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ELCPartially AllowedNot stated in the excerpt· [2018] KEELC 1637 (KLR)

Catherine Wangari Muraguri & another v Monica Katunge Kasinga [2018] KEELC 1637 (KLR)

Environment and Land Court (High Court)
19 July 2018
EOE. O. Obaga
643 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court ruled that a family estate can keep fighting a land caveat by simply adding the new registered owner as a party.

What this practically means

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Executive summary

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This ruling by E. O. Obaga J decided a preliminary objection dated 1st March 2017 and a notice of motion dated 21st March 2017. The plaintiffs, administratrix of the estate of the late Irene Wanjiru Muraguri, had sued seeking among other things removal of a caveat registered by the defendant over the suit property. During the pendency of the suit, the plaintiffs removed the caution and had the property registered in the name of Esther Njambi Muraguri, the beneficiary to whom it had been distributed in High Court Succession Cause No. 2691 of 2009. The defendant then objected that the plaintiffs lacked locus standi to litigate over property registered in the name of a person capable of litigating for herself, seeking striking out of the plaintiffs' notice of motion of 25th September 2015 and the entire suit. The plaintiffs sought leave to amend the plaint to join the registered owner as a third plaintiff. The court held that the preliminary objection could not be sustained in view of the proposed amendments, since a court should not entertain a preliminary objection whose sole aim is to delay resolution of the real issues, and disallowed it under the overriding objective in sections 1A and 1B of the Civil Procedure Act. The amendment application was allowed because the intended third plaintiff is the registered owner and her presence is necessary, with no prejudice shown to the defendant. The amended plaint was to be filed within 14 days, and costs of both the objection and the application were made costs in the cause.

Key legal issues

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01

Locus standi of administratrix after suit property vests in a beneficiary

Holding

The preliminary objection on locus standi was disallowed in light of the proposed amendment bringing in the registered owner

Reasoning

The defendant conceded the plaintiffs had locus standi at filing but argued it was lost upon registration of the property in the proposed third plaintiff's name. The court held that allowing the objection would only delay the real issues, and in view of the intended amendment and the overriding objective under sections 1A and 1B of the Civil Procedure Act, the objection could not be sustained.

p. 2
02

Joinder of the registered owner and amendment of the plaint

Holding

Amendment allowed; the registered owner's presence in the suit is necessary

Reasoning

The person sought to be joined is now the registered owner of the suit property, making her presence necessary. The matter stems from a succession dispute and the administratrix's input would assist the court. No prejudice to the defendant was demonstrated, so the amendment was freely allowed under the established principles.

p. 2

Legal principles established

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  • Preliminary objections whose sole aim is to delay determination of the real issues in controversy should not be allowed
  • Amendments to pleadings should be freely allowed unless they will prejudice the other party

Court orders

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  1. 1.Preliminary objection dated 1st March 2017 disallowed
  2. 2.Application for amendment of the plaint allowed
  3. 3.Amended plaint to be filed within 14 days; other pleadings to be filed in accordance with the rules
  4. 4.Costs of the disallowed preliminary objection and of the application to be costs in the cause

Authorities

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Legislation

  • Civil Procedure Actsections 1A and 1B
Jurisdiction invoked
Civil Procedure Act, sections 1A and 1B (overriding objective)

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, "Catherine Wangari Muraguri & another v Monica Katunge Kasinga [2018] KEELC 1637 (KLR)", Case Analysis (2018). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1637/eng@2018-07-19

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