William Kiprop Komen v Mika Bowen Komen

2. The application is based on the grounds on the face of the application and supported by an Affidavit sworn on even date by Peter Kipruto Komen, one of the administrators of the estate of the late Kibowen Komen. It is stated that Peter Kipruto Komen and Abdulghani Kipkemboi Komen are among the four administrators of the estate, as evidenced by a Grant of Letters of Administration intestate issued on 30th May, 2022, and a Certificate of Confirmation of the Grant dated 30th July, 2022. 3. The main point of contention is Land Parcel No. L.R. 13312 (I.R 205). The deponent argues that this parcel of land has already been confirmed as part of the deceased's estate for distribution in accordance with the Law of Succession Act and Probate and Administration Rules. It is elaborated that in Nakuru High Court Succession Cause No. 500 of 1997, the High Court, M.K. Koome J (As she then was) on 30th July, 2010, made that decision distributing the land and this was upheld by the Court of Appeal. 4. He states that the judgment was challenged by Grace Samson Komen, who appealed to the Court of Appeal and later sought leave to appeal to the Supreme Court, but both applications were dismissed on 13th February, 2015 and 23rd January, 2017, respectively. 5. The Affiant further states that even though the land was registered in the names of William Kiprop Komen and Mika Bowen Komen, both the High Court and the Court of Appeal were aware of this fact when they made their judgments. 6. He states that Mika Bowen Komen, who is the defendant in the current case, filed an application on 23rd July, 2024, in the succession cause to have L.R. 13312 removed from the list of properties of the deceased's estate. The defendant argued that the land had been transferred to William Bowen and Mika Bowen on 7th July, 1969, before the deceased died on 15th February, 1997, and therefore it wasn't part of the estate. 7. However, S.M. Mohochi, J dismissed this application on 17th January, 2025, noting that the deceased had registered the property in the names of his sons in trust, which is why it was included in the probate. 8. In conclusion, he states that the court lacks jurisdiction to hear the current Civil Case No. 89 of 2012, as any orders made in it would contradict the decisions of the High Court and Court of Appeal in the succession matter. 9. The Administrators believe the case should be terminated so that the land can be distributed according to the judgments, rulings, grants, and certificates from the succession case. 10. The second application dated 7th February, 2025 was filed by the Applicant, Andrew Kibet Komen, through the firm of Olonyi and Company Advocates. It is expressed under Order 24 Rule 2 and Order 8 Rule 3(1) of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act and seeking Orders;- 11. 1. That an entry be made on record stating that the plaintiff is deceased. 2. That the applicant, Andrew Kibet Komen, be substituted for the plaintiff to facilitate the conclusion of the matter. 3. That upon substitution, the applicant be granted leave to amend the plaint to reflect the substitution. 4. That the costs of the application be determined by the outcome of the entire suit. The application is supported by an affidavit sworn by Andrew Kibet Komen, who states that he is the son of the plaintiff, William Kiprop Komen who died on 23rd June, 2019, in Menengai Sub-location, while the case was still pending. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16138/eng@2025-11-05 2

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12. Subsequently, he has obtained a Limited Grant of Letters of Administration Ad Litem, issued on 22nd January, 2025, giving him the authority to act as the legal representative of his deceased father's estate for the purpose of prosecuting this case. He seeks to be substituted as the plaintiff so that he can continue the case to its conclusion. 13. The third Application is dated 12th March, 2025 and was filed by the 2nd proposed interested parties; Raymond Komen, Richard Komen,Chris Komen & John Komen, through the firm of A. N Geke and Company Advocates. It is brought under sections 1A, 1B, 3, and 3A of the Civil Procedure Act, Order 1 Rule 10 of the Civil Procedure Rules seeking for Orders that;1. Spent. 2. The court be pleased to enjoin the applicants as interested parties. 3. Upon the grant of the second prayer, the court should find that the suit abated on 23rd June, 2020, and mark the case as closed because there is nothing to be litigated. 4. The costs of the application be provided for. 14. The grounds are on the face of the application and supported by the Affidavit of Raymond Komen, one of the 2nd proposed interested parties and a son of the Plaintiff herein. 