Silas v Ngaruni & another; Kagicha (Applicant) [2025] KEELC 13 (KLR)

Silas v Ngaruni & another; Kagicha (Applicant) (Enviromental and Land Originating Summons 24 of 2018) [2025] KEELC 13 (KLR) (15 January 2025) (Ruling)

Neutral citation: [2025] KEELC 13 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Enviromental and Land Originating Summons 24 of 2018

JO Mboya, J

January 15, 2025

Between

James Murithi Silas

Plaintiff

and

Dorothy Ngaruni

1st Defendant

Muriungi M’Ngaruni (Sued as the Legal Administrator of the Estate of Ngarunyi Mwinja alias Ngaruni M’Íkwiriga)

2nd Defendant

and

Stephen Kagicha

Applicant

Ruling

Introduction/Background 1. The proposed interested party/applicant [hereinafter referred to as the applicant] has approached the court vide the notice of motion application dated 18. 12. 2024; and wherein same [applicant] has sought for the following reliefs:i.That the Hon. Court be pleased to certify this application of utmost urgency and to hear it Ex-parte and dispense with service.ii.That the Honourable court be pleased to enjoined the applicant in these proceedings as an interested party.iii.That there be a stay of execution of the decree issued on 17. 1.2023 together with all the consequential orders thereto pending the inter-parties hearing and determination of this application.iv.That the Honourable court be pleased to set aside the judgment entered on 5. 5.2021; the decree issued on 17. 1.2023 and all consequential orders emanating from the said judgment and grant the applicant unconditional leave to defend.v.That costs of the application be provided for.

2. The instant application is anchored on various grounds which have been highlighted in the body thereof. Furthermore, the application is supported by the affidavit sworn by Stephen Kagicha [Deponent] and which affidavit has been sworn on the 18. 12. 2024. In addition, the Deponent has annexed assorted document[s] thereto.

3. Though served with the application beforehand, the Plaintiff/Respondent did not file any response thereto. Nevertheless, the Plaintiff/Respondent attended court and sought leave of the court to ventilate issues touching on law and not otherwise.

4. It suffices to state that the Defendants/ Respondent also did not file any response to the application. Furthermore, the Defendants/Respondents neither attended Court nor participated in the proceeding[s].

5. The application under reference came up for hearing on the 151. 2025, whereupon the advocates for the respective parties covenanted to canvass the application orally. To this end, the court agreed and the application was disposed of vide oral submissions.

Parties Submissions: a. Applicant’s submissions 6. The Applicant herein adopted the grounds contained in the body of the application beforehand. In addition, the applicant herein has reiterated the contents of the supporting affidavits and the annexures thereto.

7. Furthermore, learned counsel for the applicant canvassed and highlighted three [3] salient issues for consideration by the court. Firstly, learned counsel for the applicant contended that the suit property belonged to and was registered in the name of M’Ngarunyi Mwija alias M’Ngaruni M’Ikwiriga now deceased. Nevertheless, counsel contended that the suit property was allegedly sold to the Plaintiff, without the knowledge of the Family of the Deceased.

8. It was the further submissions by the learned counsel for the applicant that the sale of a portion of the suit property is under contest. In any event, it was contended that though the instant suit was filed against the Defendants/Respondents, the said Defendants/Respondents do not appear to have been keen and diligent to defend the suit.

9. Secondly, learned counsel for the applicant has submitted that the applicant herein is a son of the deceased and a brother to the 1st and 2nd defendants/ Respondents. In this regard, it has been contended that he applicant herein therefore has a stake/interest in respect of the suit property and by extension, the Estate of the Deceased.

10. Additionally, it was submitted that the applicant is the one who is in occupation of the portion of the suit property that is claimed by the Plaintiff/Respondent. To the extent that the applicant is the one in occupation of the portion of the suit property under reference, learned counsel or the applicant has posited that the applicant therefore has a stake in the suit property.

11. On the other hand, Learned counsel for the applicant has submitted that the applicant herein stands to suffer irreparable loss and damage, unless the orders sought at the foot of the application are granted.

