https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4537

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT KAPSABET** **ELCC NO. 21 OF 2022** **MOSES KIPTOO KERICH............................................................PLAINTIFF** **VERSUS** **HELLEN JEPKEMBOI KERICH..........................DEFENDANT/RESPONDENT** **AND** **MILKA JELAGAT BETT..........................1ST INTERESTED PARTY/APPLICANT** **IRENE CHEMUTAI BETT.....................2ND INTERESTED PARTY/APPLICANT** **(Both Suing as the legal representatives of the estate of PETER KIBET NGETICH- Deceased)** **RULING** 1. By the Notice of Preliminary Objection dated 23rd January 2026, the Defendant/Respondent/Judgment Creditor through Ngigi Mbugua and Company Advocates, oppose the interested party’s application dated 5th December 2025 on the following points; 2. The application is defective in form and substance as it seeks to reopen a suit that is concluded. 3. The Honourable Court having rendered itself in a final Judgement to the parties before it is *functus officio.* 4. The Applicants are strangers to the cause as they never sought joinder when the cause was alive and have come to Court too late in the day. 5. The Applicants claiming to be personal representatives of the estate of the late **Peter Kibet Ngetich** (*Deceased herein)* can only approach the Court through an Originating Summons brought under Order 37 Rule 1 & 11 to establish trust or entitlement upon full grant not an Ad Litem. 6. The application as drawn and presented target the defendant decree holder yet, the suit upon which it is brought has more parties i.e. (*that is herein)* the Plaintiff, who has neither been served nor notified. 7. In their statement of grounds of opposition dated 11th June 2026, the interested parties/applicants through Chepchumba Rose and Company Advocates who entered on record in place of Rotich Langat and Partners Advocates pursuant to the notice of change of Advocates dated 11th June 2026 stated, inter alia; 8. On establishing Legal Standing (*locus standi*), that they had established a legal right to participate in these proceedings through the Limited Grant Ad Litem issued by the Magistrate’s Court on 6/11/2025. That in the Judgement dated 19/10/2023, the Court decided that the land in dispute be registered in the name of **Hellen Jepkemboi Ngetich** (***Respondent herein***) for herself and in trust of the beneficiaries of the Estate of **the Deceased** where they were both beneficiaries. That the Chief’s letter that accompanied their Summons for Limited Grant Ad Litem is enough evidence that they were beneficiaries and that they have *locus standi* to participate. 9. That their application was not time barred because they had learnt of the instant suit recently and therefore that **Section 26 of the Limitations of Actions Act** (Cap 22) aided them by providing that time limits do not apply when fraud is hidden. 10. Additionally, that they had cited the Defendant/Respondent for contempt because despite the court’s directions that she be registered as the proprietor of land parcel number **Nandi/Chepterit/273** ***(The suit land herein)*** for herself and on behalf of the beneficiaries of the Estate of the Deceased, the Respondent registered the said property in her sole name and that she has gone ahead to subdivide it to **Nandi/Chepterit/2871**, **Nandi/Chepterit/2872** and **Nandi/Chepterit/2392**. 11. That the Preliminary Objection had been brought in bad faith and prayed that the same be dismissed with costs to the applicants. 12. In the application, the interested parties/applicants are seeking the orders infra; 13. Moot 14. That the Honourable Court be pleased to review its Judgement dated 19th October 2025 (*I think, meant 19th October 2023 herein*) and Decree arising therefrom that issued an order directing that the Respondent be registered as the proprietor of the suit land for herself and in trust of the estate of **the Deceased** and specify the share owned by the Respondent who is counted as one unit in the estate of **the Deceased**; which estate consists of 10 units **including Daniel Kirwa Bett, Silas Kipkorir Bett, Willy Kipkosgei Bett, Nelly Cherop Bett, Nicholas Kipchumba Bett, John Kipkemboi Bett, David Kiprotich Bett, Irene Chemutai Bett and Milcah Chelagat Bett**. 15. Moot 16. That this Honourable Court be pleased to revoke any title deeds procured through subdivision of the suit land by the Respondent without the involvement of the applicants and other beneficiaries of the estate of **the Deceased.