15. He depones that the 2nd proposed interested parties are all the biological children of the late William Komen, the plaintiff herein who passed away five years ago. That the interested parties were previously recognised and substituted as beneficiaries of their late father's half share in a property identified as Menengai West L.R NO. 13312 (I.R 2025), which is the subject of this litigation. This substitution was allowed by an order made in NKU SUCC NO. 50097. 16. He argues that the suit automatically abated on 23rd June, 2020 after the plaintiff's death and that they were shocked to learn the inactive suit, which had not been active since 2013, was listed for a mention on 19th March, 2025. 17. He opposes the revival of the suit, claiming that any attempt to do so is ill motivated and maliciously brought to satisfy personal selfish ends. 18. He alleges that one of the beneficiaries, Andrew Kibet Komen, in conspiracy with the area chief, has fraudulently obtained a limited grant of letters of administration Ad Litem to defend the suit. 19. He believes that Andrew Kibet Komen is a puppet of the defendant and intends to compromise the suit for personal gain, disregarding the other beneficiaries. They have challenged this Ad Litem, and a hearing for directions was scheduled for 31st March, 2025. 20. The interested party herein contend that the proper forum for determining the matter of the property is Succession Case No. 50097. 21. In addition to their application, the 2nd Proposed Interested Parties raised a Preliminary Objection dated 12th March, 2025 through the firm on A.N Geke & Company Advocates and brought under Order 24 Rule 3 of the Civil Procedure Rules, arguing that;1. The plaintiff passed away on 6th March 6, 2019. 2. The suit abated on 23rd June, 2020, which was 12 months after the plaintiff's death. 3. The entire suit is fatally defective, ill-conceived and an abuse of court process, and should not be heard. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16138/eng@2025-11-05 3

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Applicant’s response to applications dated 3rd February, 2025 and 12th March, 2025. 22. In his Replying Affidavit sworn on 13th June, 2025 by Andrew Komen ,the Applicant argues that the applications from the proposed interested parties are premature and an abuse of the court process as they have not yet been granted audience by the court as interested parties. 23. He states that a consent orderjudgment was reached between the plaintiff and the defendant on 27th April, 2012, which resolved all the issues in the case and that following this, the parties began the process of executing the judgment by subdividing the land and preparing the necessary documents for approval by relevant government authorities. 24. He states that the process was underway when the plaintiff died, and only the issuance of title deeds remained. And therefore, the case has not abated, and the proposed interested parties' assertion that it has is untrue. 25. He argues that a Kenya Gazette Notice of 28th July, 2014 relied upon by the Applicants, does not apply to this case that was filed in 2012. 26. He asserts that the proposed interested parties are busy bodies whose previous attempts to control the subject land parcel (L.R. NO. 13312) in Nakuru HCC Succession No. 500 of 1997 were unsuccessful. 27. In conclusion, he urges this Court to dismiss the applications dated 3rd February, 2025, and 12th March, 2025, and to allow the application dated 7th February, 2025, to allow the parties to finalize the execution of the consent judgment. Defendant’s response to application dated 12th March, 2025 28. The Defendant, Mika Bowen Komen, terming the application as bad at law, still-born, ill-conceived and an over-ambitious exercise tantamount to abuse of court process. 29. His main argument is that the proposed interested parties have not yet been officially joined to the suit and are therefore strangers to the proceedings. She claims that a party must first seek leave of the court to be joined before making substantive prayers. In support of that argument, he cited the Court of Appeal decision in Muungano Wa Wanavijiji Akiba Mashinani Trust v Kihiu & 3 others, and argued that the interested parties cannot introduce new issues for the court to determine but must show they have a stake in the matter as presented by the principal parties. 30. He argues that the Applicants are attempting to have the suit struck out, which is a prayer that seeks to conclusively lock out the principal parties from their cause. 31. He also challenges the orders the interested parties rely on from NKU SUCC NO. 50097 allegedly allowing the proposed interested parties to step into the shoes of their late father William Komen regarding his share of Menengai West LR No. 13312(IR2025). 