Introduction and Pleadings
Mirriam Susan Cherotich Boskwony suing as the administritrix of the estate of Charles Boskwony came to this court on 14th August 2009 suing Kennedy Nyabuto Ogeto by way of plaint praying for various orders. The plaint was subsequently amended on 24th November 2017 wherein the plaintiff enjoined the 1st ,2nd ,4Th ,5th and 6th defendants and averred that at all material time the late Charles Boskwony was and still the legal owner of the title Number Nakuru Municipality Block 23/50 having acquired the same on the 8th March, 1993.
The plaintiff states that on or about the 11th August 2009, she carried out the official search in the land registry only to discover that title No Nakuru Municipality Block 23/50 was registered in the names of the 3rd defendant on 7th August, 2002 and the plaintiff had not sold or leased the said land to the 3rd defendant nor consented to this change of user. That it came to the knowledge of the plaintiff, that the defendant illegally, unlawfully and fraudulently acquired the suit property purporting to have purchased the same from Charles Boskwony (deceased)
It also came to the knowledge of the plaintiff that defendant, using illegally and unlawfully and fraudulently acquired titles, illegally and unlawfully and fraudulently sold and transferred the suit property to the 2nd defendant who subsequently transferred the same to the defendant. The plaintiff averred that the defendant’s registration was through fraud, illegality and/or misrepresentation.
On or about the 11th August, 2009, the plaintiff carried out official search in the land registry only to discover that title No.Nakuru Municipality Block 23/50 was now registered in the names of the 3rd defendant on the 7t August, 2002 and the plaintiff had not sold or leased out the said land to the defendants nor consented to the change of user.
It subsequently came to the knowledge of the plaintiff, that the defendant, illegally, unlawfully and fraudulently acquired the suit property purporting to have purchased the same from Charles Boskwonv (deceased). It also came to the knowledge of the plaintiff that the 1st defendant, using the illegal, unlawfully and fraudulently acquired titles, illegally and unlawfully and fraudulently sold and transferred the suit property to the 2nd defendant who subsequently transferred the same to the 3rd defendant.
The plaintiff's claim against the defendants is for a declaration that the estate of Charles Boskwony is the owner of Nakuru Municipality Block 23/50 and that the defendants Obtained title to the said land through illegality and fraud and therefore the title issued to the defendants be cancelled and declared null and void. The plaintiff prayed for the costs of the suit.
The plaintiff prayed for judgment for a declaration that the plaintiff is the legal owner of Nakuru block 23/5- and thus the transfer and subsequent registration of the same to the 1st 2nd and 3rd defendants as the owners thereof was/is irregular, procedural, fraudulent illegal and hence null and void ab-initio. Moreover, an order of revocation and/or cancellation of the 1st 3rd defendant’s title and rectification of the register to restore the plaintiff registration. Furthermore, an order of temporary injunction the 1t 2nd and 3rd defendants either by themselves, servants and/or agents howsoever from selling, disposing, entering, trespassing or in any way dealing with Nakuru Municipality Block 23/50 pending the hearing and determination of the suit. Lastly, an order of permanent injunction against the 1st 2nd and 3rd defendants either by themselves, servants and/or agents howsoever from selling, disposing, entering, trespassing or in any way dealing with Nakuru Municipality Block23/50 and costs if this suit.
It is important to note that on the 22nd day of September 2023, the plaintiff obtained leave to amend the plaint within 14 days, however the plaintiff did not comply with the order and filed the further amended plaint on 15th April 2024, eight days before hearing introducing Suzie Cherotich Chebet as the plaintiff. The matter came up for the hearing of the suit on the 23rd of April 2024 and neither the plaintiff nor his counsel attended hearing and therefore the further amended plaint was struck out for having been filed out of time. The plaintiff did not make an application to file the further amended plaint out of time. Therefore the basis of this suit is the further amended plaint dated 24th February 2017.
The 3rd defendant filed amended defence wherein he states that he is a stranger and therefor denies all the particulars of fraud and illegality thereunder and puts the plaintiff to strict proof thereof. The 3rd defendant avers that he legally and transparently purchased the suit properly herein on 7 August 2002 from the then registered owner, the second defendant herein one Philip Mangare Matoke. The 3rd defendant further avers that before purchasing the suit property from the said Philip Mangare Matoke, he diligently conducted a search on the status of the suit property and sufficiently established that one Philip Kipkoech Biwot acquired title of the suit property herein from Charles Boskwony on 27 January 1997. The said Philip Kipkoech Biwot sold the suit property herein to Philip Mangare Matoke on 20 November 2000.
The 3rd defendant therefore avers that it is erroneous, misleading and grossly misrepresentative for the plaintiff to allege that the late Charles Boskwony has been the legal owner of the suit property herein" at all material times." He may have been owner for some time until 27 January 1997, but not at all material times. The 3rd defendant further avers that the said Charles Boskwony is a complete stranger to the defendant and his estate has absolutely no cause of action against him.
The 3rd defendant further avers that the plaintiff's allegations of fraud against the 3rd defendant are frivolous, unfounded, actuated by malice, intended to defame and disparage the defendant and are otherwise a gross abuse of the court process. The defendant will at the earliest opportunity seek leave of this Honorable court to strike out this suit as being scandalous petty and disclosing no cause of action.
The 3rd defendant denies and avers that the purported claims, orders and allegations in paragraph 9 of the amended plaint are unlawful, unwarranted and an abuse of the court process. The plea of notice of intention to sue at paragraph 10 of the amended plaint is misleading and untrue.
The Evidence
The plaintiff, Miriam Susan Cherotich Boskwony, a retired civil servant testified on the 13th July 2021 as PWI, and stated that she filed the suit as the administritrix of the estate of the deceased Charles Boskwony. She wanted to develop the suit property known as Nakuru/Municipality Block 2/50 and upon doing a search, she found there was another person registered. The property is in section 58 Nakuru. She stated that her husband had a title issued in 1993. She produced the original tittle for Nakuru Municipality Block 23/50 as an exhibit. Her husband was allocated the property by Nakuru Naka S.H Group. She produced a copy of the allotment letter dated 18/3/1989. She produced copies of receipts to show that her husband paid to be allocated the plot. She produced the lease and certificate of lease to show that her husband was registered as the proprietor of the parcel of land. When she did the official search, on 11/8/2009 it showed the ownership had changed and one Kennedy Nyabuti Ogeto was registered. After filing the case she realized the property had changed hands several times.
The plaintiff testified that her late husband never transferred the land to one Philip Kipkoech Biwott. The original title is still held by the plaintiff whose husband died in March 1999. She prays that the court nullifies all the transfers and cancels the title and reverts the land to her late husband.
On cross examination by Mr Ndubi, learned counsel for the 2nd defendant, she states that Suzie Cherotich Chebet is her Co- administritrix and sister but not a co-plaintiff in this case. She confirms that she filed the present suit in the year 2012 but the plaint was amended in 2009. After getting the search which revealed a new owner, she visited the plot and found some building materials had been deposited there. The plot is presently not developed. On cross examination by Magata, Learned counsel for the 3rd defendant, the plaintiff affirmed that the 2nd defendant is shown as the owner of the land. Receipt for the search was by the 3rd defendant.
The rates clearance certificate of 5/8/2002 attached also showed that the 3rd defendant had paid. The 3rd defendant as per the register was registered on 7/8/2002. On cross examination by Cheruyoit learned state counsel, she states that she never saw the documents that were used to effect the transfer to the 1st defendant. She does not know whether such documents existed. The plaintiff closed her case at this point in time.
The 2nd Defendant, Mangare Philip Matoke testified as DW1 and relied on his written statement dated 17/2/2020 which was adopted as evidence in chief. He states that the current registered owner of the suit property is Kennedy Nyabuto Ogeto. The property is one quarter of an acre. He sold the property to Mr Ogeto at the time when the same was registered in his name. He bought the property from Philip Kipkoech Biwott who was introduced to the witness by a lady known as Alice Nyambera, his workmate. He was supplied with the completion documents and surrendered the original certificate of lease when the property was transferred to Kennedy Nyabuto Ogeto in 2002. When he took possession of the land, no issue was raised.
On cross examination by Mr Ogolla, learned counsel for the plaintiff, he stated that he did a sale agreement in the offices of Chesire Advocate at Gate house on 3rd floor. Philip Biwott gave him the original title which he later surrendered to the lawyer and was subsequently surrendered to Registrar of Lands. He did not confirm how Philip Kipkoech Biwott bought the land from Charles Boskwony.
The 3rd defendant, Mr Kennedy Nyabuto Ogeto, an advocate of the High Court of Kenya residing in Nairobi gave evidence that he purchased the property at a consideration of Kshs300,000/= paid to Mangare Philip Matoke and that he is in possession of the property. The property is situate in Section 58 within Nakuru Municipality. The property is not developed though fenced by himself. Mr. Matoke received consent to transfer. He did due diligence and found the property to belong to the seller. According to the 3rd defendant, the allegations of fraud are baseless, mischievous and without merit. He has never been summoned at the CID. He has never been charged. He does not know Charles Boskwony
On cross examination by Mr Ndubi, he states that he was the fourth owner of the property. The 1st owner was Charles Boskwony who was registered as proprietor on 8th March 1993. The second owner was Philip Kipkoech Biwott who was registered and obtained title on 27/1/1997. Mangare Philip Matoke was registered and obtained title on the same date thus 20th November 2000. The 2nd defendant approached him to purchase the property due to financial problems. He paid Kshs300,000 as agreed.
On cross examination by M/s Adomeyon, learned state counsel, he states that he took possession immediately after transfer. The time difference between the 1st entries to his in the register is about 22 years. There was neither a caution nor a restriction. He did not fraudulently acquire the property. He has never colluded with the Land Registrar
On cross examination by Ogolla Gordon, learned counsel for the plaintiff, he states that he did due diligence and obtained a certificate of official search and further looked at the green card. He went to the ground. The property was vacant. He confirmed from the Vendor that there was no encumbrance. He perused the green card and confirmed that the vendor was the registered owner. He did not confirm a sale agreement between Charles Boskwony to Philip Kipkoech.
