[2022] KEHC 26969 (KLR)

REPUBLIC OF KENYA

IN THE HIGH OF KENYA AT MERU

SUCCESSION CAUSE NO.197 OF 1997

IN THE MATTER OF THE ESTATE OF M’TWERANDU M’IRIUNGI-DECEASED

RUKARIA M’TWERANDU............................................PETITIONER/RESPONDENT

VERSUS

LEONARD KIMEU MWANTHI......................................OBJECTOR/RESPONDENT

AND

NATHANIEL KITHINJI IKIUGU.............1ST INTERESTED PARTY/APPLICANT

LABAN NDEGWA NGIGI.........................2ND INTERESTED PARTY/APPLICANT

ZIPPORAH NKATHA MBAABU.............3RD INTERESTED PARTY/APPLICANT

ANNE WANJUGU KARIITHI..................4TH INTERESTED PARTY/APPLICANT

MUKINDIA SAMWEL MWIRIGI...........5TH INTERESTED PARTY/APPLICANT

RULING

1. The court is called upon to determine summons under certificate of urgency dated 24/10/2020 by the interested parties/applicants pursuant to Articles 48 and 159 of the Constitution, Section 1A, 1B (A), 3A and 63(E) of the Civil Procedure Act, Order 51 Rules 1 & 10(2) of the Civil Procedure Rules. The applicants seek stay of the proceedings in this matter pending the hearing and determination of this application inter partes; joinder of the interested parties herein in these proceedings and leave to oppose the objector’s application dated 25/6/2020.

2. The grounds upon which the application is premised are set out in the body of the application and supporting affidavit of Nathaniel Kithinji Ikiugu, the 1st interested party herein, sworn on even date.

3. It is contended in that affidavit that, the applicants recently learnt of the existence of ELC Appeal No. 92/10 after the objector attempted to execute the decree therein as decreed by this court in its ruling of 27/2/2020, declaring that 11/2 acres of LR No. NTIMA/IGOKI/3183 belongs to the objector. After such discovery, they expeditiously moved the court appropriately through an application dated 3/8/2020 seeking to be enjoined as interested parties in the ELC proceedings and review of the judgement. On 19/8/2020, the ELC court ordered for the status quo to be maintained pending the hearing and determination of the applicants’ application, but surprisingly, the objector filed an application seeking to have the Meru Land Registrar authorized to cancel all subsequent subdivisions of LR No. NTIMA/IGOKI/3183 so that it can be reinstated, for purposes of the implementation of the order of 27/2/2020. Although a similar application was declined through the ruling of 27/2/2020, the applicants’ counsel vainly requested the objector’s counsel for a copy of the application to enable them respond. They innocently, without notice and at tremendous cost bought land parcel Nos. LR No. NTIMA/IGOKI/9595, 9596, 9605, 9601, 9597 and 9598 which were subdivisions of LR No. NTIMA/IGOKI/3183, and now proceedings which are extremely prejudicial to their ownership of the afore detailed parcels of land, were taken and/or have been concluded by the respondents, without their knowledge and/or involvement, yet the respondents knew of their existence both on the ground and at the Meru County Lands Registry. They developed the said parcels in full glare of public and at no time were they stopped from doing so by a court order or notice, and the objector neglected to make them parties to the ELC proceedings despite being aware that the beneficiaries had legitimately transferred their properties to 3rd parties.

4. It is apparent from the foregoing that they have an identifiable stake which justifies their joinder to this cause and leave to oppose the application dated 25/6/2020. They are innocent purchasers for value and if the orders sought are denied, the objector will demolish and cause wastage to their hard earned developments. They contend that they possess valid title deeds to their respective portions of land, and if the same are cancelled, they will be condemned unheard, and will suffer irreparable loss and damage. In view of the existing orders of the prevailing status quo to be maintained pending the hearing of their application dated 3/8/2020, it is imperative that the proceedings herein are stayed pending the determination of ELC Appeal No. 92/10.

5. The 1st applicant swore a further affidavit on 18/12/2020 in support of their application and in response to the objector’s replying affidavit sworn on 2/12/2020. Unfortunately, that replying affidavit is not in the court file.

