Carren Jepkurgat Birir v Symon Kiplagat Tallam, Madgalina Tungu Kiptallam & Wilson Kiprotich Cheserek [2018] KEELC 4043 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 137 OF 2016

CARREN JEPKURGAT BIRIR...............................................PLAINTIFF

VERSUS

SYMON KIPLAGAT TALLAM....................................1ST DEFENDANT

MADGALINA TUNGU KIPTALLAM........................2ND DEFENDANT

WILSON KIPROTICH CHESEREK...........................3RD DEFENDANT

R U L I N G

1. The application dated 10/4/2017 seeks an order that the applicant be granted leave to have one Wilson Kiprotich Cheserek be enjoined as the 3rd defendant in this suit, and that leave be granted to amend the plaint as per the draft annexed to the supporting affidavit.

2. The applicant’s main ground for the application is that the proposed joinder would bring on board the Administrator of the Estate subject of these proceedings and that the real Administrator of the Estate was not known at the time of the institution of the suit.

3. A copy of the consent to the Confirmation of the Grant to the Estate of Solomon Cheptalam Chepyegon is annexed to the supporting affidavit.  It names the proposed party as the person whom the beneficiaries have consented to have the Grant confirmed to.

4. The application is opposed by way of grounds of opposition filed by the 1st defendant.  He states that the material placed before the court confirms that the intended defendant is not fit and proper to be enjoined in the matter and that joining the said Wilson Kiprotich Cheserek will only confuse and complicate the matters since he has also passed on.  The 1st defendant also states that any claim if at all shall be in the Estate of the 2nd defendant and not Wilson Kiprotich Cheserek or any other party.

5. For records the claim against the 2nd defendant was withdrawn vide a Notice of Withdrawal of suit dated 1/11/2017.  It is also noteworthy that the 1st defendant has not filed any affidavit or supplied any particulars to identify the Administrators of the Estate of the 2nd defendant whom he states are the right persons to be joined as parties in the suit.

6. The court notes that the 1st defendant is described in the plaint as a son to the deceased Solomon Chepkoimet Chebiegon, whose Estate is intended to be enjoined herein through the legal representatives of the Estate.  The failure to provide information relating to the proper Administrators of the Estate, or indeed the true statues relating to the succession issue, may be a mean act on the part of the 1st defendant.

However, it is upon the plaintiff to conduct a proper enquiry and locate the proper persons to enjoin in this suit.  He has identified the said Wilson Kiprotich Cheseret.  I therefore grant the application dated 10/4/2017.  Each party shall bear its own costs.

Dated, signed and delivered at Kitale on this 27th day of February, 2018.

MWANGI NJOROGE

JUDGE

27/2/2018

Before - Mwangi Njoroge, Judge

Court Assistant - Collins/Picoty

Mr. Chebi for applicant

N/A for the Respondent

Applicant present

COURT

Ruling read in open court.

MWANGI NJOROGE

JUDGE

27/2/2018