The Attorney General on behalf of the 4th,5th and 6th defendants called Caleb Sunguti the land registrar who testified that according to the records, the suit parcel of land measures approximately 0.0799 ha and is owned by the Government of Kenya. The parcel of land was leased to Charles Baskwony and the transfer of lease was registered on 8th March 1993. On the 27th January 1997, the lease was transferred to Philip Kipkoech Biwott and a certificate of lease was issued and registered in his name. On the 7th of August 2002, the lease was transferred to Kennedy Nyabuto Ogeto and a certificate of lease was issued on the same date. On the 15th December 2004, a restriction was placed in the register after the instructions of the original owner.
On cross examination by Mr Magata, he states that the parcel file contains documents supporting the transaction. On cross examination by Mr Ndubi, he states that he had the entire parcel file. The certificate of lease was issued to Charles Baskwony and a transfer of lease was registered in favor of Philip Kipkoech later. There was a subsequent transfer to Mongare Philips matoke.
On cross examination by Mr Ogolla, he states that no certificate of lease was issued to Charles Baskwony. He states that the 4th entry is in the name of Magare Philip Matoke. The certificate of lease in the name of Charles Boskwony was never surrendered. Philips Biwott did not surrender his certificate of lease. There is no transfer from Charles Baskwony to Philip Kipkoech Biwott. No consent from the Land Control Board for transfer of the land from Charles Boskwony to Philip K Biwott.
Submissions by the plaintiff
The plaintiff submits that the chain of transactions beginning with the 1998 transfer between Charles Boskwony and Philip Kipkoech Biwott, and culminating in the 2002 transfer to Kennedy Ogeto, was riddled with illegality, procedural defects, and fraud. The resulting title is therefore null and void ab initio and cannot attract protection under the law.
Further, that the Defendants have failed to demonstrate acquisition in good faith or for valuable consideration. The principle of indefeasibility of title does not shield fraudulent transactions, as affirmed in Arthi Highway Developers Ltd v West End Butchery Ltd & Others [2015] eKLR and Elijah Makeri Nyang’wara v Stephen Mungai Njuguna & Another [2013] eKLR.
Accordingly, she urges this Honorable Court to find that the impugned transfers were unlawful and to restore the property to the rightful owner, the estate of the late Charles Boskwony and that while every registered proprietor is entitled to the protection of their title, such protection is not absolute. It must yield where the registration is rooted in fraud, illegality, or procedural impropriety, as is the case here.
In the circumstances, she prays that this Honorable Court declares that the transfers of the suit property from the late Charles Boskwony to Philip Kipkoech Biwott, from Philip Kipkoech Biwott to Philip Matoke, and from Philip Matoke to Kennedy Ogeto were unlawful, null, and void. She seeks this declaration because the entire chain of transactions was tainted by illegality, fraud, and non-compliance with statutory requirements under the Land Registration Act, the Law of Contract Act as well as the Stamp duty Act. The absence of sale agreements, consideration, and head lessor, the government of Kenya consent renders each transfer a legal nullity. A declaration of nullity will not only affirm the estate’s ownership but also prevent continued reliance on fraudulent titles to defeat the interests of the rightful proprietor.
She seeks Orders of cancellation of all titles arising from the said transactions and reinstatement of the suit property to the estate of the late Charles Boskwony. This order should give full effect to the principle that a title founded on illegality or fraud cannot stand. Section 26(1) (b) of the Land Registration Act empowers the Court to cancel any registration obtained through such means. Restoring the property to the estate ensures justice, rectifies the register, and vindicates the proprietary rights guaranteed under Article 40 of the Constitution, which protects only lawfully acquired property.
She also seeks a permanent injunction restraining the Defendants, their agents, servants, or assigns from interfering with the Plaintiff’s quiet possession and enjoyment of the suit property. This injunction is to prevent any future encroachment, interference, or attempted alienation by the Defendants. Given the Plaintiff’s lawful claim as representative of the estate, and the Defendants’ continued assertion of ownership through fraudulent titles, injunctive relief is necessary to preserve the integrity of the estate’s property and to forestall further disputes or dispossession.
2ND DEFENDANTS SUBMISSIONS
The second defendant submits that this suit was instituted vide a plaint dated 14th August, 2009 by Miriam Susan Cherotich Boskwony suing as the Administratrix of the estate of Charles Boskwony. At the trial, she testified that she was the administrator and wife to the deceased Charles Boskwony. She produced in evidence as P/Exhibit 1 a grant of letters of interstate administration interstate issued on the 28th January, 2000 in Nairobi High Court Succession Cause Number. 2225 of 1991. The said grant was issued to Suzie Cherotich Chebet and Miriam Susan Boskwony. It was a joint grant to two administrators. The 2nd defendant submits that it is trite that the grant having been issued to two administrators, any action taken without the involvement of the co-administrator is a nullity in law as the mandate as joint administrator is not severable. One cannot therefore act singly including commencing a suit.
The 2nd defendant refers to the case of Michael Chole Lugalia (Suing as administrator of the estate of Ezekiel Majani Lugalia vs Jonathan Ligure Ayodi (2016) KEELC 911 (KLR) in considering an issue as to whether one administrator can commence proceedings without the co-administrator(s), Justice E. Obaga held;
“It is not contested that the Plaintiff is one of the administrators of the estate of the deceased. The grant of letters of administration in respect of the deceased were granted on 31/7/2008 to the Plaintiff and 3 others. The Plaintiff cannot therefore seek to bring a suit to enforce rights due to the estate of the deceased. The Judge referred to the decision of Justice Majanja’s in Misc. Civil Application No. 103 “b” of 2013 Republic vs Nairobi City Council where the Judge stated as follows; “the capacity to agitate any suit on behalf of the estate of the deceased inheres in the administrators duly appointed by the court. They act jointly at all times……One administrator out of the others lacks the capacity to bind the estate or any of the administrators or file suit alone on behalf of the estate”.
Justice E. Obaga proceeded to strike out the entire suit with costs by holding,
“I find that the Plaintiff herein had no capacity to bring a suit on behalf of the deceased. He left out the other co-administrators and this cannot be taken to be a mere procedural technicality which can be cured by Article 159 of the constitution”.
In the case of Issaq v Jama & 2 Others (Environment and Land Case E072 of 2021) [2024] KEELC 3286 (KLR) Justice M.D Mwangi observed;
“In this case, it is common ground that the Applicant and the 1st Defendant herein have been jointly appointed as the administrators of the estate of the deceased Plaintiff.
I agree with the legal position as espoused by Musyoka J and Majanja J in the case of Simon Kamau Muhindi (Supra) and Nairobi City Council (supra) respectively. Joint administrators of the estate of the deceased must act jointly at all times. One administrator acting alone cannot bind the estate of the deceased or file suit alone on behalf of the estate of the deceased”.
The court proceeded to dismiss an application for substitution of the Plaintiff as it did not have the consent of the co-administrators and therefore incompetent.
In the case of the matter of the estate of Makokha Idris Khasabuli (deceased), Justice Musyoka W held;
“As stated earlier, the four administrators were appointed under one grant and hold one grant. By virtue of section 79 of the Law of Succession Act Cap 16, Laws of Kenya, the assets are vested corporately in all the administrators named in the grant. The powers conferred on administrators by section 82 of the Law of Succession Act are exercisable by all the four administrators named in the grant and all the duties imposed on administrators by section 83 of the Act fall on all four administrators. The four cannot purport to act singly or solely, unless of course there has been delegation of responsibilities”.
Justice G.V Odunga in considering the issue of the legal position of joint administrators in the case of Nairobi Miscellaneous Application No. 436 of 2025 Republic vs John Wachira Wambugu (Exparte Applicant and Monica Nyakinyua Geitangi and Peter Ngunjiri Kamunde (Interested Party)) observed as follows;
“the legal position of joint administrators was dealt with in Willis Ochieng Odhiambo vs Kenya Tourist Development corporation and Another Kisumu Hccc No. 51 of 2007, where the court while citing with approval Lewin on Trusts 16th Edn at 185 Williams & Mortimer: Executors, Administrators of probate and Bullen & Leake & Jacobs; precedents of pleadings 13th Edn at 373 held that in the case of co-trustees of a private trust, the office is a joint one and that administration of the trust is vested in co-trustees, they all form as it were one collective trust and therefore must execute the duties of their offices in their joint capacity. It was further held that although a strict definition of “trustee” does not apply to personal representative who hold property upon trust for the estate, the legal responsibilities and liabilities of executors and administrators of estates are the same and are treated similarly where matter procedure are in issue”.
On that account, the 2nd Defendant submits that this suit having been filed by a single administrator, Miriam Susan Cherotich Boskwony without the co-administrator was incompetent ab-initio and therefore this suit ought to be struck out.
The 2nd defendant further submits that on the 6th July, 2023 a Notice of Motion application was filed seeking to substitute Miriam Susan Cherotich Boskwony whom it was deposed in the supporting affidavit of the affiant had passed away on the 11th November, 2022. On the 22nd September, 2023, this Honourable court granted orders for substitution of the Plaintiff. The amended plaint was to be filed within 14 days. It was not until 15th April, 2024 that a further amended plaint was filed substituting Miriam Susan Cherotich Boskwony who had passed away on the 11th November, 2022.
Though the court had granted leave for substitution which orders were granted within a year after the initial Plaintiff had passed away, the further amended plaint was filed more than 16 months after the initial Plaintiff had passed away. The suit abated on the 11th November, 2023 by effluxion of time under order 24 of the Civil Procedure Rules 2010-and no orders were sought for the revival of the suit. Secondly, that the further further amended plaint having been filed almost 6 months after the court granted leave for substitution when it ought to have been filed within 14 days, on the 23rd April, 2024 the court struck out the said further further amended plaint. The initial Plaintiff having passed on, there is no competent suit and this suit ought therefore to be struck out.
The 2nd defendant argues that in the event this Honourable court holds a contrary opinion on the issue of the competence of this suit, the 2nd defendant submits that the suit is currently registered in the names of Kennedy Ogeto the 3rd defendant. The Plaintiff has not established a case of fraud against any of the defendant more particularly the 2nd Defendant. The standard of proof required for fraud is higher than that in civil cases. In the case of Martin F. Kangara vs Samuel Macharia Kimani (2019) eKLR, Kemei J quoted the decision in Kinyanjui Kamau (2015) where she expressed herself thus:
“it is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008) KLR (G & F) 742 wherein the court stated that “we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him since the Respondent was making a serious charge of fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases namely proof upon a balance of probabilities but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in cases……”.
In cases where fraud is alleged, it is not enough to simply infer fraud from the facts”. The Plaintiff has failed to discharge this burden of proof. The only basis the Plaintiff has proffered on her assertion that there was fraud is that she has in her custody the original certificate of lease in the name of the deceased Charles Boskwony.
