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ELCDismissedNotice of motion dated 28/10/2024 in the pending suit (Machakos)· [2025] KEELC 3997 (KLR)

Mutune (Suing as the Personal Representative of Paul Mutune Mutiso - Deceased) v Khatri & 3 others (t/a Belpont Auctioneers); Khatri & 2 others (Proposed Interested Parties) (Environment & Land Case 167 of 2018) [2025] KEELC 3997 (KLR)

Environment and Land Court (or High Court), Machakos
20 May 2025
2,446 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Machakos court refused to let land claimants join deceased parties' beneficiaries or halt activities on disputed land because they lacked proper succession grants and evidence.

What this practically means

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Executive summary

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This ruling by A.Y. Koross, J at Machakos determined a notice of motion dated 28/10/2024 filed by the plaintiff (acting through the legal representative of the deceased plaintiff, Ruth Koki Mutune). The live prayers sought joinder of proposed interested parties - said to be beneficiaries of the deceased 2nd and 3rd defendants - and a temporary injunction restraining interference with land parcel Masii/Emui/683 pending the hearing of the suit, with costs in the cause. The plaintiff deposed that the suit against the 2nd and 3rd defendants abated on 1/11/2022 and that the beneficiaries had intensified activities on the suit property, including drilling a borehole. The 1st defendant and the proposed interested parties opposed, arguing the suit had abated without revival, that orders cannot issue against deceased persons, and that the plaintiff's earlier citation proceedings against the proposed interested parties (Machakos Citation Cause No. 55 of 2023) had been dismissed, so joinder was a back-door attempt. The court framed two issues: joinder and the injunction threshold. On joinder, it held that representation of deceased parties requires a full or limited grant under the Law of Succession Act followed by an application under Order 24 CPR for substitution or revival; joinder of beneficiaries was therefore misplaced. On the injunction, applying Giella v Cassman Brown and Mrao Ltd, the court found the plaintiff had not established a prima facie case, as the claim of over 50 years' occupation was unsupported by evidence. The motion was dismissed with costs in the cause.

Key legal issues

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01

Joinder of interested parties where the suit against deceased defendants has abated

Holding

Joinder refused; the plaintiff must first obtain a grant and move under Order 24 CPR for substitution/revival

Reasoning

Order 1 Rule 10(2) permits joinder of necessary parties, but the Muruatetu criteria require a identifiable proximate stake. Since the suit against the deceased 2nd and 3rd defendants abated on 1/11/2022, beneficiaries cannot simply be joined; the legal framework requires a grant under the Law of Succession Act and an application under Order 24 to revive the abated suit. The plaintiff's earlier citation proceedings having been dismissed, joinder would be a back-door route.

p. 4
02

Temporary injunction threshold

Holding

Injunction refused; no prima facie case established

Reasoning

Under Order 40 Rule 1 and Giella v Cassman Brown, the applicant must show a prima facie case, irreparable injury and balance of convenience. The plaintiff alleged over 50 years' occupation but produced no substantiating evidence such as photographs of houses, structures or crops. The court declines to make conclusive findings at interlocutory stage but finds the prima facie limb unmet, ending the inquiry.

Legal principles established

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  • An interested party is one with a recognizable stake in the matter
  • Deceased parties can only be represented by persons holding a full or limited grant under the Law of Succession Act, and substitution/revival proceeds under Order 24 CPR
  • The Giella v Cassman Brown triple test governs temporary injunctions

Court orders

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  1. 1.The notice of motion dated 28/10/2024 is dismissed
  2. 2.Costs of the motion to be in the cause
Jurisdiction invoked
Civil Procedure Rules, Order 1 Rule 10(2), Order 24, Order 40 Rule 1

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, "Mutune (Suing as the Personal Representative of Paul Mutune Mutiso - Deceased) v Khatri & 3 others (t/a Belpont Auctioneers); Khatri & 2 others (Proposed Interested Parties) (Environment & Land Case 167 of 2018) [2025] KEELC 3997 (KLR)", Case Analysis (2025). Notice of motion dated 28/10/2024 in the pending suit (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3997/eng@2025-05-20

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