INTRODUCTION
This ruling is in respect of the Applicants Notice of Motion application dated 15th April, 2024. The applicant seeks the following orders:
a. Spent
b. Spent.
c. THAT in the interim the court be pleased to order for status quo over land parcel No SACHO/KABASIS/927.
d. THAT the applicant IBRAHIM KIPRONO YEGON be enjoined in this (sic) proceedings as the 2nd Plaintiff and leave be granted to file necessary pleadings to the suit against the defendants and the defence to the counterclaim.
e. That the consent orders between the plaintiff and the defendants entered on 22nd May, 2018 and the resultant ruling of Hon. Justice Ombwayo delivered on 5th May, 2021 and all consequential orders be set aside.
The application is based on the grounds on its face and supported by the affidavit sworn by the applicant, one Ibrahim Kiprono Yegon. The supporting affidavit is sworn on 15th April, 2024.
APPLICANT’S CONTENTION
The Applicant deposes that the suit property SACHO/KABASIS/86 is registered in the names of Robert Kiprop Chelagat, Isaac Kipyego Chelagat, Cherutich Kipsetim and Laban Rono. He deposed that he is the son and administrator Ad Litem of Isaac Kipyego Chelagat who is deceased.
The Applicant deposes that a portion measuring 3 acres of land parcel No. SACHO/KABASIS/86 had been awarded to Isaac Kipyego Chelagat in Nakuru High Court Succession Cause No 499 of 1997. He deposes that together with his siblings, he has been in occupation of the portion awarded and or devolving upon the estate of Isaac Kipyego Chelagat. The Applicant deposes that on or about 22nd October, 2023, some surveyors from county survey made attempts to enter the portion awarded to Isaac Kipyego Chelagat.
The Applicant deposes that on perusal of some documents in their custody, he noticed that the ELC Court sitting in Eldoret 267 of 2016 had entered judgment and or ruling as a result of consent entered between the 1st Plaintiff and the Defendants. The Applicant deposed that the suit land having been bequeathed to four beneficiaries and the same registered in their names, the consent ought to have involved all parties having proprietary interest over the suit land.
The Applicant deposed that he has a good claim on behalf of the estate of his father Isaac Kipyego Chelagat as such the consent and all consequential orders ought to be set aside. He deposed that the fact that the consent did not involve all the parties affected, the said consent ought to be set aside as the same was entered through fraud, misrepresentation, mistake and or material non-disclosure.
REPSONSE
PLAINTIFF’S REPSONSE
The Plaintiff filed a Replying Affidavit dated 7th May, 2024 sworn by Robert Kiprop Chelagat. He deposed that he is aware that the judgment was entered by consent between himself and the Defendants to give away the portion comprised in that parcel of land known as SACHO/KABASIS/86 vide Eldoret ELC 267 of 2016.
The Plaintiff deposed that unfortunately, the Defendants excised the wrong portion by encroaching on the portion that belongs to the Applicant’s father without involving him. He deposed that the court had ordered that they work together with the Defendants and pay survey fees equally. The Plaintiff deposed that the Defendants went and did their own survey without involving the parties concerned thereby encroaching on other people’s property.
The Plaintiff deposed that the survey they did is illegal and should be reversed. He deposed that they did not come to the suit land to conduct a physical survey, and they surprised everyone by disclosing that they already have title. The Plaintiff deposed that the consent was in utmost good faith and Laban’s portion is intact and available.
The Plaintiff also filed a Supplementary Affidavit dated 27th May, 2024 and he deposed that the nature of the consent was not to give out the portion of Isaac’s family. He deposed that Mark Odhiambo and the said Kipruto Laktano engaged in secret dealings and concealed what they were doing from him contrary to the court order only to come and demolish the fence and excised a different portion other than the portion of Laban Rono thereby wedging war among family members.
He deposed that they have not employed any ploy to frustrate the consent and he believes that the family of Isaac are entitled to the rights provided in the Kenyan Constitution and they have not made a mistake by registering their dissatisfaction about the consent.
The Plaintiff deposed that there are legal technicalities which he did not seem to have anticipated by the time he entered into the consent. He deposed that it is fair and just to stick to Laban Rono’s portion and avoid encroaching on other peoples’ land contrary to the law.
SUBMISSIONS
APPLICANT’S SUBMISSIONS
The Applicant filed submissions dated 2nd June, 2024 and identified the following issues for determination:
a. Whether the applicants ought to be enjoined in the proceedings as the 2nd Plaintiff?
b. Whether the consent entered on 22nd May, 2018 and all consequential orders ought to be set aside?
c. Whether the administrator could alienate the estate before transmission and whether land belonging to Laban Rono is a liability to the estate?
On the first issue, the Applicant relies on Order 1 Rule 10 (2) of the Civil Procedure Rules and Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
The Applicant further relies on the case of Communications Commission of Kenya and 4 Others vs Royal Media Services Limited & 7 others Petition No 15 of [2014]. The Applicant also relied on the case of Francis K. Muruatetu and another v Republic & 5 others (2016) eKLR and submitted that the applicant who is a personal representative of Isaac Kipyego Chelagat and having exhibited the grant ad Litem and Certificate of Confirmation of Grant which shows that Isaac Kipyego Chelagat had been awarded four acres of the suit land.
