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ELCDismissedEmbu E056 of 2020 (succession cause referenced; suit land Embu/Kithunthiri/1484)· [2024] KEELC 1434 (KLR)

Njiru (Suing as Administrator of the Estate of Juliana Mbuya Njiru) v Ngiri & 2 others (Environment and Land Case 5 of 2017) [2024] KEELC 1434 (KLR)

Environment and Land Court
5 March 2024
AKA. Kaniaru
1,315 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Embu refused to add a late applicant to a concluded land case, holding courts cannot issue orders in anticipation of uncertain appeals.

What this practically means

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Executive summary

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The original suit by Juliana Mbuya Njiru sought registration as owner of parcel Embu/Kithunthiri/1484 on grounds of fraud, or alternatively a declaration of adverse possession. By judgment delivered on 27.02.2020, the court found in favour of the defendants, who claimed to have purchased the land and counterclaimed for a declaration of trespass. The plaintiff died on 14.02.2020 before judgment was delivered. Robinson Kimathi Njiru was later substituted as her personal representative under a grant ad litem, but his application for stay of execution and inhibition was dismissed, the court finding no appeal had been filed and the orders were overtaken by events as the defendants had taken possession. The present Notice of Motion dated 06.12.2022, brought by Philip Ngari Njiru under Order 42 Rule 6 and Order 9 Rule 10 of the Civil Procedure Rules, sought his joinder as co-plaintiff on the basis that he holds a full grant of administration over the deceased's estate, whereas the substituted party holds only a grant ad litem. The 3rd Defendant opposed, noting the suit was concluded and executed, the land subdivided to third parties, and the deceased already adequately represented. The court, per A. Kaniaru J, held the application to be discretionary and lacking merit: judgment had been delivered and executed, leave to appeal out of time was uncertain, and courts cannot grant orders in anticipation of an uncertain outcome. The application was dismissed with no orders as to costs.

Key legal issues

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Whether the applicant should be joined as co-plaintiff post-judgment under Order 1 Rule 10(2)

Holding

The application lacks merit; joinder is discretionary and is refused where judgment has been delivered and executed and the deceased is already adequately represented

Reasoning

The court held that the matter is one for the exercise of discretion. Judgment was delivered on 27.02.2020 and executed, with the suit property subdivided into portions held by third parties. The applicant's appeal is contingent on leave to appeal out of time which has not been granted. Granting joinder now could produce orders left hanging should the appellate court refuse leave. Further, the deceased is already represented by the substituted personal representative holding grant ad litem.

p. 3

Legal principles established

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  • Courts cannot grant orders in anticipation of an uncertain outcome; orders are not issued in vain
  • Joinder of a party under Order 1 Rule 10(2) after judgment is a matter of discretion, and where a personal representative already represents a deceased party, further joinder is unnecessary

Court orders

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  1. 1.Dismissal of the notice of motion application dated 06.12.2022
  2. 2.No orders as to costs - each party to bear own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 9 rule 10
  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (2)

  • Willis Ochieng Odhiambo v Kenya Tourist Development Corporation & Anor
    Kisumu HCCC No. 51 of 2007
  • David Kiptugen v Commissioner of Lands Nairobi & 4 others
    (2016) eKLR
Jurisdiction invoked
Order 42 Rule 6 and Order 9 Rule 10 of the Civil Procedure Rules; joinder under Order 1 Rule 10(2) 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, "Njiru (Suing as Administrator of the Estate of Juliana Mbuya Njiru) v Ngiri & 2 others (Environment and Land Case 5 of 2017) [2024] KEELC 1434 (KLR)", Case Analysis (2024). Embu E056 of 2020 (succession cause referenced; suit land Embu/Kithunthiri/1484). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1434/eng@2024-03-05

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