** 17. That this Honourable Court be pleased to cite the Respondent for contempt of Court for disobeying and disregarding this Honourable Court’s Orders of holding the suit land in trust of the estate of **the Deceased.** 18. That the costs of this application be provided for. 19. That such further and/or other orders be made as the Court may deem fit and expedient. 20. The application is rooted in the supporting affidavit of ten paragraphs of even date sworn by the 1st applicant, **Milcah Jelagat Bett** for and on behalf of on behalf of her co-applicant and herself with the annexed documents inclusive of copies of green card and a copy of a Grant Ad Litem alongside the grounds which include; 21. That the Applicants are the daughters and legal representatives of the Estate of the Deceased while the Respondent is the daughter in law of **the Deceased** who was the original registered owner of the suit land having married the brother of the applicants, who is now deceased. 22. That the Court inadvertently ordered that the Respondent be registered as the proprietor of the suit land for herself and in trust of the Estate of the Deceased and failed to specify the ratio of the respondent’s share. 23. That the Respondent, who should be holding the suit land in trust of the estate of the Deceased has subdivided the suit land **Nandi/Chepterit/273** into **Nandi/Chepterit/2392** measuring 1.219 Hectatres, **Nandi/Chepterit/2871** measuring 1.219 Hectares and **Nandi/Chepterit/2872** measuring 0.162 Hectares and sold part of the estate without involving the beneficiaries of the estate with an aim of evicting the children of the original registered owner and beneficiaries of the estate from the suit land. 24. That there is need for the Court to review its orders of 19th October 2023 to specify the share owned by the Respondent who is counted as one unit in the estate of **the Deceased**, which estate consists of 10 units including **Daniel Kirwa Bett, Silas Kipkorir Bett, Willy Kipkosgey Bett, Nelly Cherop Bett, Nicholas Kipchumba Bett, John Kipkemboi Bett, David Kiprotich Bett, Irene Chemutai Bett and Milca Chelagat Bet**t. 25. The 1st interested party/applicant opposed the application by way of a replying affidavit of ten (10) paragraphs sworn on 23rd January 2026 stating, inter alia; that the current application is utterly incompetent, frivolous and vexatious as it seeks to re-litigate that which the court has determined with finality. That the above sequence of events clearly ousts the jurisdiction of the Honourable Court and render the current motion dead on arrival. 26. It is noteworthy that the plaintiff originated the present suit by a plaint dated 7th April 2021 seeking the orders infra; 27. A declaration that he is the legitimate owner of all the suit land**.** 28. An eviction order to issue against the Defendant, her agents and/or servants from **the suit land**. 29. A permanent injunction restraining the Defendant, their agents and/or servants from interfering with or in any other way dealing with the **suit land** in any manner detrimental to the Plaintiff. 30. Costs and interests of the suit. 31. This Honourable Court (Mwanyale J) disposed of the suit by way of the judgment dated 19th October 2023, inter alia; ‘*(a)The Plaintiff suit is hereby dismissed with costs to the Defendant; and Judgement is entered in favour of the Defendant.* *(b) The Plaintiff as the Proprietor of the* ***Nandi/Chepterit/273*** *is holding the same in trust to the Defendant/Plaintiff in the counterclaim and his proprietary interest and rights in* ***the suit land*** *are extinguished under Section 17 of the Limitation of Act on Act and the title in the name of Moses Kiptoo Kibor is hereby cancelled.* *(c) The Land Registrar Nandi County to rectify the register of* ***Nandi/Chepterit/273*** *and accordingly register* ***Hellen Jepkemboi Ngetich*** *as the proprietor of* ***the suit land****, for herself and in trust of the Estate of* ***the deceased.*** *of the counterclaim.’* 1. Hearing of the preliminary objection was by way of written submissions pursuant to the directions given on 26th January 2026 herein. 2. The respondent’s submissions dated 17th June 2026 and filed by M/S Tororei and Company Advocates are primarily on the issue of jurisdiction but broken down into the issue of the doctrine of *functus officio* and that of joinder of the interested parties. The Respondents relied on the case of **Raila Odinga & 2 Others vs Independent Electoral & Boundaries Commission & 3 Others (2013) eKLR** where the Court held: “*A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter the decision: any challenge to its ruling on adjudication must be taken to a higher court if that right is available.