Kizito Wekesa Sifuna v Florian Wamalwa, Francis Wafula, Peter Mulati & Titus Sitiraki Mukopi [2014] KEHC 4121 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

LAND AND ENVIRONMENT CASE NO. 23 OF 2014

KIZITO WEKESA SIFUNA ….................................................... APPLICANT

VERSUS

FLORIAN WAMALWA

FRANCIS WAFULA

PETER MULATI

TITUS SITIRAKI MUKOPI …........................................... RESPONDENTS

RULING

1.    KIZITO WEKESA SIFUNAhas filed an originating summons to bring  his  claim against the four respondents. Together with the O.S, he   filed    an application dated 6th February 2014 in which he sought  temporary orders of injunction to restrain the respondents from   utilizing land parcel no. W. Bukusu/S. Mateka/3066.  When the application came up for hearing inter partes, the respondents,  through their advocate  raised a preliminary point of law.  The preliminary objection is to the effect that the applicant herein lacks the locus standi to bring this suit.

2.    Both advocates submitted in favour of and against the point of law   on locus.  Mr. Wamalwa for the respondents avers that the suit parcel W. Bukusu/S. Mateka/3066 is registered in the name of Margutalin Nanjala Namachanja – deceased.  The applicant has not taken out    letters of administration in respect of the deceased estate as required by the law of succession before bringing this suit and is therefore   unqualified to do so.  Mr. Were for applicant submits that the provisions of Order 37 1 (a) and (b) of the Civil Procedure Rules do not make it mandatory to take out letters of grant before commencing a suit.  That the law provides for heirs to come to court by way of originating summons.  He submits further that the 4th respondent  currently building on the land is a stranger to the applicant and his    family.

3.    Under Order 37 (I) provides the category of people who can file suits to include;

i. Executors or administrators of a deceased person.

ii.    Trustees under any deed or instrument.

iii.   Any person claiming to be interested in the relief sought as

(a). Creditor

(b). Devisee

(c). legatee

(d)  Heir

(e). Legal representative of the deceased person.

(f).  Cestui que trust under the terms of any deed/instrument.

4.    The applicant is described as the grandson of the registered owner of the suit land.  The 1st – 3rd respondents are the applicant’s paternal   uncle as can be deduced from their replying affidavit. In my view    being a grandson  confers  the applicant title of a heir in the   family tree of Margutalin Nanjala Namachanja – deceased. He qualifies    under   Order 37 (1) of the rules to bring this suit as such as he is   interested in the reliefs sought as regards use of the suitland. If the drafters of the Order 37 were keen to state that only persons with    letter of grant would qualify to commence suit, they would have specifically said so, and not include both category of heir and legal    representative.  In subrule (i) referred to, heir is specifically mentioned as one of the persons permitted to commence a suit by an originating summons.

5.    In paragraph 7 of the replying affidavit, the 1 – 3 respondents admit the deceased estate is yet to be administered. In paragraph 14, the   1st  – 3rd respondents have denied selling the land to the 4th  respondent but depose they have only leased it to him. It is    interesting  the respondents feel they have capacity  to lease the    portion of the land in dispute but which capacity they submit the applicant   lacks. In the case of Heptulla vs. Noor Mohammed [1984] KLR 580 at holding no.  4the court of appeal    said,

“No court ought to enforce an illegal contract where the illegality is brought to its notice and the person invoking  the  aid of the court is himself implicated in the  illegality.”

I find that the applicant has brought to the notice of the court the property of the deceased is being disposed of before letters of administration of the estate are taken out and which illegality this court cannot ignore. I also find the applicant as the grandson is a heir to that estate and he falls within the category of people order 37 of   Civil Procedure Rules refers to.  The preliminary point of law raised is lacking in merit and I do hereby dismiss it with costs.

DATED, SIGNED and Delivered in Bungoma this 8th   day of   July 2014

A. OMOLLO

JUDGE.