12. Consequently and in view of the foregoing submissions, Learned counsel for the Applicant has invited the court to find and hold that the application is meritorious and thus same [ Application] ought to be allowed/ granted.

b. Respondent’s submissions 13. Learned counsel for the Respondent highlighted and canvassed 3 salient issues. First and foremost, learned counsel for the Respondent has submitted that the applicant herein is devoid of the requisite locus standi [Legal capacity] to file the instant application and or to be joined into the instant proceedings. In particular, it has been contended that the dispute beforehand touches on and concerns the estate of the deceased.

14. Owing to the foregoing, learned counsel for the Respondent submitted that it is only the duly constituted legal administrator of the estate of the deceased who can apply to be joined into the proceedings and not otherwise.

15. Notwithstanding the foregoing, learned counsel for the Respondent has submitted that the applicant herein has neither demonstrated nor established that same {applicant} is one of the administrators of the estate of the deceased. To the extent that the applicant has not availed/ supplied evidence of being the administrator of the estate of the deceased, it was contended that the applicant is a busybody.

16. Learned counsel for the Respondent has also submitted that the applicant’s claim to and in respect of the portion of the suit property under reference was determined vide the ruling of Hon. Justice Mabeya delivered on 6. 12. 2018; wherein the shares of the respective beneficiaries of the Estate of the Deceased, the applicant not excepted, were settled/determined. Consequently and in this regard, it has been contended that the applicant cannot now be heard to revert to court and seek to advance a similar claim concerning his [applicant’s] share.

17. Finally, learned counsel for the Respondent has submitted that the court is Functus officio. In this respect, learned counsel has posited that this court [differently constituted] rendered a judgment which determined the issues in dispute. It was contended that the judgment under reference has neither has been varied nor set aside.

18. To the extent that the judgment under reference has not been set aside, learned counsel for the Respondent invited the court to find and hold that the intended joinder of the applicant shall be an act in futility and vanity. In this respect, the court has been implored to find that the application beforehand is not only misconceived, but also constitutes an abuse of the due process of the court.

c. Issues for determination: 19. Having reviewed the application under reference and upon consideration of the oral submissions rendered on behalf of respective parties, the following issues crystallize [emerge] and thus worthy of determination:i.Whether the applicant herein is seized of the requisite locus standi [legal capacity] to file the instant application and or seek joinder in the instant proceedings.ii.Whether the applicant herein can be joined, if at all, as an interested party in the proceedings which have since terminated/determined.

d. Analysis and determination Issue No. 1 Whether the applicant herein is seized of the requisite locus standi [legal capacity] to file the instant application and or seek joinder in the instant proceedings. 20. The applicant herein contends that same is a son of the deceased in whose name the suit property was registered. In addition, the applicant posits that same [Applicant] is also a brother of the 1st and 2nd Defendants/ Respondents.

21. By virtue of being a son of the deceased, the applicant contends that same has an interest and stake in the estate of the deceased. In particular, the applicant contends that he is a beneficiary of the estate of the deceased and hence there is no gainsaying that same [Applicant] is bound to be affected by the subject proceedings, which touch on and concern the estate of the deceased.

22. Additionally, the applicant has contended that even though same is a son of the deceased and thus a beneficiary of the estate, same was never joined into the proceedings. In any event, the applicant has averred that same only discovered the existence of the suit proceedings when the Plaintiff/Respondent sought to execute the judgment and the decree of the court.

23. Premised on the foregoing submissions, the applicant contends that same [Applicant] therefore has a direct interest/ stake in the suit and by extension, the suit property. Consequently, and in this regard, the applicant now seeks to be joined into the proceedings with a view to defending the claim by the plaintiff/respondent.

24. Be that as it may, the Plaintiff/Respondent has however taken the position that the applicant is a stranger and a busybody. In particular, it has been contended that the applicant herein cannot seek to be joined into the proceedings without having procured and obtained grant of letters of administration over and in respect to the estate of the deceased. To this end, the Plaintiff/Respondent has cited and referenced the provisions of section 82 of the law of succession act, Cap 160 laws of Kenya.

