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ELCPartially AllowedNot stated in the judgment as extracted· [2024] KEELC 3818 (KLR)

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)

Environment and Land Court
9 May 2024
7,113 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiffs/Respondents filed a Notice of Preliminary Objection dated 11/07/2023 seeking to strike out an application by Margaret Wanjiru Kimani dated 19/06/2023. The application sought setting aside of a judgment delivered on 8/06/2023, joinder of the applicant as an interested party, leave to file a defence and counterclaim out of time, and temporary injunction or status quo ante orders. The applicant claimed her late husband, Asaph Kimani Kuria, purchased 4 acres from the deceased proprietor of Nairobi/Block 126/749 in 1984 for Kshs. 26,000/-, with an executed share transfer form, but was never registered. Mogeni J dismissed the preliminary objection in its entirety. Applying the Mukisa Biscuits test, the court held that the joinder ground failed because the applicant sought setting aside of the judgment contemporaneously with joinder, making the application competent. The Order 9 Rule 9 ground failed since the applicant was never a party to the suit. The grounds on distribution of the estate raised factual issues unsuitable for a preliminary objection. On jurisdiction, the court, relying on In Re Estate of Alice Mumbua Mutua and Mbula Muoki Ndolo, held that third-party ownership claims against an estate fall outside the succession cause and within the ELC's jurisdiction under Article 162(2)(b). On the merits, the court found the applicant had demonstrated a sufficient interest and a right to be heard under Article 50, and was entitled to have the judgment set aside and to be joined. However, the injunction and status quo ante prayers were refused as the applicant never possessed the property and failed to meet the thresholds. The judgment and consequential orders were set aside, the applicant joined, and the suit ordered to proceed de novo, with no order as to costs.

Key legal issues

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01

Whether the preliminary objection striking out the Interested Party's application was merited

Holding

Dismissed in its entirety; the grounds either failed the Mukisa Biscuits test or were factually contested

Reasoning

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.

p. 9
02

Whether the ELC has jurisdiction over a third-party ownership claim against a deceased's estate

Holding

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

Reasoning

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.

p. 8
03

Whether the applicant could be joined and the judgment set aside after delivery of judgment

Holding

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

Reasoning

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.

p. 12
04

Whether temporary injunction or status quo ante orders should issue

Holding

Refused - the applicant failed to meet injunction thresholds and showed no need for restoration of the status quo ante, having never possessed the property

Reasoning

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.

p. 13

Legal principles established

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  • 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

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  1. 1.The Preliminary Objection dated 11/07/2023 is dismissed.
  2. 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. 3.The applicant is enjoined into the suit as an interested party.
  4. 4.The interested parties are granted leave to tender evidence and participate in the proceedings.
  5. 5.No order as to costs.
  6. 6.Mention on 11.06.2024 for further directions.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rule 10(2)
  • Civil Procedure Rules, 2010Order 9 Rule 9 and 10
  • Civil Procedure Rules, 2010Order 22 Rule 22; Order 40; Order 45; Order 50; Order 51 Rules 1 & 13
  • Civil Procedure ActSections 1A, 1B, 3A and 95
  • Constitution of Kenya, 2010Articles 40, 50, 60, 162(2)(b)
  • Law of Succession ActSection 47
  • Environment and Land Court ActSection 13(2)
  • Probate and Administration RulesRule 41(3)

Cases cited (14)

  • Mukisa Biscuits Manufacturing Company Limited –versus– West End Distributors Limited
    (1969) EA 696
  • Absolom Opini Mekenye …Vs…James Obegi
    [2018] eKLR
  • JMK -vs- MWM & Another
    [2015] eKLR (Civil Appeal No. 15 of 2015 – Mombasa)
  • Tanga Gas Distributors Ltd –vs– Said & Others
    [2014] E.A 448
  • Nitin Properties Ltd v Singh Kalsi & another
    [1995] eKLR
  • Moses Wanjala Lukoye –Vs– Benard Alfred Wekesa Sambu & 3 Others
    [2013] eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • Mbula Muoki Ndolo & Another vs Kenya Power and Lighting Company Limited
    [2017] eKLR
  • Salome Wambui Njau (suing as Administratrix of the Estate of Peter Kiguru Njuguna (Deceased) v Caroline Wangui Kiguru
    (2013) eKLR
  • In Re Estate of Alice Mumbua Mutua (Deceased)
    [2017] eKLR
  • Lilian Wairimu Ngatho & Another -vs- Moki Savings Co-operative Society Limited & Another
    [2014] eKLR
  • Republic Vs National Environment Tribunal, Ex-parte Palm Homes Limited & Another
    [2013] eKLR
  • TSS Spinning & Weaving Company Ltd Vs Nic Bank Limited & another
    [2020] eKLR
  • Saifudeen Abdullahi & 4 Others in Mombasa High Court Misc. Civil Cause No. 11 of 2012 (quoting Baobab Beach Resort)
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act

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, "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.