32. He states that the parties in the current suit were not privy to that case, and the interested parties have not provided the court with a copy of the order to assist in the current proceedings. 33. He asserts that even if the order exists, it does not automatically make the applicants interested parties in the current suit and cannot take away the court's jurisdiction. 34. In conclusion, He states that the applicants have not provided evidence to link them to the deceased, William Komen. Further that there are active substitution proceedings between the principal parties, and therefore, the interested parties' application is tainted with mala fides and brought with an ulterior motive. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16138/eng@2025-11-05 4

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35. He urges this Court to dismiss the application in its entirety with costs to the principal parties. 1st proposed interested parties’ response 36. Peter Kipruto Komen, one of the administrators of the Estate of Kibowen Komen filed a response to the Application dated 7th February, 2025, on his behalf and for Abdulghani Kipkemboi Komen. 37. He argues that the suit abated by operation of law on 24th June, 2020, and therefore, an application for the substitution of the plaintiff is not valid. He views the application to substitute the deceased plaintiff in an already abated suit as a waste of judicial time. 38. Furthermore, he claims that the subject matter of the case, L.R. NO. 13312 (I.R 2025), which measures 2619 acres, has already been resolved with finality in other court proceedings. 39. Further, he states that the subject matter, L.R. No. 13312, has since been distributed in Nakuru H.C. SUCC. CAUSE NO. 500 OF 1997, and that the applicant is wasting judicial scarce resources by pursuing an abated suit. 40. He believes the applicant is using the court process like a lottery to achieve what he has failed to achieve in the aforementioned judgments and rulings. 41. Adding that he is a son of the late William Kiprop Komen , he expresses his astonishment that Andrew Kibet Komen obtained a limited Grant of Letters of Administration ad litem without his consent or knowledge. 42. He notes that the applicant, Andrew Kibet Komen, is also listed as a beneficiary of L.R. No. 13312 according to an Amended Certificate of Confirmation of a Grant issued on 30th May, 2022. 43. He concludes by asserting that the application dated 7th February, 2025, has no merit, is an abuse of the court process, and should be dismissed with costs. 44. The three application were canvassed by written submissions. Applicant’s Submissions dated 24th June 2025 45. In support of his application dated 7th February, 2025, seeking to be substituted for the deceased plaintiff (William Kiprop Komen) and to amend the plaint to reflect this substitution, as the plaintiff died on 23rd June, 2019, after a consent was reached with the defendant on 27th April, 2012. 46. He submits that he has obtained a Limited Grant of Letters of Administration Ad Litem to finalise the terms of this consent judgment, which involved the equal demarcation and registration of Land Parcel No. LR.13312 (IR 205). 47. He states that the parties had already appointed surveyors, paid them, and had the subDIVISION processes approved before the plaintiff's death, and the intended plaintiff will finalize the issuance of the title deeds only. 48. Regarding the proposed interested parties’ application dated 3rd February, 2025, seeking to be joined as interested parties and for the court to find it lacks jurisdiction over the Land Parcel No. LR.13312 (IR 205), thereby terminating the proceedings, the Applicant argues that these proposed interested parties lack an audience before the court as they have not been allowed to join the suit yet. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16138/eng@2025-11-05 5

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49. He submits that the proposed interested parties are the administrators of the estate of Kibowen Komen, not the plaintiff herein, William Kiprop Komen, and therefore, their attempt to join is misleading and baseless. 50. In addition, he submits that the subject land parcel has never been part of the succession cause No. 500 of 1997 for Kibowen Komen's estate. He refers to previous rulings that dismissed the proposed interested parties' applications to have the title deed issued to Kibowen Komen, stating the judge found the deceased was never the registered owner. 51. Concerning the interested parties Application dated 12th March, 2025, seeking to be enjoined and for the court to find the suit abated on 23rd June, 2020, twelve months after the plaintiff's death, the Applicant submits that the suit has not abated as a consent judgment was entered, and the matter is at the execution stage. 