1.The Proposed Applicant Samuel Ng’ang’a filed a Chamber Summons Application* dated 7th February 2023, and sought for these Orders; -1.That this honourable Court be pleased to grant leave to the proposed Applicant herein Samuel Ng’ang’a to be joined in this originating summons as the 2nd Respondent;2.That this honourable Court be pleased to order that the draft Replying Affidavit annexed hereto be deemed as duly filed upon repayment of the requisite fees;3.That in furtherance to prayer 5 above, this honourable Court be pleased to reopen the Plaintiff’s and Defendant’s case to enable the proposed Applicant to cross-examine the Plaintiff and Defendant and also adduce evidence on his own behalf;4.That costs of this application be in the cause.
2.The said application is supported by various grounds and on the Supporting Affidavit of Samuel Ng’ang’a, the proposed Applicant dated 7th February 2023. The deponent averred that the Plaintiff/Respondent while filing the Originating Summons dated 20th March 2020, failed to enjoin the proposed Applicant as a Respondent to the suit to safeguard the interests of the family of Jonathan Kang’ang’a (deceased). The deponent further averred that Henry Wamiti Ng’ang’a (deceased), Samuel Ng’ang’a Warimwe (deceased) and Jonathan Kang’ang’a (deceased) were sibling and sons of Joseph Warimwe (deceased) and that that L.R. No. Loc.2/Gacharage/670 (the suit property), was registered in the name of Henry Wamiti (deceased), to hold it in trust for himself, Samuel Ng’ang’a (deceased) and Jonathan Kang’ang’a (deceased).
3.The deponent further averred that Milimani Succession Cause No. 1708 of 2005;- Estate of Henry Wamiti Ng’ang’a (deceased), has proceeded and was in the Confirmation of Grant stage, and the Petitioner therein Miriam Mugure Wamiti, who is the Respondent in the present case, proposed a means of distribution of the suit property among the 3 families of the sons of Joseph Warimwe (deceased). The Applicant further averred that in order to adjudicate over the suit property, the proposed 2nd Respondent was a necessary party to the suit to enable this Court to reach a just and conclusive determination.
4.Further, the proposed Respondent averred that he intends to file his response to the Originating Summons in opposition to the claim for adverse possession, a draft of which was attached. The Respondent/Applicant further stated that he had demonstrated an interest in the suit property, and therefore merit to be joined in this suit on behalf of the family of Jonathan Kang’ang’a (deceased).
5.The Plaintiff/Respondent opposed the application through the Replying Affidavit of Jacinta Njeri Ng’ang’a dated 23rd May 2023, which she averred that the present application was intended to frustrate her. She further averred that the Succession matter was filed way back in 2020, and was in the judgement stage nearing conclusion. Further that the proposed Applicant/Respondent delayed in making the present application since he had been present in Court during the proceedings and on occasion was pointed out as a possible witness in the suit, which failed to materialize. The Plaintiff/Respondent therefore averred that the application lacked merit and was an abuse of the Court process on the grounds that parties had given evidence and closed their respective cases and that the application was misconceived.
6.The Plaintiff/Respondent further averred that the present suit hinged on adverse possession/prescriptive rights and trust, which reliefs are personal claims intimate to the Plaintiff and Respondent herein.
7.Lastly, the Plaintiff/Respondent averred that this Court lacks jurisdiction to deal with matters of sub-division and the entitlement in the estate of a deceased person as sought to be introduced by the proposed Applicant.
8.The Proposed Applicant filed a Further Affidavit dated 8th June 2023, in which he denied the allegations made by the Plaintiff/Respondent in her Replying Affidavit dated 23rd May 2023.
9.Finally, an Affidavit in support sworn on 15th March 2023 by the Respondent Miriam Mugure Wamati, acknowledged that the proposed Applicant as a beneficiary of the Estate of Jonathan Kang’ang’a (deceased), by virtue of being his son. The deponent further averred that it was in the interest of justice that the proposed Applicant be joined in the suit to ventilate the interest of the family of Jonathan Kang’ang’a (deceased).
