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ELCPartially AllowedNot stated in the judgment· [2017] KEELC 386 (KLR)

Joseph Kipkorir Kipserem v William Cherono [2017] KEELC 386 (KLR)

Environment and Land Court (unnamed in the judgment; inferrable from subject matter only)
22 November 2017
1,551 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer with a real stake in a dispute won the right to join the case as an interested party, but couldn't restart the proceedings.

What this practically means

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Executive summary

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This ruling by M.A Odenty J, dated 22 November 2017, determines a Notice of Motion dated 2 June 2015 by which Mary Jelagat Kibiwot sought to be enjoined to a land dispute over parcels TINGWA/CHESUBET/196 and 255 as an interested party, together with stay of proceedings, setting aside of all proceedings and a hearing de novo. The dispute concerns two allotted plots: the plaintiff was allotted plot No. 196 and the applicant plot No. 255, but pursuant to an exchange agreement the applicant occupied and developed plot No. 196. A surveyor's report, filed after a consent of 15/7/13, confirmed the applicant's occupation of plot No. 196. The defendant opposed the application, contending that the interested party should instead seek to be joined as plaintiff or defendant and file a counterclaim, and that the survey report resolved ownership. The court framed three issues: whether the applicant may be enjoined under the Civil Procedure Rules; whether she demonstrated a stake or interest in the subject matter; and whether joinder would avoid multiplicity of suits and save judicial time. Noting there is no express procedure for joining interested parties, the court invoked the court's inherent jurisdiction, the overriding objective, and Order 1 Rule 10(2), applying Maria Soti Educational Trust and the Supreme Court's decision in Communications Commission of Kenya. Finding that the prayers in the plaint would substantially affect the applicant's rights and that a separate suit would multiply costs and risk inconsistent outcomes, the court allowed joinder but denied prayers 2 and 4 for stay, setting aside and a de novo hearing. Directions were given for the filing of a response and reply within fourteen days each, before pre-trial directions. No costs order was made.

Key legal issues

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01

Whether there is a procedure under the Civil Procedure Act and Rules for joinder of interested parties

Holding

There is no express procedure; a person seeking joinder as an interested party invokes the court's inherent jurisdiction and the overriding objective, using Order 1 Rule 10(2) as courts have often done

Reasoning

The court noted that the Civil Procedure Act and Rules do not provide a procedure for joining 'interested parties'. Courts have nevertheless used Order 1 Rule 10(2), which allows addition of any person whose presence is necessary to effectually and completely adjudicate on all questions. The applicant's counsel invoked the inherent jurisdiction and the overriding objective of facilitating just, expeditious, proportionate and affordable resolution of disputes, which the court accepted as the proper route.

p. 3
02

Whether the applicant has a stake or interest in the subject matter of the suit

Holding

Yes. The applicant was allotted plot No. 255, took occupation of plot No. 196 pursuant to an agreed exchange, developed it, and the survey report confirmed her occupation of plot No. 196

Reasoning

The court examined the prayers in the plaint, the consent of 15/7/13 directing a survey, and the surveyor's report confirming the applicant's occupation of parcel No. 196. Given the exchange agreement between the applicant and the plaintiff and the applicant's development of the land, the court found that the injunction and other prayers sought in the plaint would substantially affect the applicant's rights.

p. 2
03

Whether joinder avoids multiplicity of suits and saves judicial time

Holding

Yes. A separate suit would increase costs, place unfair demands on court time and resources, and risk inconsistent outcomes over the same subject matter

Reasoning

The court reasoned that requiring the applicant to file a separate suit against the defendant over the same subject matter would increase costs, unfairly consume judicial time and resources, and create the risk of similar disputes over the same subject matter producing different outcomes, which would embarrass the courts. Joinder within the existing suit was therefore the more efficient course.

p. 3

Legal principles established

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  • An interested party is one who has a stake in the proceedings and will be affected by the decision of the court either way, and whose interest will not be well articulated unless they appear in the proceedings
  • The thresholds for enjoining an interested party are: a stake in the case, an interest in the subject of the suit, and that joinder will avoid multiplicity of suits and save the court's time

Court orders

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  1. 1.The applicant, Mary Jelagat Kibiwot, is enjoined to the suit as an interested party
  2. 2.Prayers Nos. 2 & 4 for stay of proceedings, setting aside all proceedings and hearing the case de novo are denied
  3. 3.The applicant to file a response to the claim, if any, within Fourteen (14) days from the date of the ruling
  4. 4.The plaintiff and defendant may file a reply, if any, within fourteen days of service of the response, after which the matter to proceed for pre-trial directions
Jurisdiction invoked
Inherent jurisdiction of the court and Order 1 Rule 10(2) of the Civil Procedure Rules; overriding objective of the civil process

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, "Joseph Kipkorir Kipserem v William Cherono [2017] KEELC 386 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/386/eng@2017-11-22

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