52. In support of his argument, he relies on Order 24 Rule 1 of the Civil Procedure Rules which states that provisions relating to the abatement of a suit do not apply to proceedings in the execution of a decree or order. 53. Further, the Applicant submitted that Kenya Gazette Notice published on 28th July, 2014, does not apply to this case because the case was filed in 2012 and the consent was entered in 2012, and the law does not apply retrospectively. 54. In conclusion, he urges this Court to dismiss the applications dated 3rd February, 2025, and 12th March, 2025, and to allow the application dated 7th February, 2025, with costs. 1st & 2nd Proposed interested parties, submissions dated 27th May 2025 55. Regarding their Application dated 3rd February, 2025, they submit that they are among the Four Administrators of the Estate of the late Kibowen Komen (deceased) as per the Certificate of Confirmation of Grant issued on 30th May, 2022 in a separate succession case. They argue that the subject parcel of land reference No. L.R. 13312 (I.R 205) is under their administration as per said Grant and that the land in question has already been distributed by a Probate Court in Nakuru High Court Succession Cause No. 500 of 1997. 56. They submit that the Probate Court's jurisdiction is concurrent and equal to the High Court’s and therefore, High Court is not suited to alter the Probate Court's orders regarding the land. That an application by Mika Bowen Komen to have the property removed from the Certificate of Confirmation was dismissed by the Probate Court on the grounds that it was res judicata. 57. It was further argued that the issue as to who is entitled to the land has been decided with finality by a Court of competent jurisdiction and therefore, the doctrine of res judicata should apply. In support, they cite a Gazette Notice dated 28th July, 2014, and Article 162(2)(b) of the Constitution, stating that the High Court no longer has jurisdiction over land cases. 58. In respect to the Application dated 7th February, 2025, the interested parties oppose it arguing that the suit had already abated since the plaintiff's death, yet Andrew Kibet Komen did not seek its revival. In support, they cite the case of Murang'a ELC, Misc. Civil Application No. 6 of 2019, Julius Maina Kabiru vs. Kabiru Kang'ara & Thomas Irungu Kigoi, where L. Gacheru J held that an application for substitution without revival of an abated suit is a nullity. 59. Lastly, they submitted that they fully associate themselves with the prayers in the application dated 12th March, 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16138/eng@2025-11-05 6

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60. In conclusion, they urge the Court to dismiss the application dated 7th February, 2025, and to allow the applications dated 3rd February, 2025, and 12th March, 2025. They also pray to be awarded costs of the applications. Defendant’s Submissions dated 18th June 2025 61. His submissions are primarily on the proposed interested parties’ application dated 3rd February, 2025 where they seek to be joined to the case and, upon joinder, to have the court declare that it lacks jurisdiction over Land Parcel No. L.R 13312 and terminate the proceedings. 62. He opposes that application firstly because the proposed interested parties have sought substantive orders before being admitted as parties to the suit, they therefore lack the legal standing to seek those orders, and they have not met the threshold for being joined as parties. 63. It is argued that a person must first get leave from the court to be joined as an interested party before they can participate in the proceedings or seek other reliefs. To support this argument, reliance is placed on the case of HOPF v Director Of Survey & 2 others; Sakaja & 2 others (Interested Parties) [2022] KEELC 6 (KLR) which held that “ It is upon being give leave and he actually being enjoined that he can participate in the proceedings and move the Court for other reliefs. Absent of that, he is a stranger to the proceedings.” 64. Further, the Defendant argues that seeking substantive orders in an application for joinder is an abuse of the court process. For that argument, he cites several cases including County Assembly of Mandera County v Governor, Mandera County & another [2020] eKLR, where the Supreme Court held that an intended interested party lacks the capacity to seek orders for the dismissal of a reference and that such a prayer is premature. 