The Applicant submits that he has demonstrated to have an interest or stake in the matter as set out in the application. He submits that the interest is clearly identifiable and his rights would otherwise be adversely affected in law and his joinder would avert or prevent a likely course of proliferated litigation. The Applicant prays that the court allows joinder as sought in the application.
On the second issue identified for determination, the Applicant relies on the cases of Hirani v Kassam [1952] 19 EACA 131, Multiscope Consulting Engineers v University of Nairobi & Another [2014] eKLR and Sebel District Administartion v Gasyali [1968] EA 300, 301-302
The Applicant submits that it is trite law that a contract can be set aside where it is demonstrated that the same was entered into as a result of fraud, mistake, misrepresentation, material non-disclosure and or concealment of material facts, duress and or coercion.
The Applicant submits that he has demonstrated that the suit land which had devolved to three other persons including the estate of Isaac Kipyego Chelagat there was material non-disclosure of their failure to be joined in the proceedings and as a result the court was misled in entertaining the consent alienating the suit land.
The Applicant argues that the portion alienated to the Defendants is a portion that has been occupied by the Applicants and they would be prejudiced unless the consent and consequential orders are set aside and the applicant be allowed to ventilate his case.
On the third issue identified for determination, the Applicant submits that at the time the consent was entered into the land was registered in the names of Cherono Kipnyinyei (deceased) whom the Plaintiff was the administrator. The Applicant submits that the Defendants argue that the Plaintiff was under obligation to settle the liabilities to the estate within Section 82 and 83 of the Law of Succession Act. The Applicant relies on the case of Re Estate of Makokha Idris [2019] eKLR and submits that the Plaintiff could only settle liabilities incurred by Cherono Kipnyinyei. The Applicant submits that the powers of the plaintiff as an administrator was limited to settling debts or liabilities incurred by Cherono Kipnyinyei and not liabilities incurred by any other person as is the case herein.
The Applicants submits that it is therefore a fallacy for the Defendants to argue that the liabilities of Laban Rono are liabilities of Cherono Kipnyonyei. The Applicant submits that the alienation of land directly from the Estate of Cherono Kipnyonyei to the Defendants was unprocedural and it is his view that given the fact that the Defendants were claiming from Laban Rono, alienation of the suit land to the defendants could procedurally be done upon completion of transmission and it is upon the one acre being registered in favour of Laban Rono that the Defendants could from then lay a claim of the same. The Application prayed that his application be allowed as prayed.
PLAINTIFF’S SUBMISSIONS
The Plaintiff filed Submissions dated 30th June, 2024. The Plaintiff submitted that a consent was entered between him and the 4th Defendant. He submitted that the consent was without Laban Rono’s express consent and it was also without the express consent of the estate of the late Isaac Chelagat. He submitted that now both parties have been affected and the family of Isaac Chelagat (deceased) is now questioning the legality of the consent. It is also his submission that the consent was done in good faith to resolve the dispute but in view of the technicalities raised, the Plaintiff concludes that there was a mistake.
The Plaintiff submitted that this Honourable Court can vacate the consent and the parties be heard on merit. The Plaintiff submitted that the 4th Defendant has encroached on the land of the family of Isaac Chelagat (deceased) contrary to the intent of the consent. The Plaintiff relied on Article 40 (1) of the Constitution of Kenya and submitted that it would be unconstitutional to alienate the inheritance of the family of Isaac Chelagat (deceased) through a court order or consent of parties that did not involve the beneficiaries of his estate.
The Plaintiff submitted that he supports the setting aside of consent and seeks an order that the matter to start de novo and each part be accorded a fair hearing in accordance with Article 50 (1) of the Constitution. The Plaintiff further relies on Article 60 (1) (b) and 159 (2) of the Constitution and urged the court to set aside the consent judgment dated 22nd May, 2018 and order that the matter do proceed de novo.
4th DEFENDANT’S SUBMISSIONS
The 4th Defendant filed submissions dated 9th July, 2024 and identified the following issues for determination:
a. Whether the 2nd Applicant is necessary party in these proceedings
b. Whether the 2nd Applicant met the threshold for setting aside a consent order and the attendant issue of identification of a suitable location for hiving 1 acre out of the estate?
c. The consent sought to be set aside no-longer exists as it was implemented thereby resulting to Sacho/ Kabasis/926 and 927.
d. Whether the Plaintiff and the 4th Defendant entered into a consent in which the Plaintiff agreed to give the 4th Defendant a portion measuring 1 acre and belonging to Laban Rono out of parcel Sacho/Kabasis/86 as per certificate of confirmation?