According to the 2nd defendant, that will not be sufficient to prove fraud particularly in light of the admission of the land Registrar Mr. Sunguti Dw 3 that some documents are missing from the parcel file of the suit property. There is no instrument known in law that captures the surrender of the old certificate of lease or title during a transfer.
There is a procedural legal lacuna. The said witness went ahead to state that there is no indication that even the original lease in the name of Charles Boskwony was registered as procedurally required and similarly there was no entry in the green card showing a certificate of lease was ever issued to Charles Boskwony.
The 2nd Defendant therefore urges this Honurable court to have this suit dismissed as was determined in the case of Jose Estates Limited vs Muthumu Farm Ltd & 2 Others [2019] eKLR where the court of Appeal observed thus:
“Similarly in cases where fraud is alleged it is not enough to simply infer fraud from the facts in Vijay Morjaria vs Nansingh Madhusingh Darbar & Another (2000) eKLR, Tonui J A (as he then was)
“it is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated in the face of the pleadings. The acts alleged to be fraudulent must of course be set out and then it should be stated that those acts were done fraudulently. It is also well settled law that fraudulent conduct must distinctly alleged and distinctly proved and it is not allowed to leave fraud to be inferred from the facts”.
Submissions by the 3rd defendant
The gravamen of the 3rd defendant’s submission is that this Honorable Court is legally inhibited from delving into the merits of the dispute. There exist fundamental, threshold defects regarding the capacity of the Plaintiff and the legal status of the suit itself that render the entire proceedings a nullity. The 3rd defendant has identified three far-reaching material issues of law, which, their view, are dispositive of this matter. The 3rd defendant contends that as established in the locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd (1969) EA 696, a preliminary point of law is one which, if argued, may dispose of the suit without the need to go into the merits. We shall therefore restrict these submissions to these fatal technical infirmities, which demonstrate that there is no valid suit before this Court. According to the 3rd defendant, the suit was originally instituted on 14th August 2009 by Miriam Susan Cherotich Boskwony suing as the legal representative of the Estate of Charles Boskwony (Deceased). The Plaint was subsequently amended in 2013 and further amended on 24th November 2017. In all these instances, the sole Plaintiff on record remained Miriam Susan Cherotich Boskwony. The Estate of Charles Boskwony, however, had two administrators. The Grant of Letters of Administration in Nairobi High Court Succession Cause No. 2225 of 1999 was issued on 25th January 2000 to both Miriam Susan Cherotich and Suzie Cherotich Chebet jointly. During the pendency of this suit, the Plaintiff on record, Miriam Susan Cherotich, passed away on 11th November 2022. Following the demise of Miriam Susan Cherotich, the suit remained in abeyance. No application was made under Order 24 Rule 3 of the Civil Procedure Rules within one year to revive the suit or substitute the deceased. Instead, an application was made under, inter alia, Order 8 Rule 3 to amend the Plaint to enjoin the surviving administrator, Suzie Cherotich Chebet. On 22nd September 2023, this Honorable Court granted Suzie Cherotich Chebet leave to file and serve Further, further amended plaint that would introduce her as new plaintiff in the matter within 14 days.The Further Further Amended Plaint dated 20th March 2024 was filed on 15th April 2024. Crucially, and rightly so, on April 23, 2024, this Honourable Court suo motu expunged the Further Further Amended Plaint (dated March 20, 2024) for failure to comply with court timelines. This expungement arose from the fact that the Court’s order of 22nd September 2023, required the filing of the further, further amended plaint to substitute the deceased plaintiff within 14 days. Instead, the same was filed close to 7 months later, on April 15, 2024. Consequently, the pleading that currently sits on the record is the Further Amended Plaint dated 24th November 2017, filed by a Plaintiff who is now deceased, and whose suit has abated by operation of law.The plaintiff therefore contends that the plaintiffs suit is a nullity abinitio for want of capacity/locus standi, having been instituted by only one administrator where two joint administrators existed. In a nut shell the 3rd defendant contends that this suit was filed in 2009, when the Estate of Charles Boskwony had two administrators: Miriam Susan Cherotich and Suzie Cherotich Chebet, by virtue of the grant issued on 28th January 2000. Yet, Miriam Susan Cherotich filed this suit alone.
The 3rd defendant relies on Section 82 of the Law of Succession Act (Cap 160) that is clear on the powers of joint administrators. It provides that statutory powers are exercisable by the administrators jointly. The law does not recognize the capacity of one administrator to act to the exclusion of the other in instituting legal proceedings on behalf of the estate, absent leave of court or unless the other administrator is named as a defendant.
The 3rd defendant further cites the case of Re Estate Of Makokha Idris Khasabuli (Deceased) (Succession Cause 13 Of 2017) [2019] Kehc 257 (Klr)
(20 December 2019) (Ruling), where the the Court held that where there are several administrators, they must all join in bringing an action on behalf of the estate thus:-
“8. It must be stated that even though there are four administrators in places in law there is only one administration or representation to the estate of the deceased. The four administrators hold one grant, which appoints all four of them as administrators. None of them holds a grant which makes them the sole administrators of the estate. Since there is only one administration, and not four, it behoves the four administrators to act as one with regard to managing the estate of the deceased. Responsibilities and duties must be shared. They must agree on the management of the assets. They must take a common stand on the expenses of administration and on the settlement of liabilities and debts and other outgoings. It should not be the business of one or a section of the administrators to make decisions on behalf of the estate, which falls upon all four of them.”
Similarly the 3rd defendant relies on the case of Republic V Nairobi City Council & 3 Others Exparte Christine Wangari Gachege Suing On Behalf Of The Estate Of Rahab Wanjiru Evans [2014] Kehc 7327 (Klr), where the late Justice Majanja held:
“3. The capacity to agitate any suit on behalf of the estate of the deceased inheres in the administrators duly appointed by the court (See section 79 of the Law of Succession Act (Chapter 160 of the Laws of Kenya)). They act jointly at all times and in the event of a dispute among them, as is apparent in this case, the dispute must be resolved by the court that issued the grant of letters of administration. One administrator out of the others lacks the capacity to bind the estate or any of the administrators or file suit alone on behalf of the estate.”
In the circumstances, this suit is incompetent, it cannot be sustained. I warn myself that striking out of a suit is a drastic remedy but where there is no capacity of the parties, the axe must fall.”
The 3rd defendant ultimately submits that, by filing this suit alone, Miriam Susan Cherotich acted without the requisite locus standi. A suit filed by a party without capacity is a nullity ab initio. It is not a mere procedural irregularity that can be cured; it goes to the jurisdiction of the court to entertain the suit. As stated in Macfoy vs. United Africa Co. Ltd [1961] 3 All ER 1169, if an act is void, then it is in law a nullity. It is not only bad, but incurably bad. Pursuant to the foregoing, the Plaint filed in 2009 and all subsequent amendments prior to the attempted joinder of Suzie (which was expunged) were null and void for want of proper representation of the Estate.
The 3rd defendant further submits that the suit abated by operation of law on 11th November 2023 upon the expiry of one year from the death of the Plaintiff, Miriam Susan Cherotich.
The 3rd defendant further contends there is no valid Plaint before the Court given the expunging of the 2024 Plaint and the death of the sole Plaintiff in the 2017 Plaint. Even if, for the sake of argument, the suit was validly instituted, it has since abated. The Plaintiff, Miriam Susan Cherotich, died on 11th November 2022.
The 3rd defendant relies on Order 24 Rule 3(1) of the Civil Procedure Rules, 2010 provides:
“Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.”
Order 24 Rule 3(2) further states:
“Where within one year from the death of the plaintiff no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned…”
The Plaintiff’s advocates only moved the court under Order 8 Rule 3 (Amendment of Pleadings) to enjoin Suzie Cherotich Chebet. An application for amendment is distinct from, and cannot substitute, the mandatory requirement to revive a suit that is facing abatement or has abated.
The 3rd defendant relies on the authority of REBECCA MIJIDE MUNGOLE & ANOTHER V KENYA POWER & LIGHTING COMPANY LTD & 2 OTHERS [2017] KECA 544 (KLR) the Court of Appeal, inter alia, held that abatement is automatic. It occurs by operation of law if the necessary steps are not taken within the statutory period. They stated that :-
“Where a suit abates, no fresh suit can be brought on the same cause of action because it is extinguished and cannot be maintained in the form it was originally presented. Because the suit will only abate where, within one year of the death of the plaintiff no application is made to cause the legal representative of the deceased plaintiff to be joined in the proceedings, it is imperative and we may add, logical, where the legal representative is not so joined within one year, that an application be made for extension of time to apply for joinder of the deceased plaintiff's legal representative. It is only after the time has been extended that the legal representative can have capacity to apply to be made a party. Order 24 must be construed by reading it as a whole and the sequence in which it is framed must be followed without short circuiting it. The proviso to rule 3(2) to the effect that the court may, for good reason on application, extend the time goes to show that without time being extended, no application for revival or joinder can be made. It is the effluxion of time that causes the suit to abate. It is that time that must, first be extended. Once time has been enlarged, only then can the legal representative bring an application to be joined in the proceedings. Again it is only after the legal representative has been joined as a party that he can apply for the revival of the action. In our view there is nothing objectionable to making an omnibus application for all the three prayers. But it is incompetent to seek joinder or revival where the prayer for more time to apply has not been granted. The learned Judge, supported by the authority of Joseph Gachuhi Muthanji (supra) was therefore right in dealing with that aspect of the application in the manner he did.”
The 3rd defendant contends that the failure to make the application within one year under order 24 (3) to substitute Miriam Susan Cherotich within one year of her death resulted in the automatic abatement of the suit on 11th November 2023.
The remaining administrator, Suzie Cherotich, was not a party to the suit at the time of Miriam's death.
On the status of the record, the 3rd defendant submits that this constitutes the final nail in the coffin of the Plaintiff's case. In a Ruling dated 22 September 2023, this Honorable Court had granted leave to Suzie Cherotich Chebet to file and serve an amended plaint within 14 days from that date. On 15th April 2024, Suzie Cherotich Chebet – about seven months later and way outside the 14 days decreed by the court – purported to file a Further Further Amended Plaint dated 20th March 2024. On 24th April 2024, this Honorable Court struck out that document from the record stating that it had been filed out of time and there had been inordinate delay in its filing. It cannot be disputed that the legal effect of striking out of that document by the court is that it ceased to exist on the court record. Therefore, we revert to the last validly filed document: The Further Amended Plaint dated 24th November 2017.