65. He submits that the principle that the law prohibits a proposed interested party from seeking substantive orders was dealt with in the case of Sophy Njiiri v National Bank of Kenya Limited & another; James Mwangi Njiiri (Interested Party) [2020] eKLR. 66. Further, he relies on the case of Mbaraka & 8 others v Kenya Electricity Transmission Company Limited & 2 others; The Governor of the County Government of Tana River & another (Interested Parties) (Petition 9 of 2021), and argued that the Court held that an interested party cannot upstage the original parties to a suit or introduce new causes of action. 67. He further quotes the case of Florence Nafula Ayodi & 5 others v Jonathan Ayodi Ligure v John Tabalya Mukite & another; Benson Girenge Kidiavai & 67 others (ApplicantsIntended Interested Parties) [2021] eKLR, where it was stated that praying for anything more than seeking leave to be enjoined is putting the cart before the horse. 68. Accordingly, he submitted that the Applicants have not met the legal threshold for joinder as set out in Human Rights Alliance v. Mumo Matemo & 5 others [2015] eKLR where the court held that an applicant has to have a demonstrable stake in the subject matter, show how the court's decision would affect them, and prove that their interests would not be adequately articulated by the existing parties. In conclusion, he urges the Court to dismiss the application with costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16138/eng@2025-11-05 7

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Analysis and determination 69. Upon considering the three Applications , the responses herein and the submissions by the respective parties, the issues for determination are :1. Whether the suit has abated due to the plaintiff's death. 2. Whether the applicant, Andrew Kibet Komen, should be substituted for the deceased plaintiff. 3. Whether the proposed interested parties should be joined to the case. 4. Whether the court has jurisdiction over the land parcel. 5. The legal status of the land, specifically whether it has already been distributed in a separate succession case (Nakuru High Court Succession Cause No. 500 of 1997) and if the principle of res judicata applies. 70. On the first issue, the Proposed Interested Parties contend that the suit automatically abated on 23rd June, 2020, which was 12 months after the plaintiff, William Kiprop Komen, died on 23rd June, 2019. On the other hand, the Applicant, Andrew Kibet Komen, and the Defendant, Mika Bowen Komen, argue that the suit has not abated because a consent judgment was already reached and the case is at the execution stage. 71. Indeed, as a general rule, upon the death of any of the party to a suit, the suit abates after 12 months from the death of the party. However, Order 24 Rule10 provide that abatement does not apply to instances where the suit is at the execution stage. 72. In this case, the record shows that indeed the plaintiff and the defendant entered into a consent to settle the matter vide the letter dated 27th April, 2012. The two of them agreed that they are registered tenants in equal shares of the parcel of land known as I.R. NUMBER 205 (L.R. NUMBER 13312), situated at Menengai West measuring approximately 2,619 acres. 73. The consent dictates that within seven days of filing the order, the parties will appoint surveyors to demarcate the land into two equal and equitable shares. Subsequently, these two shares will be registered in the names of the plaintiff and the defendant, who will also share the costs of the survey and transfer equally. The demarcation and subDIVISION of the land will be done under the close supervision of both parties' advocates. 74. On 13th July, 2012, R.P Wendoh J adopted that consent as the judgment of the Court leaving the matter for execution. In the circumstances herein, the suit was concluded before the death of the plaintiff and therefore , the argument that suit has abated fails. 75. On the second issue the Applicant is the plaintiff's son seeking to be substituted for his deceased father so as to continue the case. He has a Limited Grant of Letters of Administration Ad Litem issued by the Chief Magistrates Court at Nakuru on 22nd January, 2025 to act as the legal representative of his deceased’s father for that purpose. 76. Faced with similar applications in Agnes Wanjiku Wang’ondu v Uchumi Supermarket Ltd [2008] KEHC 2233 (KLR),Alnashir Visram J (As he then was) in Agnes Wanjiku Wang’ondu v Uchumi Supermarket Ltd [2008] KEHC 2233 (KLR) held: “ ..the requirement for substitution in Order 23 Rule 4 (3) does not apply to proceedings in execution of an order as was the case before the lower court. Secondly, was the application to “substitute” the personal representatives indeed necessary? In other words, was it necessary https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16138/eng@2025-11-05 8

