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ELCDismissedNotice of Motion dated 24th July 2019· [2021] KEELC 2529 (KLR)

Sofia Muciku Jotham (Suing as the Legal Representative of the Estate of Jotham Gikunju Karu) v Lucy Waruguru (Sued as the Legal Representative of the Estate of Judy Kori Nyaga) & another [2021] KEELC 2529 (KLR)

Environment and Land Court
16 July 2021
ECE.C. Cherono
1,834 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to let a land buyer join a lawsuit because her purchase happened before the deceased's estate grant was confirmed, making the sale void.

What this practically means

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Executive summary

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The Applicant sought, by Notice of Motion dated 24th July 2019, to be enjoined in an originating summons as 2nd Defendant and to amend the summons accordingly. The underlying suit is a claim for adverse possession of land parcel Baragwi/Raim/1532, registered in the name of Judy Kori Nyaga (deceased). The Applicant asserted she had bought the suit land in 2012 from Benson Muchira Nyaga, a beneficiary of the estate, with transfer to be effected upon conclusion of Kerugoya High Court Succession Cause Number 214 of 2013, whose grant is yet to be confirmed. The Plaintiff/Respondent opposed, contending her own claim arises from a 1994 sale to the deceased, that the Applicant's purchase was concluded before confirmation of grant in contravention of the Law of Succession Act, and that the Applicant would at best be a witness. Both parties relied on Order 1 Rule 10(2) of the Civil Procedure Rules and filed submissions. The court applied the joinder principles in Technomatic Limited and Meme v Republic and found that the Applicant's claimed interest rested on a transaction prohibited by Section 55 of the Law of Succession Act and constituting intermeddling under Section 45. Invoking the McFoy nullity dictum, it held the transaction incurably bad and incapable of founding the court's discretion, so the Applicant was neither a necessary nor proper party. The application dated 24th July 2019 was dismissed with costs on 16th July 2021.

Key legal issues

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01

Whether the Applicant should be joined as 2nd Defendant under Order 1 Rule 10(2)

Holding

Joinder refused because her claimed interest arises from an illegal, void sale of estate property

Reasoning

The court traced the joinder principles under Order 1 Rule 10(2) and the cases Technomatic and Meme v Republic. It found the Applicant's claimed stake rested on a sale by a beneficiary before confirmation of grant, prohibited by Section 55 and constituting intermeddling under Section 45 of the Law of Succession Act. A discretion cannot be exercised on a faulty foundation; applying McFoy, the transaction is a nullity, so the Applicant is neither a necessary nor proper party.

p. 3

Legal principles established

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  • No capital asset of a deceased person may be distributed or sold before confirmation of grant; such a transaction is void
  • A void transaction is a nullity and cannot found the exercise of the court's joinder discretion

Court orders

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  1. 1.The application dated 24th July 2019 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rule 10(2)
  • Law of Succession Act, Cap 160Section 55
  • Law of Succession Act, Cap 160Section 45
  • Law of Succession Act, Cap 160Section 82(b)(ii)

Cases cited (6)

  • Kiarie Waweru Kiarie Vs Moses Kanyira & 2 Others
    [2018] e KLR
  • Shirvling Supermarket Limited Vs Jimmy Ondicho Nyabuti & 2 Others
    [2018] e KLR
  • Technomatic Limited T/A Promopack Company Vs Kenya Wine Agencies Limited & another
    [2014] e KLR
  • Meme Vs Republic
    [2004] 1 EA 124
  • Re Estate of Paul M'Maria (Deceased)
    [2017] e KLR
  • McFoy Vs United Africa Co. Ltd
    (1961) 3 All ER 1169
Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Sofia Muciku Jotham (Suing as the Legal Representative of the Estate of Jotham Gikunju Karu) v Lucy Waruguru (Sued as the Legal Representative of the Estate of Judy Kori Nyaga) & another [2021] KEELC 2529 (KLR)", Case Analysis (2021). Notice of Motion dated 24th July 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2529/eng@2021-07-16

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