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ELCPartially AllowedNot stated in the extract (Uasin Gishu ELC suit concerning UASIN GISHU/KORMAET SCHEME/X7)· [2025] KEELC 3824 (KLR)

Cheluget v Cheluget & another (Environment & Land Case 115B of 2020) [2025] KEELC 3824 (KLR)

Environment and Land Court
15 May 2025
4,965 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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The court allowed a widow to continue her late husband's land case and ruled that failing to name every party doesn't kill a lawsuit.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Eldoret (C. K. Yano, ELC Judge) on a Notice of Motion dated 15th October 2024 by Hellen Chepkoech Cheluget seeking substitution as plaintiff in place of David Kiptoo Cheluget, who died on 15th June 2024 and was the plaintiff in a land dispute over Uasin Gishu/Kormaet Scheme/X7 measuring 90.24 Acres. The respondents opposed through a preliminary objection arguing the suit disclosed no cause of action and that the estate of Anna Cheluget, a fourth co-owner, had not been joined. The court framed three issues. First, applying Mukisa Biscuit as restated in Hassan Ali Joho, it held the PO was not a pure point of law since it required ascertainment of facts, and the same grounds had already been rejected in a ruling of 4th May 2022; the PO was dismissed. Second, the court held the applicant, holding a Grant of Administration Ad Litem (a special grant requiring no confirmation) and a Grant of Probate confirmed on 7th February 2025, had the requisite locus standi; the application was filed within one year so the suit had not abated, and challenges to the probate grant belonged to the probate court. Substitution was allowed. Third, exercising powers under Order 1 Rule 10(2), sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2)(d), the court joined the estate of Anna Cheluget as 3rd Defendant of its own motion, finding her presence necessary since the plaintiff sought the entire co-owned land. The PO was dismissed, substitution and joinder allowed, an amended plaint ordered within 30 days, and costs were made costs in the cause.

Key legal issues

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01

Whether the preliminary objection met the Mukisa Biscuit test

Holding

The PO failed because its grounds required ascertainment of facts and were res judicata of a prior ruling dismissing a similar PO

Reasoning

The court applied the Mukisa Biscuit definition restated in Hassan Ali Joho, holding that a PO cannot be sustained where facts must be ascertained or judicial discretion exercised. Determining cause of action and co-ownership required pleadings, documents and evidence. The same issues had been decided in the ruling of 4th May, 2022, and the court agreed with that ruling.

p. 6
02

Whether the Applicant should be substituted for the deceased plaintiff

Holding

Yes; she held a Grant Ad Litem and a confirmed Grant of Probate, giving her locus standi, and the suit had not abated

Reasoning

Order 24 Rule 3(1) required the legal representative to be joined where the cause of action survives. The application was filed within one year of death, so the suit had not abated. The Grant Ad Litem, being a special grant, required no confirmation; the Grant of Probate had not been revoked even though stayed, and disputes over it belong to the probate court.

p. 7
03

Whether the estate of Anna Cheluget should be joined

Holding

Yes; joined as 3rd Defendant suo motu under Order 1 Rule 10(2)

Reasoning

The plaintiff sought the entire co-owned land to revert to him, which would affect the estate's portion. Her presence was necessary for effective adjudication and to avoid condemning an interested party unheard. The court invoked Article 159(2)(d), sections 1A, 1B and 3A of the Civil Procedure Act, and Order 1 Rules 3 and 10(2).

p. 9

Legal principles established

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  • A preliminary objection must be a pure point of law and cannot be raised where facts require ascertainment
  • Non-joinder of a party is not fatal to a suit
  • A limited grant of administration ad litem need not be confirmed and confers authority to substitute a deceased plaintiff
  • The court may, of its own motion, join a necessary party under Order 1 Rule 10(2)

Court orders

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  1. 1.The Respondent's Notice of Preliminary Objection dated 15th January, 2025 is dismissed
  2. 2.The name of the Plaintiff David Kiptoo Cheluget (deceased) is substituted with the name of the Applicant Hellen Chepkoech Cheluget
  3. 3.The Applicant to file an Amended Plaint reflecting the substitution within 30 days
  4. 4.The estate of the late Anna Cheluget is joined to the suit as 3rd Defendant, with pleadings to be amended to reflect the joinder
  5. 5.Costs of the application and the PO shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 3(1), Order 24 Rule 5, Order 1 Rule 3, Order 1 Rule 9, Order 1 Rule 10(2) and (4)
  • Law of Succession ActSection 82(a)
  • Land Registration ActSection 94
  • Civil Procedure ActSection 27, Sections 1A and 1B, Section 3A
  • Constitution of KenyaArticle 50, Article 159(2)(d)

Cases cited (13)

  • Trouistik Union International & Another vs Jane Mbeyu & Another
    (1993) eKLR
  • Julian Adoyo Ongunga & Another vs Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased)
    (2016) eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Limited
    (1969) EA 696
  • D.T. Dobbie & Company (Kenya) Limited vs Joseph Mbaria Muchina & Another
    (1980) KECA 3 (KLR)
  • Gladys Jepkosgei Boss vs Star Publication Limited
    (2021) eKLR
  • Blue Shield Insurance Company Ltd vs Joseph Mboya Oguttu
    (2009) eKLR
  • Narok County Government vs Livingstone Kunini Ntutu & 2 Others
    (2018) eKLR
  • Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others
    (2014) eKLR
  • Moses Bii vs Kericho District Land Registrar & Another
    (2015) eKLR
  • Josephat Thuo Githachuri vs James Gaitho Kibue & Another; Gladys Nduta Mbugua (Interested Party)
    (2021) KEELC 1951 (KLR)
  • Kenya Farmers Cooperative Union Ltd vs Charles Murgor (Deceased) T/A Kiptabei Coffee Estate
    (2005) eKLR
  • Hassan Ali Joho & another vs Suleiman Said Shahbal & 2 others
    (2014) eKLR
  • Oraro vs Mbaja
    (2005) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (implied; not expressly cited)

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, "Cheluget v Cheluget & another (Environment & Land Case 115B of 2020) [2025] KEELC 3824 (KLR)", Case Analysis (2025). Not stated in the extract (Uasin Gishu ELC suit concerning UASIN GISHU/KORMAET SCHEME/X7). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3824/eng@2025-05-15

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