Mutune (Suing as the Personal Representative of Paul Mutune Mutiso - Deceased) v Khatri & 3 others (t/a Belpont Auctioneers); Khatri & 2 others (Proposed Interested Parties) (Environment & Land Case 167 of 2018) [2025] KEELC 3997 (KLR)
The bottom line
#A Machakos court refused to let land claimants join deceased parties' beneficiaries or halt activities on disputed land because they lacked proper succession grants and evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the proposed interested parties should be joined to these proceedings
- 2.Whether the plaintiff has met the legal threshold to warrant the grant of injunctive orders
Key legal issues
#Joinder of interested parties where the suit against deceased defendants has abated
Joinder refused; the plaintiff must first obtain a grant and move under Order 24 CPR for substitution/revival
Order 1 Rule 10(2) permits joinder of necessary parties, but the Muruatetu criteria require a identifiable proximate stake. Since the suit against the deceased 2nd and 3rd defendants abated on 1/11/2022, beneficiaries cannot simply be joined; the legal framework requires a grant under the Law of Succession Act and an application under Order 24 to revive the abated suit. The plaintiff's earlier citation proceedings having been dismissed, joinder would be a back-door route.
Temporary injunction threshold
Injunction refused; no prima facie case established
Under Order 40 Rule 1 and Giella v Cassman Brown, the applicant must show a prima facie case, irreparable injury and balance of convenience. The plaintiff alleged over 50 years' occupation but produced no substantiating evidence such as photographs of houses, structures or crops. The court declines to make conclusive findings at interlocutory stage but finds the prima facie limb unmet, ending the inquiry.
Legal principles established
#- An interested party is one with a recognizable stake in the matter
- Deceased parties can only be represented by persons holding a full or limited grant under the Law of Succession Act, and substitution/revival proceeds under Order 24 CPR
- The Giella v Cassman Brown triple test governs temporary injunctions
Court orders
#- 1.The notice of motion dated 28/10/2024 is dismissed
- 2.Costs of the motion to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Civil Procedure Rules, Order 1 Rule 10(2), Order 24, Order 40 Rule 1
Relief refused
#Joinder of the proposed interested parties
The suit against the 2nd and 3rd defendants had abated; proper route is a grant under the Law of Succession Act and substitution/revival under Order 24 CPR, not joinder
Injunction over land parcel Masii/Emui/683
Plaintiff failed to demonstrate a prima facie case; no evidence substantiating 50 years' occupation
Costs
Costs to be in the cause
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the above findings and reasons, the notice of motion dated 28/10/2024 is hereby dismissed with costs being in the cause.
the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.
Order 42 does not envisage representation of deceased parties by any other means other than persons who have obtained a full grant or a limited grant
this court finds the plaintiff has not demonstrated a prima facie case and hence, this court need not say more.
Issues in the judgment
#Judgment cites Order 42 of the CPR for representation of deceased parties, but the provision governing substitution of deceased parties is Order 24, which the same judgment elsewhere applies - likely a typographical error
The citation cause is referred to inconsistently as CMCC Citation Cause NO. 55 OF 2022 and Machakos Citation Cause No. 55 of 2023
Affidavit of Ketan Khatri is sworn on 31/10/2024 but described in grounds dated 11/12/2024 for the 1st defendant; the heading 'Proposed interested parties' case' follows grounds of opposition dated 11/12/2024 attributed to the 1st defendant, creating ambiguity as to which party filed what
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutune (Suing as the Personal Representative of Paul Mutune Mutiso - Deceased) v Khatri & 3 others (t/a Belpont Auctioneers); Khatri & 2 others (Proposed Interested Parties) (Environment & Land Case 167 of 2018) [2025] KEELC 3997 (KLR)", Case Analysis (2025). Notice of motion dated 28/10/2024 in the pending suit (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3997/eng@2025-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.