Analysis and Determination
20.I have considered the grounds advanced in the two notices of preliminary objection. I have also considered the relevant legal frameworks and jurisprudence. I will dispose the two objections sequentially, starting with the grounds raised in the 1st defendant’s notice of preliminary objection.
21.The first ground advanced in the 1st defendant’s notice of preliminary objection is that the claim against the 1st defendant is an abuse of the process of the court as a wrong party has been sued and the suit does not raise and/or disclose any cause of action against the 1st defendant. I have looked at the originating summons and the supporting affidavit. I have also looked at the 1st defendant’s response to the originating summons. Through the originating summons, the plaintiff seeks a declaration that the late Isaac Kamau Ndoge held one (1) acre out of land parcel number Kiambu/Munyu/147 in trust for the late James Kuria Ngugi. The plaintiff contends that the late Ndoge’s first wife, Esther Wambui Kamau, sold the land to the late James Kuria Ngugi in 2001, with the consent of the late Ndoge. The deceased plaintiff was given the land in 2001 and lived there up to the time of his death. He was buried on the land. It is alleged that his family lives on the one acre.
22.From the response filed by the 1st defendant, it does emerge that the 1st and 2nd defendants are the joint administrators of the estate of the late Ndogee. It does also emerge that the two defendants are the beneficiaries of the estate of the late Ndoge in equal shares. The suit property is one of the assets to be shared by them equally.
23.From the above circumstances, it is apparent that the two defendants are necessary parties because the declaration sought in this suit cannot be considered or made in their absence. It should be made clear, however, that whether or not there was a trust between the late Ndoge and the late Ngugi is a matter that calls for evidence.
24.The 1st defendant urges this court to dismiss the plaintiff’s suit for non-joinder of the estate of the late Esther Wambui Kamau who is alleged to have sold part of the suit property to the late Ngugi. Whereas I agree with the 1st defendant that the estate of the late Esther Wambui Kamau is a necessary party in these proceedings, for the purpose of enabling the court adjudicate and settle all questions arising in the dispute, I do not think non-joinder of the estate is a proper basis for striking out the suit in limine. Order 1 rule 9 of the Civil Procedure Rules discourages courts against striking out suits on grounds of misjoinder or non-joinder. I will in the circumstances not be quick to strike out the suit at this stage. It should, however, be made clear that it is the responsibility of the plaintiff to initiate an appropriate application for joinder of the estate. Consequently, the first ground of objection in the 1st defendant’s notice is rejected.
25.The second ground of objection in the 1st defendant’s notice of preliminary objection is that this court lacks jurisdiction to vacate and/or interfere with orders of a probate and administration court. The question as to the proper court where to ventilate a claim relating to title to land in a scenario where the land in question is the subject of a succession cause has gained frequency in our courts since the promulgation of the Constitution of Kenya, 2010. There is now near consensus that succession courts only distribute land that has no contestation over title. In instances where third parties are laying claims of title to land that is the subject of a succession cause, the approach which our succession courts have adopted is to stay confirmation/distribution proceedings relating to the specific land and refer the third party claimants to the relevant land court for determination of the question of title to that land. Where a certificate of confirmation has been issued but the land is still available, claimants are expected to seek stay or preservatory orders in the relevant succession courts and proceed to ventilate their substantive claims in the relevant land courts. The stay/ preservatory orders serve to preserve the land, pending the determination of the question of title by the land courts. Should the third party claimant be successful in the land court, he is expected to move the succession court for an order setting aside any confirmation or distribution order that may have been issued in the succession cause in relation to land that has been adjudged by the land court as not belonging to the estate of the deceased.
26.Needless to emphasize, a land court would be reluctant to issue orders to third parties in a matter where, during trial, it is not demonstrated that the land that has been the subject of succession is still available or has been preserved appropriately.
27.Given the above approach which courts have adopted, I do not think it would be proper for this court to shut the plaintiff out of the seat of justice on the basis of exparte succession orders without the benefit of a trial. I will reject the second ground of objection for the above reasons.
