[2021] KEELC 2249 (KLR)
The court held that the plaintiffs, as children and administrators of the late Eunice Wambui Kariha, could only pursue her claim to the suit property after first substituting themselves in the pending High Court matters (Nairobi High Court Miscellaneous Civil Application No. 10 of 2006 and Nairobi High Court Civil...
Source-derived case information.
- Citation
- [2021] KEELC 2249 (KLR)
- Parties
- Plaintiff: Alexander Anthony Wahiu; Plaintiff: Samuel Mwai; Plaintiff: Nicholas Muiruri; Defendant: Joseph Kariha Wahiu; Defendant: Thumbi Kamau
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 239 of 2018
- Procedural Posture
- Land and Property Suit / Ruling on Stay of Proceedings
- Outcome
- Suit stayed pending determination of related High Court matters.
- Judges
- AK Bor
- Legal Topics
- Succession Rights, Letters of Administration, Joint Property, Estate Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alexander Anthony Wahiu
Plaintiff
Samuel Mwai
Plaintiff
Nicholas Muiruri
Plaintiff
Joseph Kariha Wahiu
Defendant
Thumbi Kamau
Defendant
Procedural Posture
Land and Property Suit / Ruling on Stay of Proceedings
Legal Issues
- 1 Whether the plaintiffs can proceed with the suit before determination of their late mother.s entitlement to the suit property in prior High Court matters.
- 2 Whether the plaintiffs, as administrators of their late mother.s estate, should first substitute her in the pending High Court suits before pursuing their claim in this court.
- 3 Whether the status quo should be maintained pending determination of the share in the suit property.
Ratio Decidendi
The court held that the plaintiffs, as children and administrators of the late Eunice Wambui Kariha, could only pursue her claim to the suit property after first substituting themselves in the pending High Court matters (Nairobi High Court Miscellaneous Civil Application No. 10 of 2006 and Nairobi High Court Civil Suit No. 43 of 2010 (OS)) and obtaining a determination of her entitlement. The court reasoned that since the late Eunice Wambui Kariha.s claim survived her death, the proper procedure was for her estate to be represented in the ongoing suits to establish her share in the property. Only after such determination could the plaintiffs, as beneficiaries, assert their claim. To...
Court Disposition
Suit stayed pending determination of related High Court matters.
Orders
- This suit is stayed until Nairobi HCCC No. 43 of 2010 (OS) and Nairobi High Court Miscellaneous Civil Application No. 10 of 2006 are heard and determined by the Family Division of the High Court.
- The status quo prevailing as at the date of this ruling shall be maintained by the parties to preserve the Suit Property.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ELC CASE NO. 239 OF 2018
ALEXANDER ANTHONY WAHIU..................................1ST PLAINTIFF
SAMUEL MWAI.................................................................2ND PLAINTIFF
NICHOLAS MUIRURI......................................................3RD PLAINTIFF
VERSUS
JOSEPH KARIHA WAHIU............................................1ST DEFENDANT
THUMBI KAMAU..........................................................2ND DEFENDANT
RULING
When the court retreated to write the judgement in this case, it noted that the Plaintiffs’ claim related to the interest which their late mother, Eunice Wambui Kariha claimed in land reference number 209/13291 (“the Suit Property”). The court noted that the Suit Property in this case was the subject matter of Nairobi High Court Miscellaneous Civil Application Number 10 of 2006 based on the claim that the land was jointly acquired by the 1st Defendant and his late wife, Eunice Wambui Kariha. The court also noted that there was another dispute being Nairobi High Court Civil Suit Number 43 of 2010 (Originating Summons) between the 1st Defendant and his late wife over the Suit Property. The Plaintiffs are the children of the 1st Defendant and his late wife, Eunice Wambui Kariha.
Eunice Wambui Kariha died on 28/12/2014. It would appear that she died intestate. Since the claim by the late Eunice Wambui Kariha to the Suit Property survived her death, the claim to the land can be continued by her children, who are the Plaintiffs in this case after taking out letters of administration for her estate.
In this court’s view, the proper procedure would be for the Plaintiffs to first have a determination made in Nairobi High Court Miscellaneous Civil Application Number 10 of 2006 and Nairobi High Court Civil Suit Number 43 of 2010 (OS) regarding the share over the Suit Property that the late Eunice Wambui Kariha was entitled to because her claim survived her death and she had children who would be the dependants of her estate. The Plaintiffs ought to substitute their late mother in those suits after obtaining letters of administration over her estate.
In the interest of justice, the court stays this suit until Nairobi HCCC No. 43 of 2010 (OS) and Nairobi High Court Miscellaneous Civil Application Number 10 of 2006 are heard and a determination is made by the Family Division of the High Court on the share the Plaintiff’s late mother was entitled to in the Suit Property. That is the share which the beneficiaries of her estate can lay claim to.
The status quo prevailing as at the date of this ruling will be maintained by the parties so as to preserve the Suit Property until the court determines the share in the Suit Property which the Plaintiffs’ late mother was entitled to.
DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF AUGUST 2021.
K. BOR
JUDGE
In the presence of: -
Mr. Stanley Kingara for the Plaintiffs
Ms. B. Bundi holding brief for Mr. M. Gitonga for the 2nd Defendant
Mr. V. Owuor- Court Assistant
No appearance for the 2nd Defendant