[2018] KEELC 4043 (KLR)
The court found that the applicant had identified Wilson Kiprotich Cheserek as the Administrator of the Estate relevant to the proceedings, supported by a consent to the Confirmation of Grant. The 1st defendant, while opposing the application, failed to provide any affidavit or particulars identifying the proper...
Source-derived case information.
- Citation
- [2018] KEELC 4043 (KLR)
- Parties
- Plaintiff: Carren Jepkurgat Birir; Defendant: Symon Kiplagat Tallam; Defendant: Madgalina Tungu Kiptallam; Defendant: Wilson Kiprotich Cheserek
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 137 of 2016
- Procedural Posture
- Land Case / Ruling on Application for Joinder and Amendment of Plaint
- Outcome
- application granted
- Judges
- FM Njoroge
- Legal Topics
- Joinder of Parties, Amendment of Pleadings, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Carren Jepkurgat Birir
Plaintiff
Symon Kiplagat Tallam
Defendant
Madgalina Tungu Kiptallam
Defendant
Wilson Kiprotich Cheserek
Defendant
Procedural Posture
Land Case / Ruling on Application for Joinder and Amendment of Plaint
Legal Issues
- 1 Whether Wilson Kiprotich Cheserek should be enjoined as the 3rd defendant as Administrator of the Estate of Solomon Cheptalam Chepyegon.
- 2 Whether leave should be granted to amend the plaint to reflect the joinder of the new party.
Ratio Decidendi
The court found that the applicant had identified Wilson Kiprotich Cheserek as the Administrator of the Estate relevant to the proceedings, supported by a consent to the Confirmation of Grant. The 1st defendant, while opposing the application, failed to provide any affidavit or particulars identifying the proper Administrators of the Estate of the 2nd defendant, whom he claimed were the correct parties to be joined. The court held that it is the plaintiff's responsibility to conduct due diligence and identify the proper parties to be enjoined. In the absence of contrary evidence and given the supporting documentation, the court granted the application for joinder and amendment of the...
Court Disposition
application granted
Orders
- The application dated 10/4/2017 is granted.
- Leave is granted to enjoin Wilson Kiprotich Cheserek as the 3rd defendant.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 137 OF 2016
CARREN JEPKURGAT BIRIR...............................................PLAINTIFF
VERSUS
SYMON KIPLAGAT TALLAM....................................1ST DEFENDANT
MADGALINA TUNGU KIPTALLAM........................2ND DEFENDANT
WILSON KIPROTICH CHESEREK...........................3RD DEFENDANT
R U L I N G
1. The application dated 10/4/2017 seeks an order that the applicant be granted leave to have one Wilson Kiprotich Cheserek be enjoined as the 3rd defendant in this suit, and that leave be granted to amend the plaint as per the draft annexed to the supporting affidavit.
2. The applicant’s main ground for the application is that the proposed joinder would bring on board the Administrator of the Estate subject of these proceedings and that the real Administrator of the Estate was not known at the time of the institution of the suit.
3. A copy of the consent to the Confirmation of the Grant to the Estate of Solomon Cheptalam Chepyegon is annexed to the supporting affidavit. It names the proposed party as the person whom the beneficiaries have consented to have the Grant confirmed to.
4. The application is opposed by way of grounds of opposition filed by the 1st defendant. He states that the material placed before the court confirms that the intended defendant is not fit and proper to be enjoined in the matter and that joining the said Wilson Kiprotich Cheserek will only confuse and complicate the matters since he has also passed on. The 1st defendant also states that any claim if at all shall be in the Estate of the 2nd defendant and not Wilson Kiprotich Cheserek or any other party.
5. For records the claim against the 2nd defendant was withdrawn vide a Notice of Withdrawal of suit dated 1/11/2017. It is also noteworthy that the 1st defendant has not filed any affidavit or supplied any particulars to identify the Administrators of the Estate of the 2nd defendant whom he states are the right persons to be joined as parties in the suit.
6. The court notes that the 1st defendant is described in the plaint as a son to the deceased Solomon Chepkoimet Chebiegon, whose Estate is intended to be enjoined herein through the legal representatives of the Estate. The failure to provide information relating to the proper Administrators of the Estate, or indeed the true statues relating to the succession issue, may be a mean act on the part of the 1st defendant.
However, it is upon the plaintiff to conduct a proper enquiry and locate the proper persons to enjoin in this suit. He has identified the said Wilson Kiprotich Cheseret. I therefore grant the application dated 10/4/2017. Each party shall bear its own costs.
Dated, signed and delivered at Kitale on this 27th day of February, 2018.
MWANGI NJOROGE
JUDGE
27/2/2018
Before - Mwangi Njoroge, Judge
Court Assistant - Collins/Picoty
Mr. Chebi for applicant
N/A for the Respondent
Applicant present
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
27/2/2018