The 3rd defendants submits that this status leaves us with a paradoxical and legally impossible scenario, thus that the active Plaint on record (2017) lists only Miriam Susan Cherotich as the Plaintiff, Miriam Susan Cherotich is deceased and a dead person cannot maintain a suit as held in LAWRENCE KWATSIMA v TARIA MUTAKALE SHILAMA & another
[2006] KEHC 1995 (KLR), a suit by or against a dead person is a nullity.
“It is now well settled that where the suit is filed against a dead person the suit is bad in law because it is filed against nobody and there is simply no suit.”
In conclusion, the 3rd respondent submits that the procedural history of this file reveals a series of fatal legal missteps. The suit was arguably void ab initio for excluding the co-administrator. Whatever validity it might have had was extinguished on 11th November 2023 when the suit abated by operation of law. Finally, the expunging of the 15th April 2024 Plaint leaves the record with a deceased Plaintiff, rendering the proceedings a nullity. The 3rd defendant argues that judicial time should not be wasted on the merits of a case that has no legal legs to stand on.
As noted by the court in ELC CASE NO. 362 OF 2012 (MILIMANI) EMMA WAMBUI MBUCHU AND 2 OTHERS v ALPHA LAND INVESTMENTS AND 2 OTHERS,
“It would be futile to proceed with a suit whose originating documentation is faulty and therefore void ab initio. Failure to…present to court a signed plaint is fatal and it is my view that the suit cannot be sustained on the basis of unsigned plaint as in essence there is no pleading before the court”.
The suit in the above matter was dismissed based on a lack of signature. The current scenario is much more serious as it relates to a complete lack of plaintiff on the record. As explained at the start of this submissions, the 3rd Defendant only identified the current state of the record in this protracted matter after a laborious and thorough review of the pleadings, this Honorable Court’s record, the prevailing statutory provisions and available jurisprudence. The 3rd Defendant reiterates his position that this Honorable Court is legally inhibited from delving into the merits of the dispute, notwithstanding the fact that a hearing on the merits took place, erroneously. The undisputed mandatory legal position is that there was no plaint on the record on the basis of which a hearing could legally take place. No party in the proceedings could alter that position.
In the case of JOHN GACHOKI NDENGE V KIAMBU DANDORA FARMERS COMPANY LIMITED AND ANOTHER CIVIL SUIT NO 481 OF 2006, the Court stated the law on a similar question as follows:
“… Counsel argued that by consenting to the application to enjoin the 2nd defendant to the suit, the 2nd defendant negated the issue now raised since, at the time the consent was given, those issues were alive and ought to have been raised at that stage… Mr Ojienda’s argument seems to suggest that the 2nd defendant’s advocate, by consenting to the amendment that brought in the 2nd defendant into the suit, waived the application of the statutory provision and that therefore section 228 does not protect the 2nd defendant. Counsel has not cited any case to support that proposition and I am not aware of any which allows a party to waive the application of section 228 of the Companies Act”
Analysis and Determination
I have considered the rival submissions and do find that the 1st issue to be considered is whether the suit was properly commenced before this court. The 3rd defendant argued that the suit was a nullity as it was not commenced by the two administratrices of the estate of Charles Boskwony. It is true as per the record that the suit was filed in the year 2009 by Miriam Susan Cherotich Boskwony when the estate of Charles Boskwony had two administratrices thus Miriam Susan Cherotich Boskwony and Suzie Cherotich Chebet by virtue of a grant issued on 28th January 2009.
I have considered the pleadings and proceedings on record and the legal provisions and court decisions on the issue as to whether failure to commence a suit in the joint names of the administratrices of the estate of the deceased is fatal and do find that the relevant provisions in law is the provisions of order 31 of the Civil Procedure Rules 2010 and Oder 1 rule 9 of the Civil Procedure Rules 2010. This issue has been settled by the Court Of Appeal In Court Of Appeal At Nairobi In Civil Appeal No 382 Of 2019 Between Roselyn Dola Ouko, Aaron Tafari Ouko (suing as the personal representatives and administrators of the estate of Jason Atinda Ouko (deceased) and Rahab Wangui Kageni (sued as the personal representatives and administrator of the estate of Samuel Muhika Kageni where the court observed as follows:-
“The first issue regarding the respondent’s capacity to sue is a point of law which can determine the appeal in limine. The appellants contend that the learned Judge erred on two fronts: first, by finding that the issue concerning the respondent’s capacity to sue was raised at the submission stage; and second, by finding that the respondent could file the suit without involving the other administrators of the estate of Kageni.”
It is important to note that the defendants in this case have equally raised the issue of capacity at the submission stage and therefore ambushing the plaintiff.
The court of appeal relied on the provisions of Order 31 rules 1 and 2 of the Civil Procedure Rules 2010 that speaks to suits by administrators as follows:
“1. Representation of beneficiaries in suits concerning property vested in trustees [Order 31, rule 1]
In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee, executor or administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit, but the court may, if it thinks fit, order them or any of them to be made parties.
2. Joinder of trustees, executors and administrators [Order 31, rule 2]
Where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them:
Provided that the executors who have not proved their testator’s will, and trustees, executors, and administrators outside Kenya, need not be made parties.”
The court of appeal further relied On Order 1 Rule 9 of the Civil Procedure Rules state that:
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Page 18 of 35
“No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”
In the case cited, the court of appeal painstakingly went through the entire record, and noted that the issue of the respondent’s capacity was not raised in the pleadings and only arose during the cross-examination of the respondent. Even in the appellants’ list of issues dated 29th May 2016, appearing at pages 227 and 228 of the record of appeal, this issue was not raised.
The court of appeal in its decision cited its decision in Ann Wairimu Wanjohi vs. James Wambiru Mukabi [2021] KECA 476 (KLR), when confronted with issues not raised in pleadings, held that:
“We take the view that parties should specifically state their claim by properly pleading the facts relied upon and the relief sought, as the pleadings are the primary documents that guide the court and the parties concerning the claim and the contesting positions of the parties. In accordance with the Civil Procedure Rules, the parties should also either provide a list of agreed issues, or if there is no agreement, each provide their own list of issues so that the court can settle the issues. Although it is desirable that where necessary the pleadings should be amended to bring in all the issues, Odd Jobs vs Mubia (supra) remains good law, that in limited circumstances where an unpleaded issue is crucial to the matters in issue the court may determine a suit on the unpleaded issue, provided both parties have clearly addressed the unpleaded issue in their evidence or submissions, and left the matter for the determination of the court. However, such determination will not extend to determining or awarding a relief that was not specifically sought in the pleadings.”
The court associated itself with the cited decision and therefore found no error in the learned Judge’s appreciation of the import of Order 1 Rule 9 and Order 31 rules 1 & 2 of the Civil Procedure Rules and his conclusion on the question as to whether the respondent’s claim was defective. The court agreed with the learned Judge that the issue was raised late in the day and could not be the basis for striking out the respondent’s suit.
Similarly, the court agreed with the learned Judge that there is no express provision of the law barring a single administrator from filing a suit where an estate has more than one administrator. What the law requires is that where a person is suing the estate of a deceased person, the trustees, executors, or administrators “shall all be made parties to a suit against one or more of them.” As regards a suit commenced against a third party by the estate, the law, in their view, is as was expressed in Zeimab Khalifa Khator & 4 Others vs. Abdulrazak Khalifa Salim & Another (supra) thus:
“Moreover, we have not come across any provisions in the Law of Succession and also the Probate and Administration Rules of Cap 160 laws of Kenya that prohibit joint administrators from seeking different orders from court. Indeed in our view what would be prohibited is one administrator dealing with the assets of the estate singularly where there is joint administration.”
The respondent in her pleading in the cited case was clear that she was in court on behalf of the estate of her deceased husband. The fruits of her litigation will go to the estate of the deceased and not to herself.
Guided by the decisions of the Court of Appeal herein above, I do find the 3rd defendants contention that the plaintiff had no capacity to file the suit a miscomprehension of the law, unfounded and misplaced.
The second issue was whether the suit had abated. I have perused the record and do find that the suit was originally instituted on 14th August 2009 by Miriam Susan Cherotich Boskwony suing as the legal representative of the Estate of Charles Boskwony (Deceased).
The Plaint was subsequently amended in 2013 and further amended on 24th November 2017. The Plaintiff on record remained Miriam Susan Cherotich Boskwony. The Estate of Charles Boskwony, however, had two administratrices. The Grant of Letters of Administration in Nairobi High Court Succession Cause No. 2225 of 1999 was issued on 25th January 2000 to both Miriam Susan Cherotich and Suzie Cherotich Chebet jointly. During the pendency of this suit, the Plaintiff on record, Miriam Susan Cherotich, passed away on 11th November 2022.
Following the demise of Miriam Susan Cherotich, the suit remained in abeyance. No application was made under Order 24 Rule 3 of the Civil Procedure Rules within one year to revive the suit or substitute the deceased. However, an application was made under, inter alia, Order 8 Rule 3 to amend the Plaint to enjoin the surviving administratrix, Suzie Cherotich Chebet.
On 22nd September 2023, this Honorable Court granted Suzie Cherotich Chebet leave to file and serve Further, further amended plaint that would introduce her as new plaintiff in the matter within 14 days. The Further Further Amended Plaint dated 20th March 2024 was filed on 15th April 2024. This court finds that the suit abated as Suzie Cherotich Chebet filed the further further amended plaint outside the 14 days given by the court without the leave of the court and was substituted as the plaintiff after lapse of one year after the plaintiff’s death. The suit abated after the lapse of the 14 days.
This court considered this issue on April 23, 2024, and expunged the Further Further Amended Plaint dated March 20, 2024 for failure to comply with court timelines. This expunging arose from the fact that the Court’s order of 22nd September 2023, required the filing of the further, further amended plaint to substitute the deceased plaintiff within 14 days. Instead, the same was filed close to 7 months later, on April 15, 2024. Consequently, I do agree with the 3rd defendant that the pleadings that currently sit on the record is the Further Amended Plaint dated 24th November 2017, filed by a Plaintiff who is now deceased, and whose suit has abated by operation of law after the striking out of the further - further Amended Plaint on 24th April 2024. This court cannot make orders on a suit that has abated. In conclusion, I do make orders that the suit herein has abated. No orders as to costs.
