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ELCAllowedNot stated in judgment· [2017] KEELC 202 (KLR)

Paola Rossi & 2 others v Christian Rossi & another [2017] KEELC 202 (KLR)

High Court of Kenya
31 October 2017
LKL. Komingoi
523 words in judgment
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The bottom line

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A Mombasa court allowed a land dispute defendant to add the Land Registrar and Attorney General to an ongoing case because their evidence mattered.

What this practically means

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Executive summary

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This ruling by L. Komingoi, Judge, delivered at Mombasa on 31st October 2017, determined a Notice of Motion dated 11th July 2017 brought by the Defendants/Applicants under Articles 48 and 159(2)(d) of the Constitution, Section 3A of the Civil Procedure Act, and Order 10 Rule (2) of the Civil Procedure Rules 2010. The application sought to enjoin the Honourable Attorney General and the Land Registrar, Kwale as necessary parties to the suit, with costs in the cause. It was supported by the affidavit of Taffere Abraha, donee of the applicants' power of attorney, and opposed by a replying affidavit of Paola Rossi, the Plaintiff/Respondent, who contended that the joinder was unprocedural and intended only to delay the suit. Although the applicants' counsel obtained leave to file a further affidavit and written submissions, none were filed by the time of the ruling. The court, noting that the defence case had been partly heard, framed the sole issue as whether the application ought to be allowed in the interest of justice. Accepting that the Land Registrar's evidence was crucial to the outcome, and guided by the constitutional command that justice be administered without undue regard to procedural technicalities, the court allowed the application, enjoined the Attorney General and the Land Registrar, Kwale as necessary parties, and ordered costs of the application to be in the cause. A hearing date of 11th December 2017 was fixed.

Key legal issues

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01

Whether the Attorney General and the Land Registrar, Kwale should be joined as necessary parties

Holding

The application was allowed; the court found the Land Registrar's evidence crucial and enjoined both parties in the interest of justice.

Reasoning

The court weighed the applicants' claim that the Land Registrar's evidence was fundamental against the respondent's objection that joinder was unprocedural and a delaying tactic. Guided by the constitutional principle that justice be administered without undue regard to procedural technicalities, and noting the defence case had been partly heard, the judge held that joinder served the overall just determination of the dispute and allowed the application.

p. 2

Legal principles established

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  • Justice shall be administered without undue regard to procedural technicalities, and a party may be joined as a necessary party in the interest of justice where their evidence is crucial to the outcome.

Court orders

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  1. 1.That the Attorney General and Land Registrar, Kwale be and are hereby enjoined as necessary parties to this suit
  2. 2.That costs of the application be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 3A
  • Civil Procedure Rules 2010Order 10 Rule (2)
Jurisdiction invoked
Articles 48 and 159(2)(d) of the Constitution; Section 3A of the Civil Procedure Act (Cap 21); Order 10 Rule (2) of the Civil Procedure Rules 2010; inherent jurisdiction of the court

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, "Paola Rossi & 2 others v Christian Rossi & another [2017] KEELC 202 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/202/eng@2017-10-31

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