25. Having considered the submissions by the respective parties, I beg to take the following position. Firstly, there is no gainsaying that the suit property, namely, LR. No. Nkuene/U-Mikumbune/600; belonged to and was registered in the name of the deceased.

26. Further and in addition, it is common ground that the instant suit had been filed as against the legal administrators of the deceased. In this regard, it suffices to state that the estate of the deceased has since been succeeded in accordance with the provisions of the Law of succession act, Chapter 160, Laws of Kenya.

27. In view of the foregoing, the question that does arise and which the Court must address is whether a son and by extension a beneficiary of the estate of the deceased, the applicant not excepted, can file/commence proceedings on behalf of the estate of the deceased or otherwise.

28. Suffice to state that in matters pertaining to and concerning the estate of a deceased person, the Deceased herein not excepted, the law only allows an executor/executrix or legal administrator/administratix of the estate of the deceased [ whichever is apposite] to sue or be sued. In particular, it is only the duly constituted administrator who can sue or commence proceedings before a court of law on behalf of the Estate of the Deceased.

29. It is immaterial whether one is a son/daughter or beneficiary of the estate, the common denominator is that only a duly constituted administrator/executrix is possessed of the requisite locus standi to mount and maintain a suit/proceedings on behalf of the estate of a deceased. [see Section 82 of the law of succession act, Cap 160 Laws of Kenya].

30. The position that only a legal administrator/administratix can mount a suit pertaining to and concerning the estate of a deceased person has been addressed in several [a plethora of] decisions. In the case of Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama [2014] eKLR, the Court of appeal stated thus;As far as he was concerned, he moved to court by virtue of being a beneficiary for purposes of preserving the deceased’s estate. That may well be the case, but in our view the position in law as regards locus standi in succession matters is well settled. A litigant is clothed with locus standi upon obtaining a limited or a full grant of letters of administration in cases of intestate succession. In Otieno v Ougo (supra) this Court differently constituted rendered itself thus:“… an administrator is not entitled to bring any action as administrator before he has taken out letters of administration. If he does, the action is incompetent as of the date of inception.”

31. Suffice it to state that the applicant herein may very well be a son of the deceased and by extension a beneficiary of the estate of the deceased, however, the applicant cannot purport to clothe himself with the legal capacity to seek joinder in the suit without complying with the provisions of section 82 of the law of succession act. Instructively, without the requisite grant of letters of administration [Grant of Probate], the applicant herein is a busybody and thus devoid of the requisite locus standi.

32. Furthermore, it is common ground that locus standi is a threshold question. In this regard, it behooves every litigant, the applicant not excepted to establish and demonstrate that same [litigant] has the requisite capacity to approach the court. Pertinently, locus standi confers upon a particular person, the applicant not excepted, the right to appear and or approach the court.

33. In my humble albeit considered view, where a party is devoid of the requisite locus standi, then it means such a party cannot appear before the court, irrespective of the nature of the cause of action. In any event, if such a party appears and or approaches the court albeit without the requisite Locus Standi, then the court must decline to take cognisance of [sic] such a party.

34. To underscore the importance of locus standi in court proceedings, it suffices to cite and reference the case of Alfred Njau & Others v City Council of Nairobi [1982-88] IKAR 229; where the Court stated and held thus:“Lack of locus standi and a cause of action are two different things. Cause of action is the fact or combination of facts which give rise to a right to sue whereas locus standi is the right to appear or be heard, in court or other proceedings; …”The court proceeded to state:“To say that a person has no cause of action is not necessarily tantamount to shutting the person out of the court but to say he has no locus standi means he cannot be heard, even on whether or not he has a case worth listening to.”

