Olympic Company Trading Ltd & another v Said Mohamed & 4 others [2014] KEELC 602 (KLR)

The suit was instituted against a party who had died in 1992; under section 82(a) of the Law of Succession Act the proper defendant was the estate's administrator. The applicant exhibited a certificate of confirmation of grant and evidence of the deceased's ownership and possession. Relying on sections 1A and 1B of the Civil Procedure Act, section 19(1) of the ELC Act and Article 159(2)(d) of the Constitution, the court held substantive justice required joinder and exercised its discretion under Order 1 Rule 10(2) to substitute the applicant for the deceased.

The court traced lis pendens from section 52 of the (repealed) Transfer of Property Act, preserved as common law by section 3(c) of the Judicature Act, and Bellamy v Sabine. It found the parcel sold to the 2nd intended Defendant was the same one in litigation between the Plaintiff and the deceased's estate, and that the Plaintiff's hurried conversion of the title may have been intended to obscure the title's track record. The doctrine binds even bona fide purchasers without notice, and the sale is not annulled but made subject to the court's final decree.

The applicant produced the indenture of 1989, death certificate, confirmed grant, rate receipts and utility bills evidencing ownership and possession. The court found the title conversion from GLA to RLA dubious - no evidence of a RIM approved by the Director of Surveys was produced - and questioned how the Plaintiff came to be registered over land in the deceased's occupation. Section 26 of the Land Registration Act permits challenge of title on fraud or illegal acquisition, and Article 40 does not protect unlawfully acquired property.

Under Order 1 Rule 10(2) the court may join any person whose presence is necessary for complete adjudication. The 2nd intended Defendant purchased during the pendency of the suit and stands to be affected by any decree; the 3rd Defendant, a constitutional body under the National Land Commission Act, monitors registration of rights in land; the 4th Defendant holds land registration documents. All are necessary to settle all questions and issues in the suit.

The court acknowledged the rule in Order 19 Rule 3 and the authorities against advocates deponing on contentious matters, but found nothing objectionable in the content: the deponent spoke to matters within his knowledge from conducting the case and the documents introduced came from third parties available for cross-examination. It therefore ruled the supplementary affidavit admissible rather than striking it out.

The suit premises had been occupied by the deceased's estate and tenants since purchase, so damages could not adequately compensate. The court declined the 2nd intended Defendant's request for a security deposit under Order 40 Rule 2(2), holding that the overriding objective of a just, expeditious, proportionate and affordable resolution of disputes meant no party should be shut out of the seat of justice by conditions it cannot meet.