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ELCPartially AllowedNot stated in the judgment (application dated 23rd June, 2023; matter previously before the ELC Kilgoris)· [2024] KEELC 1190 (KLR)

Xavier v County Government of Narok & 4 others; Mutua (Applicant); Primary (Interested Party) (Environment and Land Case 3 of 2023) [2024] KEELC 1190 (KLR)

Environment and Land Court (as inferred from the matter's history and land-dispute subject matter; the judgment does not expressly name the court)
6 March 2024
5,200 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court set aside a consent order settling an estate land dispute because beneficiaries were never consulted before the settlement was recorded.

What this practically means

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Executive summary

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This was a Notice of Motion dated 23rd June, 2023 by John Mutua, the proposed 2nd interested party and co-administrator of the estate of Sanamwala Ole Mutua Nkairipiani (deceased), seeking joinder, substitution of the deceased petitioner, leave for his advocates to come on record, a stay, review/setting aside of a consent adopted as an order of the court on 8th June, 2023 by Washe J, leave to prosecute the suit, and an injunction over land parcel TransMara/Enoosaen/59. The applicant contended that the petitioner, who is a co-administrator but not a beneficiary, recorded the consent withdrawing the suit without the knowledge or consent of the beneficiaries listed in the confirmed grant, and that affidavits supporting a petition for the removal of the judge were forgeries. The petitioner opposed, raising a preliminary objection on, inter alia, Order 9 Rule 9 (improperly coming on record after judgment), lack of jurisdiction after withdrawal, and functus officio; the 2nd to 5th respondents and the interested party relied on grounds of opposition that an interested party has only a bystander role and that a consent judgment can only be set aside for fraud, collusion or illegality. The court framed two issues: compliance with Order 9 Rule 9 and satisfaction of the review threshold. It held the application did not offend Order 9 Rule 9 because Order 9 Rule 10 allows combining prayers and Section 80 of the Civil Procedure Act permits 'any person' to seek review. Finding the petitioner casual in administering the estate and the beneficiaries entitled to an opinion on disposal of their shares, the court held the failure to seek the beneficiaries' consent was sufficient reason to set aside the orders of 8th June, 2023. The preliminary objection was dismissed with no orders as to costs; the application was allowed, joining and substituting John Mutua, placing Netaya Pion & Company Advocates on record, setting aside the orders of 8th June, 2023, granting leave to prosecute the matter on behalf of the estate, directing the matter be heard on merit, with costs to abide the outcome of the main suit.

Key legal issues

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01

Whether the firm of Netaya Pion & Company Advocates was improperly on record under Order 9 Rule 9 of the Civil Procedure Rules

Holding

The application did not offend Order 9 Rule 9 because Order 9 Rule 10 permits an application under Rule 9 to be combined with other prayers, and the applicant sought leave to come on record within the same application.

Reasoning

The court reproduced Order 9 Rule 9 and accepted it is mandatory and aims to bring order to proceedings after judgment. However, Order 9 Rule 10 allows an application under Rule 9 to be combined with other prayers so long as the change of advocate is determined first. Since the applicant sought leave to come on record within the motion, and Section 80 CAP permits 'any person' aggrieved to seek review, the application was competent.

p. 8
02

Whether the consent adopted as an order of the court on 8th June, 2023 should be reviewed and set aside

Holding

Yes. The failure to seek the consent of the beneficiaries before recording the consent was a sufficient reason to set aside the court's orders, and a disconnect existed between the petitioner and the co-administrator.

Reasoning

Both the petitioner and the applicant are administrators of the estate; neither claims as beneficiary. They must ensure distribution per the certificate of confirmation of grant, so beneficiaries listed for Trans Mara/Enoosaen/59 are entitled to an opinion on disposal of their shares. The petitioner's assumption that beneficiaries were 'fully catered elsewhere' was unsound and unreasonable. Recording a consent affecting the estate without beneficiaries' input was therefore a sufficient ground for review.

p. 10
03

Whether an interested party/co-administrator may take over and prosecute the suit after the principal party's withdrawal by consent

Holding

The co-administrator was at liberty to prosecute the case against the respondents, given the disconnect between him and the petitioner.

