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ELCPartially AllowedEnvironment & Land Case 359 of 2019· [2022] KEELC 15123 (KLR)

Kamau & another v Mbuthi (Sued as the Administratrix and Personal Representative of the Estate of Mbuthi Muru - Deceased)

Environment and Land Court
14 November 2022
JMJA Mogeni
3,442 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan land court allowed new claimants to join a property dispute but refused to replace a deceased plaintiff because no succession grant had been obtained.

What this practically means

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Executive summary

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This ruling by Mogeni J of the Environment and Land Court at Nairobi determined a chamber summons dated 24 February 2022 in which the plaintiffs sought leave to join Naomi Wambui Kinuthia and John Njoroge Murima as 3rd and 4th plaintiffs, and to substitute the 1st plaintiff, Beth Wanjiru Kamau (who died on 14 September 2021), with her daughter Florence Wambui. The defendant objected, arguing the application was defective, the intended parties lacked locus, and no grant of administration had been obtained. The court framed three issues: joinder, substitution, and costs. On joinder, applying Order 1 rules 1 and 10(2) and the principles in Joseph Njau Kingori, Lucy Nungari Ngigi, Civicon, Attorney General v KEBS and Werrot & Company, the court found the intended parties, as grandchildren of Gathoni Muru (a sister of the plaintiffs) with an interest in Land Parcel No. Dagoretti/Riruta/1241, met the threshold for joinder and allowed them to be enjoined. On substitution, the court held that only a legal representative appointed under the Law of Succession Act may replace a deceased plaintiff; no limited grant or citation proceedings were shown, and the intended substitute was not served with the application, offending natural justice under Article 50. Substitution was therefore refused. On costs, the court ordered costs in the cause since the suit is yet to be heard. The application succeeded in part: joinder was granted, substitution refused, costs in the cause.

Key legal issues

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01

Joinder of the proposed 3rd and 4th Plaintiffs

Holding

Joinder allowed; the intended parties claim an interest in the suit property and are necessary for complete adjudication

Reasoning

Applying Order 1 rules 1 and 10(2) and the principles in Joseph Njau Kingori, Lucy Nungari Ngigi, Civicon and Attorney General v KEBS, the court held that parties with a right to relief arising from the same transaction and an interest in the suit property should be joined. The proposed parties are grandchildren of Gathoni Muru, a sister of the plaintiffs, and their presence enables the court to effectually and completely settle all questions.

02

Substitution of the deceased 1st Plaintiff with her daughter

Holding

Refused; the proposed substitute is not a legal representative appointed under the Law of Succession Act

Reasoning

Order 24 rule 3 permits substitution only of the legal representative of a deceased plaintiff. Section 2 of the Civil Procedure Act defines a legal representative as one who in law represents the estate, which requires a grant under the Law of Succession Act. No limited grant (Fifth Schedule para 14) or citation proceedings were shown, and the intended substitute was not served with the application, offending natural justice under Article 50.

p. 5
03

Costs of the application

Holding

Costs in the cause since the suit is yet to be heard

Reasoning

Although costs follow the event under section 27 of the Civil Procedure Act, the court exercised its discretion to order costs in the cause because the main suit remains pending and the application only partially succeeded.

p. 6

Legal principles established

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  • Substitution of a deceased party must be by a person legally appointed as legal representative under the Law of Succession Act; a court cannot appoint a person who is not such a legal representative
  • A party with a sufficient interest in the suit property may be joined at any stage where their presence is necessary for effectual adjudication

Court orders

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  1. 1.The chamber summons dated 24/02/2022 be and is hereby allowed in terms of prayer (a) thereof
  2. 2.Naomi Wambui Kinuthia and John Njoroge Murima be and are hereby joined as the 3rd and 4th Plaintiffs respectively in this suit
  3. 3.The costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure Actsections 1A & 1B, 2, 27
  • Civil Procedure Rules, 2010Order 1 rules 1, 10(2) & (14); Order 8 rule 5; Order 24 rules 2 & 3; Order 51 rule 3
  • Law of Succession Actsection 54; Fifth Schedule paragraph 14
  • Constitution of KenyaArticle 50

Cases cited (8)

  • Joseph Njau Kingori vs. Robert Maina Chege & 3 others
    [2002] eKLR

    Guiding principles for joinder of an intending party: necessary/proper party, relief, enforceability, effective adjudication

  • Lucy Nungari Ngigi & 128 Others V National Bank of Kenya Limited & Another
    [2015] eKLR

    Joinder permitted where common question of law or fact arises; may be refused if it causes delay, costs or incompatible causes of action

  • Civicon Limited v Kivuwatt Limited and 2 Others
    [2015] eKLR

    Discretionary joinder to bring on record all parties to the dispute; sufficient interest need not be one that must succeed

  • Attorney General v Kenya Bureau of Standards & another
    [2018] eKLR

    Power to add a party exercisable at any stage; amendments/joinder freely allowed absent uncompensatable prejudice

  • Central Kenya Ltd. V. Trust Bank & 4 Other
    CA No. 222 of 1998

    Amendments should be freely allowed where no prejudice or injustice not compensable in costs

  • Werrot and Company Ltd and others v Andrew Douglas Gregory and others
    Nairobi (Milimani) High Court Civil Case No. 2363 of 1998 (1998) LLR 2848 (CCK)

    Two tests for a necessary party: right to relief against the party and impossibility of an effective decree in their absence

  • Trouistik Union International & Anor. v. Jane Mbeyu & Anor
    Civil Appeal No. 145 of 1990 [1993] KLR 230

    Legal representative of a deceased person is one appointed by a Succession Court under the Law of Succession Act

  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287

    Costs follow the event; successful party ordinarily awarded costs unless court directs otherwise

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land (Land Parcel No. Dagoretti/Riruta/1241); application under section 1A & 1B of the Civil Procedure Act and Order 1 rules 10(2) & (14), Order 8 rule 5 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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Cite this brief

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Cite this brief

Caselaw, "Kamau & another v Mbuthi (Sued as the Administratrix and Personal Representative of the Estate of Mbuthi Muru - Deceased)", Case Analysis (2022). Environment & Land Case 359 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15123/eng@2022-11-14

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