[2004] KEHC 2553 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL CASE NO. 156 OF 2003

TITUS KIRAGO………………….………………………………..….1ST PLAINTIFF

SUSAN W. KIRAGU………………………………………………….2ND PLAINTIFF

VERSUS

KIORIAH NJOKA………….……….………………………………1ST DEFENDANT

ESTHER WAGIKONDI NJOKA…..………………………….….2ND DEFENDANT

RULING

This is a ruling on a preliminary objection dated 13th October, 2003.

The plaintiffs commenced this suit against the defendants as the son and widow

respectively of the late Njoka wa Kioriah who died on 11th October, 2002. Subsequent to

the filing of the said suit, the second Defendant also passed away on 1st April, 2004.

The suit was based on an agreement made on 8th May, 2000 between the Plaintiff and the

late Njoka aforesaid for purchase of 50 acres as a portion ofL.R. NO. 10317/14 at a

consideration of Kshs.1 million.

The Plaintiffs purchased another portion of 50 acres and paid an additional

Kshs.1,050,000/-.

The plaintiffs obtained the Land Control Board consent for the said transaction on

20/8/2002 but the late Njoka died before he transferred the land to the plaintiffs.

However, the parties had agreed that the purchasers could take possession of the

purchased portion before its transfer and the land was sub-divided and according to the

plaintiffs, on or around August, 2002 the late Njoka sent the first defendant (now

deceased) to show the first Plaintiff the specific portion which was to be transferred to the

plaintiffs. On or around 9/9/2003 the plaintiffs sent their employee to plough and harrow

the land in preparation for planting but he was denied access to the land by the

Defendants. The plaintiffs were aggrieved by that action and sought an order of

injunction to restrain the defendants from occupying, entering, taking

possession, ploughing or using the specific portion of land in any manner pending the

hearing and determination of the suit.

The preliminary objection was two fold:- (i) that the second Defendant had, since her

demise, not been substituted and (ii) that the first Defendant had no capacity to be sued as

he was not the legal administrator of the estate of the late Njoka wa Kioriah (his deceased

father) who had entered into the sale agreement with the plaintiffs. The plaintiffs’ suit

was therefore said to have been filed prematurely before Letters of Administration had

been obtained. The court was therefore urged to strike out the suit as being incompetent.

Miss Mathenge for the plaintiffs opposed the preliminary objection saying that the

plaintiffs sued the defendants not because of the acts of the late Njoka but because they

prevented the plaintiffs from entering the land. She further submitted that since the

defendants were not the administrators of the late Njoka Kioriah, they had no capacity to

block the plaintiffs from moving into the land which they bought. With regard to the

demise of the second defendant, counsel indicated that the plaintiffs did not wish to

proceed with the case against her.

It is not in dispute that the property known asL.R. NO. 10317/14 was registered in the

name of Njoka wa Kioriah, deceased. It is also not in dispute that he had entered into a

sale agreement with the plaintiffs for sale of a portion thereof. The said Mr. Njoka

passed away before the plaintiffs took possession of the portion of land which they had

paid for and before it was formally transferred to them. The plaintiffs could therefore not

sue the defendants before they had applied and obtained grant of representation.

The plaintiffs also had no right to enter or take possession of any portion of the

deceased’s parcel of land even if they had paid for it in his life time. They could,

however, secure their interest by lodging a caveat in any registry as prescribed by Rule 15

of the Probate and Administration Rules so as to ensure that they received notice of any

application for the making of the grant of representation to the estate of the deceased.

They could alternatively commence citation proceedings against any person who would

himself be entitled to a grant of representation.

Section 45(1) of Cap 160 states that:-

“Except so far as expressly authorised by this Act, or by any other

written law, or by a grant of representation under this Act, no person

shall, for any purpose, take possession or dispose of, or otherwise

intermeddle with, any free property of a deceased person”.

And “free property” in relation to a deceased person means:-

“the property of which that person was legally competent freely to

dispose during his life time, and in respect of which his interest has not

been terminated by his death.”

That definition definitely includes that parcel of land which belonged to the deceased but

which he intended to transfer to the plaintiffs but he died before transferring it.

I therefore uphold the preliminary objection and consequently I strike out the plaintiffs’

suit as being incompetent and award the costs of the suit to the first defendant.

DATED, SIGNED & DELIVERED at Nakuru this 16th day of December, 2004.

DANIEL MUSINGA

JUDGE

16/12/2004