Muiruri (Suing on her Own Behalf and on Behalf of James Kuria Ngugi - Deceased) v Kamau & 3 others (Environment & Land Case E017 of 2021) [2022] KEELC 3900 (KLR)

The court observed that the two defendants are joint administrators and equal beneficiaries of the estate of the late Ndoge and the suit property is an asset to be shared, so the declaration sought cannot be made in their absence. While the vendor's estate is also a necessary party, Order 1 rule 9 discourages striking out suits for misjoinder or non-joinder, so the objection was rejected and the plaintiff directed to initiate joinder.

The court articulated the settled approach: succession courts stay or preserve land where third-party claims exist and refer claimants to the land court. Once the land court determines title, the claimant moves the succession court to set aside confirmation or distribution orders in respect of land adjudged not to belong to the estate. Shutting the plaintiff out on the basis of ex parte succession orders without trial would be improper.

The plaintiff disclaimed enforcement of the 2001 contract, characterising it as evidence of how the deceased entered the land, and sought a declaration of trust. Section 20 of the Limitation of Actions Act excludes trust claims from limitation periods. Whether a trust exists is a triable issue, and section 6(1) of the Land Control Act cannot be invoked to shut the plaintiff out of a trust claim.

The court held that the broad jurisdiction under article 162(2)(b), elaborated by section 13 of the Environment and Land Court Act, includes power to issue declaratory orders, so the contention that it cannot declare a trust is a misconception of the law. Whether the orders sought can properly be granted under Order 37 can only be determined after trial.