1. What is before this Court is a Notice of Motion dated 27th September 2023 vide which the applicants in the said Motion seek, inter alia, to be added as interested parties in this succession cause and also that the proceedings in two matters in Wundanyi Law Courts, to wit, PMCC No 21 of 2021 and No 5 of 2023 be stayed.
2. The applicants in the said application claim to be the children of a deceased person called Livingstone Righa Mwangombe, who they say was the brother of the deceased person whose estate is the subject of these proceedings. They claim that the deceased held Plot No 1133 Wundanyi in trust for them and that prior to his death, he had surrendered the title thereto to the 2nd applicant. They further aver that they are in occupation of the said parcel of land.
3. The application is opposed by the parties in this matter.
4. Vide the directions of this court given on 26th October 2023, the application was canvassed by way of written submissions.
5. I have considered the said application, the affidavits in support as well as those in opposition and the written submissions of the parties.
6. The interest of the applicants is to a parcel of land that they say was held in trust for them by the deceased. I understand their claim; it is about the title of Plot No 1133 Wundanyi. They do not claim to be heirs of the estate of the deceased person herein. I am not convinced that the Probate and Administration Court has the jurisdiction to consider the title to land. That is a matter for the Environment and Land Court under the applicable provision of the Constitution and section 13 of the Environment and Land Court Act. As was stated in the case of Owners of the Motor Vessel M.V Lillian S. v Caltex Oil (K) Limited (1989) KLR 1 a court without jurisdiction has to down its tools the moment it becomes aware of that very fact.
7. Even if I was wrong on the issue of jurisdiction, I am not convinced that a proper case for joinder has been made.
8. It was stated by the Court in Joseph Njau Kingori v Robert Maina Chege & 3 others (2002) eKLR that one application for joinder to succeed it had to be demonstrated that:-
1. He must be a necessary party.
2. He must be a proper party.
3. In the case of the defendant, there must be a relief flowing from that defendant to the plaintiff.
4. The ultimate order or decree cannot be enforced without his presence in the matter.
5. His presence is necessary to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit.”
9. I am not persuaded that the applicants have met the above test. They are not necessary parties in these succession proceedings. Rather than aid the court to determine this matter, their presence will sow confusion and delay the determination of this very old matter. Since the application for joinder has failed, it follows that there can be no basis for this court to stay the proceedings in the Wundanyi Court. The only reason this court could stay the proceedings is if the applicants succeeded in the joinder application.
10. In the circumstances, I dismiss the application dated 27th September 2023 for want of merit.
11. This being a succession matter, the parties will bear their own costs of the application.
12. Orders accordingly.
Dated and signed at Mombasa this 20th day of December 2023. Delivered virtually through Microsoft TEAMS.
2. The applicants in the said application claim to be the children of a deceased person called Livingstone Righa Mwangombe, who they say was the brother of the deceased person whose estate is the subject of these proceedings. They claim that the deceased held Plot No 1133 Wundanyi in trust for them and that prior to his death, he had surrendered the title thereto to the 2nd applicant. They further aver that they are in occupation of the said parcel of land.
3. The application is opposed by the parties in this matter.
4. Vide the directions of this court given on 26th October 2023, the application was canvassed by way of written submissions.
5. I have considered the said application, the affidavits in support as well as those in opposition and the written submissions of the parties.
6. The interest of the applicants is to a parcel of land that they say was held in trust for them by the deceased. I understand their claim; it is about the title of Plot No 1133 Wundanyi. They do not claim to be heirs of the estate of the deceased person herein. I am not convinced that the Probate and Administration Court has the jurisdiction to consider the title to land. That is a matter for the Environment and Land Court under the applicable provision of the Constitution and section 13 of the Environment and Land Court Act. As was stated in the case of Owners of the Motor Vessel M.V Lillian S. v Caltex Oil (K) Limited (1989) KLR 1 a court without jurisdiction has to down its tools the moment it becomes aware of that very fact.
7. Even if I was wrong on the issue of jurisdiction, I am not convinced that a proper case for joinder has been made.
8. It was stated by the Court in Joseph Njau Kingori v Robert Maina Chege & 3 others (2002) eKLR that one application for joinder to succeed it had to be demonstrated that:-
1. He must be a necessary party.
2. He must be a proper party.
3. In the case of the defendant, there must be a relief flowing from that defendant to the plaintiff.
4. The ultimate order or decree cannot be enforced without his presence in the matter.
5. His presence is necessary to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit.”
9. I am not persuaded that the applicants have met the above test. They are not necessary parties in these succession proceedings. Rather than aid the court to determine this matter, their presence will sow confusion and delay the determination of this very old matter. Since the application for joinder has failed, it follows that there can be no basis for this court to stay the proceedings in the Wundanyi Court. The only reason this court could stay the proceedings is if the applicants succeeded in the joinder application.
10. In the circumstances, I dismiss the application dated 27th September 2023 for want of merit.
11. This being a succession matter, the parties will bear their own costs of the application.
12. Orders accordingly.
Dated and signed at Mombasa this 20th day of December 2023. Delivered virtually through Microsoft TEAMS.