On the first issue, the 4th Defendant submitted that the 2nd Applicant is not a necessary party in these proceedings. The 4th Defendant submitted that the 2nd Applicant is not claiming on behalf of Laban Rono but on behalf of Isaac Kipyego Chelangat while the 4th Defendant has no interest in the portion belonging to Isaac Kipyego Chelangat.
The 4th Defendant submitted that from the certificate of confirmation, both Laban Rono and Isaac Kipyego Chelangat are distinct beneficiaries with their respective shares clearly identified. It submitted that it is not in dispute that what the consent granted the 4th Defendant is a portion measuring 1 acre out belonging to Laban Rono.
The 4th Defendant submitted that it is not in any way claiming the portion belonging to Isaac Kipyego Chelangat nor did the consent extend to the portion belonging to Isaac Kipyego Chelangat. It is the 4th Defendant’s submission that in fact, the Plaintiff’s suit and the 4th Defendant’s counter-claim as well as the impunged consent were limited to the 1 acre belonging to Laban Rono. The 4th Defendant submitted that the 2nd Applicant has no interest in the 1 acre belonging to Laban Rono and cannot disturb consent order between administrator and the 4th Defendant.
On the 2nd issue identified for determination, the 4th Defendant submitted that the 2nd Applicant did not meet the threshold for setting aside a consent order neither did he establish that the location of the 1 acre granted to the 4th Defendant is not what Laban Rono was entitled to get.
The 4th Defendant submitted that in the Replying Affidavit sworn on 14th May, 2024, the 4th Defendant demonstrated that the portion where the mabati structure stands is the portion which was meant for Laban Rono. It further submits that paragraph 9 thereof is in respect of statements of individuals who attended the site hearing and identified the portion belonged to Laban Rono. It submitted that the photographs annexed as ‘KL 3 a-3c’ show the portion which was hived out of parcel Sacho/Kabasis/86 and fenced and which is now known as Sacho/Kabasis/927 is the same portion described and identified during site visit. The 4th Defendant submitted that there is overwhelming evidence to show that the 2nd Applicant has no interest in the portion which was granted by the 4th Defendant.
On the third issue identified for determination, the 4th Defendant submitted that the process of implementing the said consent is clearly set out in the Replying Affidavit sworn on 5th October, 2023 and annexures attached thereto. It submitted that in particular there are reports marked ‘KL 3’ which were prepared and filed in court pursuant to which this court made orders which were prepared that guided the implementation of the consent. The 4th Defendant submitted that among the orders issued was a vesting order permitting the Deputy Registrar to sign transfer instruments in the event the Plaintiff defaults. The 4th Defendant submitted that subsequently, the consent order was implemented and new titles issued. The 4th Defendant submitted that upon implementation of the consent, it ceased to exist hence there is nothing to set aside. The 4th Defendant submitted that no proceedings can be sustained on a non-existent consent or order. The 4th Defendant relies on the case of Catherine C Kittony v Jonathan Muindi Dome & 2 others [2019] eKLR.
On the fourth issue, the 4th Defendant submitted that what is in dispute is whether the plaintiff had capacity to enter into the consent to transmit to the 4th Defendant the 1 acre belonging to Laban Rono as per the certificate of confirmation. The 4th Defendant submitted that the 2nd Applicant’s view is that the plaintiff did not have capacity to do so and that he could only do so upon successful transmission of the estate and issuance of titles as per the certificate of confirmation.
The 4th Defendant submitted that the Plaintiff has not disputed the consent but he contests that he was not involved in the survey or the actual transmission of the 1 acre to the 4th Defendant. The 4th Defendant submits that the contention by the plaintiff cannot be determined in the instant application seeking to set aside the consent order.
The 4th Defendant submitted that the plaintiff’s contentions are new issues that go to the root of the “survey processes” and ownership of resultant titles” which are different subject matters that the estate. The 4th Defendant submitted that the Plaintiff’s contention can properly be determined through a fresh suit seeking cancellation of the entire survey processes and the resultant titles. The 4th Defendant submitted that it will result to great injustice and prejudice for the new issues afore-identified to be collapsed and heard in this application. The 4th Defendant submitted that the new issues will require to be proved through viva-voce evidence unlike the instant application which is being heard by submissions.
The 4th Defendant submitted that in Replying Affidavits sworn on 14th May, 2024 and 5th October, 2024 demonstrated that the Plaintiff filed this suit challenging the 4th Defendant’s claim for 1 acre from Laban Rono. The 4th Defendant submitted that it is contended that the suit was filed on behalf of the estate, prior to the transmission, pursuant to his powers as an administrator of the estate, prior to the transmission, pursuant to his powers as an administrator of the estate of Cherono Kipnyonyei under sections 82 and 83 of the Law of Succession Act. The 4th Defendant submitted that by filling this suit prior to successful transmission, the plaintiff knew the risks he was exposing himself including a counter-claim. The 4th Defendant submitted that he filed a counter-claim for 1 acre from the estate being the share belonging to or supposed to be transmitted to Laban Rono. The 4th Defendant submitted that it is the counter-claim that led to a mutual settlement.
