[2022] KEHC 13349 (KLR)

Meto v Metto (Succession Cause 66 of 2015) [2022] KEHC 13349 (KLR) (20 September 2022) (Ruling)

Neutral citation: [2022] KEHC 13349 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Succession Cause 66 of 2015

EKO Ogola, J

September 20, 2022

IN THE MATTER OF THE ESTATE OF THE LATE KIMETTO SONGOK

Between

Prisca Jepng’etich Meto

Petitioner

and

Francis Rugut Metto

Objector

Ruling

1. By way of notice of motion dated April 26, 2021, the applicant seeks the following orders;a.Spentb.The proposed interested parties are restrained from carrying out any development on land title number Nandi/Ndalat settlement scheme/231 pending hearing and determination of the application.c.The proposed interested parties herein; Julius Kipsang Busienei, Marcella Jepchumba, Daniel Kiptoo Letting and Micah Meli be enjoined into this cause as interested parties.

2. The application is based on the grounds set out therein and is supported by affidavit of Francis Rugut Meto sworn on April 26, 2021 and a further affidavit of the deponent sworn on December 5, 2021.

Applicant’s Case 3. The applicant contends that he is the only surviving son of the deceased and the respondent is the daughter in law of the deceased, having been married to his deceased’s son. The land parcel number Nandi/Ndalat settlement scheme/231 forms part of the estate of the deceased.

4. The applicant’s case is that he has discovered that the respondent entered into sale transactions in regard to the suit property without the consent of the applicant. He also discovered that on various dates the respondent sold portions of the estate to the proposed interested parties. On February 19, 2015 he sold 2 acres to Julius Kipsang Busienei, on July 29, 2013 he sold 1 acre to Marcella Jepchumba and on January 29, 2015, he sold a portion of the estate to Daniel Kiptoo Letting who then sold the same to Micah Meli. These transactions were conducted after the death of the deceased and before the grant was issued; meaning that the respondent intermeddled with the estate.

5. The appellant avers that the joinder of the proposed interested parties is necessary to determine the legality of the sale agreements and for a just and fair distribution of the estate and that the beneficiaries of the estate will suffer irreparably if the distribution is carried out before the nullification of the impugned transfers.

Respondent’s Case 6. The application is opposed by the respondent by a replying affidavit sworn by the respondent on May 27, 2021. It is the respondent’s case that the purpose of the application is to delay the distribution of the estate. Further, that the applicant is seeking orders for an injunction in the wrong forum and it is the second time the applicant has sought such orders. In an application dated August 2, 2019 the applicant sought similar orders but did not prosecute the application.

7. The respondent cited the case of Giella v Cassman Brown & Company Limited(1973) EA 358 and submitted that it laid out the principles that were to be considered in relation to the facts on record.

8. It is the respondent’s case that the only beneficiaries of the estate are the respondent and applicant. The proposed interested parties would have filed documents of their own free will if they were interested. The applicant has failed to show how the enjoinment of the proposed interested parties will assist the court in determining the issue in question which is the confirmation of the grant. She cited the case of Skov Estate Limited & 5othersv Agricultural Development Corporation andanother (2015) eKLR on the issue of enjoining an interested party.

9. The respondent further stated that it is the duty of the probate court to distribute the estate to the rightful beneficiaries; that the applicant wants the court to take over the jurisdiction of the Environment and land court by asking that the court interrogate the validity of the sale agreements. She relied on the case of in the estate of Prisca Ong’ayo Nande (Deceased) (2020) eKLR in support of her submissions. She also brought to the attention of the court that there were court ordered surveys conducted on November 20, 2019 and August 3, 2019 wherein the surveyor was to carve out 0. 8 acres in favour of the respondent and that the only way to put this matter to rest is having the estate distributed.

10. The respondent states that the applicant has not shown that he has a prima faciecase and has failed to prove how enjoining the interested parties will assist the court in any way in the succession proceedings. Further, that the balance of convenience tilts in favour of the respondent.

