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ELCPartially AllowedNot stated in judgment (application dated 24/7/2020, filed 11/8/2020, in the main suit by Originating Summons dated 11/3/2020)· [2021] KEELC 4550 (KLR)

Veronica Chesemes Akokor & 4 others v Ben Veronica C. Kitelapong & 2 others [2021] KEELC 4550 (KLR)

Environment and Land Court
26 January 2021
1,498 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was an application dated 24/7/2020 filed by the 3rd to 6th plaintiffs in a suit concerning land (part of LR No. West Pokot/Keringet "A"/2728) allegedly held in trust for them by the 1st defendant and fraudulently transferred to the 2nd defendant. The applicants sought to have their own names struck out from the proceedings, contending they never instructed the firm of S. Nyakundi & Co. Advocates to file the suit and never authorised Veronica Chesemes Akokor and Pauline Kokita to swear affidavits on their behalf; they also sought costs of the application and the main suit against the 1st and 2nd plaintiffs and Mr. S. Nyakundi personally. The 1st plaintiff opposed, explaining that the applicants had in 2019 sought her help in regaining the trust land and that the suit was brought in the interests of the trust beneficiaries. The court framed two issues: whether the applicants' names should be struck out, and whether counsel and the 1st and 2nd plaintiffs should personally bear the costs. It accepted that the applicants, being adults, could disown the suit, and struck out their names only in their capacity as plaintiffs. However, finding that as named cestui que trust they were necessary parties, the court suo motu enjoined them as interested parties in the same order, and directed amendment of the Originating Summons to reflect the changes. The personal costs order against counsel and the plaintiffs was not granted; each party was ordered to bear their own costs of the application. The substantive trust claim remains pending for determination on the evidence.

Key legal issues

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01

Whether the 3rd to 6th plaintiffs' names should be struck out of the proceedings

Holding

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.

Reasoning

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.

p. 2
02

Whether the 1st and 2nd plaintiffs have capacity to bring proceedings as legal representatives of the estate of James Mariachi Kokita

Holding

Prima facie they have capacity, but the extent of their liberty to file the instant proceedings can only be examined at the main hearing.

Reasoning

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.

p. 2
03

Whether Mr. S. Nyakundi should personally bear the costs of the application and the main suit

Holding

The court framed this as an issue but declined to make the order, ordering each party to bear their own costs.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Each party shall bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure RulesOrder 1 Rule 14
  • Civil Procedure RulesOrder 51 Rule 1
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.