The 4th Defendant relied on Section 82 and 83 of the Law of Succession Act and submitted that it permits administrators to take lawful steps and processes to gather and preserve the estate prior to its transmission. The 4th Defendant submitted that the administrator is permitted to not only pay and settle decrees arising from the administratorship. It further submitted that since the administrator has capacity to institute proceedings prior to transmission, she or he has corresponding responsibility to compromise such proceedings or settle the resultant counter-claims and decrees.
The 4th Defendant relied on Section 79 of the Law of Succession Act and submitted that it was the Plaintiff’s obligation to cause the estate to be shared as per the certificate of confirmation or as the estate may consent to deal with, taking care not to disinherit the beneficiaries or deny creditors their interest in the estate. The 4th Defendant submitted that the Plaintiff instituted this suit on behalf of the estate prior to the transmission. Reliance is placed on the case of Re Estate of Makokha Idris Khasabuli (Deceased) [2019] eKLR. The 4th Defendant submitted that the Plaintiff admitted that indeed the 4th Defendant was entitled to 1 acre out of the suit land. The 4th Defendant submitted that the 2nd Applicant’s allegations that the consent was made outside the Plaintiff’s mandate amounts to approbating and reprobating at the same time which the court must decline.
The 4th Defendant submitted that he became a creditor in the estate by dint of the consent order. It submitted that this is because she was acknowledged by the administrator through the consent and she thus holds a valid court decree against the estate. Reliance is placed on Section 55 of the Law of Succession Act. Further the 4th Defendant submitted that in making the distribution, creditors rank in priority over the dependents and survivors. Reliance is placed on the case of Re Estate of Francis Andachila Luta (Deceased) (Succession Cause 875 of 2012) [2022] KEHC 16900 (KLR) (23 December 2022) (Judgment).
The 4th Defendant submitted that this court has no jurisdiction to question the validity of exercise of the powers of administrator. The 4th Defendant submitted that after exercising the power to distribute the estate and upon implementation of the consent, any question questioning the exercise of the administrator’s mandate under sections 82 and 83 of the Law of Succession Act is exclusively a probate and administration function hence outside the mandate of this court under Article 162 (2) (b) of the Constitution and Section 13 of the Environment and Land Court Act. Reliance is placed on the case of Estate of M.Murianki M’ Mugwika (Deceased) [2019] eKLR and Isaac Kinyua & 3 others v Hellen Kaigongi [2018] eKLR. The 4th Defendant urged the court to dismiss the Notice of motion with costs to the 4th Defendant.
ANALYSIS AND DETERMINATION
The issue for determination is whether the Notice of Motion Application dated 15th April, 2024 is merited. The Applicant has not cited any legal provisions as a basis for filing the Application.
The Applicant has also referred to himself as a Proposed Plaintiff. One of the orders sought by the Applicant is:
“THAT the applicant IBRAHIM KIPRONO YEGON be enjoined in this (sic) proceedings as the 2nd Plaintiff and leave be granted to file necessary pleadings to the suit against the defendants to the counterclaim.”
The court finds that this sought leave ought to be granted first before the Applicant can proceed to seek other substantive orders from the court. This court will thus determine this sole issue.
In the case of Kingori v Chege & 3 others [2002] 2 KLR 243, the court outlined the guiding principles to be considered when an intending party is to be joined to proceedings which are:
i. He must be a necessary party;
ii. He must be a proper party;
iii. In the case of the defendant there must be a relief flowing from that defendant to the plaintiff;
iv. The ultimate order or decree cannot be enforced without his presence in the matter; and
v. His presence is necessary to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit.
In Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR, the Court when dealing with a similar application stated as follows:
“Again, the power given under the Rules is discretionary which discretion must be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined… from the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in Order I rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the practicability of the execution of the order sought in the suit, in the event that the plaintiff should succeed. We may add that all that a party needs to do is to demonstrate sufficient interest in the suit; and the interest need not be the kind that must succeed at the end of the trial.”
Having considered the application filed herein, I am satisfied that the said applicant has met the threshold of being joined as either plaintiff or interested party, as per the prayer sought, as he has an identifiable stake in these proceedings. The 4th Defendant submitted that the 2nd Applicant is not claiming on behalf of Laban Rono but on behalf of Isaac Kipyego Chelangat while the 4th Defendant has no interest in the portion belonging to Isaac Kipyego Chelangat. However, the applicant who is a personal representative of Isaac Kipyego Chelagat has exhibited the grant ad Litem and Certificate of Confirmation of Grant which shows that Isaac Kipyego Chelagat had been awarded four acres of the suit land.
I therefore issue the following order:
a) An order is hereby issued directing that IBRAHIM KIPRONO YEGON herein be joined to this suit as 2nd Plaintiff and leave is hereby granted to him, to file necessary pleadings to the suit against the defendants and the defence to the counterclaim
b) Each party shall bear their own costs.
It is so ordered.
JUDGMENT DATED, SIGNED AND DELIVERED ELECTRONICALLY ON THE 26TH SEPTEMBER, 2024.