11. Upon perusing the application, responses and submissions I have identified the following issues for determination;

a. Whether the proposed interested parties should be enjoined 12. Before I delve into the issue of joinder of the intended interested parties, there is a need to address the emerging practice of parties seeking joinder in succession matters. Whereas in the present application, it is not the interested parties seeking their joinder, but the objector seeking to enjoin them, it is imperative that the legal position on joinder in succession matters be clearly stated. Joinder of parties in a succession cause is a matter of inherent jurisdiction of the court for purposes of ensuring the ends of justice are met and is ordinarily done under section 47 and rule 73 of the Law of Succession Act and Probate and Administration Rules respectively.

13. In Re Estate of Stone Kathuli Muinde (Deceased)[2016] eKLR Musyoka J elaborately stated as follows:“Joinder of parties to a suit is concept in the ordinary civil process, where suits in the proper sense of the word are between two rival or contending sides. Other persons or entities not named as parties in the dispute may be joined, on application, to the suit if they meet certain conditions. … Usually a person or entity will be joined where they have complementary claims with the parties arising from the same facts. The probate process can be said to be a civil process only to the extent of it not being a criminal process. It is, in most respects, a process completely distinct from that governed by the Civil Procedure Act, cap 160, Laws of Kenya, and the Civil Procedure Rules. It is regulated instead by the Law of Succession Act and the Probate and Administration Rules, which prescribes processes that are clearly removed from those intended for the ordinary civil process. In other words, the probate process is a special jurisdiction with its own processes and procedures. Such special jurisdiction and procedures are saved by section 3 of the Civil Procedure Act.The legislation that regulates the probate process has, however, imported into its practice certain provisions of the Civil Procedure Rules. That it has done through Rule 63 of the Probate and Administration Rules. However, the provisions of the civil process relating to joinder of parties are not among the provisions so imported under rule 63. The rationale for the omission to import the said rules has something to do with the design of the …Joinder of parties is not envisioned in the probate process and should be avoided at all costs. It is not provided for under the relevant legislation, and it can only be allowed by the court in exercise of its inherent discretion. It is however my view that making an order to join an interested party in probate causes, even though I have on occasion done so, amounts to exercise of inherent discretion outside of its bounds.This begs the hypothetical question that were this court to be of the persuasion that it had discretion to join third or interested parties to a probate cause, does the applicant qualify for exercise of that discretion in its favour? In the civil process, the persons who are joined to a suit as parties (whether as substantive parties or third or interested parties) must have an interest in or claim to whether directly or indirectly, to the subject matter of the suit.”

14. I concur with the findings above. The applicant has not expressed what statutory provisions the application is brought under with regard to the prayer for joinder.

15. On the issue of joinder, it is clear that there is no statutory provision enabling the joinder of parties. It is purely a discretionary order. The present circumstances do not provide a scenario in which discretion would favour the applicant. I am further persuaded by the fact that the alleged interested parties do not appear to show any interest in the matter.

16. For one to be considered an interested party there is a threshold to be met. In the case of AMM v JMN [2019] eKLR the Judge had this to say about an interested party: -“An interested party is one who has a stake in proceedings, though he was not a party to the cause ab initio. He is one who will be affected by the decision of the court when it is made, either way. The court should not act in vain by enjoining a party that clearly would have no interest in the subsequent proceedings”

17. The applicant is not the intended interested party in the matter to begin with. Further, he claims the parties were sold parts of the estate and they should be enjoined for purposes of having the court, essentially, revoke their alleged titles. Even if this court were to enjoin the intended interested parties, it cannot make a decision on validity of titles as that is the preserve of the Environment and Land Court.

18. In this matter it is clear that the only remaining process is the distribution of the estate. The two beneficiaries have already earmarked their portions. Any allegations of sale of land to the intended interested parties will be dealt with at the distribution stage. I also understand it that the said interested parties can only lay claim to that portion which belongs to the respondent. In that event the applicant has no reason to be apprehensive.

19. I direct the parties to take a date for the confirmation of grant herein. The application is dismissed with no orders on costs.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 20TH OF SEPTEMBER 2022. E. K. OGOLAJUDGE