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ELCDismissedNotice of Motion dated 27th November 2014 (arising from Thika Civil Suit No. 1292 of 2005, transferred to the Environment and Land Court)· [2015] KEELC 790 (KLR)

Francis Kiratu & another v Thika Garissa Road Developers Limited & 2 others [2015] KEELC 790 (KLR)

Environment and Land Court
15 May 2015
MGMARY M. GITUMBI
1,077 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to add a land buyer to an ongoing case, ruling his separate claim against the seller should be filed as its own lawsuit.

What this practically means

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Executive summary

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The court ruled on a Notice of Motion dated 27th November 2014 by Stephen Ngugi, the proposed interested party, brought under Order 51 Rule 1 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act, seeking leave to join the suit, tender evidence and participate in the proceedings. The underlying suit began in Thika as a claim by the 1st Defendant against the Plaintiffs for trespass on LR No. 4953/1855, was transferred through the High Court's Judicial Review Division to the Environment and Land Court. The Plaintiffs, former employees of Del Monte (K) Limited, claim to have been allocated the suit property in 1964 and claim adverse possession, while the 1st Defendant claims to have been issued a grant in 1993, took possession, resettled the squatters elsewhere, and subdivided and allocated plots to its members. The Applicant asserted he purchased plot No. 25 from the 1st Defendant in 1991, held a plot certificate, paid for an allotment letter and obtained subdivision scheme approval. The Plaintiffs opposed, citing inordinate delay and lack of proof of interest; the 1st Defendant opposed, calling the Applicant a stranger and vexatious litigant. Applying Order 1 rule 10(2) of the Civil Procedure Rules, the court held that joinder turns on whether the proposed party's presence is necessary for the court to effectually and completely adjudicate on all questions in the suit. Since the Applicant's claim is against the 1st Defendant and substantially different from the Plaintiffs' claim, it could not be determined in the same suit. The application was dismissed with costs, with liberty to file an independent suit.

Key legal issues

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01

Whether the proposed interested party should be enjoined in the suit

Holding

The application lacks merit and was dismissed with costs; the Applicant's claim is separate and should be litigated independently

Reasoning

The court applied Order 1 rule 10(2) CPR 2010, holding that joinder turns on whether the person's presence is necessary to effectually and completely settle all questions in the suit. The Applicant's claim is against the 1st Defendant, from whom he bought a plot, and differs substantially from the Plaintiffs' adverse-possession claim against the 1st Defendant. His claim can only be determined after the 1st Defendant's interest is determined, so it cannot be adjudicated in the same suit.

p. 2

Legal principles established

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  • The key criterion for enjoining a person to a suit under Order 1 rule 10(2) of the Civil Procedure Rules is whether their presence is necessary to enable the court effectually and completely adjudicate upon and settle all questions in the suit
  • A proposed interested party whose claim is substantially different from and dependent on the resolution of the principal dispute should file an independent suit rather than be joined

Court orders

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  1. 1.The application dated 27th November 2014 seeking to enjoin Stephen Ngugi as an interested party is dismissed with costs
  2. 2.The intended interested party is at liberty to file an independent suit against the 1st Defendant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 1 rule 10(2)
  • Civil Procedure ActSections 3 and 3A
Jurisdiction invoked
Order 51 Rule 1 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act

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, "Francis Kiratu & another v Thika Garissa Road Developers Limited & 2 others [2015] KEELC 790 (KLR)", Case Analysis (2015). Notice of Motion dated 27th November 2014 (arising from Thika Civil Suit No. 1292 of 2005, transferred to the Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/790/eng@2015-05-15

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