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ELCPartially AllowedNot stated in the judgment· [2018] KEELC 4811 (KLR)

Fred Martin Simbili v Esterammbone Lusasi & another [2018] KEELC 4811 (KLR)

Environment and Land Court of Kenya
25 January 2018
3,847 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a land deal order made behind a widow's back, ruling no one can bypass unadministered estate land or deny affected family members a hearing.

What this practically means

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Executive summary

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This was a Notice of Motion dated 7th December 2017 brought by Eunice Moraa Lusasi under sections 3, 3A and 80 of the Civil Procedure Act and Order 1 Rule 10 and Order 45 Rule 1 of the Civil Procedure Rules, seeking to be enjoined as an interested party in a land suit over parcel No. 51 Shaviringa Settlement Scheme, to be reinstated on the land, and to set aside a consent order issued on 14th November 2017. The applicant, the second widow of the late Samwel Lusasi Mengesa, alleged the plaintiff had conspired with the defendant (the first widow and administrator of the estate) to fraudulently obtain the consent order to evict her and her family, whose houses were demolished on 5th December 2017. She asserted the suit land was allocated to her house by the deceased and remained estate property subject to succession; she also disputed the sale agreement as a forgery. The plaintiff maintained he purchased the land from the deceased, occupied and developed it for ten years, and that the applicant had alternative land at Senende plus additional allocation from ancestral land. The defendant confirmed the sale and the allocations to the applicant. The court found the suit property remained unadministered estate property, that the applicant and her family resided on the land before eviction, and that the consent order was obtained without service on or participation of the applicant while material facts were concealed. Applying natural justice, the court allowed the application in part: it enjoined the applicant as an interested party, set aside the consent order of 14th November 2017 and subsequent orders, with the suit to be determined afresh on merits, and ordered costs of the application to be in the cause. Judgment was delivered at Kakamega on 25th January 2018 by N.A. Matheka J.

Key legal issues

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01

Joinder of an interested party whose rights are affected by consent orders

Holding

The applicant, whose family resided on and depended on the suit land and who was adversely affected by the consent order, was properly enjoined as an interested party.

Reasoning

The court found as fact that the suit property remained the estate of the deceased subject to succession, that the applicant and her family resided on the land prior to eviction under the consent order, and that the consent orders adversely affected her. Natural justice required she be heard, so joinder under Order 1 Rule 10 was warranted.

p. 5
02

Setting aside of a consent order procured without notice to an affected party

Holding

The consent order of 14th November 2017 and subsequent orders were set aside because the applicant was never served or involved, and material facts were concealed from the court.

Reasoning

The Notice of Motion leading to the consent order purported to indicate service on the applicant as an interested party, yet she was never served nor involved in the consent. The plaintiff and defendant also concealed that the land was estate property subject to succession. Review under section 80 and Order 45 was therefore justified.

p. 5
03

Status of the suit land as unadministered estate property

Holding

It was not disputed that the suit property remained the estate of the deceased and was subject to succession, so no party could transact on it without complete succession.

Reasoning

Both the facts of ongoing succession proceedings (Hamisi Succession Cause No. 2 of 2017) and the prior dismissal of the citation cause showed the estate had not been fully administered. The court held the land remained estate property and that transactions over it required completion of succession.

p. 5

Legal principles established

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  • A party adversely affected by consent orders obtained without her participation ought to be enjoined to the suit in keeping with natural justice, and the suit determined afresh on merits.

Court orders

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  1. 1.An order enjoining the applicant as an interested party to this suit
  2. 2.The order of the court issued on 14th November 2017 and all other subsequent orders thereto be set aside
  3. 3.The costs of the application be in the cause

Authorities

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Legislation

  • Civil Procedure Actsection 3
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 80
  • Civil Procedure RulesOrder 1 Rule 10
  • Civil Procedure RulesOrder 45 Rule 1
Jurisdiction invoked
Sections 3, 3A and 80 of the Civil Procedure Act; Order 1 Rule 10 and Order 45 Rule 1 of the Civil Procedure Rules

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, "Fred Martin Simbili v Esterammbone Lusasi & another [2018] KEELC 4811 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4811/eng@2018-01-25

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