 Others; Respondent: Attorney General; Respondent: Land Adjudication Officer; Respondent: Meru Central and Buuri Sub-County Director of Land Adjudication and Settlement
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Miscellaneous Case 41 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave and Injunctive Orders
- Outcome
- application dismissed
- Legal Topics
- Locus Standi, Fraudulent Land Subdivision, Letters of Administration, Abuse of Office
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Stephen Kiriinya
Applicant
Hellen Ntiring’a & 5 Others
Applicant
Attorney General
Respondent
Land Adjudication Officer
Respondent
Meru Central and Buuri Sub-County Director of Land Adjudication and Settlement
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave and Injunctive Orders
Legal Issues
- 1 Whether the applicants have locus standi to bring the application regarding land parcel Tutua/Rwarera/14.
- 2 Whether the applicants are entitled to orders for rectification or cancellation of sub-divisions and restraining further issuance of title deeds.
- 3 Whether the application is properly before the court as a miscellaneous application.
Ratio Decidendi
The court found that the applicants lacked locus standi to bring the application as they had not obtained a grant of letters of administration ad litem, which is a mandatory prerequisite for litigating on behalf of a deceased person's estate. The court further held that the substantive orders sought regarding rectification and cancellation of land sub-divisions and restraining issuance of title deeds could not be granted in a miscellaneous application, as such prayers must be sought in a substantive suit. The absence of evidence as to when the death occurred and the lack of clarity on whether the property belonged to the applicants' mother or father further undermined their claim....
Court Disposition
application dismissed
Orders
- The application dated 13.8.2019 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC MISC. NO. 41 OF 2019
IN THE MATTER OF LAND ADJUDICATION ACT (CAP 284) LAWS OF KENYA AND IN THE MATTER ARISING IN THE MEANING OF FRAUD OF LAND PARCEL NO. TUTUA/RWARERA/14 ALLOCATED BY MINISTER OF LANDS THE LATE JACKSON ANGAINE BY SUB-DIVISIONS BY OFFICE PROFESSIONAL MISCONDUCT AND ABUSE OF OFFICE BEING A SCHEME LAND
STEPHEN KIRIINYA ......................................................1ST APPLICANT
HELLEN NTIRING’A & 5 OTHERS ............................2ND APPLICANT
VERSUS
ATTORNEY GENERAL...............................................1ST RESPONDENT
LAND ADJUDICATION OFFICER............................2ND RESPONDENT
MERU CENTRAL AND BUURI SUB-COUNTY DIRECTOR OF LAND
ADJUDICATION AND SETTLEMENT ....................3RD RESPONDENT
RULING
1. Vide an application dated 13. 8.2019, the applicants seek the following orders:
i. “This honourable court do grant the applicants leave to file application against the respondents pending filing summons for limited grants of letters of administration ad litem as a matter of utter most urgency in the matter of law for want of fraud.
ii. The honourable court further do grant and issue an order compelling the 2nd respondent to rectify register or/and cancel sub-divisions of land parcel No. TUTUA/RWARERA/14 and revert to original number to affect equal subdivisions among beneficiaries.
iii. The Honourable court be pleased to issue an order restraining of further issuance of title deeds by the district land registrar at Meru central no’s 15 and 5289. ”
2. The grounds in support of the motion are that:
a. “The 2nd respondent by way of abuse of office has sub-divided land parcel No. Tutua/Rwarera/14 fraudulently and allocating to the strangers in contravention of the minister of lands allocation register.
b. At all the times the 2nd respondent has been discriminating the applicants and chasing the applicants from the adjudication office.
c. Despite several requests by the applicant to be heard by the 2nd respondent has continued to discriminate the applicants.
d. The action taken by the 2nd respondent of discriminations is motivated by malice and contempt of minister of lands allocation and breach of rules of natural justice”.
3. The applicants have also sworn a supporting affidavit where they have deponed that:
The land parcel no. Tutua/Rwrera/14 was allocated to their mother Zipporah Kanono M’Mungania and registered in the name of M’Mungania M’Marete, their father in trust in accordance to Kimeru custom by the minister of lands the late Jackson Angaine. The applicants also averred that the 2nd respondent in contravention of minister of lands allocation secretly and clandestinely by abuse of office subdivided land parcel No. Tutua/Rwarera/14 to one member of the family and strangers. They further stated that after the discovery of the fraudulent subdivisions, the applicants lodged a complaint to the 2nd respondent but they were chased away and the 2nd respondent didn’t take any action to revert the land No. Tutua/Rwarera/14 by cancellation of sub-division in the name of their father M’Mungania M’Marete. They also averred that despite several complaints and objection to the 2nd respondent, the 2nd respondent has neglected and/or failed to cancel the sub-division of their late father’s land parcel no. Tutua/Rwarera/14 at all and that 1st respondent failed and/or neglected his duty to advice the 2nd and 3rd respondents that the action taken by the 2nd respondent of subdivisions of the suit land was motivated by malice and breach of minister of lands allocation and renders the subdivisions null and void.
4. The application was served but no response was filed in opposition to the application.
5. A perusal of the application reveals that applicants are claiming their father’s land Tutua/Rwarera/14 and they desire to file limited grant of letters of administration ad litem.
6. Section 4 (1) (a) of the law of succession act provides that:
“Except as otherwise expressly provided in this Act or by any other written law—(a) succession to immovable property in Kenya of a deceased person shall be regulated by the law of Kenya……….”.
7. The law mentioned therein is the law of succession act. The applicants cannot by pass this step as the grant is what will give them a legal platform to step in their father’s shoes. Furthermore, no reasons have been advanced as to why they have not applied for the grant. There is no evidence of when death occurred yet they have an annexure, the letter form Chief dated 11. 7.2018 confirming the family members. It is even not clear whether the property is of their mother or their father.
8. The bottom line is that the applicants do not have locus standi to file the suit.
9. Further it is noted that the prayers sought are substantive in nature and should be applied for in a suit and not via a miscellaneous application.
10. The upshot of my finding is that this application has no merits and the same is dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 4TH DECEMBER, 2019 IN THE PRESENCE OF:-
C/A: Kananu
1st applicant
HON. LUCY. N. MBUGUA
ELC JUDGE