6. On 22/11/2021, counsels for the petitioner and one of the interested parties intimated to court that they would not be opposing the application.

7. The petitioner filed written submissions, which I have considered, fully supporting the applicants’ application.

Analysis and determination

8. The sole issue for determination is whether the interested parties are necessary parties to the cause, to justify their joinder.

9. The pre-requisites to be fulfilled before a party can be joined to proceedings were set out in Skov Estate Limited & 5 others v Agricultural Development Corporation & another [2015] eKLR, where the court stated;

“In my view, for one to convince the court that he/she needs to be enjoined to the suit as interested party, such person must demonstrate that it is necessary that he/she be enjoined in the suit, so that the court may settle all questions involved in the matter. It is not enough for one to merely show that he/she has a cursory interest in the subject matter of litigation. Litigation invariably affects many people. A judgment or order in most cases does not only affect the litigants in the matter. It does have ramifications for others as well and one may very well argue that these others have an interest in the litigation. That is a fair argument, but a mere interest, without a demonstration that the presence of such party will assist in the settlement of the questions involved in the suit, is not enough to entitle one be enjoined in a suit as interested party.

In other words, there needs to be a demonstration that the interest of the person goes further than “merely being affected" by the judgment or order. It must be shown that the presence of that person is necessary, so that the issues in the suit may be settled, and that if the person is not enjoined, the court may not be fully equipped to settle the questions in the suit or may be handicapped in one way or another.A joinder may also be allowed if the intended interested party has a claim of his own, which in the circumstances of the matter, needs to be tried, or is convenient to be tried alongside the claims of the incumbent plaintiff and defendant. The threshold for joinder of an interested party should not be too low, or else, this is prone to open doors for busybodies to be joined to proceedings, merely to spectate or confuse the issues in the matter.Apart from the above, whether or not to enjoin a person as an interested party, must be looked at within the context and surrounding circumstances of each particular case.”

Do the applicant’s qualify to be joined

10. The justification given by the interested parties in their quest for joinder is that they innocently, for value and without notice, purchased land parcel Nos. LR No. NTIMA/IGOKI/9595, 9596, 9605, 9601, 9597 and 9598 which were subdivisions of LR No. NTIMA/IGOKI/3183 from the beneficiaries herein. Pursuant to such purchase, they openly commenced developments thereon without any interference from the objector. They learnt with utter shock and dismay the existence of this cause and ELC Appeal No. 92/10, where orders were issued adverse to them. They also say that they have sought joinder in the ELC case with a view to seeking review of the order which accorded to the objector the title to the property.

11. It is true that LR No. NTIMA/IGOKI/3183 was subdivided into parcel Nos. LR No. NTIMA/IGOKI/9595, 9596, 9605, 9601, 9597 and 9598. It is equally factual that the interested parties have title deeds to the resultant subdivisions of parcel No. LR No. NTIMA/IGOKI/3183 from a sale they contend was for valuable consideration. What is not in dispute however is the fact that the applicants are not alleging to be beneficiaries to the estate to be entitled by way of inheritance. Their claim is upon title to land out of sale transactions. That to me is a claim that does not fall for resolution by a succession court but elsewhere. That other forum is well known to the applicants for they have approached the same for relief. It shall not add value but unduly burden the court and seek to use its resource in judicial time in an inefficient and disproportionate manner. Such must be resisted by the court. Nobody should be allowed to approach two courts at the same time over the same matter for that portends the prospects of embarrassment in the event of conflicting decisions.

12. Claims for the use and occupation to land and title to land are constitutionally reserved for the exclusive jurisdiction of the Environment and Land Court and the high court has no jurisdiction to try same. It matters not that the high court is sitting as a probate court. Musyoka j In Re Estate of Stone Kathuli Muinde (deceased) (2016) eKLR while addressing the issue had this to say

(QUOTE)

13. For lack of jurisdiction in the court and the fact that the applicants have approached the right court, the application dated 24. 10. 2020 is misconceived and is hereby dismissed.

14. I make no orders as to costs.

DATED SIGNED AND DELIVERED AT MERU THIS 9TH DAY OF MARCH 2022

Patrick J.O Otieno

Judge