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ELCAllowedNot stated in judgment· [2018] KEELC 149 (KLR)

Micheal Kirugo Kibathi v Anthony Gichuki Gichau & 3 others [2018] KEELC 149 (KLR)

Environment and Land Court
20 December 2018
SOS. Okong'o
830 words in judgment
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The bottom line

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A Kenyan land court ruled that the current registered owner of disputed property must be joined to the case, even after another party's transfer.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Nairobi on the plaintiff's Notice of Motion dated 17th July 2018 seeking leave to amend the plaint and to add Teresiah Wanjiru Githaiga as the 4th defendant. The plaintiff alleged he was the bona fide owner of Plot No. 487 within Land Parcel No. 10901/36 owned by the 3rd defendant, that the 3rd defendant illegally and fraudulently transferred the property to the 1st and 2nd defendants without his consent, and that the 1st and 2nd defendants had since transferred it to the proposed 4th defendant. The 1st and 2nd defendants opposed, averring that after the plaintiff's application for temporary injunction was dismissed on 25th September 2013 they validly sold the property to the proposed 4th defendant, that they would be highly prejudiced if the joinder was allowed, and that the plaintiff's remedy lay in monetary compensation from the 3rd defendant. Okong'o J framed a single issue: whether the plaintiff had established sufficient grounds to warrant joinder of the proposed 4th defendant. Applying Order 1 Rule 10(2) of the Civil Procedure Rules and following the Court of Appeal decision in Central Kenya Ltd v Trust Bank & 4 others, the court held that the proposed 4th defendant was a necessary party since the suit property was registered in her name and any order made would affect her; the defendants had not demonstrated the prejudice they would suffer. The application was allowed in terms of prayers 1, 2 and 4, with 21 days for filing the amended plaint and for the defendants to amend their defences.

Key legal issues

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Joinder of a proposed 4th defendant under Order 1 Rule 10(2) of the Civil Procedure Rules

Holding

The proposed 4th defendant is a necessary party whose joinder enables the court to effectually and completely adjudicate on all questions in dispute

Reasoning

The court applied Order 1 Rule 10(2), which permits addition of any person whose presence is necessary to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit. The suit property had been transferred to the proposed 4th defendant, so any order made would affect her. The 1st and 2nd defendants failed to demonstrate the prejudice they would suffer. Following the Court of Appeal's guidance, amendments and joinders are to be freely allowed where no uncompensatable prejudice arises.

p. 2

Legal principles established

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  • Amendments and joinder of parties should be freely allowed at any stage provided no prejudice or injustice incapable of compensation in costs is caused to the other party
  • A person in whose name the disputed property is registered and against whom any order in the suit may operate is a necessary party who must be joined

Court orders

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  1. 1.The Notice of Motion dated 17th July, 2018 is allowed in terms of prayers 1, 2 and 4 thereof
  2. 2.The plaintiff shall file the amended plaint within 21 days from the date of the ruling
  3. 3.The 1st, 2nd and 3rd defendants shall be at liberty to amend their respective defences within 21 days from the date of service of the amended plaint
  4. 4.Teresiah Wanjiru Githaiga is joined as the 4th defendant to the suit
Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Micheal Kirugo Kibathi v Anthony Gichuki Gichau & 3 others [2018] KEELC 149 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/149/eng@2018-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.