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ELCPartially AllowedMurang'a ELC (suit land LOC 2/KINYONA/217) - Notice of Motion dated 4th February 2014 and Notice of Motion dated 19th September 2014· [2016] KEELC 817 (KLR)

Wilson Mwangi Ramson v Mary Nyambura Njuguna & 6 others [2016] KEELC 817 (KLR)

Environment and Land Court
12 May 2016
2,290 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Murang'a Environment and Land Court refused to end a land dispute without a full trial and allowed the deceased owner's heirs to join the case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Murang'a (B.N. Olao J) determined two interlocutory applications in a land dispute over parcel LOC 2/KINYONA/217. The plaintiff, registered proprietor since 9th March 1994, sued five defendants for declarations of ownership and trespass, eviction and a permanent injunction, alleging they entered the land in 2012. The defendants pleaded that ownership had been determined in Nairobi High Court Civil Appeal No. 179 of 1995 in favour of the late Hilda Nyambura Gathuri, whose heirs sought to be enjoined. The plaintiff applied to strike out the defence and enter judgment. Two interested parties, claiming to be children and beneficiaries of the deceased owner, applied to be joined, contending the land was ancestral land held in trust for them and that the plaintiff's title was fraudulent and void for want of Land Control Board consent. The court applied Order 2 Rule 15(1), D.T. Dobie v Muchina and Moi University v Vishua Builders to hold that the striking-out power must be exercised sparingly, and that the defence raised triable issues of res judicata and title irregularity; that application was dismissed. On joinder, applying Order 1 Rule 10(2) liberally, the court found the interested parties' presence necessary for complete adjudication and allowed their application. The plaintiff's motion was dismissed, the joinder allowed with 14 days to file claims, each party bearing their own costs. The court flagged that the suit may be res judicata and left counsel to consider staying proceedings, for mention on 31st August 2016.

Key legal issues

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01

Whether the defence should be struck out as frivolous, vexatious or scandalous

Holding

The application to strike out was dismissed because the defence raised serious triable issues including res judicata and illegality of the plaintiff's title

Reasoning

Applying Order 2 Rule 15(1) and D.T. Dobie & Co Ltd v Muchina, the court held that the striking-out power is draconian and must be exercised sparingly in plain and obvious cases. The defence alleged that ownership of the suit land was determined in Nairobi High Court Civil Appeal No. 179 of 1995 and that the plaintiff's title was illegal, raising issues the court ought to investigate at trial. Citing Moi University v Vishua Builders, even one triable issue entitles a defendant to defend.

p. 4
02

Whether the interested parties could be enjoined under Order 1 Rule 10(2)

Holding

The application to enjoin the interested parties was allowed because their presence was necessary to completely adjudicate upon the questions in the suit

Reasoning

The plaintiff argued the provision applies only to plaintiffs and defendants, but the court held the rule extends to any person whose presence is necessary for complete adjudication. The interested parties claim to be heirs and beneficiaries of the deceased owner of the ancestral land and challenge the plaintiff's title as fraudulent. As the case was not ready for trial and no prejudice was shown, liberal joinder was appropriate, following Sarkar's Code of Civil Procedure and Central Kenya Ltd v Trust Bank.

p. 4

Legal principles established

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  • The power to strike out a pleading must be exercised sparingly and only in the clearest cases because it determines a case without trial
  • Even one triable issue entitles a defendant to leave to defend
  • Order 1 Rule 10(2) permits joinder of any person whose presence is necessary for complete adjudication, not only plaintiffs and defendants
  • Joinder provisions should be interpreted liberally and widely

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 4th February 2014 is dismissed
  2. 2.The interested parties' Notice of Motion dated 19th September 2014 is allowed
  3. 3.The interested parties are granted 14 days within which to file and serve their respective claims
  4. 4.The plaintiff and the defendants will have 14 days after service of the interested parties' claim to amend their pleadings should they wish to do so
  5. 5.Each party to bear their own costs of the two applications
  6. 6.The parties to communicate their decision on whether to stay these proceedings on 31st August, 2016 when the matter shall be mentioned for further orders

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 1 Rule 1
  • Penal CodeSection 357(a)

Cases cited (4)

  • D.T. DOBIE & COMPANY (KENYA) LTD VS MUCHINA
    (1982) K.L.R 1
  • MPAKA ROAD DEVELOPMENT LIMITED VS KANA
    2004 1 E.A 124
  • MOI UNIVERSITY VS VISHUA BUILDERS
    C.A CIVIL APPEAL NO. 296 of 2007
  • CENTRAL KENYA LTD VS TRUST BANK & 4 OTHERS
    C.A CIVIL APPEAL NO. 222 of 1998
Jurisdiction invoked
Order 2 Rule 15(1) and 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, "Wilson Mwangi Ramson v Mary Nyambura Njuguna & 6 others [2016] KEELC 817 (KLR)", Case Analysis (2016). Murang'a ELC (suit land LOC 2/KINYONA/217) - Notice of Motion dated 4th February 2014 and Notice of Motion dated 19th September 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/817/eng@2016-05-12

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