*” 1. Moreover, the Respondent’s counsel submitted that the Constitution of Kenya 2010 command that justice ought to be delivered without undue regard to technicalities, does not override the fundamental principle of finality of litigation and the doctrine of *functus officio*, which upholds the rule of law and prevents endless litigation. In submitting so, counsel relied on the case of **Arthur Mathitu Nderitu & Another Vs Settlement Fund Trustees & 2 Others; Fredrick Wang’ombe Nderitu & Another (Proposed Interested Parties) (2019) eKLR** to reinforce the submissions**.** 2. On the issue of joinder of the interested parties, the Respondent relied on **Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules 2010** to submitted that a complete stranger to proceedings lacks the *locus standi* to seek review once the case is fully concluded. Reliance was made on the case of **JMK versus MWM & Another (2015) eKLR** in which the court cited the decision of **Central Kenya Ltd vs Trust Bank Limited & 4 Others (1996) KECA 197 KLR** to emphasize that an application for joinder of parties can only be filed in pending proceedings. They insisted that allowing such post-judgment joinder would undermine the finality of judgments, violate the doctrine of *functus officio*, and prejudice the parties who fully litigated the matter without any notice of the third parties’ claims. 3. In the submissions dated 24th June 2026, learned counsel for the Applicants/ Interested Parties argued that the doctrine of *functus officio* prevents a court from rehearing or re-determining matters already conclusively decided. That the doctrine does not prevent a court from enforcing, implementing, clarifying or giving effect to its judgment. They relied on the Supreme Court of Kenya decision in in **Raila Odinga & another vs Independent Electoral and Boundaries Commission & others** **(2017) eKLR** and also on the Court of Appeal case in **Telkom Kenya Ltd vs John Ochanda** **(2015) eKLR** where the Courts held that the doctrine only bars a court from revisiting the merits of a matter already determined and that the doctrine does not bar proceedings aimed at the implementation of a judgment. 4. On the question of *locus standi*, the applicants contended that they are beneficiaries and legal representatives of the Estate of the Deceased and that a beneficiary under a trust has a legally recognizable interest capable of protection by the Court. They relied on **Section 28 (b) of the Land Registration Act, 2016 (2012)** and further on the Court of Appeal decision in **Juletabi African Adventure Limited vs Christopher Michael Lockley** **(2017) eKLR** that affirmed that trusts constitute enforceable interests in land. 5. Also, the Interested Parties/applicants submitted that the preliminary objection does not raise any pure points of law. They relied on the case of **Mukisa Biscuit Manufacturing Co. Ltd vs West End Distribution Ltd (1969) EA 696** and in the Supreme Court decision in **Independent Electoral and Boundaries Commission vs Jane Cheperenger & 2 others (2018) eKLR** which reiterated the position that a preliminary objection must not involve contested facts or require the Court to ascertain evidence. They submitted further that their application does not reopen the suit but that it only seeks enforcement and implementation of the trust that had already been recognized by Court. 6. On whether the Application was time barred, the Interested Parties submitted that they only became aware of the suit, judgment and subsequent dealings with the suit land after strangers entered the land. They relied on **Section 26 of the Limitations of Actions Act (Cap 22)** and submitted that the period of limitation does not begin to run until the Plaintiff has discovered the fraud or could have with reasonable diligence have discovered it. 7. Finally, on the issue of joinder and/or misjoinder of parties, the Interested Parties contended that the reliefs sought in the application are directed at the Defendant’s conduct as trustee and registered proprietor. That the Plaintiff’s rights and obligations under the judgment are not the subject of challenge. Further, they submitted that non-joinder or misjoinder of parties is not a pure point of law capable of determination through a Preliminary Objection but that it required a Court to determine whether a party is necessary, service was effected, a party would prejudiced by non-joinder and whether the proceedings can effectively proceed in absence of such party. In their view, these are factual and discretionary matters that require examination of the record and the surrounding circumstances. 