35. The implication[s] of locus standi in civil proceedings was also considered and elaborated upon in the case of Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased) [2016] eKLR where the court stated as hereunderFurther the issue of locus standi is so cardinal in a civil matter since it runs through to the heart of the case. Simply put, a party without locus standi in a civil suit lacks the right to institute and/or maintain that suit even where a valid cause of action subsists. Locus standi relates mainly to the legal capacity of a party. The impact of a party in a suit without locus standi can be equated to that of a court acting without jurisdiction since it all amounts to null and void proceedings. It is also worth-noting that the issue of locus standi becomes such a serious one where the matter involves the estate of a deceased person since in most cases the estate involves several other beneficiaries or interested parties.In this matter therefore the Respondent lacked the requisite locus standi to institute and/or maintain the suit. The result is that all the proceedings before the trial court were instituted and maintained by a person who lacked the legal capacity to do so. They are indeed a nullity and as such lack the legal leg to stand on.In coming to this finding this Court is alive to the truism that the matter is quite an old one and involves the loss of a loved one in a family. Be that as it may, it is this Court's belief that all is not lost as the matter can be legally revisited.

36. Flowing from the foregoing deliberations, the answer to issue number One [1] is threefold. Firstly, it is only a duly constituted executor/legal administrator of the estate of the deceased who is clothed with the requisite locus standi to mount and commence proceedings pertaining to the interest of the estate. In this regard, the application for joinder by the applicant herein is premature and misconceived in so far as the applicant is not the duly constituted legal administrator to the estate of the deceased.

37. Secondly, where a party who is not the duly constituted legal administrator seeks to be joined and admitted into proceedings touching on the affairs of the estate of the deceased, such a party, who has not taken out grant of letters of administration is divested [devoid] of legal capacity to be joined.

38. Thirdly, in the absence of the requisite grant of letters of administration, the applicant herein is a stranger and a busybody. Same is therefore devoid of locus standi. Pertinently, without the requisite locus standi the applicant cannot be heard to seek joinder in respect of the instant matter. [See the holding of the Supreme Court in the case of Francis Karioki Muruatetu versus Republic and Others [2026]ekl; paragraphs 37,38 and 42 thereof]

Issue No. 2. Whether the applicant herein can be joined, if at all, as an interested party in the proceedings which have since terminated/determined. 39. It is imperative to state and underscore that the subject matter was heard and disposed of vide judgment rendered on the 5. 5.2021. For coherence, the judgment under reference has neither been varied nor set aside.

40. Further and in any event, the applicant herein concedes that indeed judgment was rendered/delivered. To the extent that judgment has since been delivered in respect of the instant matter, the question that the court must grapple with and endeavour to answer touches on and concerns; whether a party can be joined into proceedings that have since terminated and determined.

41. To start with, there is no gainsaying that a party who demonstrates that same has a stake and or interest in a particular matter, the one before hand not excepted, is at liberty to apply to be joined into the proceedings. Nevertheless, it is critical to state and underline that the application for joinder ought to be made during the subsistence of the proceedings/suit and not otherwise.

42. Furthermore, it is worthy to outline and underscore that the joinder of a party, whether as a Co-plaintiff, Defendant, Necessary party or interested party [whichever is applicable] can only be undertaken with a view to enabling the court to effectually and effectively determine all the issues in controversy.

43. Be that as it may, where a judgment has since been rendered and delivered, the question is whether in such a scenario there remains an outstanding/pending issue [sic] capable of determination upon joinder, or otherwise.

44. In my humble albeit considered view, the delivery/rendition of a judgment, determines all the issues in dispute in a particular matter. Consequently, unless such a judgment is set aside, no person can seek to be joined into the proceedings, which have effectively been concluded. [See the provisions of Section 2 of the Civil Procedure Act, Chapter 21, Laws of Kenya, which defines Judgment]

45. Other than the foregoing, it is not lost on this court that joinder of a party into the proceedings is intended/meant to enable the court to fulfil its statutory/constitutional mandate. [see Section 1A & 1B of the Civil Procedure Act Cap 21 laws of Kenya].

46. Put differently, the joinder of a party, the applicant not excepted, is not for cosmetic or aesthetic purposes. In any event, courts do not issue orders in futility and vanity. Nevertheless, such is the likely situation, if the court were to grant the joinder sought herein.

