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ELCAllowedApplication dated 30th January 2014· [2015] KEELC 254 (KLR)

Turere Ole Tayiana v Moses Ting’a Turere [2015] KEELC 254 (KLR)

Environment and Land Court
10 September 2015
JMJ. M. MUTUNGI
1,289 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a landowner to add a water bottling company as a defendant because it faced the same trespass claim.

What this practically means

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Executive summary

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This is a ruling by J. M. Mutungi J of the Environment and Land Court on an application dated 30th January 2014 by the Plaintiff seeking joinder of Maasai Springs Water Company Limited as 2nd Defendant and leave to file an amended plaint. The dispute concerns suit property Kajiado/Loodariak/645, owned by the Plaintiff, on which a borehole was sunk following agreements of 16th December 2009 and 5th January 2010 with the Defendant. The Plaintiff alleges the Defendant misrepresented that the water was for his own and community use, then established a commercial water bottling and distribution company operating from the property without authority, amounting to trespass. The Defendant opposed joinder, contending the company was a mere vehicle of Global Worship Centre Church, was not a party to the agreements, and was no longer operational. Applying Order 1 Rule 10(2) of the Civil Procedure Rules and the test in Lucy Nungari Ngigi & 128 others v National Bank of Kenya Limited, the court found the subject matter - trespass and unauthorised commercial exploitation of water - was common to both the Defendant and the company. The Plaintiff's CR12 and a supermarket purchase receipt showed the Defendant and one Mc Mullen Jonathan Mark direct the company and that it was operational; the Defendant failed to prove the project was for the church's benefit. The application was allowed with leave to file an amended plaint within 14 days and corresponding leave for the Defendants to file an amended defence, costs in the cause.

Key legal issues

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01

Whether the company is a necessary party to the trespass suit

Holding

Yes - the cause of action and relief sought against the company is the same as against the Defendant; trespass is the common question of fact, so joinder was warranted under Order 1 Rule 10(2)

Reasoning

The suit concerns trespass on the Plaintiff's land and commercial tapping, bottling and distribution of water from the borehole without authority. The Plaintiff showed via a CR12 that the Defendant directs the company and via a supermarket receipt that the company is operational. The Defendant failed to show the project was undertaken for the church's benefit. The same trespass question arises against both, making joinder necessary for complete adjudication.

p. 2

Legal principles established

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  • A person whose presence before court is necessary to enable the court effectually and completely adjudicate upon and settle all questions in the suit may be joined as a party; a common question of fact or law between existing and intended parties is the determining factor

Court orders

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  1. 1.The application dated 30th January 2014 is allowed
  2. 2.The Plaintiff is granted leave to file an amended plaint enjoining 'Masai Springs Water Company Limited' as the 2nd Defendant within 14 days of the date of the ruling
  3. 3.The Defendants shall have corresponding leave of 14 days from date of service of the amended plaint upon them to file an amended defence or defences as the case may be
  4. 4.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (1)

  • Lucy Nungari Ngigi & 128 others v National Bank of Kenya Limited & another
    Nairobi Civil Case No. 517 of 2014 [2015] eKLR
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, "Turere Ole Tayiana v Moses Ting’a Turere [2015] KEELC 254 (KLR)", Case Analysis (2015). Application dated 30th January 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/254/eng@2015-09-10

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