8. The Court has considered the entire Notice of Preliminary Objection dated 23rd January 2026, the impugned Application dated 5th December 2025, the statement of Grounds of Opposition dated 11th June 2026 and the respective submissions by parties. In the foregone, is the preliminary objection sustainable? 9. It is evident from the Grant Ad Litem as stated at paragraph 2(b) hereinabove, the applicants have demonstrated sufficient *locus standi* as legal representatives and beneficiaries of the estate of the Deceased to file an application seeking to enforce the said judgment. Indeed, the Applicants have attached a chief’s letter which identifies them as the children of the deceased. *Functus officio* does not apply because the applicants are seeking implementation and enforcement of the court’s judgment and trust obligations rather than a rehearing of the suit. 10. In that regard, has the preliminary objection raised pure points of law? It is my considered view that the response to this question must be in the negative. The preliminary objection does raise pure points of law as it is loaded with disputed factual issues such as functus officio and trust requiring evidence in respect of the application. 11. This Court is guided by the case of **Mukisa Biscuit Manufacturing Company (supra) where** the Court of Appeal was emphatic that a preliminary objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. 12. Concerning grounds 1 and 2 of the preliminary objection, the Respondent states that the application is defective in form and substance as it seeks to reopen a concluded suit and that the Court is *functus officio*. It is apparent that the Application dated 5th December 2025 seeks the enforcement of the judgment given by the court in this suit. There is no dispute to the merits of the said determination. However, the Applicants are claiming that the Respondent, who was given the mantle to hold the estate of the deceased for herself and in trust as regards the other beneficiaries, has failed to abide by those orders and was instead taking actions which would defeat the orders. 13. The Application seeks inter alia, review of the judgment of this Court founded upon Order 45 of the Civil Procedure Rules, 2010. Under the said Order, a court of law may review its orders on account of discovery of new and important evidence, a mistake or error apparent on the face of the record or for any other sufficient reason. 14. **The Black’s Law Dictionary 10th Edition at page 787** defines ‘functus officio’ as follows; ‘*An officer or official body without further authority or legal competence because the duties and functions of the* ***original commission have been fully accomplished*** *(emphasis added).’* 1. Given that the Application relates to enforcement of its judgment, I am of the view that the court has the responsibility to ensure parties fully comply with its orders. So, this Court is mandated to attend to the application in order to determine whether the same meets the threshold of Order 45 of Civil Procedure Rules 2010. Therefore, it would not amount to reopening the concluded case and the court is not functus officio herein. 2. As pertains to grounds 3, 4 and 5 of the preliminary objection, the Respondent states that the Applicants are strangers herein as they never sought for joinder when the suit was alive. In **Black’s Law Dictionary (supra)**, the term ‘Joinder’ means; **‘The uniting of parties or claims in a single lawsuit’** 1. It is established law that in a formal application for joinder of parties to a suit, a right at the discretion of the Court be founded upon elements, inter alia, that the applicant has personal interest or stake in the matter and that the same must be set out or identifiable in the application but not something remote and not be prejudicial to the applicant; see **Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2016] KESC 12 (KLR).** 2. The judgment of 19th October 2023 recognizes trust by requiring that the suit land be registered in the name of the Respondent for herself and in trust for the Estate of the Deceased. I have noted the judgment against the backdrop of **section 28 (b) of the Land Registration Act 2016 (2012)** which lists trusts as overriding interest in land regardless of whether or not the trustees are noted in the register. 