10.The Application was canvassed by way of written submissions. The proposed Applicant/Respondent through the Law Firm of Chege Kibathi & Co. Advocates LLP, filed their submissions in support of the application on 12th June 2023. The Applicant raised 3 issues for consideration.
11.On the issue of whether the proposed Applicant should be granted leave to be joined and be heard, he submitted that the Court has discretion to join any party to a suit at any stage of the suit, provided that their presence is necessary to effectively determine a case with finality. The Applicant relied on Order 1 Rule 10 of the Civil Procedure Rules which states as follows:
12.To support their claim, the Applicant relied on the case of Lucy Nungari Ngigi & Other v. National Bank of Kenya Ltd & Another & Charles Wambugu & 127 Others HCCC No. 517 of 2014, where the Court held as follows:
13.The proposed Applicant further submitted that he had met the threshold for joinder to a suit having demonstrated his interest over the suit property.
14On the issue whether the Court should grant leave to the proposed Applicant to adduce evidence and cross-examine, the Plaintiff/Respondent and the Respondent herein, the proposed Applicant submitted that having met the threshold to be joined in the suit, the principles of natural justice required that he ought to be accorded the right to listen and to be heard. The proposed Applicant relied on the case of ELC Civil Suit No. 64 of 2007;- William Ole Nabala v. Attorney General, Sammy Njuguna & 4 Others, where the Court held as follows:
15.On the final issue of whether the Originating Summons application dated 20th March 2020, can be deemed concluded, the Applicant submitted that the particular suit or Originating Summons is yet to be determined. The Applicant relied on Order 1 Rule 14 of the Civil Procedure Rules which states as follows:
16.The Plaintiff/Respondent through the Law Firm of Kirubi, Mwangi Ben & Co. Advocates filed their written submissions dated 19th June 2023, opposing the application. It was submitted that the present application sought a myriad of orders including seeking to be heard, and substantive orders of stay and re-opening of the suit even before the proposed applicant is properly joined.
17.The Plaintiff/Respondent submitted that the parties present in the suit had obtained the requisite grants of representation in order to sue on behalf of the estate of their deceased husbands. She further submitted that the proposed Applicant did not have the legal capacity to represent the Estate of Jonathan Kang’ang’a (deceased).
18.The Plaintiff/Respondent relied on the case of Gladys Nduku Nthuki v. Letshego Kenya Ltd, Mueni Charles Maingi (2022) eKLR, where the Court held as follows:
19.The Plaintiff/Respondent placed further reliance on the case of Florence Nafula Ayodi & Others v. John Tabalya Mukite & Another (2021) eKLR, where the Court held as follows:
20.To conclude, the Plaintiff/Respondent submitted that the application failed for the aforesaid reasons and the same ought to be dismissed so that the Court may render judgement held in abeyance as a result of the misconceived application.
21.The Respondent through the Law Firm of Osoro Mogikoyo & Co. Advocates, similarly filed written submissions dated 16th June 2023. It was submitted that the provisions governing enjoinment as a party to proceedings are provided under Order 1 Rule 10(2) of the Civil Procedure Rules which states as follows:
22.The Respondent further submitted that it is only fair that the proposed Applicant be enjoined in this suit as he has demonstrated to the Court that he stands to be affected by the decision of the Court, as well as the interests of the family of Jonathan Kang’ang’a. The Respondent relied on the case of Francis Karioki Muruatetu & Another v. R & 5 Others (2016) eKLR where the Court held as follows:
23.Lastly, the Respondent submitted that the Court has discretion to enjoin any applicant and once enjoined it is only reasonable to afford them a chance to submit their evidence. The Respondent relied on the case of Gladys Nduku Nthuki v. Letshego Kenya Ltd; Mueni Charles Maingi (Intended Plaintiff) (2022) eKLR as quoted in the case of Civicon Ltd v. Kivuwatt Ltd & 2 Others (2015) eKLR to buttress their claim. It states as follows:The Respondent prayed that the application be allowed.