This ruling is in respect of the Applicants Notice of Motion application dated 15th April, 2024. The applicant seeks the following orders:
a. Spent
b. Spent.
c. THAT in the interim the court be pleased to order for status quo over land parcel No SACHO/KABASIS/927.
d. THAT the applicant IBRAHIM KIPRONO YEGON be enjoined in this (sic) proceedings as the 2nd Plaintiff and leave be granted to file necessary pleadings to the suit against the defendants and the defence to the counterclaim.
e. That the consent orders between the plaintiff and the defendants entered on 22nd May, 2018 and the resultant ruling of Hon. Justice Ombwayo delivered on 5th May, 2021 and all consequential orders be set aside.
The application is based on the grounds on its face and supported by the affidavit sworn by the applicant, one Ibrahim Kiprono Yegon. The supporting affidavit is sworn on 15th April, 2024.
APPLICANT’S CONTENTION
The Applicant deposes that the suit property SACHO/KABASIS/86 is registered in the names of Robert Kiprop Chelagat, Isaac Kipyego Chelagat, Cherutich Kipsetim and Laban Rono. He deposed that he is the son and administrator Ad Litem of Isaac Kipyego Chelagat who is deceased.
The Applicant deposes that a portion measuring 3 acres of land parcel No. SACHO/KABASIS/86 had been awarded to Isaac Kipyego Chelagat in Nakuru High Court Succession Cause No 499 of 1997. He deposes that together with his siblings, he has been in occupation of the portion awarded and or devolving upon the estate of Isaac Kipyego Chelagat. The Applicant deposes that on or about 22nd October, 2023, some surveyors from county survey made attempts to enter the portion awarded to Isaac Kipyego Chelagat.
The Applicant deposes that on perusal of some documents in their custody, he noticed that the ELC Court sitting in Eldoret 267 of 2016 had entered judgment and or ruling as a result of consent entered between the 1st Plaintiff and the Defendants. The Applicant deposed that the suit land having been bequeathed to four beneficiaries and the same registered in their names, the consent ought to have involved all parties having proprietary interest over the suit land.
The Applicant deposed that he has a good claim on behalf of the estate of his father Isaac Kipyego Chelagat as such the consent and all consequential orders ought to be set aside. He deposed that the fact that the consent did not involve all the parties affected, the said consent ought to be set aside as the same was entered through fraud, misrepresentation, mistake and or material non-disclosure.
REPSONSE
PLAINTIFF’S REPSONSE
The Plaintiff filed a Replying Affidavit dated 7th May, 2024 sworn by Robert Kiprop Chelagat. He deposed that he is aware that the judgment was entered by consent between himself and the Defendants to give away the portion comprised in that parcel of land known as SACHO/KABASIS/86 vide Eldoret ELC 267 of 2016.
The Plaintiff deposed that unfortunately, the Defendants excised the wrong portion by encroaching on the portion that belongs to the Applicant’s father without involving him. He deposed that the court had ordered that they work together with the Defendants and pay survey fees equally. The Plaintiff deposed that the Defendants went and did their own survey without involving the parties concerned thereby encroaching on other people’s property.
The Plaintiff deposed that the survey they did is illegal and should be reversed. He deposed that they did not come to the suit land to conduct a physical survey, and they surprised everyone by disclosing that they already have title. The Plaintiff deposed that the consent was in utmost good faith and Laban’s portion is intact and available.
The Plaintiff also filed a Supplementary Affidavit dated 27th May, 2024 and he deposed that the nature of the consent was not to give out the portion of Isaac’s family. He deposed that Mark Odhiambo and the said Kipruto Laktano engaged in secret dealings and concealed what they were doing from him contrary to the court order only to come and demolish the fence and excised a different portion other than the portion of Laban Rono thereby wedging war among family members.
He deposed that they have not employed any ploy to frustrate the consent and he believes that the family of Isaac are entitled to the rights provided in the Kenyan Constitution and they have not made a mistake by registering their dissatisfaction about the consent.
The Plaintiff deposed that there are legal technicalities which he did not seem to have anticipated by the time he entered into the consent. He deposed that it is fair and just to stick to Laban Rono’s portion and avoid encroaching on other peoples’ land contrary to the law.
SUBMISSIONS
APPLICANT’S SUBMISSIONS
The Applicant filed submissions dated 2nd June, 2024 and identified the following issues for determination:
a. Whether the applicants ought to be enjoined in the proceedings as the 2nd Plaintiff?
b. Whether the consent entered on 22nd May, 2018 and all consequential orders ought to be set aside?
c. Whether the administrator could alienate the estate before transmission and whether land belonging to Laban Rono is a liability to the estate?
On the first issue, the Applicant relies on Order 1 Rule 10 (2) of the Civil Procedure Rules and Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
The Applicant further relies on the case of Communications Commission of Kenya and 4 Others vs Royal Media Services Limited & 7 others Petition No 15 of [2014]. The Applicant also relied on the case of Francis K. Muruatetu and another v Republic & 5 others (2016) eKLR and submitted that the applicant who is a personal representative of Isaac Kipyego Chelagat and having exhibited the grant ad Litem and Certificate of Confirmation of Grant which shows that Isaac Kipyego Chelagat had been awarded four acres of the suit land.