3. The Supreme Court in the landmark case of **Isack M’inanga Kiebia v. Isaaya Theuri M’lintari & another [2018] eKLR** explained succinctly some of the elements of a trust and that a claimant need not physically reside on property or be registered on its title for that person to claim an interest in the said property. The court emphasised that trusts create an overriding interest on the property. Therefore, the applicants have the *locus standi* to initiate and pursue the application for enforcement of the Court’s judgment on the basis of the existence of the Grant of Letters of Administration Ad Litem which is annexed to her affidavit in support of the application. 4. It is trite law that the estate of the deceased person vests in the administrator or administratrix after obtaining a grant of letters of administration thereof; see **Trouistik Union International & another-vs-Jane Mbeyu & another (1993) eKLR**, Additionally, in the case of **Rajesh Pranjivan Chudasama vs Sailesh Pranjivan Chudasama (2014) eKLR,** the Court of Appeal held**;** **“...........the position in law as regards *locus standi* in succession matters is well settled. A litigant is clothed with *locus standi* upon obtaining a limited or full grant of letters of administration in cases of intestate succession....”** 1. **Under section 2 of the Civil Procedure Act Chapter 21 Laws of Kenya**, the term ‘Legal Representative’ means; **‘A person who in law, represents the estate of a deceased person, and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.’** 1. It is the Respondent’s contention that the application was brought only against the Defendant yet the original suit contains more parties, including the Plaintiff, who was not notified herein. Upon consideration of the parties’ respective standpoints, the issue of joinder and/or service of parties is not one that forms a pure point of law to be raised through a preliminary objection. These issues would need consideration of evidence to establish them. Further, **Order 1 Rules 9 and 10 of the Civil Procedure Rules 2010,** gives the Court power, at any stage of the proceedings, to order for addition of a party where it deems just to do so. 2. Besides, the Respondent raised a pertinent issue of delay on the part of the applicants to seek for the said joinder. That this matter was litigated between the year 2021 and the year 2023 and all that time, the Applicants never applied for joinder in the suit. On their part, the Applicants stated that they were unaware of the case and only became aware of it once a stranger went into the suit land with surveyors to subdivide the same. This court is conscious of some grounds, inter alia; nature of the case, reason for delay, and prejudice to other parties used in determining whether delay was inordinate as held in **Kenya Power & Lighting Company Ltd vs Joseph Simiyu Wasike (Civil Appeal 557 of 2016) (2023) eKLR,** among others. In the application, the applicants seek for clarity in enforcing court orders which is so crucial that overlooking it would be tantamount to denying the applicants access to justice and fair hearing of the application as enshrined in **Articles 48 and 50 (1) of the Constitution of Kenya 2010; See also James Kanyitta Nderitu and another vs Marios Philotas Ghikas and another (2016) eKLR.** 3. Having considered the preliminary objection in entirety, I reach the inescapable conclusion that the grounds of the same invite the Court to consider other evidence before determination in the application thus, do not amount to pure points of law. I therefore, find the preliminary objection to be incompetent, premature and intended to defeat substantive justice as regards the pending application herein. 4. Wherefore, this Honourable Court makes the following orders: 5. The Defendant/respondent’s Preliminary Objection dated 23rd January 2026, be and is hereby dismissed. 6. The Application dated 5th December 2025, be and is hereby set down for inter-partes hearing on 19th October 2026. 7. Costs of the preliminary objection be in the cause. 8. It is so ordered. **Dated** and **Delivered** at Kapsabet this **14th day of July, 2026.** **HON. G M A ONGONDO** **JUDGE** **In the presence of;** 1. M/s Tanui Chepchumba learned counsel for the interested parties/applicants. 2. M/s Langat instructed by Mr. Ngigi Mbugua for the defendant/Respondent. 3. Mr. Walter Kipkorir, Court Assistant.