Reasoning

The court noted it was undisputed that the applicant is also an administrator of the estate, giving him a legitimate stake in how the estate's property is dealt with. Given the evident disconnect between the petitioner and the applicant regarding the estate's administration, the applicant was permitted to prosecute the case on behalf of the estate, and the matter was to be heard on merit.

p. 10

Legal principles established

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  • A consent judgment or order affecting the estate of a deceased person recorded without the consent or participation of co-administrators and beneficiaries may be set aside; administrators must ensure the property of the deceased is dealt with in accordance with the certificate of confirmation of grant.
  • A consent that binds third parties who have not consented is irregular and cannot bind them.
  • An application for leave to come on record after judgment under Order 9 Rule 9 may be combined with other prayers, with the question of the change of advocate determined first.
  • Section 80 of the Civil Procedure Act permits 'any person' who considers himself aggrieved - not only parties to the suit - to apply for review.

Court orders

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  1. 1.The notice of preliminary objection dated 6th July, 2023 is dismissed with no orders as to costs
  2. 2.John Mutua is joined in the proceedings and substitutes Sanamwala Ole Mutua Nkairipiani (deceased) as a legal representative of the estate
  3. 3.The firm of Netaya Pion & Company Advocates is placed on record for the proposed 2nd interested party
  4. 4.The orders issued by Washe J on 8th June, 2023 adopting the consent are set aside
  5. 5.John Mutua is granted leave to prosecute the matter on behalf of the estate of the deceased
  6. 6.The matter to be heard and determined on merit
  7. 7.Costs to abide the outcome of the main suit

Authorities

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Legislation

  • Law of Succession ActSection 66
  • Civil Procedure ActSections 1A, 1B, 3A, 80; Section 7; Section 19
  • Civil Procedure Rules, 2010Order 1 Rule 10; Order 2 Rule 1; Order 3 Rule 1; Order 9 Rule 9; Order 9 Rule 10; Order 25; Order 42 Rules (6) and 45; Order 51 Rule 1
  • Constitution of KenyaArticles 40, 50(1), 159

Cases cited (18)

  • County Government of Narok v Livingstone Kunini Ntutu and Others
    Supreme Court petition (no number given)
  • Wanjiru Gikonyo & 2 Others v National Assembly of Kenya & 4 Others
    [2016] eKLR
  • Republic v Advocates Disciplinary Tribunal Ex-parte Apollo Mboya
    [2019] eKLR
  • Anthony Gachara Ayub v Francis Mahinda Thinwa
    [2014] eKLR
  • Attorney General & Others v Boniface Byanyima
    HCMA No. 1789 of 2000
  • Republic v Public Procurement Administrative Review Board & 2 others
    [2018] eKLR
  • Shah v Mbogo
    [1967] EA 116
  • Communications Commission of Kenya & 4 Others v Royal Media Services Limited & 7 Others
    [2014] eKLR
  • Francis K. Muruatetu & Another v Republic & 5 Others
    [2016] eKLR
  • Skov Estate Limited & 5 Others v Agricultural Development Corporation & Another
    [2015] eKLR
  • Flora Wasike v Destimo Wamboko
    (1982-1988) 1 KLR 625 / [1982-88] 1KAR
  • Mike Gideon Sonko v Attorney General & 8 Others
    [2014] eKLR
  • Board of Trustees National Social Security Fund v Micheal Mwalo
    Nairobi CA No. 293 of 2014
  • Julius Kigen Kibiego v Angeline Korir & another
    Eldoret ELC No. 994 of 2012 [2012] eKLR
  • Methodist Church in Kenya v Mohammed Fugicha & 3 Others
    [2019] eKLR
  • Priscilla Nyambura Njue v Geovhem Middle East Limited: Kenya Bureau of Standards (Interested Party)
    [2021] eKLR
  • PIL Kenya Limited v Joseph Oppong
    [2009] eKLR
  • Kofinaf Company Limited & Another v Nahashon Ngige Nyagah & 20 Others
    [2017] eKLR
Jurisdiction invoked
Inherent and review jurisdiction under Section 80 of the Civil Procedure Act and Sections 1A, 1B and 3A of the Civil Procedure Act; Order 1 Rule 10, Order 9 Rules 9 and 10, Order 42(6) and 45 and Order 51 Rule 1 of the Civil Procedure Rules; Section 66 of the Law of Succession Act; Articles 40 and 50(1) of the Constitution of Kenya

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, "Xavier v County Government of Narok & 4 others; Mutua (Applicant); Primary (Interested Party) (Environment and Land Case 3 of 2023) [2024] KEELC 1190 (KLR)", Case Analysis (2024). Not stated in the judgment (application dated 23rd June, 2023; matter previously before the ELC Kilgoris). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1190/eng@2024-03-06

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