Mirriam Susan Cherotich Boskwony suing as the administritrix of the estate of Charles Boskwony came to this court on 14th August 2009 suing Kennedy Nyabuto Ogeto by way of plaint praying for various orders. The plaint was subsequently amended on 24th November 2017 wherein the plaintiff enjoined the 1st ,2nd ,4Th ,5th and 6th defendants and averred that at all material time the late Charles Boskwony was and still the legal owner of the title Number Nakuru Municipality Block 23/50 having acquired the same on the 8th March, 1993.
The plaintiff states that on or about the 11th August 2009, she carried out the official search in the land registry only to discover that title No Nakuru Municipality Block 23/50 was registered in the names of the 3rd defendant on 7th August, 2002 and the plaintiff had not sold or leased the said land to the 3rd defendant nor consented to this change of user. That it came to the knowledge of the plaintiff, that the defendant illegally, unlawfully and fraudulently acquired the suit property purporting to have purchased the same from Charles Boskwony (deceased)
It also came to the knowledge of the plaintiff that defendant, using illegally and unlawfully and fraudulently acquired titles, illegally and unlawfully and fraudulently sold and transferred the suit property to the 2nd defendant who subsequently transferred the same to the defendant. The plaintiff averred that the defendant’s registration was through fraud, illegality and/or misrepresentation.
On or about the 11th August, 2009, the plaintiff carried out official search in the land registry only to discover that title No.Nakuru Municipality Block 23/50 was now registered in the names of the 3rd defendant on the 7t August, 2002 and the plaintiff had not sold or leased out the said land to the defendants nor consented to the change of user.
It subsequently came to the knowledge of the plaintiff, that the defendant, illegally, unlawfully and fraudulently acquired the suit property purporting to have purchased the same from Charles Boskwonv (deceased). It also came to the knowledge of the plaintiff that the 1st defendant, using the illegal, unlawfully and fraudulently acquired titles, illegally and unlawfully and fraudulently sold and transferred the suit property to the 2nd defendant who subsequently transferred the same to the 3rd defendant.
The plaintiff's claim against the defendants is for a declaration that the estate of Charles Boskwony is the owner of Nakuru Municipality Block 23/50 and that the defendants Obtained title to the said land through illegality and fraud and therefore the title issued to the defendants be cancelled and declared null and void. The plaintiff prayed for the costs of the suit.
The plaintiff prayed for judgment for a declaration that the plaintiff is the legal owner of Nakuru block 23/5- and thus the transfer and subsequent registration of the same to the 1st 2nd and 3rd defendants as the owners thereof was/is irregular, procedural, fraudulent illegal and hence null and void ab-initio. Moreover, an order of revocation and/or cancellation of the 1st 3rd defendant’s title and rectification of the register to restore the plaintiff registration. Furthermore, an order of temporary injunction the 1t 2nd and 3rd defendants either by themselves, servants and/or agents howsoever from selling, disposing, entering, trespassing or in any way dealing with Nakuru Municipality Block 23/50 pending the hearing and determination of the suit. Lastly, an order of permanent injunction against the 1st 2nd and 3rd defendants either by themselves, servants and/or agents howsoever from selling, disposing, entering, trespassing or in any way dealing with Nakuru Municipality Block23/50 and costs if this suit.
It is important to note that on the 22nd day of September 2023, the plaintiff obtained leave to amend the plaint within 14 days, however the plaintiff did not comply with the order and filed the further amended plaint on 15th April 2024, eight days before hearing introducing Suzie Cherotich Chebet as the plaintiff. The matter came up for the hearing of the suit on the 23rd of April 2024 and neither the plaintiff nor his counsel attended hearing and therefore the further amended plaint was struck out for having been filed out of time. The plaintiff did not make an application to file the further amended plaint out of time. Therefore the basis of this suit is the further amended plaint dated 24th February 2017.
The 3rd defendant filed amended defence wherein he states that he is a stranger and therefor denies all the particulars of fraud and illegality thereunder and puts the plaintiff to strict proof thereof. The 3rd defendant avers that he legally and transparently purchased the suit properly herein on 7 August 2002 from the then registered owner, the second defendant herein one Philip Mangare Matoke. The 3rd defendant further avers that before purchasing the suit property from the said Philip Mangare Matoke, he diligently conducted a search on the status of the suit property and sufficiently established that one Philip Kipkoech Biwot acquired title of the suit property herein from Charles Boskwony on 27 January 1997. The said Philip Kipkoech Biwot sold the suit property herein to Philip Mangare Matoke on 20 November 2000.
The 3rd defendant therefore avers that it is erroneous, misleading and grossly misrepresentative for the plaintiff to allege that the late Charles Boskwony has been the legal owner of the suit property herein" at all material times." He may have been owner for some time until 27 January 1997, but not at all material times. The 3rd defendant further avers that the said Charles Boskwony is a complete stranger to the defendant and his estate has absolutely no cause of action against him.
The 3rd defendant further avers that the plaintiff's allegations of fraud against the 3rd defendant are frivolous, unfounded, actuated by malice, intended to defame and disparage the defendant and are otherwise a gross abuse of the court process. The defendant will at the earliest opportunity seek leave of this Honorable court to strike out this suit as being scandalous petty and disclosing no cause of action.
The 3rd defendant denies and avers that the purported claims, orders and allegations in paragraph 9 of the amended plaint are unlawful, unwarranted and an abuse of the court process. The plea of notice of intention to sue at paragraph 10 of the amended plaint is misleading and untrue.
The Evidence
The plaintiff, Miriam Susan Cherotich Boskwony, a retired civil servant testified on the 13th July 2021 as PWI, and stated that she filed the suit as the administritrix of the estate of the deceased Charles Boskwony. She wanted to develop the suit property known as Nakuru/Municipality Block 2/50 and upon doing a search, she found there was another person registered. The property is in section 58 Nakuru. She stated that her husband had a title issued in 1993. She produced the original tittle for Nakuru Municipality Block 23/50 as an exhibit. Her husband was allocated the property by Nakuru Naka S.H Group. She produced a copy of the allotment letter dated 18/3/1989. She produced copies of receipts to show that her husband paid to be allocated the plot. She produced the lease and certificate of lease to show that her husband was registered as the proprietor of the parcel of land. When she did the official search, on 11/8/2009 it showed the ownership had changed and one Kennedy Nyabuti Ogeto was registered. After filing the case she realized the property had changed hands several times.
The plaintiff testified that her late husband never transferred the land to one Philip Kipkoech Biwott. The original title is still held by the plaintiff whose husband died in March 1999. She prays that the court nullifies all the transfers and cancels the title and reverts the land to her late husband.
On cross examination by Mr Ndubi, learned counsel for the 2nd defendant, she states that Suzie Cherotich Chebet is her Co- administritrix and sister but not a co-plaintiff in this case. She confirms that she filed the present suit in the year 2012 but the plaint was amended in 2009. After getting the search which revealed a new owner, she visited the plot and found some building materials had been deposited there. The plot is presently not developed. On cross examination by Magata, Learned counsel for the 3rd defendant, the plaintiff affirmed that the 2nd defendant is shown as the owner of the land. Receipt for the search was by the 3rd defendant.
The rates clearance certificate of 5/8/2002 attached also showed that the 3rd defendant had paid. The 3rd defendant as per the register was registered on 7/8/2002. On cross examination by Cheruyoit learned state counsel, she states that she never saw the documents that were used to effect the transfer to the 1st defendant. She does not know whether such documents existed. The plaintiff closed her case at this point in time.
The 2nd Defendant, Mangare Philip Matoke testified as DW1 and relied on his written statement dated 17/2/2020 which was adopted as evidence in chief. He states that the current registered owner of the suit property is Kennedy Nyabuto Ogeto. The property is one quarter of an acre. He sold the property to Mr Ogeto at the time when the same was registered in his name. He bought the property from Philip Kipkoech Biwott who was introduced to the witness by a lady known as Alice Nyambera, his workmate. He was supplied with the completion documents and surrendered the original certificate of lease when the property was transferred to Kennedy Nyabuto Ogeto in 2002. When he took possession of the land, no issue was raised.
On cross examination by Mr Ogolla, learned counsel for the plaintiff, he stated that he did a sale agreement in the offices of Chesire Advocate at Gate house on 3rd floor. Philip Biwott gave him the original title which he later surrendered to the lawyer and was subsequently surrendered to Registrar of Lands. He did not confirm how Philip Kipkoech Biwott bought the land from Charles Boskwony.
The 3rd defendant, Mr Kennedy Nyabuto Ogeto, an advocate of the High Court of Kenya residing in Nairobi gave evidence that he purchased the property at a consideration of Kshs300,000/= paid to Mangare Philip Matoke and that he is in possession of the property. The property is situate in Section 58 within Nakuru Municipality. The property is not developed though fenced by himself. Mr. Matoke received consent to transfer. He did due diligence and found the property to belong to the seller. According to the 3rd defendant, the allegations of fraud are baseless, mischievous and without merit. He has never been summoned at the CID. He has never been charged. He does not know Charles Boskwony
On cross examination by Mr Ndubi, he states that he was the fourth owner of the property. The 1st owner was Charles Boskwony who was registered as proprietor on 8th March 1993. The second owner was Philip Kipkoech Biwott who was registered and obtained title on 27/1/1997. Mangare Philip Matoke was registered and obtained title on the same date thus 20th November 2000. The 2nd defendant approached him to purchase the property due to financial problems. He paid Kshs300,000 as agreed.
On cross examination by M/s Adomeyon, learned state counsel, he states that he took possession immediately after transfer. The time difference between the 1st entries to his in the register is about 22 years. There was neither a caution nor a restriction. He did not fraudulently acquire the property. He has never colluded with the Land Registrar
On cross examination by Ogolla Gordon, learned counsel for the plaintiff, he states that he did due diligence and obtained a certificate of official search and further looked at the green card. He went to the ground. The property was vacant. He confirmed from the Vendor that there was no encumbrance. He perused the green card and confirmed that the vendor was the registered owner. He did not confirm a sale agreement between Charles Boskwony to Philip Kipkoech.
The Attorney General on behalf of the 4th,5th and 6th defendants called Caleb Sunguti the land registrar who testified that according to the records, the suit parcel of land measures approximately 0.0799 ha and is owned by the Government of Kenya. The parcel of land was leased to Charles Baskwony and the transfer of lease was registered on 8th March 1993. On the 27th January 1997, the lease was transferred to Philip Kipkoech Biwott and a certificate of lease was issued and registered in his name. On the 7th of August 2002, the lease was transferred to Kennedy Nyabuto Ogeto and a certificate of lease was issued on the same date. On the 15th December 2004, a restriction was placed in the register after the instructions of the original owner.
