Bethwel Mwangi Githinji & 2 others v Harrison Wachira Wanjohi & another [2016] KEELC 236 (KLR)
The bottom line
#A Kenyan court struck a restriction a lawyer registered on a land title, ruling parties must ask the court to change orders, not act unilaterally.
What this practically means
#Executive summary
#Key legal issues
#Whether the Land Registrar Murang'a and the Hon. Attorney General are necessary parties
They are not necessary parties because the plaint seeks relief only against the 1st and 2nd defendants; their joinder was necessary, if at all, only in relation to the removal of the registered order.
The court considered the purpose of enjoining the proposed parties. Counsel for the applicant conceded they were necessary only for the application to remove the registered order, not for the suit itself. Since the plaint's prayers are directed solely against the 1st and 2nd defendants, no substantive relief would issue against the Registrar or the Attorney General in the suit, and their joinder was refused.
Whether the restriction registered by the respondent's counsel against the title of the suit property should be lifted
The registration was mischievous and improper; the order is lifted and the Registrar directed to remove the remarks.
The consent restraining orders of 19th/25th February, 2015 ran against the defendants, restraining them from allowing others to occupy the land. The respondent's counsel unilaterally registered a contrary restriction against the title to preserve the property from alienation by the applicant, instead of applying to court to vary or set aside the earlier order. The court found this conduct mischievous and, satisfied by the applicant's reasons (inability to access bank funds and irreparable loss), removed the restriction.
Legal principles established
#- A party who wishes to alter or escape the effect of an interim order of the court must move the court to set it aside rather than act unilaterally, e.g. by registering it against the title in their own favour
- A party is only a necessary party to a suit if substantive relief is sought against that party in the plaint
Court orders
#- 1.Prayer 1 refused: the Land Registrar Murang'a and the Hon. Attorney General were not found to be necessary parties to the suit
- 2.An order that the remarks registered on 1st October, 2015 against the title for Loc/14 Kamune/1013 by the Land Registrar, Murang'a be removed
- 3.A hearing date for the suit to be taken in the registry once the diary for 2017 opens, the parties having complied with Order 11
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit property; Civil Procedure Rules (Orders 7 and 11) and the court's power to regulate its interim orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bethwel Mwangi Githinji & 2 others v Harrison Wachira Wanjohi & another [2016] KEELC 236 (KLR)", Case Analysis (2016). ELC 724 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/236/eng@2016-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.