The Applicant submits that he has demonstrated to have an interest or stake in the matter as set out in the application. He submits that the interest is clearly identifiable and his rights would otherwise be adversely affected in law and his joinder would avert or prevent a likely course of proliferated litigation. The Applicant prays that the court allows joinder as sought in the application.
On the second issue identified for determination, the Applicant relies on the cases of Hirani v Kassam [1952] 19 EACA 131, Multiscope Consulting Engineers v University of Nairobi & Another [2014] eKLR and Sebel District Administartion v Gasyali [1968] EA 300, 301-302
The Applicant submits that it is trite law that a contract can be set aside where it is demonstrated that the same was entered into as a result of fraud, mistake, misrepresentation, material non-disclosure and or concealment of material facts, duress and or coercion.
The Applicant submits that he has demonstrated that the suit land which had devolved to three other persons including the estate of Isaac Kipyego Chelagat there was material non-disclosure of their failure to be joined in the proceedings and as a result the court was misled in entertaining the consent alienating the suit land.
The Applicant argues that the portion alienated to the Defendants is a portion that has been occupied by the Applicants and they would be prejudiced unless the consent and consequential orders are set aside and the applicant be allowed to ventilate his case.
On the third issue identified for determination, the Applicant submits that at the time the consent was entered into the land was registered in the names of Cherono Kipnyinyei (deceased) whom the Plaintiff was the administrator. The Applicant submits that the Defendants argue that the Plaintiff was under obligation to settle the liabilities to the estate within Section 82 and 83 of the Law of Succession Act. The Applicant relies on the case of Re Estate of Makokha Idris [2019] eKLR and submits that the Plaintiff could only settle liabilities incurred by Cherono Kipnyinyei. The Applicant submits that the powers of the plaintiff as an administrator was limited to settling debts or liabilities incurred by Cherono Kipnyinyei and not liabilities incurred by any other person as is the case herein.
The Applicants submits that it is therefore a fallacy for the Defendants to argue that the liabilities of Laban Rono are liabilities of Cherono Kipnyonyei. The Applicant submits that the alienation of land directly from the Estate of Cherono Kipnyonyei to the Defendants was unprocedural and it is his view that given the fact that the Defendants were claiming from Laban Rono, alienation of the suit land to the defendants could procedurally be done upon completion of transmission and it is upon the one acre being registered in favour of Laban Rono that the Defendants could from then lay a claim of the same. The Application prayed that his application be allowed as prayed.
PLAINTIFF’S SUBMISSIONS
The Plaintiff filed Submissions dated 30th June, 2024. The Plaintiff submitted that a consent was entered between him and the 4th Defendant. He submitted that the consent was without Laban Rono’s express consent and it was also without the express consent of the estate of the late Isaac Chelagat. He submitted that now both parties have been affected and the family of Isaac Chelagat (deceased) is now questioning the legality of the consent. It is also his submission that the consent was done in good faith to resolve the dispute but in view of the technicalities raised, the Plaintiff concludes that there was a mistake.
The Plaintiff submitted that this Honourable Court can vacate the consent and the parties be heard on merit. The Plaintiff submitted that the 4th Defendant has encroached on the land of the family of Isaac Chelagat (deceased) contrary to the intent of the consent. The Plaintiff relied on Article 40 (1) of the Constitution of Kenya and submitted that it would be unconstitutional to alienate the inheritance of the family of Isaac Chelagat (deceased) through a court order or consent of parties that did not involve the beneficiaries of his estate.
The Plaintiff submitted that he supports the setting aside of consent and seeks an order that the matter to start de novo and each part be accorded a fair hearing in accordance with Article 50 (1) of the Constitution. The Plaintiff further relies on Article 60 (1) (b) and 159 (2) of the Constitution and urged the court to set aside the consent judgment dated 22nd May, 2018 and order that the matter do proceed de novo.
4th DEFENDANT’S SUBMISSIONS
The 4th Defendant filed submissions dated 9th July, 2024 and identified the following issues for determination:
a. Whether the 2nd Applicant is necessary party in these proceedings
b. Whether the 2nd Applicant met the threshold for setting aside a consent order and the attendant issue of identification of a suitable location for hiving 1 acre out of the estate?
c. The consent sought to be set aside no-longer exists as it was implemented thereby resulting to Sacho/ Kabasis/926 and 927.
d. Whether the Plaintiff and the 4th Defendant entered into a consent in which the Plaintiff agreed to give the 4th Defendant a portion measuring 1 acre and belonging to Laban Rono out of parcel Sacho/Kabasis/86 as per certificate of confirmation?
