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ELCStruck OutCivil Suit 32 of 2021

Amala (Suing As Personal Representative of Joseph Amala Okuthe - Deceased) v Ochar & 4 others

Environment and Land Court
29 November 2023
2,199 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land suit because the family suing a deceased man's estate had no letters of administration when they filed the case.

What this practically means

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Executive summary

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This ruling by GMA Ongondo J of the Environment and Land Court at Homa Bay determined a preliminary objection by the 1st and 2nd defendants that the plaintiff lacked locus standi to prosecute a land suit as personal representative of the deceased original plaintiff, Joseph Amala Okuthe, without first obtaining letters of administration. The deceased had instituted the suit in 2013 seeking injunction and declarations concerning land parcel Kabuoch/K/K/Karita/548; after his death in 2018, the plaintiff was substituted and the plaint amended, but no grant ad litem was obtained until 1st August 2023, after the preliminary objection was filed. The court applied Mukisa Biscuits on the nature of preliminary objections, Section 80(2) and Section 82(a) of the Law of Succession Act, and Virginia Edith Wamboi Otieno, holding that a grant takes effect only from its date and that the doctrine of relation back does not apply to intestacy, rendering the suit incompetent at inception. The court rejected the plaintiff's plea that his former counsel's failure to obtain a grant should not be visited on him, adopting Dilpack Kenya Ltd v Kitonyi that mere inaction by an advocate is not an excusable mistake, and held the defect substantive and not curable under Article 159(2)(d). The preliminary objection was upheld, the suit as constituted by the amended plaint of 15th February 2022 was struck out with costs to the 1st and 2nd defendants, and all consequential orders were vacated.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiff lacked locus standi to prosecute the suit without first obtaining a grant of letters of administration to the estate of the deceased
  2. 2.Whether the limited grant ad litem obtained after filing the suit can cure the defect
  3. 3.Whether the mistake of counsel should be visited on the litigant
  4. 4.Whether the preliminary objection is merited

Key legal issues

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01

Locus standi of a plaintiff suing as personal representative without a grant

Holding

The suit is incompetent at inception where the plaintiff had no grant when filing; a grant obtained later cannot cure the defect

Reasoning

Relying on Section 80(2) of the Law of Succession Act and Virginia Edith Wamboi Otieno, the court held that an administrator can do nothing before letters of administration are granted. The doctrine of relation back cannot render a suit filed before the grant competent. The grant here was also obtained over five years after death and only after the preliminary objection was filed.

p. 4
02

Whether the mistake of counsel should be visited on the litigant

Holding

No - mere inaction by counsel is not a mistake excusable in law

Reasoning

The court adopted Dilpack Kenya Ltd v Kitonyi, quoting Berber Alibhai Mawji, that inaction by an advocate as opposed to an error of judgment or slip is not excusable. The previous counsel's failure to apply for a grant ad litem was inaction, not a curable mistake, so the plaintiff could not benefit from Article 159(2)(d).

p. 5

Legal principles established

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  • A litigant suing as personal representative of a deceased's estate must hold a grant of letters of administration at the date of filing; a later grant cannot validate the suit
  • A defect in locus standi of a plaintiff suing without a grant is substantive and not curable under Article 159(2)(d)

Court orders

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  1. 1.The 1st and 2nd defendants' Preliminary Objection dated 30th May 2023 is merited
  2. 2.The plaintiff's suit instituted by way of an amended plaint dated 15th February 2022 is struck out
  3. 3.Costs to the 1st and 2nd defendants
  4. 4.All consequential orders attendant thereto vacated

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes

Relief refused

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Plaintiff's prayer to be allowed to prosecute the suit despite late grant

Grant takes effect only from date of grant; doctrine of relation back does not apply to intestacy

p. 4

Costs

Costs of the suit to the 1st and 2nd defendants

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the grant of letters of administration ad litem issued to the plaintiff on 1st August 2023 cannot validate the plaintiff's amended plaint dated 15th February 2022. The doctrine of relation back does not apply to intestacy. Therefore, the suit is incompetent.
p. 4Effect of late grant on suit filed without representation
it is my considered view that the defect herein is a substantive one. The same is not curable by dint of Article 159 (2) (d) of the Constitution (supra).
p. 5Substantive defect not curable under Article 159(2)(d)
the plaintiff's suit instituted by way of an amended plaint dated 15th February 2022 is hereby struck out with costs to the 1st and 2nd defendants. All the consequential orders attendant to are hereby vacated.
Final orders

Issues in the judgment

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minor

Header shows Migori ELC Civil Suit No. 95 of 2017 while the cause is styled Civil Suit 32 of 2021 at Homa Bay

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Amala (Suing As Personal Representative of Joseph Amala Okuthe - Deceased) v Ochar & 4 others", Case Analysis (2023). Civil Suit 32 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21809/eng@2023-11-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.