Veronica Chesemes Akokor & 4 others v Ben Veronica C. Kitelapong & 2 others [2021] KEELC 4550 (KLR)
The bottom line
#The Kitale Environment and Land Court struck four people out of a land trust suit as plaintiffs—but immediately kept them in the case as interested parties.
What this practically means
#Executive summary
#Key legal issues
#Whether the 3rd to 6th plaintiffs' names should be struck out of the proceedings
Struck out only in their capacity as plaintiffs, but enjoined suo motu as interested parties because they are the cestui que trust and necessary parties.
The court accepted that the applicants, being adults, were entitled to disown the suit filed on their behalf without their instruction. However, because the suit concerns an alleged breach of trust in their favour, their presence remained necessary for effective adjudication, so the court struck them out as plaintiffs only and joined them as interested parties.
Whether the 1st and 2nd plaintiffs have capacity to bring proceedings as legal representatives of the estate of James Mariachi Kokita
Prima facie they have capacity, but the extent of their liberty to file the instant proceedings can only be examined at the main hearing.
The court noted the 1st and 2nd plaintiffs sued as legal representatives of the deceased father of the applicants, who was also the 1st plaintiff's former husband. Subject to further evidence, this confers prima facie capacity for some proceedings on behalf of the estate, with the precise scope deferred to the full hearing.
Whether Mr. S. Nyakundi should personally bear the costs of the application and the main suit
The court framed this as an issue but declined to make the order, ordering each party to bear their own costs.
Although the prayer for personal costs against counsel was sought, the court's disposition granted only Prayer No. (1) and ordered each party to bear their own costs, thereby refusing the personal costs order without detailed reasons.
Legal principles established
#- A plaintiff who is a cestui que trust of the suit land is a necessary party and cannot simply be deleted from proceedings; where struck out as plaintiff, the court may enjoin them suo motu as an interested party.
- The propriety of a disposal of trust land must be determined at a substantive hearing on the evidence.
Court orders
#- 1.Prayer No. (1) of the application dated 24/7/2020 granted only to the extent that the names of the applicants in their capacity as plaintiffs shall be struck out
- 2.Suo motu order that the instant applicants be enjoined as interested parties in the same order in which they appeared when listed as plaintiffs
- 3.The plaintiffs shall amend the Originating Summons dated 11/3/2020 to reflect on the face thereof the changes wrought by the foregoing orders
- 4.Each party shall bear their own costs of the application
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 1 Rule 14, Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Veronica Chesemes Akokor & 4 others v Ben Veronica C. Kitelapong & 2 others [2021] KEELC 4550 (KLR)", Case Analysis (2021). Not stated in judgment (application dated 24/7/2020, filed 11/8/2020, in the main suit by Originating Summons dated 11/3/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4550/eng@2021-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.