High Court 16103 of 2025

5. The Deceased was survived by three (3) wives and several children. The estate of the Deceased comprised of only one asset being land Parcel No. Nyeri/Waraza/136. 6. Following the demise of the Deceased Grant of letters of Administration Intestate was on 1st March 2018 made to James Kiiru Mwangi, Chris Mungai Mwangi and Julius Njihia Mwangi. 7. The Grant was duly confirmed on 1st March 2018. The Applicant herein Ezekiel Wachira Githige alleges that pursuant to a court order made on 25th June 2018 he entered into a sale agreement with the Administrators of the estate to purchase one (1) acre out of Waraza Settlement Scheme Plot No. 136 (hereinafter the Suit Property). That the parties agreed on a purchase price of Kshs. 1.2 million to be paid in instalments. 8. The Applicant claims that despite having paid the full purchase price as was agreed, the Administrators have refused to effect transfer of the one (1) acre portion to him. The Applicant prays to be enjoined in this suit in order to pursue his beneficial interest in the suit property. 9. The Respondents in their reply averred that they did not enter into any sale agreement with the applicant and are not aware of any court order sanctioning sale of estate property. That if the applicant paid out any monies to the Administrators then that money has been misappropriated by the said administrators. They urge the court to dismiss the application. Analysis and Determination 10. I have carefully considered the application before this court, the reply filed thereto as well as the written submissions filed by both parties. 11. The law relating to joinder of parties is found in Order 1 Rule 10(2) of the Civil Procedure Rules 2010 which provides that “ The court may at any stage of the proceedings either upon or without the application of either party, and on such terms as may appear to the court be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that he name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectively and completely to adjudicate upon and settle all questions involved in the suit be added.” 12. In Judicial Service Commission -Vs- Speaker of the National Assembly [2013] eKLR the court stated that “ an interested party ……..is a person with an identifiable state or legal interest in the proceedings hence may not be said to be wholly non-partisan as he is likely to urge the court to make a determination favourable to his state in the proceedings” 13. In the case of Joseph Njau Kingoru -Vs- Robert Maina Chege & 3 others [2002] eKLR, Hon. Lady Justice Nambuye (retired) set out the principles to be considered by a court in deciding on an application for joinder as follows “ (i) He must be a necessary party. (ii) He must be a proper party. (iii) In the case of the defendant there must be a relief flowing from that defendant to the plaintiff. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16103/eng@2025-11-07 2

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(iv) The ultimate order or decree cannot be enforced without his presence in the matter. (v) His presence is necessary to enable the court effectively and completely adjudicate upon and settle all questions in the suit.” 14. It must be borne in mind that this Court is sitting as a Probate Court with the sole mandate of overseeing the distribution of the estate to the genuine heirs. At the outset it is not in dispute that the Applicant is not a child of the Deceased and therefore he is not a beneficiary to the estate of the Deceased. The applicant is what is normally referred to in local parlance as a ‘purchaser’ and it is in this capacity that he stakes a claim to the suit property. 15. The applicant is seeking to be enjoined in their succession cause. Ordinarily the only parties in a succession cause would be those who have ‘locus standi’ in the matter. The applicant who is not executor/administrator nor a beneficiary to the estate would have no locus standi in his succession cause. 16. The Applicant avers that an acre out of the estate property was sold to him on the authority of a court order. That on 25th June 2018 the court authorized the administrators of the estate to dispose by way of sale one (1) acre out of the parcel of land known as Waraza Settlement scheme Plot No. 136 in order to raise funds to cover the costs of administration of the estate. 17. I have carefully and anxiously perused the record. I note that in a judgment delivered on 1st March 2018, Hon. Lady Justice Matheka gave directions on how the estate was to be distributed. The court in addition made the following order. “ One acre of the estate to be sold at market rates to cover the cost of administration.” 18. The above order is the one the applicant is referring to as proof that the sale of one (1) acre was sanctioned by the court. The certificate of confirmed grant dated 1st March 2018 and rectified on 25th June 2018 also indicates that one (1) acre of the estate was to be sold at market rates to cover the cost of administration. 19. The applicant has annexed to his supporting affidavit dated 24th March 2025 a copy of an Agreement for sale dated 13th June 2019 which agreement appears to have been entered into between the Applicant and the administrators of the estate. 20. The Applicant claims that pursuant to that sale agreement he did pay into the estate account an amount of Kshs. 1.2 million. However the applicant has not tendered any proof of such payment and on their part the Respondents deny having sold any land to the applicant and deny having received any funds from the applicant. 21. As stated earlier the applicant not being a beneficiary to the estate has no locus standi in this succession cause. The Applicant is not a necessary party in this succession cause. Further it cannot be said that the estate cannot be distributed to the genuine beneficiaries without the applicants involvement. The applicants complaint is against the administrators of the estate to whom he alleges he paid Kshs. 1.2 million. He should pursue the persons whom he claims to have paid. 22. It is clear that there exists a dispute between the estate and the Applicant over the ownership of the one (1) acre parcel of land. That dispute is not one which this court sitting as a Probate Court has the mandate and/or authority to determine. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16103/eng@2025-11-07 3

