Ashon Sikolia Wanyonyi & 2 others; Benjamin Barasa Wafula & 4 others (Interested Parties) v National Chief Land Registrar & 56 others [2019] KEELC 5016 (KLR)
The bottom line
#A Busia land court allowed a group challenge partly, striking out a defective amended plaint but refusing orders that would decide land ownership or distribute a dead relative's estate.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the 1st applicant
The 1st applicant has capacity under Article 22(2)(b) to bring the application on behalf of his co-applicants
Article 22(2) permits proceedings to be instituted by a person acting as a member of or in the interest of a group or class of persons. The 1st applicant brought the application for himself and named co-applicants who are parties to the suit, so he falls within Article 22(2)(b) provided he has their authority.
Locus standi of the 1st-3rd plaintiffs given deceased signatories to the 2012 consent
The prayer that the 1st and 2nd plaintiffs lack locus standi fails because they hold a certificate of confirmation of grant appointing them administrators of the estate of Reuben Wanyonyi, the registered owner of Ndivisi/Muchi/1245
Although four signatories to the consent were deceased and unchallenged, the 1st and 2nd plaintiffs may claim as legal representatives of Reuben Wanyonyi. The claim on behalf of other deceased parties would fail absent letters of administration, but the applicants have revived those claims by coming on board for the respective estates.
Which amended plaint should remain on record
The further amended plaint of 3rd July 2019 is struck out for joining 3rd-5th plaintiffs without leave
The plaint added Eddy Wandela Tela, Kisaka Mwongolo and David Kiberenge as 3rd-5th plaintiffs without seeking leave of the court or consent of the other parties, contravening the Civil Procedure Rules. The applicants, joined by court order, must be included as plaintiffs in any joint amended plaint.
Legal principles established
#- A suit commenced through a consent signed partly by deceased persons does not fail where a plaintiff has an independent right to sue as legal representative of a deceased registered owner
- An amended plaint joining new parties without leave of the court or consent of other parties contravenes the Civil Procedure Rules and is liable to be struck out
- A person may institute proceedings on behalf of a group or class of persons under Article 22(2)(b) of the Constitution if given authority by co-applicants
Court orders
#- 1.Prayers 2A, 3A and 4A of the amended notice of motion dated 2nd October 2019 dismissed
- 2.Prayer 1A partially allowed to the extent that the amended plaint filed in court on 3rd July 2019 is struck out
- 3.Prayer 1B granted as prayed
- 4.All plaintiffs granted 14 days to file a joint amended plaint; in default the amended plaint filed on 25th September 2018 shall stand with the applicants included as plaintiffs
- 5.Applicants at liberty to bring a separate suit if parties cannot agree
- 6.Costs of the application to abide the outcome of the main suit
- Jurisdiction invoked
- Articles 22(1), 22(2) and 50(1) of the Constitution; Civil Procedure Act Cap 21 and Civil Procedure Rules (Orders 1, 8, 9, 22, 27)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ashon Sikolia Wanyonyi & 2 others; Benjamin Barasa Wafula & 4 others (Interested Parties) v National Chief Land Registrar & 56 others [2019] KEELC 5016 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5016/eng@2019-11-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.