28.The third ground of objection in the 1st defendant’s preliminary objection is that an originating summons is not the appropriate platform on which to ventilate the issue in this suit. At this stage, the plaintiff contends that there exists a trust and she seeks a declaration to that effect under order 37 of the Civil Procedure Rules. In my view, it is only after trial that the court will be in a position to determine whether the orders sought in the originating summons can be properly granted under order 37 of the Civil Procedure Rules. It is premature for the court to pronounce itself on the appropriateness of an originating summons in the circumstances of this suit. I will reject that limb of objection on the above ground.
29.The fourth ground of objection is that the suit herein is retrogressive because it seeks orders on an agreement which was entered into with a person who did not have capacity to contract on behalf of the registered proprietor. This is an issue that would fall for determination based on evidence. The 1st defendant elected to ventilate her objection on the platform of a preliminary objection. The court will wait to receive evidence before pronouncing itself on the issue.
30.The fifth ground of objection in the 1st defendant’s preliminary objection is a replica of the 1st ground. I have already analyzed and pronounced myself on it. For the above reasons, I do not find merit in the 1st defendant’s preliminary objection. I now turn to the 2nd defendant’s preliminary objection.
31.The first ground of objection in the 2nd defendant’s notice of preliminary objection is that the plaintiff’s suit is statute-barred under section 4(1)(a) of the Limitation of Actions Act. I have considered the gist of the originating summons. It seeks a declaration of a trust in relation to a one acre portion of the suit property. The estate of the late Ngugi contends that it does not seek to enforce the contract of 2001. It is its case that, as occupier of the one acre portion of the suit property, it seeks a declaration of trust in relation to the one acre. It is its case that the contract of 2001 is merely a piece of evidence on how the deceased entered the land.
32.Section 20 of the Limitation of Actions Act excludes claims founded on trust from the general limitation periods prescribed under the Act, including section 4(1) of the Act. Whether or not there is merit in the plea for declaration of a trust is a triable issue. I will, in the circumstances, reject the first ground of objection in the 2nd defendant preliminary objection for the above reasons.
33.The second ground of objection in the 2nd defendant’s preliminary objection is that this suit contravenes section 3(3) of the Law of Contract Act and section 38(1) of the Land Act. The third ground is that this suit contravenes Section 6(1) as read together with Section 8 of the Land Control Act. The two grounds will be disposed simultaneously.
34.I have observed that the plaintiff seems to be ventilating a claim founded on an alleged trust. That being her case, it would be unsafe to shut her out of the seat of justice on the basis of section 3(3) of the Law of Contract Act and section 38(1) of the Land Act.
35.Similarly, section 6(1) of the Land Control Act cannot be invoked to shut the plaintiff out of the seat of justice in a claim for declation of a trust.
36.Even if the above findings were wrong, the current framework in section 3(3) of the Law of Contract Act came into force in 2003. It cannot apply to a 2001 land sale contract. Similarly, the current framework in section 38 of the Land Act came into force in 2012. It can not be applied to a 2001 land sale contract.
37.The first limb of the fourth ground of objection is that this court lacks jurisdiction to declare a trust. I do not agree with the 2nd defendant’s contention that this court lacks jurisdiction to declare a trust. The broad jurisdiction of this court is granted by article 162(2)(b) of the Constitution. That broad jurisdiction is elaborated under section 13 of the Environment and Land Court Act. The framework in the Act gives this court jurisdiction to issue declaratory orders. The contention that this court lacks jurisdiction to issue a declaratory order relating to an alleged trust relating to land is a misconception of the law.
38.The second limb of the 2nd defendant’s fourth ground of objection is that this court lacks jurisdiction to set aside a ruling rendered in a succession cause. I have rendered myself on the approach which our courts have considered appropriate when dealing with claims of title relating to land that is the subject matter of a succession cause. All I would add is that this court remains alive to the fact that once a third party claim relating to title to land is determined by a land court, it is the responsibility of the third party claimant to move the succession court for an appropriate order varying any succession orders that may have been issued in relation to the land.
39.For the above reasons, I do not find merit in the 2nd defendant’s preliminary objection.
40.In the end, the 1st defendant’s preliminary objection dated September 20, 2022 and the 2nd defendant’s preliminary objection dated September 21, 2022 are both rejected for lack of merit. Costs shall be in the cause.