On cross examination by Mr Magata, he states that the parcel file contains documents supporting the transaction. On cross examination by Mr Ndubi, he states that he had the entire parcel file. The certificate of lease was issued to Charles Baskwony and a transfer of lease was registered in favor of Philip Kipkoech later. There was a subsequent transfer to Mongare Philips matoke.
On cross examination by Mr Ogolla, he states that no certificate of lease was issued to Charles Baskwony. He states that the 4th entry is in the name of Magare Philip Matoke. The certificate of lease in the name of Charles Boskwony was never surrendered. Philips Biwott did not surrender his certificate of lease. There is no transfer from Charles Baskwony to Philip Kipkoech Biwott. No consent from the Land Control Board for transfer of the land from Charles Boskwony to Philip K Biwott.
Submissions by the plaintiff
The plaintiff submits that the chain of transactions beginning with the 1998 transfer between Charles Boskwony and Philip Kipkoech Biwott, and culminating in the 2002 transfer to Kennedy Ogeto, was riddled with illegality, procedural defects, and fraud. The resulting title is therefore null and void ab initio and cannot attract protection under the law.
Further, that the Defendants have failed to demonstrate acquisition in good faith or for valuable consideration. The principle of indefeasibility of title does not shield fraudulent transactions, as affirmed in Arthi Highway Developers Ltd v West End Butchery Ltd & Others [2015] eKLR and Elijah Makeri Nyang’wara v Stephen Mungai Njuguna & Another [2013] eKLR.
Accordingly, she urges this Honorable Court to find that the impugned transfers were unlawful and to restore the property to the rightful owner, the estate of the late Charles Boskwony and that while every registered proprietor is entitled to the protection of their title, such protection is not absolute. It must yield where the registration is rooted in fraud, illegality, or procedural impropriety, as is the case here.
In the circumstances, she prays that this Honorable Court declares that the transfers of the suit property from the late Charles Boskwony to Philip Kipkoech Biwott, from Philip Kipkoech Biwott to Philip Matoke, and from Philip Matoke to Kennedy Ogeto were unlawful, null, and void. She seeks this declaration because the entire chain of transactions was tainted by illegality, fraud, and non-compliance with statutory requirements under the Land Registration Act, the Law of Contract Act as well as the Stamp duty Act. The absence of sale agreements, consideration, and head lessor, the government of Kenya consent renders each transfer a legal nullity. A declaration of nullity will not only affirm the estate’s ownership but also prevent continued reliance on fraudulent titles to defeat the interests of the rightful proprietor.
She seeks Orders of cancellation of all titles arising from the said transactions and reinstatement of the suit property to the estate of the late Charles Boskwony. This order should give full effect to the principle that a title founded on illegality or fraud cannot stand. Section 26(1) (b) of the Land Registration Act empowers the Court to cancel any registration obtained through such means. Restoring the property to the estate ensures justice, rectifies the register, and vindicates the proprietary rights guaranteed under Article 40 of the Constitution, which protects only lawfully acquired property.
She also seeks a permanent injunction restraining the Defendants, their agents, servants, or assigns from interfering with the Plaintiff’s quiet possession and enjoyment of the suit property. This injunction is to prevent any future encroachment, interference, or attempted alienation by the Defendants. Given the Plaintiff’s lawful claim as representative of the estate, and the Defendants’ continued assertion of ownership through fraudulent titles, injunctive relief is necessary to preserve the integrity of the estate’s property and to forestall further disputes or dispossession.
2ND DEFENDANTS SUBMISSIONS
The second defendant submits that this suit was instituted vide a plaint dated 14th August, 2009 by Miriam Susan Cherotich Boskwony suing as the Administratrix of the estate of Charles Boskwony. At the trial, she testified that she was the administrator and wife to the deceased Charles Boskwony. She produced in evidence as P/Exhibit 1 a grant of letters of interstate administration interstate issued on the 28th January, 2000 in Nairobi High Court Succession Cause Number. 2225 of 1991. The said grant was issued to Suzie Cherotich Chebet and Miriam Susan Boskwony. It was a joint grant to two administrators. The 2nd defendant submits that it is trite that the grant having been issued to two administrators, any action taken without the involvement of the co-administrator is a nullity in law as the mandate as joint administrator is not severable. One cannot therefore act singly including commencing a suit.
The 2nd defendant refers to the case of Michael Chole Lugalia (Suing as administrator of the estate of Ezekiel Majani Lugalia vs Jonathan Ligure Ayodi (2016) KEELC 911 (KLR) in considering an issue as to whether one administrator can commence proceedings without the co-administrator(s), Justice E. Obaga held;
“It is not contested that the Plaintiff is one of the administrators of the estate of the deceased. The grant of letters of administration in respect of the deceased were granted on 31/7/2008 to the Plaintiff and 3 others. The Plaintiff cannot therefore seek to bring a suit to enforce rights due to the estate of the deceased. The Judge referred to the decision of Justice Majanja’s in Misc. Civil Application No. 103 “b” of 2013 Republic vs Nairobi City Council where the Judge stated as follows; “the capacity to agitate any suit on behalf of the estate of the deceased inheres in the administrators duly appointed by the court. They act jointly at all times……One administrator out of the others lacks the capacity to bind the estate or any of the administrators or file suit alone on behalf of the estate”.
Justice E. Obaga proceeded to strike out the entire suit with costs by holding,
“I find that the Plaintiff herein had no capacity to bring a suit on behalf of the deceased. He left out the other co-administrators and this cannot be taken to be a mere procedural technicality which can be cured by Article 159 of the constitution”.
In the case of Issaq v Jama & 2 Others (Environment and Land Case E072 of 2021) [2024] KEELC 3286 (KLR) Justice M.D Mwangi observed;
“In this case, it is common ground that the Applicant and the 1st Defendant herein have been jointly appointed as the administrators of the estate of the deceased Plaintiff.
I agree with the legal position as espoused by Musyoka J and Majanja J in the case of Simon Kamau Muhindi (Supra) and Nairobi City Council (supra) respectively. Joint administrators of the estate of the deceased must act jointly at all times. One administrator acting alone cannot bind the estate of the deceased or file suit alone on behalf of the estate of the deceased”.
The court proceeded to dismiss an application for substitution of the Plaintiff as it did not have the consent of the co-administrators and therefore incompetent.
In the case of the matter of the estate of Makokha Idris Khasabuli (deceased), Justice Musyoka W held;
“As stated earlier, the four administrators were appointed under one grant and hold one grant. By virtue of section 79 of the Law of Succession Act Cap 16, Laws of Kenya, the assets are vested corporately in all the administrators named in the grant. The powers conferred on administrators by section 82 of the Law of Succession Act are exercisable by all the four administrators named in the grant and all the duties imposed on administrators by section 83 of the Act fall on all four administrators. The four cannot purport to act singly or solely, unless of course there has been delegation of responsibilities”.
Justice G.V Odunga in considering the issue of the legal position of joint administrators in the case of Nairobi Miscellaneous Application No. 436 of 2025 Republic vs John Wachira Wambugu (Exparte Applicant and Monica Nyakinyua Geitangi and Peter Ngunjiri Kamunde (Interested Party)) observed as follows;
“the legal position of joint administrators was dealt with in Willis Ochieng Odhiambo vs Kenya Tourist Development corporation and Another Kisumu Hccc No. 51 of 2007, where the court while citing with approval Lewin on Trusts 16th Edn at 185 Williams & Mortimer: Executors, Administrators of probate and Bullen & Leake & Jacobs; precedents of pleadings 13th Edn at 373 held that in the case of co-trustees of a private trust, the office is a joint one and that administration of the trust is vested in co-trustees, they all form as it were one collective trust and therefore must execute the duties of their offices in their joint capacity. It was further held that although a strict definition of “trustee” does not apply to personal representative who hold property upon trust for the estate, the legal responsibilities and liabilities of executors and administrators of estates are the same and are treated similarly where matter procedure are in issue”.
On that account, the 2nd Defendant submits that this suit having been filed by a single administrator, Miriam Susan Cherotich Boskwony without the co-administrator was incompetent ab-initio and therefore this suit ought to be struck out.
The 2nd defendant further submits that on the 6th July, 2023 a Notice of Motion application was filed seeking to substitute Miriam Susan Cherotich Boskwony whom it was deposed in the supporting affidavit of the affiant had passed away on the 11th November, 2022. On the 22nd September, 2023, this Honourable court granted orders for substitution of the Plaintiff. The amended plaint was to be filed within 14 days. It was not until 15th April, 2024 that a further amended plaint was filed substituting Miriam Susan Cherotich Boskwony who had passed away on the 11th November, 2022.
Though the court had granted leave for substitution which orders were granted within a year after the initial Plaintiff had passed away, the further amended plaint was filed more than 16 months after the initial Plaintiff had passed away. The suit abated on the 11th November, 2023 by effluxion of time under order 24 of the Civil Procedure Rules 2010-and no orders were sought for the revival of the suit. Secondly, that the further further amended plaint having been filed almost 6 months after the court granted leave for substitution when it ought to have been filed within 14 days, on the 23rd April, 2024 the court struck out the said further further amended plaint. The initial Plaintiff having passed on, there is no competent suit and this suit ought therefore to be struck out.
The 2nd defendant argues that in the event this Honourable court holds a contrary opinion on the issue of the competence of this suit, the 2nd defendant submits that the suit is currently registered in the names of Kennedy Ogeto the 3rd defendant. The Plaintiff has not established a case of fraud against any of the defendant more particularly the 2nd Defendant. The standard of proof required for fraud is higher than that in civil cases. In the case of Martin F. Kangara vs Samuel Macharia Kimani (2019) eKLR, Kemei J quoted the decision in Kinyanjui Kamau (2015) where she expressed herself thus:
“it is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008) KLR (G & F) 742 wherein the court stated that “we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him since the Respondent was making a serious charge of fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases namely proof upon a balance of probabilities but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in cases……”.
In cases where fraud is alleged, it is not enough to simply infer fraud from the facts”. The Plaintiff has failed to discharge this burden of proof. The only basis the Plaintiff has proffered on her assertion that there was fraud is that she has in her custody the original certificate of lease in the name of the deceased Charles Boskwony.
