Fred Martin Simbili v Esterammbone Lusasi & another [2018] KEELC 4811 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Joinder of an interested party whose rights are affected by consent orders
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.
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.
Setting aside of a consent order procured without notice to an affected party
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.
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.
Status of the suit land as unadministered estate property
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.
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.
Legal principles established
#- 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
#- 1.An order enjoining the applicant as an interested party to this suit
- 2.The order of the court issued on 14th November 2017 and all other subsequent orders thereto be set aside
- 3.The costs of the application be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.