Forino & another (Suing as the Administrators of the Estate of Giovanni Forino - Deceased) v Forino & 4 others (Civil Case 9 of 2019) [2024] KEHC 12221 (KLR) (9 October 2024) (Ruling)
Neutral citation:
[2024] KEHC 12221 (KLR)
Republic of Kenya
Civil Case 9 of 2019
SM Githinji, J
October 9, 2024
Between
Michelina Forino
1st Applicant
Salvatore Forino
2nd Applicant
Suing as the Administrators of the Estate of Giovanni Forino - Deceased
and
Alfonso Forino
1st Defendant
Lazarus Kimanga
2nd Defendant
Parker Randall-East Africa Limited
3rd Defendant
Registrar of Companies
4th Defendant
Gi-Fo Limited
5th Defendant
Ruling
1.For determination is the Notice of Motion dated 30th April 2024 brought pursuant to Order 2 Rule 15 (1) (b) (c) and (d) and (3) of the Civil Procedure 2010, Section 1A, 1B, 3A and 5 the Civil Procedure Act seeking the following orders;1.That this honourable court be pleased to strike out the Plaintiff’s Suit.2.That the costs of the application be provided for.
2.The Application is founded on the grounds on its face and the supporting affidavit of Alfonso Forino the 1st Defendant/Applicant who deponed that vide the summons dated 21st June 2019, the Plaintiffs vide Malindi High Court P& A Cause No. 3 of 2019 sought the following orders;1.That the Summons and Petition filed herewith be certified urgent and admitted for hearing ex parte.2.That letters of administration ad colligenda bona defuncti for the administration of the Estate of Giovanni Forino(deceased) do issue to the Applicants/Petitioners Michelina Forinoand Salvatore Forino.3.That the grant of letters of administration ad colligenda bona defuncti do permit the Applicants/Petitioners to take over all litigation and legal processes initiated by the Deceased Giovanni Forinofor the benefit of the deceased’s estate.4.That the grant of letters of administration ad colligenda bona defuncti do permit the Applicants/Petitioners to engage the Registrar of Companies to enquire into the irregular share transfers in the company known as GIO-FO Limited for the benefit of the deceased’s estate and were found necessary to cause rectification of the register of the Company at the Companies Registry.5.That costs be provided for out of the Estate of the deceased.
3.He stated that the grant of Letters of Administration ad colligenda bona of the estate of the deceased was issued to the Plaintiffs by Hon Justice Rueben Nyakundi on 26th June 2019. That the Plaintiffs filed this suit on 18th September 2019 as administrators’ ad colligenda bona defuncti of the estate of the deceased and not in their personal capacities. He added that limited grant of letters of administration ad colligenda bona defuncti are for purposes of collecting and preservation of the estate and do not enable the representative of the estate to sue on behalf of the estate or defend a suit where the estate has been sued.
4.It was stated that on 3rd June 2020, Hon. Justice Rueben Nyakundi in his ruling in the Succession cause directed Gioia Anna to apply for the grant of Letters of Administration in the estate of the deceased which orders have not been reviewed or appealed against and no letters of administration ad litem have been issued to the Plaintiffs by this honourable court or any other court in relation to the estate of the deceased.
5.In response, the Plaintiffs filed a replying affidavit sworn by Michelina Forino the 1st Plaintiff. He stated that on 26th June 2019, letters of administration ad colligenda were issued to the Plaintiffs. That acting on the powers conferred to them by the said letters of administration ad colligenda, the Plaintiffs instituted this matter by way of originating summons seeking several orders including a preservation order restraining the Defendants from transferring the shares of the 5th Defendant. It was further stated that the 1st and 5th Defendants opposed the originating summons by way of a replying affidavit and a P.O, which P.O challenged the Plaintiffs’ locus standi. It was additionally stated that the P.O was dismissed vide the ruling dated 27th May 2020 and letters of administration ad colligenda bona issued thus the instant Application is Res Judicata.
Analysis and Determination
6.The Application was disposed of by way of written submissions. I have carefully considered the detailed submissions by the parties as well as the authorities relied upon. Arising for determination are two issues;1.Whether the Plaintiffs have locus standi in this suit2.Whether the Application is Res Judicata
7.The term “Locus Standi” connotes the right of a party to bring an action. It seeks to determine whether a party is entitled in law to bring up an action or is properly before the court. There are many decisions on the subject from the Courts and to quote the decision in the case of Michael Osudwa Sakwa v Chief Justice and President Supreme Court of Kenya & Another. [2016] eKLR which referred to the matter of Ms Priscilla Nyokabi Kanyua v Attorney General & I.E.B.C, Nairobi H.C CP NO. 1/2010 it was stated that: -
8.Such interest must be vested legal interest giving the party a right to enforce the claim by way of a lawsuit. It follows that for a party to have a locus standi he must have a vested interest in the subject matter before court. “Locus Standi” is point of law that touches on a party’s interest in the matter before the court. In the Law Society of Kenya –v Commissioner of Land & Others, Nakuru H.CCC No.464/2000 the court stated that, “Locus Standi’ signifies a right to be heard. A person must have sufficiency of interest to sustain his standing to sue in Court of Law.”
9.Section 67 (1) of the Law of Succession Act provides as follows;(1)No grant of representation, other than a limited grant for collection and preservation of assets, shall be made until there has been published notice of the application for such grant, inviting objections thereto to be made known to the court within a specified period of not less than thirty days from the date of publication, and the period so specified has expired.(2)A notice under subsection (1) shall be exhibited conspicuously in the court-house, and also published in such other manner as the court directs.
10.Rule 36 (1) of the Probate and Administration Rules, 1980 is instructive and it provides as follows:
12.In Hawo Shanko v Mohamed UTA Shanko [2018] eKLR the Court observed as follows:
13.The Court of Appeal in Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama [2014] eKLR,addressed itself on the issue of locus standi in succession matters as follows:
14.In /Julian Adoyo Ongunga & Another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased) [2016] eKLR the Court stated as follows as relates to the fate of succession claims filed by parties that lack locus standi:
15.A cursory glance at the ruling by my brother Hon. Justice Nyakundi, he observed at page 31 that;
16.From the above citation, it is clear that the letters of administration ad colligenda bona defuncti were for the purposes of preservation of the estate of the deceased. Any suit or issues arising from the estate of the deceased can only be prosecuted or defended by the legal administrators of the estate as afore discussed in the authorities above. As a result, it is my finding that the Plaintiffs lack the locus standi to institute or prosecute the instant suit.
17.As regards the issue of res judicata, having determined the issue of locus standi, it is my view that it serves no purpose to determine the same.
18.In the end, I find that the Application is merited and the suit is hereby struck out. This being a succession matter and between families, each party shall bear its own costs.
RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 9TH DAY OF OCTOBER, 2024....................................S.M. GITHINJIJUDGEIn the Presence of; -1. Ms Lutto for the 2nd and 3rd Respondents2. Mr Binyenya for the 1st and 5th Respondents