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ELCPartially AllowedELC Case No. (Kerugoya) - Suit in which ex parte Judgment was delivered on 21st September 2023· [2025] KEELC 1433 (KLR)

Wanjohi & 3 others v Muchira; Matu (Intended Interested Party) (Environment & Land Case E020 of 2022) [2025] KEELC 1433 (KLR)

Environment and Land Court
20 March 2025
JMJ. M. Mutungi
3,231 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Land Court in Kerugoya cancelled a land judgment because the person sued lacked legal authority over the deceased's estate, reversing completed land subdivisions.

What this practically means

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Executive summary

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The Applicant, Johnson Karinga Matu, moved the Court by Notice of Motion dated 3rd March 2024 seeking joinder as an interested party/intended second defendant, leave for new advocates to come on record, setting aside of the ex parte judgment delivered on 21st September 2023, stay of execution, and leave to file a defence and counterclaim out of time. He argued that the Defendant, Josiah Matu Muchira, lacked locus standi because the limited grant of letters of administration ad litem issued to him on 26th July 2018 authorised only the filing of a civil suit, which he had withdrawn, and that the Applicant himself held a confirmed grant for the estate of Evans Muchira Josiah Matu (deceased), besides occupying the suit land since 1986 and claiming adverse possession. The 1st Plaintiff opposed, contending the Applicant had no legitimate interest, that execution had already occurred, and that the application was an afterthought; the Defendant maintained he was properly before the Court under the limited grant. The court framed two questions: whether the intended interested party should be joined and whether the judgment of 21st September 2023 should be set aside. Applying the Supreme Court's criteria in Muruatetu and the ad litem grant principles in Lydia Ntembi Kairanya, the court held that the Defendant lacked capacity to be sued, rendering the suit and the ex parte judgment nullities. The judgment and all consequential orders, including the completed execution, were set aside; the Defendant's name was struck out and the Applicant substituted; the Land Registrar Kirinyaga was directed to cancel the subdivisions of Mwea/Tebere/B/1262 and revert the title to the deceased; the Applicant was granted 21 days to file his defence and counterclaim; costs were reserved to the cause.

Key legal issues

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01

Locus standi of a defendant suing/defending under a limited grant ad litem

Holding

The Defendant's limited grant ad litem issued on 26th July 2018 was confined to filing a civil suit which he later withdrew; it did not authorise him to defend the present suit, so he lacked capacity to be sued on behalf of the estate.

Reasoning

The grant was expressly limited to 'Filing a Civil suit'. Relying on Lydia Ntembi Kairanya v AG, the court held that powers not specifically spelt out in a limited grant are not conferred. The defendant used the grant to file Wang'uru ELC No. 28 of 2018 which he withdrew, ending the grant's lifespan. The Applicant held an unrevoked confirmed grant as Administrator, making him the proper party.

p. 6
02

Joinder and substitution of parties under Order 1 rule 10(2)

Holding

The Applicant, holder of a confirmed grant and a person occupying the suit land claiming adverse possession, ought to have been joined; his name was substituted as Defendant in place of Josiah Matu Muchira.

Reasoning

Applying the Supreme Court's criteria in Muruatetu (identifiable proximate interest, demonstrated prejudice, and the submissions the intended party intends to make) and the CCK v Royal Media Services formulation, the court found the Applicant's stake as Administrator of the estate and occupier of the land was proximate and non-peripheral, and that he stood to suffer prejudice if not joined.

p. 4
03

Validity of the ex parte judgment and consequential execution

Holding

Because judgment was entered against a party without capacity, it was irregular and a nullity; both the judgment and the executed decree were set aside and the titles reverted.

Reasoning

The court held that a suit filed against a party lacking locus standi is null and void ab initio and an abuse of process. The ex parte judgment of 21st September 2023 and consequential orders, including the completed execution and resulting subdivisions of Mwea/Tebere/B/1262, were consequently set aside and the original title restored to the deceased's name.

p. 6

Legal principles established

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  • A limited grant of letters of administration ad litem confers only the powers specifically spelt out in it; power to file a suit does not extend to defending a suit or receiving its proceeds.
  • A judgment entered against a party without capacity to be sued is irregular and void; there cannot be two distinct administrators of the same estate.
  • Where the party sued lacks locus standi, the court may under Order 1 rule 10(2) substitute the proper party.

Court orders

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  1. 1.Leave granted to the firm of Gori, Ombongi & Co. Advocates to cease acting for the Defendant and to come on record for the Interested Party
  2. 2.The name of Josiah Matu Muchira be struck out as Defendant and the name of Johnson Karinga Matu be substituted as Defendant
  3. 3.The ex parte Judgment delivered on 21st September 2023 together with all consequential orders is set aside
  4. 4.The execution of the Judgment that has taken place is set aside
  5. 5.The Land Registrar Kirinyaga is ordered to cancel the resultant subdivisions of land parcel Mwea/Tebere/B/1262 and the subtitles thereof and revert the original title Mwea/Tebere/B/1262 to the names of Evans Muchira Josiah Matu (deceased)
  6. 6.The Applicant (now Defendant) has leave within 21 days to file and serve his defence and Counterclaim
Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules (inherent case-management discretion to add/substitute parties); reference to Law of Succession Act section 54 (limited grants for special purposes)

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, "Wanjohi & 3 others v Muchira; Matu (Intended Interested Party) (Environment & Land Case E020 of 2022) [2025] KEELC 1433 (KLR)", Case Analysis (2025). ELC Case No. (Kerugoya) - Suit in which ex parte Judgment was delivered on 21st September 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1433/eng@2025-03-20

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