On the first issue, the 4th Defendant submitted that the 2nd Applicant is not a necessary party in these proceedings. The 4th Defendant submitted that the 2nd Applicant is not claiming on behalf of Laban Rono but on behalf of Isaac Kipyego Chelangat while the 4th Defendant has no interest in the portion belonging to Isaac Kipyego Chelangat.
The 4th Defendant submitted that from the certificate of confirmation, both Laban Rono and Isaac Kipyego Chelangat are distinct beneficiaries with their respective shares clearly identified. It submitted that it is not in dispute that what the consent granted the 4th Defendant is a portion measuring 1 acre out belonging to Laban Rono.
The 4th Defendant submitted that it is not in any way claiming the portion belonging to Isaac Kipyego Chelangat nor did the consent extend to the portion belonging to Isaac Kipyego Chelangat. It is the 4th Defendant’s submission that in fact, the Plaintiff’s suit and the 4th Defendant’s counter-claim as well as the impunged consent were limited to the 1 acre belonging to Laban Rono. The 4th Defendant submitted that the 2nd Applicant has no interest in the 1 acre belonging to Laban Rono and cannot disturb consent order between administrator and the 4th Defendant.
On the 2nd issue identified for determination, the 4th Defendant submitted that the 2nd Applicant did not meet the threshold for setting aside a consent order neither did he establish that the location of the 1 acre granted to the 4th Defendant is not what Laban Rono was entitled to get.
The 4th Defendant submitted that in the Replying Affidavit sworn on 14th May, 2024, the 4th Defendant demonstrated that the portion where the mabati structure stands is the portion which was meant for Laban Rono. It further submits that paragraph 9 thereof is in respect of statements of individuals who attended the site hearing and identified the portion belonged to Laban Rono. It submitted that the photographs annexed as ‘KL 3 a-3c’ show the portion which was hived out of parcel Sacho/Kabasis/86 and fenced and which is now known as Sacho/Kabasis/927 is the same portion described and identified during site visit. The 4th Defendant submitted that there is overwhelming evidence to show that the 2nd Applicant has no interest in the portion which was granted by the 4th Defendant.
On the third issue identified for determination, the 4th Defendant submitted that the process of implementing the said consent is clearly set out in the Replying Affidavit sworn on 5th October, 2023 and annexures attached thereto. It submitted that in particular there are reports marked ‘KL 3’ which were prepared and filed in court pursuant to which this court made orders which were prepared that guided the implementation of the consent. The 4th Defendant submitted that among the orders issued was a vesting order permitting the Deputy Registrar to sign transfer instruments in the event the Plaintiff defaults. The 4th Defendant submitted that subsequently, the consent order was implemented and new titles issued. The 4th Defendant submitted that upon implementation of the consent, it ceased to exist hence there is nothing to set aside. The 4th Defendant submitted that no proceedings can be sustained on a non-existent consent or order. The 4th Defendant relies on the case of Catherine C Kittony v Jonathan Muindi Dome & 2 others [2019] eKLR.
On the fourth issue, the 4th Defendant submitted that what is in dispute is whether the plaintiff had capacity to enter into the consent to transmit to the 4th Defendant the 1 acre belonging to Laban Rono as per the certificate of confirmation. The 4th Defendant submitted that the 2nd Applicant’s view is that the plaintiff did not have capacity to do so and that he could only do so upon successful transmission of the estate and issuance of titles as per the certificate of confirmation.
The 4th Defendant submitted that the Plaintiff has not disputed the consent but he contests that he was not involved in the survey or the actual transmission of the 1 acre to the 4th Defendant. The 4th Defendant submits that the contention by the plaintiff cannot be determined in the instant application seeking to set aside the consent order.
The 4th Defendant submitted that the plaintiff’s contentions are new issues that go to the root of the “survey processes” and ownership of resultant titles” which are different subject matters that the estate. The 4th Defendant submitted that the Plaintiff’s contention can properly be determined through a fresh suit seeking cancellation of the entire survey processes and the resultant titles. The 4th Defendant submitted that it will result to great injustice and prejudice for the new issues afore-identified to be collapsed and heard in this application. The 4th Defendant submitted that the new issues will require to be proved through viva-voce evidence unlike the instant application which is being heard by submissions.
The 4th Defendant submitted that in Replying Affidavits sworn on 14th May, 2024 and 5th October, 2024 demonstrated that the Plaintiff filed this suit challenging the 4th Defendant’s claim for 1 acre from Laban Rono. The 4th Defendant submitted that it is contended that the suit was filed on behalf of the estate, prior to the transmission, pursuant to his powers as an administrator of the estate, prior to the transmission, pursuant to his powers as an administrator of the estate of Cherono Kipnyonyei under sections 82 and 83 of the Law of Succession Act. The 4th Defendant submitted that by filling this suit prior to successful transmission, the plaintiff knew the risks he was exposing himself including a counter-claim. The 4th Defendant submitted that he filed a counter-claim for 1 acre from the estate being the share belonging to or supposed to be transmitted to Laban Rono. The 4th Defendant submitted that it is the counter-claim that led to a mutual settlement.