According to the 2nd defendant, that will not be sufficient to prove fraud particularly in light of the admission of the land Registrar Mr. Sunguti Dw 3 that some documents are missing from the parcel file of the suit property. There is no instrument known in law that captures the surrender of the old certificate of lease or title during a transfer.
There is a procedural legal lacuna. The said witness went ahead to state that there is no indication that even the original lease in the name of Charles Boskwony was registered as procedurally required and similarly there was no entry in the green card showing a certificate of lease was ever issued to Charles Boskwony.
The 2nd Defendant therefore urges this Honurable court to have this suit dismissed as was determined in the case of Jose Estates Limited vs Muthumu Farm Ltd & 2 Others [2019] eKLR where the court of Appeal observed thus:
“Similarly in cases where fraud is alleged it is not enough to simply infer fraud from the facts in Vijay Morjaria vs Nansingh Madhusingh Darbar & Another (2000) eKLR, Tonui J A (as he then was)
“it is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated in the face of the pleadings. The acts alleged to be fraudulent must of course be set out and then it should be stated that those acts were done fraudulently. It is also well settled law that fraudulent conduct must distinctly alleged and distinctly proved and it is not allowed to leave fraud to be inferred from the facts”.
Submissions by the 3rd defendant
The gravamen of the 3rd defendant’s submission is that this Honorable Court is legally inhibited from delving into the merits of the dispute. There exist fundamental, threshold defects regarding the capacity of the Plaintiff and the legal status of the suit itself that render the entire proceedings a nullity. The 3rd defendant has identified three far-reaching material issues of law, which, their view, are dispositive of this matter. The 3rd defendant contends that as established in the locus classicus case of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd (1969) EA 696, a preliminary point of law is one which, if argued, may dispose of the suit without the need to go into the merits. We shall therefore restrict these submissions to these fatal technical infirmities, which demonstrate that there is no valid suit before this Court. According to the 3rd defendant, the suit was originally instituted on 14th August 2009 by Miriam Susan Cherotich Boskwony suing as the legal representative of the Estate of Charles Boskwony (Deceased). The Plaint was subsequently amended in 2013 and further amended on 24th November 2017. In all these instances, the sole Plaintiff on record remained Miriam Susan Cherotich Boskwony. The Estate of Charles Boskwony, however, had two administrators. The Grant of Letters of Administration in Nairobi High Court Succession Cause No. 2225 of 1999 was issued on 25th January 2000 to both Miriam Susan Cherotich and Suzie Cherotich Chebet jointly. During the pendency of this suit, the Plaintiff on record, Miriam Susan Cherotich, passed away on 11th November 2022. Following the demise of Miriam Susan Cherotich, the suit remained in abeyance. No application was made under Order 24 Rule 3 of the Civil Procedure Rules within one year to revive the suit or substitute the deceased. Instead, an application was made under, inter alia, Order 8 Rule 3 to amend the Plaint to enjoin the surviving administrator, Suzie Cherotich Chebet. On 22nd September 2023, this Honorable Court granted Suzie Cherotich Chebet leave to file and serve Further, further amended plaint that would introduce her as new plaintiff in the matter within 14 days.The Further Further Amended Plaint dated 20th March 2024 was filed on 15th April 2024. Crucially, and rightly so, on April 23, 2024, this Honourable Court suo motu expunged the Further Further Amended Plaint (dated March 20, 2024) for failure to comply with court timelines. This expungement arose from the fact that the Court’s order of 22nd September 2023, required the filing of the further, further amended plaint to substitute the deceased plaintiff within 14 days. Instead, the same was filed close to 7 months later, on April 15, 2024. Consequently, the pleading that currently sits on the record is the Further Amended Plaint dated 24th November 2017, filed by a Plaintiff who is now deceased, and whose suit has abated by operation of law.The plaintiff therefore contends that the plaintiffs suit is a nullity abinitio for want of capacity/locus standi, having been instituted by only one administrator where two joint administrators existed. In a nut shell the 3rd defendant contends that this suit was filed in 2009, when the Estate of Charles Boskwony had two administrators: Miriam Susan Cherotich and Suzie Cherotich Chebet, by virtue of the grant issued on 28th January 2000. Yet, Miriam Susan Cherotich filed this suit alone.
The 3rd defendant relies on Section 82 of the Law of Succession Act (Cap 160) that is clear on the powers of joint administrators. It provides that statutory powers are exercisable by the administrators jointly. The law does not recognize the capacity of one administrator to act to the exclusion of the other in instituting legal proceedings on behalf of the estate, absent leave of court or unless the other administrator is named as a defendant.
The 3rd defendant further cites the case of Re Estate Of Makokha Idris Khasabuli (Deceased) (Succession Cause 13 Of 2017) [2019] Kehc 257 (Klr)
(20 December 2019) (Ruling), where the the Court held that where there are several administrators, they must all join in bringing an action on behalf of the estate thus:-
“8. It must be stated that even though there are four administrators in places in law there is only one administration or representation to the estate of the deceased. The four administrators hold one grant, which appoints all four of them as administrators. None of them holds a grant which makes them the sole administrators of the estate. Since there is only one administration, and not four, it behoves the four administrators to act as one with regard to managing the estate of the deceased. Responsibilities and duties must be shared. They must agree on the management of the assets. They must take a common stand on the expenses of administration and on the settlement of liabilities and debts and other outgoings. It should not be the business of one or a section of the administrators to make decisions on behalf of the estate, which falls upon all four of them.”
Similarly the 3rd defendant relies on the case of Republic V Nairobi City Council & 3 Others Exparte Christine Wangari Gachege Suing On Behalf Of The Estate Of Rahab Wanjiru Evans [2014] Kehc 7327 (Klr), where the late Justice Majanja held:
“3. The capacity to agitate any suit on behalf of the estate of the deceased inheres in the administrators duly appointed by the court (See section 79 of the Law of Succession Act (Chapter 160 of the Laws of Kenya)). They act jointly at all times and in the event of a dispute among them, as is apparent in this case, the dispute must be resolved by the court that issued the grant of letters of administration. One administrator out of the others lacks the capacity to bind the estate or any of the administrators or file suit alone on behalf of the estate.”
In the circumstances, this suit is incompetent, it cannot be sustained. I warn myself that striking out of a suit is a drastic remedy but where there is no capacity of the parties, the axe must fall.”
The 3rd defendant ultimately submits that, by filing this suit alone, Miriam Susan Cherotich acted without the requisite locus standi. A suit filed by a party without capacity is a nullity ab initio. It is not a mere procedural irregularity that can be cured; it goes to the jurisdiction of the court to entertain the suit. As stated in Macfoy vs. United Africa Co. Ltd [1961] 3 All ER 1169, if an act is void, then it is in law a nullity. It is not only bad, but incurably bad. Pursuant to the foregoing, the Plaint filed in 2009 and all subsequent amendments prior to the attempted joinder of Suzie (which was expunged) were null and void for want of proper representation of the Estate.
The 3rd defendant further submits that the suit abated by operation of law on 11th November 2023 upon the expiry of one year from the death of the Plaintiff, Miriam Susan Cherotich.
The 3rd defendant further contends there is no valid Plaint before the Court given the expunging of the 2024 Plaint and the death of the sole Plaintiff in the 2017 Plaint. Even if, for the sake of argument, the suit was validly instituted, it has since abated. The Plaintiff, Miriam Susan Cherotich, died on 11th November 2022.
The 3rd defendant relies on Order 24 Rule 3(1) of the Civil Procedure Rules, 2010 provides:
“Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.”
Order 24 Rule 3(2) further states:
“Where within one year from the death of the plaintiff no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned…”
The Plaintiff’s advocates only moved the court under Order 8 Rule 3 (Amendment of Pleadings) to enjoin Suzie Cherotich Chebet. An application for amendment is distinct from, and cannot substitute, the mandatory requirement to revive a suit that is facing abatement or has abated.
The 3rd defendant relies on the authority of REBECCA MIJIDE MUNGOLE & ANOTHER V KENYA POWER & LIGHTING COMPANY LTD & 2 OTHERS [2017] KECA 544 (KLR) the Court of Appeal, inter alia, held that abatement is automatic. It occurs by operation of law if the necessary steps are not taken within the statutory period. They stated that :-
“Where a suit abates, no fresh suit can be brought on the same cause of action because it is extinguished and cannot be maintained in the form it was originally presented. Because the suit will only abate where, within one year of the death of the plaintiff no application is made to cause the legal representative of the deceased plaintiff to be joined in the proceedings, it is imperative and we may add, logical, where the legal representative is not so joined within one year, that an application be made for extension of time to apply for joinder of the deceased plaintiff's legal representative. It is only after the time has been extended that the legal representative can have capacity to apply to be made a party. Order 24 must be construed by reading it as a whole and the sequence in which it is framed must be followed without short circuiting it. The proviso to rule 3(2) to the effect that the court may, for good reason on application, extend the time goes to show that without time being extended, no application for revival or joinder can be made. It is the effluxion of time that causes the suit to abate. It is that time that must, first be extended. Once time has been enlarged, only then can the legal representative bring an application to be joined in the proceedings. Again it is only after the legal representative has been joined as a party that he can apply for the revival of the action. In our view there is nothing objectionable to making an omnibus application for all the three prayers. But it is incompetent to seek joinder or revival where the prayer for more time to apply has not been granted. The learned Judge, supported by the authority of Joseph Gachuhi Muthanji (supra) was therefore right in dealing with that aspect of the application in the manner he did.”
The 3rd defendant contends that the failure to make the application within one year under order 24 (3) to substitute Miriam Susan Cherotich within one year of her death resulted in the automatic abatement of the suit on 11th November 2023.
The remaining administrator, Suzie Cherotich, was not a party to the suit at the time of Miriam's death.
On the status of the record, the 3rd defendant submits that this constitutes the final nail in the coffin of the Plaintiff's case. In a Ruling dated 22 September 2023, this Honorable Court had granted leave to Suzie Cherotich Chebet to file and serve an amended plaint within 14 days from that date. On 15th April 2024, Suzie Cherotich Chebet – about seven months later and way outside the 14 days decreed by the court – purported to file a Further Further Amended Plaint dated 20th March 2024. On 24th April 2024, this Honorable Court struck out that document from the record stating that it had been filed out of time and there had been inordinate delay in its filing. It cannot be disputed that the legal effect of striking out of that document by the court is that it ceased to exist on the court record. Therefore, we revert to the last validly filed document: The Further Amended Plaint dated 24th November 2017.