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to enjoin the personal representatives to the suit? Order 30 Rule 1 would seem to say “NO”. This is what it states: “Order 30 Rule 1: In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee, executor or administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit, but the court may, if it thinks fit, order them or any of them to be made parties.” While the above rule states that it shall not ordinarily be necessary to make them parties to the suit, it does not say that they cannot be made parties to the suit. So, in appropriate circumstances, the personal representative can and should be allowed to be enjoined in the suit.” 77. In this case, and having found that the suit has not abated despite the death of the plaintiff herein as evidenced by the Death Certificate No. 0767984 annexed to the Applicant’s Supporting Affidavit to the Notice of Motion dated 7th February, 2025, it is fair and just that the Applicant is substituted in place of the deceased plaintiff for purposes of concluding the execution of the Judgement. 78. On the third issue being joinder of the two proposed interested parties to this suit, Order 1 Rule 10 (2) of the Civil Procedure Rules provides as follows:“ 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 to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out, and that the 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 effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 79. The two proposed interested parties have urged this court to join them to this suit and upon being joined, the Court to declare that it has no jurisdiction to make any determination on the subject parcel of land as its ownership has been determined by this Court and the Court of Appeal. 80. They claim that their late father Kibowen Komen owned the subject property. As earlier stated in this ruling, the consent judgment in this suit was between William Kiprop Komen and Mika Bowen Komen only. 81. Kibowen Komen was not a party to the instant suit. Further, the Grant of Letters of Administration which they are using for purposes of being joined in this suit is in regard to the estate of the said Kibowen Komen (Deceased) not William Kiprop Komen (Deceased). Those are two distinct and separate Estates. From the material before this Court and the circumstances herein, there is no justification for proposed interested parties to join this suit at the stage it is. Their quest for joinder is denied. 82. On the fourth issue regard this Court’s jurisdiction over the land parcel, it is obvious that the subject matter related to ownership of the land in question which currently is preserved for the Environment and Land Court. However, the judgment herein is in force having disposed off the issues in dispute by the parties therein and as earlier noted, it is at execution stage and therefore, two parties to this suit , with the plaintiff thereof being substituted by the Applicant herein should be left to proceed and finalised this matter pursuant to the consent judgment. 83. On the last issue on res judicata, the present suit was a dispute between William Kiprop Komen (the Plaintiff, now deceased) and Mika Bowen Komen (the Defendant), over ownership and boundaries. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16138/eng@2025-11-05 9

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As earlier stated in this Ruling, the Suit was subsequently concluded through the consent dated 27th April 2012, which was adopted as a judgment on 13th July 2012. 84. The issue here is joinder of parties and the substitution of the deceased Plaintiff. This Court is not re-adjudicating the ownership or distribution of L.R. 13312, which falls under the jurisdiction of the Probate Court, but rather ensuring the correct parties are before it to deal conclude the execution in this case. Ultimately the Court finds the suit herein is not res judicata. 85. In conclusion, this Court makes the following orders:1. The applications dated 3rd February 2025 and application dated 12th March 2025 be and are hereby dismissed. 2. The application dated 7th February, 2025, is hereby allowed in that Andrew Kibet Komen be and is hereby allowed to substitute the deceased Plaintiff, William Kiprop Komen for the purposes of concluding execution proceedings only. 3. Due to the nature of this matter, each party in respect of the three applications is ordered to bear his own costs. DATED, SIGNED AND DELIVERED AT NAKURU THIS 5TH DAY OF NOVEMBER, 2025. PATRICIA GICHOHI JUDGE In the presence of: NA for Plaintiff. Mr Ngure hold brief for Mr Ogola for Defendant. Mr Karanja Mbugua for 1st and 2nd proposed interested parties. Sylvia, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16138/eng@2025-11-05 10

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