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ELCDismissedNotice of motion dated 2nd June 2015 (as amended 8th June 2015)· [2015] KEELC 135 (KLR)

Julius Waweru Maina v Land Registrar Nyeri & another [2015] KEELC 135 (KLR)

Environment and Land Court
21 October 2015
LWL N Waithaka
1,478 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to fix disputed land boundaries because some parcels belonged to dead people whose heirs were never included in the case.

What this practically means

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Executive summary

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The applicant, Julius Waweru Maina, moved the court by notice of motion seeking an order authorising the Land Registrar and County Surveyor, Nyeri, to determine and fix the actual boundaries between his parcels (Muhito/Mbiuni/1520, 1521 and 1522) and adjoining parcels (Muhito/Mbiuni/659, 660, 661, 961, 1520, 1521 and 1522), three of which are registered in the names of deceased persons whose estates have not been administered. He filed a letter from the Chief confirming the dispute and a receipt for the boundary-fixing fee, and explained that the Land Registrar had advised him to seek the order. The respondents opposed through grounds of opposition, contending that the orders would affect the proprietary interests of non-parties, that there was non-disclosure of material facts, and that the application offended Order 1 Rule 3 of the Civil Procedure Rules. The court framed a sole issue: whether orders could issue affecting persons neither party to nor represented in the application. Relying on Philip Mukwe Wasike v. James Lusweti Mukwe and Pashito Holdings v. Ndugu, the court applied the audi alteram partem principle, holding that the true parties affected were the beneficiaries of the deceased owners' estates, who ought to have been cited. Granting the orders would circumvent section 45 of the Law of Succession Act, which prohibits intermeddling with deceased persons' free property. The court found the application fatally defective, dismissed it, and gave no orders as to costs, advising the applicant to join the beneficiaries to take letters of administration.

Key legal issues

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Whether boundary-fixing orders can issue where they will affect parcels belonging to deceased persons whose estates have not been administered

Holding

The application was fatally defective; the orders would affect the beneficiaries of deceased persons' estates who were not joined or heard, so the orders could not issue.

Reasoning

The court found that although the application was expressed against the Land Registrar and County Surveyor, the orders would substantially affect the beneficiaries of the estates of deceased owners of parcels 659, 661 and 961. Section 45 of the Law of Succession Act prohibits intermeddling with free property of deceased persons absent a grant or express authority. Granting the orders would circumvent that prohibition and deny the beneficiaries a hearing. The correct course was to cite the beneficiaries.

p. 3
02

Application of the audi alteram partem rule to orders affecting non-parties

Holding

The rule of natural justice that one must hear the other side applies to persons whose interests will be affected by orders, even if not formally named as parties.

Reasoning

Relying on Philip Mukwe Wasike v. James Lusweti Mukwe & 2 others (Omondi J) and the Court of Appeal decision in Pashito Holdings v. Ndugu, the court adopted the principle that a party seeking orders against third parties must enjoin them so they may be heard. The court stated it totally associated itself with those principles and applied them to the applicant's failure to join the estate beneficiaries.

p. 3

Legal principles established

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  • Orders sought in an application that will affect the interests of persons who are not parties to the suit cannot issue, because of the rule of audi alteram partem
  • A party whose order affects unadministered estates of deceased persons must join the beneficiaries of those estates rather than proceed without representation

Court orders

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  1. 1.The application is dismissed with no orders as to costs

Authorities

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Legislation

  • Law of Succession Act, Cap 160 Laws of KenyaSection 45(1) and (2)
  • Civil Procedure RulesOrder 1 Rule 3
  • Probate and Administration RulesLetters of administration procedure

Cases cited (2)

  • Philip Mukwe Wasike v. James Lusweti Mukwe & 2 others
    (2013) eKLR
  • Pashito Holdings & another v. Ndugu & 2 others
Jurisdiction invoked
Inherent jurisdiction of the High Court/Environment and Land Court over land boundary disputes; Civil Procedure Rules (Order 1 Rule 3 raised by respondents)

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, "Julius Waweru Maina v Land Registrar Nyeri & another [2015] KEELC 135 (KLR)", Case Analysis (2015). Notice of motion dated 2nd June 2015 (as amended 8th June 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/135/eng@2015-10-21

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