Irungu & another v Kamau & another (Land Case E013 of 2024) [2024] KEELC 6898 (KLR)
The bottom line
#A Kenyan court struck out a land injunction because the plaintiffs sued only two of three estate administrators, even though their case was strong.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for temporary injunction could be entertained notwithstanding the failure to join all co-administrators of the deceased's estate
The application was incompetent and was struck out because the third co-administrator, Florence Wanjiru Kamau, was not joined as a party, as mandated by Order 31 Rule 2 of the Civil Procedure Rules
The Certificate of Confirmation of Grant showed three co-administrators of the estate of Charles Kamau Gathungu, including Florence Wanjiru Kamau, who was not sued. Order 31 Rule 2 of the Civil Procedure Rules requires all executors or administrators to be parties to a suit against one or more of them, and case law holds this provision mandatory, applying equally where administrators defend a suit. Although the Respondents did not raise non-joinder and the Applicants had established a prima facie case by virtue of long occupation, the court could not disregard the mandatory provision, and the Applicants offered no explanation for the omission.
Whether the Applicants established a prima facie case for temporary injunction
The court was satisfied that the Applicants, having been in occupation of the suit property for a long time and having demonstrated such occupation, had established a prima facie case, but this could not save the incompetent application
The court acknowledged that the Applicants had been on the suit property for long and had demonstrated occupation, satisfying the prima facie case threshold under the Giella principles. However, the mandatory joinder requirement of Order 31 Rule 2 took precedence, and the claim could not be entertained in the absence of the third co-administrator. The merits-based finding was therefore overtaken by the procedural bar, leading to striking out rather than dismissal on the merits.
Legal principles established
#- Where there are several trustees, executors or administrators, they must all be made parties to a suit against one or more of them, and this requirement is mandatory even where no party raises the issue of non-joinder
Court orders
#- 1.The Plaintiffs/Applicants' Notice of Motion Application dated 15th April 2024 is struck out entirely
- 2.No orders as to costs
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act; application brought under Order 40 Rules 1, 2 and 3 and Order 50 Rule 1 of the Civil Procedure Rules, read with Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Irungu & another v Kamau & another (Land Case E013 of 2024) [2024] KEELC 6898 (KLR)", Case Analysis (2024). Land Case E013 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6898/eng@2024-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.