[2018] KEELC 2111 (KLR)
The court found that the plaintiff's claim was not against the estate of the deceased but was directed at the defendant in her personal capacity for alleged encroachment on land. Therefore, the requirement for letters of administration did not arise, as the cause of action was not related to the estate. The...
Source-derived case information.
- Citation
- [2018] KEELC 2111 (KLR)
- Parties
- Plaintiff: Suiyanka Mayune; Defendant: Elizabeth K. Esho
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 121 of 2017
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- MN Kullow
- Legal Topics
- Capacity to Sue, Boundary Disputes, Preliminary Objection, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Suiyanka Mayune
Plaintiff
Elizabeth K. Esho
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the defendant, not having taken out letters of administration for her late husband's estate, lacks capacity to be sued in this matter.
- 2 Whether the preliminary objection raised by the defendant fundamentally settles the issues between the parties without the need for evidence.
Ratio Decidendi
The court found that the plaintiff's claim was not against the estate of the deceased but was directed at the defendant in her personal capacity for alleged encroachment on land. Therefore, the requirement for letters of administration did not arise, as the cause of action was not related to the estate. The preliminary objection, being based on the defendant's alleged lack of capacity due to not having taken out letters of administration, did not meet the threshold for a preliminary objection as it did not fundamentally settle the dispute or dispose of the suit. The objection was therefore dismissed as unmerited.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- Costs in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT
AT NAROK
ELC SUIT NO. 121 OF 2017
FORMELRY NAKURU ELC NO. 152 OF 2015
SUIYANKA MAYUNE........................................PLAINTIFF
-VERSUS-
ELIZABETH K. ESHO...................................DEFENDANT
RULING
The Defendant in the suit raised a Preliminary Objection on point of law to the effect that the Defendant is incapable of being sued for lack of capacity and that the suit herein is an abuse of the court process.
The Defendant contends that she is the widow of one Retati Ole Esho and that she was sued without her taking out letters of administration for the estate of her late husband.
The Plaintiff contends that she has no interest in the estate of the deceased and that the Notice of Preliminary Objection can’t qualify as one.
I have read the Preliminary Objection and heard the submissions by counsel. From the onset it is worth noting that this is a dispute over a boundary between two neighbouring widows. The Plaintiff contends that the Defendant has encroached on her land and it’s the Defendant’s objection that she can’t be sued since she has not taken out any letter of administration for the estate of her late husband.
It is my view that a Preliminary Objection on a point of law should be a point that will fundamentally settle the issues between the parties without the taking of evidence. In the instant suit the Defendant has raised a Preliminary Objection on point of law on the ground that she lacks capacity to be sued.
A look at the pleadings in the matter will point out that the Plaintiff in bringing the suit herein has not sued the Defendant in pursuant of the estate of her late husband but in respect of a cause of action that is directly attributable to her individual capacity in respect of encroachment of the Plaintiff’s land. The Plaintiff has no claim whatsoever in the estate of the deceased and I thus find that the Preliminary Objection does not qualify and does not meet the threshold for the same to conclusively settle the matter.
From the foregoing I find that the Preliminary Objection is not merited and I dismiss the same. Costs in the cause.
DATED, SIGNED and DELIVERED in open court at NAROK on this 31ST day of JULY, 2018.
Mohamed N. Kullow
Judge
31/7/18
In the presence of:
Mr Kambo holding brief for Nchoe for the Respondent
N/A for the applicant
CA:Chuma
Mohamed N. Kullow
Judge
31/7/18