The 3rd defendants submits that this status leaves us with a paradoxical and legally impossible scenario, thus that the active Plaint on record (2017) lists only Miriam Susan Cherotich as the Plaintiff, Miriam Susan Cherotich is deceased and a dead person cannot maintain a suit as held in LAWRENCE KWATSIMA v TARIA MUTAKALE SHILAMA & another
[2006] KEHC 1995 (KLR), a suit by or against a dead person is a nullity.
“It is now well settled that where the suit is filed against a dead person the suit is bad in law because it is filed against nobody and there is simply no suit.”
In conclusion, the 3rd respondent submits that the procedural history of this file reveals a series of fatal legal missteps. The suit was arguably void ab initio for excluding the co-administrator. Whatever validity it might have had was extinguished on 11th November 2023 when the suit abated by operation of law. Finally, the expunging of the 15th April 2024 Plaint leaves the record with a deceased Plaintiff, rendering the proceedings a nullity. The 3rd defendant argues that judicial time should not be wasted on the merits of a case that has no legal legs to stand on.
As noted by the court in ELC CASE NO. 362 OF 2012 (MILIMANI) EMMA WAMBUI MBUCHU AND 2 OTHERS v ALPHA LAND INVESTMENTS AND 2 OTHERS,
“It would be futile to proceed with a suit whose originating documentation is faulty and therefore void ab initio. Failure to…present to court a signed plaint is fatal and it is my view that the suit cannot be sustained on the basis of unsigned plaint as in essence there is no pleading before the court”.
The suit in the above matter was dismissed based on a lack of signature. The current scenario is much more serious as it relates to a complete lack of plaintiff on the record. As explained at the start of this submissions, the 3rd Defendant only identified the current state of the record in this protracted matter after a laborious and thorough review of the pleadings, this Honorable Court’s record, the prevailing statutory provisions and available jurisprudence. The 3rd Defendant reiterates his position that this Honorable Court is legally inhibited from delving into the merits of the dispute, notwithstanding the fact that a hearing on the merits took place, erroneously. The undisputed mandatory legal position is that there was no plaint on the record on the basis of which a hearing could legally take place. No party in the proceedings could alter that position.
In the case of JOHN GACHOKI NDENGE V KIAMBU DANDORA FARMERS COMPANY LIMITED AND ANOTHER CIVIL SUIT NO 481 OF 2006, the Court stated the law on a similar question as follows:
“… Counsel argued that by consenting to the application to enjoin the 2nd defendant to the suit, the 2nd defendant negated the issue now raised since, at the time the consent was given, those issues were alive and ought to have been raised at that stage… Mr Ojienda’s argument seems to suggest that the 2nd defendant’s advocate, by consenting to the amendment that brought in the 2nd defendant into the suit, waived the application of the statutory provision and that therefore section 228 does not protect the 2nd defendant. Counsel has not cited any case to support that proposition and I am not aware of any which allows a party to waive the application of section 228 of the Companies Act”
Analysis and Determination
I have considered the rival submissions and do find that the 1st issue to be considered is whether the suit was properly commenced before this court. The 3rd defendant argued that the suit was a nullity as it was not commenced by the two administratrices of the estate of Charles Boskwony. It is true as per the record that the suit was filed in the year 2009 by Miriam Susan Cherotich Boskwony when the estate of Charles Boskwony had two administratrices thus Miriam Susan Cherotich Boskwony and Suzie Cherotich Chebet by virtue of a grant issued on 28th January 2009.
I have considered the pleadings and proceedings on record and the legal provisions and court decisions on the issue as to whether failure to commence a suit in the joint names of the administratrices of the estate of the deceased is fatal and do find that the relevant provisions in law is the provisions of order 31 of the Civil Procedure Rules 2010 and Oder 1 rule 9 of the Civil Procedure Rules 2010. This issue has been settled by the Court Of Appeal In Court Of Appeal At Nairobi In Civil Appeal No 382 Of 2019 Between Roselyn Dola Ouko, Aaron Tafari Ouko (suing as the personal representatives and administrators of the estate of Jason Atinda Ouko (deceased) and Rahab Wangui Kageni (sued as the personal representatives and administrator of the estate of Samuel Muhika Kageni where the court observed as follows:-
“The first issue regarding the respondent’s capacity to sue is a point of law which can determine the appeal in limine. The appellants contend that the learned Judge erred on two fronts: first, by finding that the issue concerning the respondent’s capacity to sue was raised at the submission stage; and second, by finding that the respondent could file the suit without involving the other administrators of the estate of Kageni.”
It is important to note that the defendants in this case have equally raised the issue of capacity at the submission stage and therefore ambushing the plaintiff.
The court of appeal relied on the provisions of Order 31 rules 1 and 2 of the Civil Procedure Rules 2010 that speaks to suits by administrators as follows:
“1. Representation of beneficiaries in suits concerning property vested in trustees [Order 31, rule 1]
In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee, executor or administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit, but the court may, if it thinks fit, order them or any of them to be made parties.
2. Joinder of trustees, executors and administrators [Order 31, rule 2]
Where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them:
Provided that the executors who have not proved their testator’s will, and trustees, executors, and administrators outside Kenya, need not be made parties.”
The court of appeal further relied On Order 1 Rule 9 of the Civil Procedure Rules state that:
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“No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”
In the case cited, the court of appeal painstakingly went through the entire record, and noted that the issue of the respondent’s capacity was not raised in the pleadings and only arose during the cross-examination of the respondent. Even in the appellants’ list of issues dated 29th May 2016, appearing at pages 227 and 228 of the record of appeal, this issue was not raised.
The court of appeal in its decision cited its decision in Ann Wairimu Wanjohi vs. James Wambiru Mukabi [2021] KECA 476 (KLR), when confronted with issues not raised in pleadings, held that:
“We take the view that parties should specifically state their claim by properly pleading the facts relied upon and the relief sought, as the pleadings are the primary documents that guide the court and the parties concerning the claim and the contesting positions of the parties. In accordance with the Civil Procedure Rules, the parties should also either provide a list of agreed issues, or if there is no agreement, each provide their own list of issues so that the court can settle the issues. Although it is desirable that where necessary the pleadings should be amended to bring in all the issues, Odd Jobs vs Mubia (supra) remains good law, that in limited circumstances where an unpleaded issue is crucial to the matters in issue the court may determine a suit on the unpleaded issue, provided both parties have clearly addressed the unpleaded issue in their evidence or submissions, and left the matter for the determination of the court. However, such determination will not extend to determining or awarding a relief that was not specifically sought in the pleadings.”
The court associated itself with the cited decision and therefore found no error in the learned Judge’s appreciation of the import of Order 1 Rule 9 and Order 31 rules 1 & 2 of the Civil Procedure Rules and his conclusion on the question as to whether the respondent’s claim was defective. The court agreed with the learned Judge that the issue was raised late in the day and could not be the basis for striking out the respondent’s suit.
Similarly, the court agreed with the learned Judge that there is no express provision of the law barring a single administrator from filing a suit where an estate has more than one administrator. What the law requires is that where a person is suing the estate of a deceased person, the trustees, executors, or administrators “shall all be made parties to a suit against one or more of them.” As regards a suit commenced against a third party by the estate, the law, in their view, is as was expressed in Zeimab Khalifa Khator & 4 Others vs. Abdulrazak Khalifa Salim & Another (supra) thus:
“Moreover, we have not come across any provisions in the Law of Succession and also the Probate and Administration Rules of Cap 160 laws of Kenya that prohibit joint administrators from seeking different orders from court. Indeed in our view what would be prohibited is one administrator dealing with the assets of the estate singularly where there is joint administration.”
The respondent in her pleading in the cited case was clear that she was in court on behalf of the estate of her deceased husband. The fruits of her litigation will go to the estate of the deceased and not to herself.
Guided by the decisions of the Court of Appeal herein above, I do find the 3rd defendants contention that the plaintiff had no capacity to file the suit a miscomprehension of the law, unfounded and misplaced.
The second issue was whether the suit had abated. I have perused the record and do find that the suit was originally instituted on 14th August 2009 by Miriam Susan Cherotich Boskwony suing as the legal representative of the Estate of Charles Boskwony (Deceased).
The Plaint was subsequently amended in 2013 and further amended on 24th November 2017. The Plaintiff on record remained Miriam Susan Cherotich Boskwony. The Estate of Charles Boskwony, however, had two administratrices. The Grant of Letters of Administration in Nairobi High Court Succession Cause No. 2225 of 1999 was issued on 25th January 2000 to both Miriam Susan Cherotich and Suzie Cherotich Chebet jointly. During the pendency of this suit, the Plaintiff on record, Miriam Susan Cherotich, passed away on 11th November 2022.
Following the demise of Miriam Susan Cherotich, the suit remained in abeyance. No application was made under Order 24 Rule 3 of the Civil Procedure Rules within one year to revive the suit or substitute the deceased. However, an application was made under, inter alia, Order 8 Rule 3 to amend the Plaint to enjoin the surviving administratrix, Suzie Cherotich Chebet.
On 22nd September 2023, this Honorable Court granted Suzie Cherotich Chebet leave to file and serve Further, further amended plaint that would introduce her as new plaintiff in the matter within 14 days. The Further Further Amended Plaint dated 20th March 2024 was filed on 15th April 2024. This court finds that the suit abated as Suzie Cherotich Chebet filed the further further amended plaint outside the 14 days given by the court without the leave of the court and was substituted as the plaintiff after lapse of one year after the plaintiff’s death. The suit abated after the lapse of the 14 days.
This court considered this issue on April 23, 2024, and expunged the Further Further Amended Plaint dated March 20, 2024 for failure to comply with court timelines. This expunging arose from the fact that the Court’s order of 22nd September 2023, required the filing of the further, further amended plaint to substitute the deceased plaintiff within 14 days. Instead, the same was filed close to 7 months later, on April 15, 2024. Consequently, I do agree with the 3rd defendant that the pleadings that currently sit on the record is the Further Amended Plaint dated 24th November 2017, filed by a Plaintiff who is now deceased, and whose suit has abated by operation of law after the striking out of the further - further Amended Plaint on 24th April 2024. This court cannot make orders on a suit that has abated. In conclusion, I do make orders that the suit herein has abated. No orders as to costs.