The 4th Defendant relied on Section 82 and 83 of the Law of Succession Act and submitted that it permits administrators to take lawful steps and processes to gather and preserve the estate prior to its transmission. The 4th Defendant submitted that the administrator is permitted to not only pay and settle decrees arising from the administratorship. It further submitted that since the administrator has capacity to institute proceedings prior to transmission, she or he has corresponding responsibility to compromise such proceedings or settle the resultant counter-claims and decrees.
The 4th Defendant relied on Section 79 of the Law of Succession Act and submitted that it was the Plaintiff’s obligation to cause the estate to be shared as per the certificate of confirmation or as the estate may consent to deal with, taking care not to disinherit the beneficiaries or deny creditors their interest in the estate. The 4th Defendant submitted that the Plaintiff instituted this suit on behalf of the estate prior to the transmission. Reliance is placed on the case of Re Estate of Makokha Idris Khasabuli (Deceased) [2019] eKLR. The 4th Defendant submitted that the Plaintiff admitted that indeed the 4th Defendant was entitled to 1 acre out of the suit land. The 4th Defendant submitted that the 2nd Applicant’s allegations that the consent was made outside the Plaintiff’s mandate amounts to approbating and reprobating at the same time which the court must decline.
The 4th Defendant submitted that he became a creditor in the estate by dint of the consent order. It submitted that this is because she was acknowledged by the administrator through the consent and she thus holds a valid court decree against the estate. Reliance is placed on Section 55 of the Law of Succession Act. Further the 4th Defendant submitted that in making the distribution, creditors rank in priority over the dependents and survivors. Reliance is placed on the case of Re Estate of Francis Andachila Luta (Deceased) (Succession Cause 875 of 2012) [2022] KEHC 16900 (KLR) (23 December 2022) (Judgment).
The 4th Defendant submitted that this court has no jurisdiction to question the validity of exercise of the powers of administrator. The 4th Defendant submitted that after exercising the power to distribute the estate and upon implementation of the consent, any question questioning the exercise of the administrator’s mandate under sections 82 and 83 of the Law of Succession Act is exclusively a probate and administration function hence outside the mandate of this court under Article 162 (2) (b) of the Constitution and Section 13 of the Environment and Land Court Act. Reliance is placed on the case of Estate of M.Murianki M’ Mugwika (Deceased) [2019] eKLR and Isaac Kinyua & 3 others v Hellen Kaigongi [2018] eKLR. The 4th Defendant urged the court to dismiss the Notice of motion with costs to the 4th Defendant.
ANALYSIS AND DETERMINATION
The issue for determination is whether the Notice of Motion Application dated 15th April, 2024 is merited. The Applicant has not cited any legal provisions as a basis for filing the Application.
The Applicant has also referred to himself as a Proposed Plaintiff. One of the orders sought by the Applicant is:
“THAT the applicant IBRAHIM KIPRONO YEGON be enjoined in this (sic) proceedings as the 2nd Plaintiff and leave be granted to file necessary pleadings to the suit against the defendants to the counterclaim.”
The court finds that this sought leave ought to be granted first before the Applicant can proceed to seek other substantive orders from the court. This court will thus determine this sole issue.
In the case of Kingori v Chege & 3 others [2002] 2 KLR 243, the court outlined the guiding principles to be considered when an intending party is to be joined to proceedings which are:
i. He must be a necessary party;
ii. He must be a proper party;
iii. In the case of the defendant there must be a relief flowing from that defendant to the plaintiff;
iv. The ultimate order or decree cannot be enforced without his presence in the matter; and
v. His presence is necessary to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit.
In Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR, the Court when dealing with a similar application stated as follows:
“Again, the power given under the Rules is discretionary which discretion must be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined… from the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in Order I rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the practicability of the execution of the order sought in the suit, in the event that the plaintiff should succeed. We may add that all that a party needs to do is to demonstrate sufficient interest in the suit; and the interest need not be the kind that must succeed at the end of the trial.”
Having considered the application filed herein, I am satisfied that the said applicant has met the threshold of being joined as either plaintiff or interested party, as per the prayer sought, as he has an identifiable stake in these proceedings. The 4th Defendant submitted that the 2nd Applicant is not claiming on behalf of Laban Rono but on behalf of Isaac Kipyego Chelangat while the 4th Defendant has no interest in the portion belonging to Isaac Kipyego Chelangat. However, the applicant who is a personal representative of Isaac Kipyego Chelagat has exhibited the grant ad Litem and Certificate of Confirmation of Grant which shows that Isaac Kipyego Chelagat had been awarded four acres of the suit land.
I therefore issue the following order:
a) An order is hereby issued directing that IBRAHIM KIPRONO YEGON herein be joined to this suit as 2nd Plaintiff and leave is hereby granted to him, to file necessary pleadings to the suit against the defendants and the defence to the counterclaim
b) Each party shall bear their own costs.
It is so ordered.
JUDGMENT DATED, SIGNED AND DELIVERED ELECTRONICALLY ON THE 26TH SEPTEMBER, 2024.