Chege & 2 others (Being the Administrators Ad Litem of the Estate of Chege Ng’ang’a alias Chege Nganga alias David Chege Ng’ang’a - Deceased) v Ngundu Farmers Co-operative Society Limited & 2 others; Kimani (Being the Administrator of the Estate of Asaphkimani Kuria - Deceased) (Interested Party) (Environment & Land Case 335 of 2018) [2024] KEELC 3818 (KLR)
The bottom line
#Nairobi's land court allowed a widow with an unregistered land claim to join a concluded case and restart it, but refused to stop the other side using the property.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection striking out the Interested Party's application was merited
Dismissed in its entirety; the grounds either failed the Mukisa Biscuits test or were factually contested
The court applied the Mukisa Biscuits test that a preliminary objection must be a pure point of law. The locus standi and joinder grounds failed because setting aside of judgment was sought contemporaneously with joinder, making the application competent. The Order 9 Rule 9 ground failed since the applicant was never a party. The grounds on distribution of the estate and jurisdiction raised factual and legal questions not suitable for summary determination.
Whether the ELC has jurisdiction over a third-party ownership claim against a deceased's estate
Yes - the claim concerns ownership of 4 acres allegedly sold to a third party, falling outside distribution of the estate and within Article 162(2)(b) jurisdiction
Relying on In Re Estate of Alice Mumbua Mutua and Mbula Muoki Ndolo, the court held that third-party claims against an estate are resolved under the Civil Procedure Rules, not the succession cause. The applicant's claim that her late husband was a bona fide purchaser involves the law on title to land, which the ELC is competent to determine; the court therefore has jurisdiction.
Whether the applicant could be joined and the judgment set aside after delivery of judgment
Yes - because the joinder prayer was coupled with a prayer to set aside the judgment, the application was competent and the applicant demonstrated an interest entitling her to be heard
The court accepted that joinder under Order 1 Rule 10(2) ordinarily occurs in pending proceedings, but where setting aside of judgment is sought in the same application, the joinder becomes effective if judgment is set aside. Anchored in Article 50's right to be heard, the court found the applicant had established a sufficient interest in the land and was entitled to have the judgment set aside so she could participate in a de novo hearing.
Whether temporary injunction or status quo ante orders should issue
Refused - the applicant failed to meet injunction thresholds and showed no need for restoration of the status quo ante, having never possessed the property
The court distinguished status quo orders from injunctions, noting the latter require proof of a prima facie case. The applicant never took possession of the property and the estate had been distributed. Without satisfying the conditions for injunctive relief or demonstrating a factual scenario requiring preservation, both prayers failed.
Legal principles established
#- A preliminary objection must be a pure point of law requiring no ascertainment of facts
- Where prayers for joinder of a party and setting aside of judgment are sought contemporaneously, the application is competent even though judgment has been entered
- Disputes between a deceased's estate and third parties need not be determined in the succession cause; the ELC has jurisdiction over third-party land ownership claims against an estate
- Order 9 Rule 9 CPC applies to changes of advocate after judgment by parties already on record, not to a stranger seeking to come on record
Court orders
#- 1.The Preliminary Objection dated 11/07/2023 is dismissed.
- 2.The Judgment in this suit delivered on the 8/06/2023 and all consequential orders are set aside and the suit to be heard de novo.
- 3.The applicant is enjoined into the suit as an interested party.
- 4.The interested parties are granted leave to tender evidence and participate in the proceedings.
- 5.No order as to costs.
- 6.Mention on 11.06.2024 for further directions.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chege & 2 others (Being the Administrators Ad Litem of the Estate of Chege Ng’ang’a alias Chege Nganga alias David Chege Ng’ang’a - Deceased) v Ngundu Farmers Co-operative Society Limited & 2 others; Kimani (Being the Administrator of the Estate of Asaphkimani Kuria - Deceased) (Interested Party) (Environment & Land Case 335 of 2018) [2024] KEELC 3818 (KLR)", Case Analysis (2024). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3818/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.