24.Having read and considered the pleadings by the proposed Applicant, the Plaintiff/Respondent and Respondent, the submissions, authorities cited and the relevant provisions of law, this Court finds that the main issue for determination is:
Whether the orders sought for leave to enjoin the suit are merited?
25.The proposed Applicant herein seeks for leave to be joined in the present suit relating to an adverse possession claim between the Plaintiff/Respondent and Respondent herein over to the suit property. The proposed Applicant averred that land parcel no. Loc.2 Gacharage/670, (the suit property) was registered in the name of Henry Wamiti (deceased) to hold in trust for himself and his brothers Samuel Ng’ang’a Warimwe (deceased) and Jonathan Kang’ang’a (deceased). The Applicant further averred that he was the representative of the family of Jonathan Kang’ang’a (deceased) seeking to safeguard their interest in this suit by responding to the claim.
26.It is not in dispute that the suit property was registered in the name of Henry Wamiti Ng’ang’a (deceased) to hold in trust for himself and his two siblings. However, following the demise of Henry, Jonathan and Joseph, the issue or dispute relating to the ownership of the suit property changed to a succession cause in Milimani Succession Cause No. 1708 of 2005 – Matter of the Estate of Henry Wamiti Ng’ang’a (deceased). The said succession cause is on the Confirmation of Grant stage. However, that was put on hold pending the determination of this suit to determine whether the suit property forms part of the Estate of Henry Wamiti Ng’ang’a or whether the Plaintiff/Respondent has acquired ownership by way of adverse possession.
27.The Court has perused the file and found that the Plaintiff/Respondent was issued with letter of administration intestate on 7th October 1991, to represent the estate of her late husband Joseph Warimwe Ng’ang’a. Having been appointed the legal representative, the Plaintiff/Respondent herein could pursue the legal claim on behalf of her husband against the Estate of Henry Wamiti (deceased), who held the suit property in trust for himself and his siblings. Similarly, the widow to Henry Wamiti (deceased) was issued with letters of administration intestate on 16th August 2005.
28.These matter of representation in this case boils down to whether the proposed Applicant has the locus standi to sue and be sued on behalf of the Estate of Jonathan Kang’ang’a (deceased).
29.It is not in dispute that the suit property is subject to various suits wherein Henry Wamiti (deceased), is the registered owner and is represented by a duly appointed legal representative of the said estate of Henry Wamiti. It was claimed that Henry Wamiti (deceased), was holding the suit property in trust for Jonathan Kang’ang’a (deceased) and Ng’ang’a Warimwe (deceased). Despite the proposed Applicant herein claiming to represent the interest of the family of Jonathan Kang’ang’a (deceased), which is one of the grounds for this application, the proposed Applicant has failed to provide letters of representation to enable him represent the Estate of Jonathan Kang’ang’a (deceased).
31.In Alfred Njau & Others v City Council of Nairobi [1982-88] 1 KAR 229 the Court of Appeal gave meaning to the term locus standi by stating:
32.The Court of Appeal has reiterated the position on the issue of locus standi in case of Trouistik Union International & Another v Jane Mbeyu & Another (2008) IKLR (G&F) 730 where it was held that:
33.The issue on locus standi is a preliminary point of law almost similar to that of jurisdiction and since the proposed Applicant was not an administrator to the Estate of Jonathan Kang’ang’a (deceased), he lacked the capacity to sue on behalf of the deceased’s estate which renders the application incompetent.
34.Considering the above, this Court finds and holds that the proposed Applicant failed to approach the Court properly in a matter where he was representing the interests of a deceased party. The issue of locus standi being a primary point of law goes to the root of any suit. Its subsequent absence therefore renders the Application fatally defective.
35.Having found that the proposed Applicant lacks locus standi, the Court finds and holds that the Notice of Motion Application dated 7th February 2023, cannot stand and for the above reasons, the said Application is dismissed entirely with costs to the Plaintiff/Respondent.It is so ordered.