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ELCAllowedNot stated in the judgment (originating summons dated 9/12/1999)· [2021] KEELC 1951 (KLR)

Josephat Thuo Githachuri v James Gaitho Kibue & another; Gladys Nduta Mbugua (Interested Party) [2021] KEELC 1951 (KLR)

Environment and Land Court
22 September 2021
BEB M Eboso
4,673 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court set aside a 2007 land judgment because a deceased co-owner's estate was never told about the case.

What this practically means

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Executive summary

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Mbugua Kibui was one of three sibling co-proprietors of Dagoretti/Ruthimitu/263 (8.4 acres) inherited from their father in 1982. He died on 14/10/1995. In December 1999 the plaintiff took out an originating summons for one acre by adverse possession against the two surviving proprietors, and Rawal J granted him the acre ex parte on 5/10/2007. In 2013 Gladys Nduta Mbugua obtained letters of administration over Mbugua Kibui's estate, and by notice of motion dated 14/2/2019 sought joinder of the estate and setting aside of the 2007 judgment, contending the estate was a necessary party that had been condemned unheard. The plaintiff opposed, arguing that Mbugua Kibui's interest had been extinguished on death by the right of survivorship under a joint tenancy. B M Eboso J framed two issues. On the first, the court found the parcel register silent on the nature of proprietorship; following the Court of Appeal's five-judge decision in Mukazitoni Josephine, joint tenancy was presumed where the register is silent, but the presumption is rebuttable. Uncontroverted evidence of distinct occupation and exclusive ownership rebutted the presumption, establishing proprietorship-in-common under which the deceased's share fell into his estate; the estate was thus a necessary party. On the second issue, Order 1 rule 10(2) permits post-judgment joinder, and the sacrosanct right to be heard warranted setting aside a judgment entered behind a party's back. The court joined the applicant as administrator, set aside the 5/10/2007 judgment, directed service and a response within 14 days, and ordered the file returned to Milimani ELC.

Key legal issues

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01

Whether the estate of a deceased co-proprietor was a necessary party to an adverse-possession suit against the surviving co-proprietors

Holding

Yes. The estate rebutted the presumption of joint tenancy and demonstrated tenancy-in-common, so the estate's interest required it to be joined.

Reasoning

The parcel register under the repealed Registered Land Act did not indicate joint or common proprietorship. The Court of Appeal in Mukazitoni Josephine held that absent specification, joint tenancy is presumed, but the presumption is rebuttable. Uncontroverted evidence of distinct occupation and exclusive ownership by each sibling showed the four unities were broken, establishing proprietorship-in-common. Under s.103(1) of the repealed Act, a deceased proprietor-in-common's share falls into his estate, making it a necessary party.

p. 5
02

Whether the ex parte judgment could be set aside and the estate joined post-judgment

Holding

Yes. The right to be heard is sacrosanct; judgment procured behind a party's back will be set aside, and joinder is exercisable post-judgment.

Reasoning

Order 1 rule 10(2) permits joinder at any stage, and authorities confirm the jurisdiction applies post-judgment. The estate was not served and was unaware of the proceedings and judgment until 2019. Enforcement was incomplete and title unchanged, so setting aside caused no prejudice. Natural justice requires that no person be condemned unheard.

p. 5

Legal principles established

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  • Prior to the enactment of Section 91(2) of the Land Registration Act, where the register did not specify the nature of co-proprietors' interests, the property was presumed held in joint tenancy, and that presumption is rebuttable on the party asserting otherwise.
  • A party whose estate was neither joined nor served and was unaware of proceedings is entitled to be joined and to have the default judgment set aside.

Court orders

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  1. 1.Gladys Nduta Mbugua made a party to the suit as administrator of the estate of George Mbugua Kibue alias George Mbugua Kabue alias Mbugua Kibui
  2. 2.The judgment entered on 5/10/2007 in the absence of the said estate set aside
  3. 3.The administrator to be served with the originating summons and to file a response within 14 days of service
  4. 4.The file to be returned to Milimani and mentioned before the Deputy Registrar for listing before the relevant Judge at Milimani ELC

Authorities

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Legislation

  • Registered Land Act (repealed)Sections 101(1), 102, 103(1)
  • Land Registration ActSection 91(2)
  • Civil Procedure RulesOrder 1 rule 10(2)

Cases cited (13)

  • Brek Sulum Hemed v Constituency Development Fund Board & Another
    [2014] eKLR
  • Shah v Mbogo
    [1967] EA 93
  • Ivita v Kyumbu
    [1984] KLR 441
  • James Kanyiita Nderitu & another v Marious Philotas Ghikas & another
    [2016] eKLR
  • Isabel Chelangat v Samuel Tiro Rotich & 5 others
    [2021] eKLR
  • Moses Bii v Kericho District Land Registrar & Another
    [2015] eKLR
  • In Re Estate Dorica Lumire Mapesa (Deceased)
    [2018] eKLR
  • Mukazitoni Josephine v Attorney General Republic of Kenya
    [2015] eKLR
  • JMK v MWM & another
    [2015] eKLR
  • Alton Homes Limited & another v Davis Nathan Chelogoi & 5 others
    [2020] eKLR
  • Sangram Singh v Election Tribunal, Koteh
    AIR 1955 SC 664
  • Re Foley (deceased) Public Trustee v Foley & Another
    (1955) NZLR 702
  • Stack v Dowden
    [2007] UKHL 17
Jurisdiction invoked
Order 1 rule 10(2) of the Civil Procedure Rules (inherent jurisdiction to add necessary parties and set aside judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Josephat Thuo Githachuri v James Gaitho Kibue & another; Gladys Nduta Mbugua (Interested Party) [2021] KEELC 1951 (KLR)", Case Analysis (2021). Not stated in the judgment (originating summons dated 9/12/1999). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1951/eng@2021-09-22

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