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23. Matters relating to the ownership, use and occupation of land are now under Article 162 of the constitution mandated to determine by a specialized court being the Environment and Land Court (‘ELC’). 24. Section 13 of the Environment and Land Court Act provides for the jurisdiction of that court as follows:13. Jurisdiction of the Court (1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162 (2) (b) of the Constitution and with the Provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) In exercise of its jurisdiction under Article 162 (2) (b) of the Constitution, the Court shall have power to hear and determine disputes a. relating to environment planning and protection climate issues, land use planning, title tenure boundaries, rates, rents, valuations, mining, minerals and other natural resources; b. relating to compulsory acquisition of land; c. relating to land administration and management; (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating environment and land [Rev. 2012] No. 19 of 2011 Environment and Land Court 9 [Issue 1]. 25. Therefore, the correct and proper forum before which the Applicant ought to ventilate his claim to the suit land is ELC. The Environment and Land Court is the only court exclusively mandated by law to determine the question of ‘ownership’ of the suit land. 26. In Re Estate of Stone Kathubi Muinde (Deceased) [2016] eKLR Hon. Justice William Musyoka held that:“ Such claims to ownership of alleged estate property, as between the estate and a third party, should be resolved through civil process in a civil suit property brought before a civil court in accordance with the Provisions of the Civil Procedure Act and Civil Procedure Rules. This could mean filing suit at the magistrate’s courts, or at the Civil or Commercial Divisions of the High Court, or at the Environment and Land Court. If a decree is obtained in such suit in favour of the claimant then such decree should be presented to the probate court in the succession cause so that that court can give effect to it.” 27. Similarly in Re Estate of Mbai Wainaina (Deceased) [2015] eKLR the court held that “ …………………….The mandate of the probate Court under the law of succession Act is limited. It does not extend to determining issues of ownership of property and determination of trusts. It is not a matter of probate Court being incompetent to deal with such issues but the provisions of the law of succession and the relevant subsidiary legislation do not provide a convenient mechanism for determination of some issues. A party who wishes to have such matter resolved ought to file a substantive suit to be determined by the Environment and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16103/eng@2025-11-07 4

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Land Court. Consequently, and for the reasons above stated, I wish to find and hold has no mandate to resolve the proprietary interest on land based on the alleged trust.” [emphasis my own] 28. Finally I note that the applicant is seeking to be enjoined as a party to this succession cause. However the application comes too late in the day as his claim has effectively been overtaken by events given that the Grant was confirmed on 1st March 2018. 29. This application was filed in March 2025 which is seven (7) years after the Grant had been confirmed. The applicant ought to have acted much sooner. The confirmed Grant remains valid and enforceable as is. No party has made any application to revoke and/or review the confirmed grant. 30. Accordingly I do find and hold that the Applicants claim to one (1) acre out of land parcel Waraza Settlement Scheme Plot No. 136 can only be determined in the Environment and Land Court. In the premises the Notice of Motion dated 24th March 2025 seeking enjoinment to this succession cause is found to be without merit and is dismissed in its entirety. Costs to be met by the Applicant. DATED IN NYERI THIS 7TH DAY OF NOVEMBER 2025. .......................................... MAUREEN A. ODERO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16103/eng@2025-11-07 5

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