Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2019] KEELC 1436 (KLR)

Simon Ngigi v Hannah Gathoni Gichuri; David Nganga (Intended Interested Party) [2019] KEELC 1436 (KLR)

High Court of Kenya (Environment and Land Division)
18 September 2019
1,080 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to let a man join an already-concluded land case, telling him to raise his inheritance concerns in the succession cause instead.

What this practically means

#

Executive summary

#
This is a ruling on a notice of motion dated 22nd June 2016 by David Ng'ang'a, the son of the late Ndinguri Karugia, seeking to join land proceedings concerning LR No. 7340/59 IR 7042/1 (now LR No. 28641 IR 152216) as an interested party under Order 1 rule 10(2) of the Civil Procedure Rules. He alleged that the defendant, his sister-in-law, fraudulently obtained a grant of letters of administration over the estate of his late father in Succession Cause No. 224 of 2006, and that a consent adopted on 9th June 2016 was designed to defeat his interests and facilitate removal of a caution on the suit property. The plaintiffs opposed, arguing the suit had been concluded by the consent judgment; that the applicant was not party to it; that the court lacked jurisdiction over succession matters, which belong to the family division; and that the court had become functus officio. Relying on Raila Odinga & Others v IEBC & Others [2013] eKLR, L. Komingoi, J held that upon adopting the consent on 9th June 2016 the court became functus officio, that the application had been overtaken by events, and that the applicant was at liberty to pursue appropriate orders in Succession Cause No. 224 of 2006, the forum seized of inheritance matters. The application was dismissed with no orders as to costs. Despite an internal slip finding 'merit' in the application, the operative order was dismissal.

Key legal issues

#
01

Whether the intended interested party should be joined to proceedings already concluded by consent

Holding

The application was dismissed because the suit had been concluded by a consent judgment adopted on 9th June 2016, rendering the court functus officio and unable to admit a new party or adjudicate the applicant's grievances.

Reasoning

The court reviewed the record and found the consent dated 17th March 2016 between all parties' advocates was adopted on 9th June 2016, before the applicant was a party. The applicant was already participating in Succession Cause No. 224 of 2006, the appropriate forum for his inheritance grievances. Following Raila Odinga & Others v IEBC, the court held it was functus officio and the application had been overtaken by events.

p. 2
02

Whether the court had jurisdiction to determine the applicant's succession-related grievances

Holding

The court lacked jurisdiction; matters of succession can only be handled by the family division, where the applicant was already an active participant.

Reasoning

Counsel for the plaintiff invoked Owners of Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Ltd on jurisdiction. The applicant's grievances concerned fraudulent procurement of a grant of letters of administration in Succession Cause No. 224 of 2006, which the family court was already seized of. The court agreed the applicant should ventilate his issues in that cause.

p. 2

Legal principles established

#
  • A court becomes functus officio upon adopting a consent as an order of the court and cannot thereafter entertain applications to join parties to the concluded suit
  • Matters of succession and inheritance are within the exclusive jurisdiction of the family court
  • Under Order 1 rule 10(2), a person whose presence is necessary to enable the court effectually and completely to adjudicate upon all questions in the suit may be added at any stage of the proceedings

Court orders

#
  1. 1.The notice of motion dated 22nd June 2016 is dismissed
  2. 2.No orders as to costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 1 rule 10(2)
  • Civil Procedure RulesOrder 51 rules 1 and 13
  • Civil Procedure RulesOrder 22 rule 52
  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Constitution of KenyaArticles 10, 20, 25, 159 and 259

Cases cited (3)

  • Omunde Kokore vs The Town Clerk & Others
    Kisumu HCCC No. 834 of 2005
  • Owners of Motor Vessel "Lilian S" –vs- Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Raila Odinga & Others vs IEBC & Others
    [2013] eKLR
Jurisdiction invoked
Order 1 rule 10(2), Order 51 rules 1 and 13, Order 22 rule 52 of the Civil Procedure Rules; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Simon Ngigi v Hannah Gathoni Gichuri; David Nganga (Intended Interested Party) [2019] KEELC 1436 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1436/eng@2019-09-18

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