47. To underscore the legal import and tenor that joinder can only be mounted and undertaken at any stage of proceedings, albeit during the pendency of same; it suffices to take cognizance of the holding in the case of J.M.K v MWK & Another 2015 eKLR where the court of appeal stated as hereunder:We would however agree with the respondent that Order 1 Rule (10)(2) contemplates an application for amendment or joinder of parties where proceedings are still pending before the Court. Sarkar’s Code, (supra) quoting as authority, decisions of Indian Courts on the provision, expresses the view that an application for joinder of parties can be filed only in pending proceedings. In the same vein, the Court of Appeal of Tanzania, while considering the equivalent of Order 1 Rule 10(2) of our Civil Procedure Rules, in Tang Gas Distributors Ltd v. Said & Others [2014] EA 448, stated that the power of the court to add a party to proceedings can be exercised at any stage of the proceedings; that a party can be joined even without applying; that the joinder may be done either before, or during the trial; that it can be done even after judgment where damages are yet to be assessed; that it is only when a suit or proceeding has been finally disposed of and there is nothing more to be done that the rule becomes inapplicable; and that a party can even be added at the appellate stage.

48. The position that a party/person can only be joined into a suit which is still pending and not otherwise and the import of Order 1 Rule 10[2] of the Civil Procedure Rules, 2010; was also highlighted by the court in the case of Mayfair Holdings Ltd v Municipal Council of Kisumu; Pauline Mauwa Akwacha (Interested Party/Applicant) [2020] eKLR where the court referenced the decision of Nyamweya J in Lilian Wairimu Ngatho & another v Moki Savings Co-operative Society Limited & another [2014] eKLR and proceeded to hold thus:“The provisions of Order 1 Rule 10(2) state that joinder of a party can be made “at any stage of the proceedings”. “Proceedings” are defined in Black’s Law Dictionary Ninth Edition at page 1324 as “the regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment”.A party can therefore only be joined to a suit at any time during the pendency of the suit, but not after the same has been concluded. This finding is premised on the basis that the purpose for joinder is to enable the court effectually and completely adjudicate upon and settle all questions involved in a suit. It is therefore of no use if a party seeks to be joined when the court has already made its findings on the issues arising.Similarly, the main purpose for joining a party as a Defendant under Order 1 Rule 3 of the Civil Procedure Rules is to claim some relief from the said party, and therefore such joinder can only be made during the pendency of a suit. As this court has declined to set aside the judgment herein, there is no suit pending before this court, and the Applicants cannot therefore be joined as parties at this stage.”The upshot is therefore that the Applicant herein cannot be joined to this suit, the proceedings having been long concluded and judgment delivered.

49. In my considered view the suit herein was heard and determined. To this end, until and unless the judgment is set aside, no joinder of a party can be taken. Suffice it to state that if any joinder is undertaken after the rendition of the judgment, then such joinder shall be in vain.

Final Disposition: 50. Flowing from the analysis [details highlighted in the body of the ruling] it must have become crystal clear that the application beforehand is not only premature and misconceived, but same [application] is also legally untenable.

51. Further and in any event, there is no gainsaying that a party can only be joined into proceeding[s] wherein same [ such party] has a direct stake and or interest. It is the vindication of such an interest, that underpins the joinder of an interested party. [see Francis Karioki Muruatetu vs republic and 5 others (2016) eKLR].

52. In the circumstances, the final orders that commend themselves to the court are as hereunder:i.The application dated 18. 12. 2024 be and is hereby dismissed.ii.Costs of the application be and are hereby awarded to the Plaintiff/Respondent.

53. It is so ordered.

DATED, SIGNED AND DELIVERED ON THE 15TH DAY OF JANUARY 2025OGUTTU MBOYA,JUDGE.In the presence of:Mutuma – Court Assistant.Ms. Gachohi holding brief for Miss Maore for the Applicant.Mr. Karanja for the Plaintiff/Respondent.N/A for the Defendants/Respondents.