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ELCDismissedNot stated in judgment (Notice of Motion dated 25/4/2017)· [2017] KEELC 1636 (KLR)

Benson Maina Gathithi Mugi & another v John S. Njire Maina & another [2017] KEELC 1636 (KLR)

Environment and Land Court
28 September 2017
JKJ. G. Kemei
1,368 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to add two KANU members to an existing property suit because their interests were already represented.

What this practically means

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Executive summary

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Daniel Mururia Githu and Irungu Jessee Kabena applied under Order 51 rule 1 of the Civil Procedure Rules to be joined as parties to a suit concerning the sale of a KANU property at Makuyu Market. They deponed that they were KANU members and members of the public seeking to protect party property allegedly sold by unauthorised officials without the mandate of the KANU National Governing Council, and later that they were business partners of Simon Kairu, a tenant on the premises, whose rent arrangements would be affected by any change of ownership. KANU head office opposed, disputing the applicants' membership (their cards did not appear on the register) and asserting they lacked locus, relying on Law Society of Kenya v Commissioner of Lands on the need to show personal prejudice. The 1st Defendant, the alleged purchaser, also opposed, noting the applicants had not clarified the capacity in which they sought to be joined. The court, J. G. Kemei J, framed one question: whether the applicants could be joined. Applying Order 1 of the Civil Procedure Rules and Central Kenya Ltd v Trust Bank, the court held that the alleged improper sale was already being canvassed by the existing Plaintiffs (Kiharu KANU branch members) against KANU head office and the purchaser; the applicants' interests were not shown to stand to be violated; and the tenancy and partnership claims were new matters unsupported by documents, involving non-parties and governed by landlord-tenant arrangements. The application was dismissed. No costs order was stated.

Key legal issues

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01

Whether the applicants should be joined as parties to the suit

Holding

The application for joinder was dismissed as unmerited.

Reasoning

The court applied Order 1 of the Civil Procedure Rules: joinder requires a common question of law or fact and should be refused where unnecessary, prejudicial, or duplicative. The alleged improper sale of the KANU property is already canvassed by the existing Plaintiffs (Kiharu KANU branch members) against KANU head office and the purchaser. The applicants' alleged interest as KANU members and public-interest claimants did not show personal prejudice. Their tenancy/partnership claim was new, unsupported by documents, and involved non-parties, being a landlord-tenant matter outside this suit.

p. 3

Legal principles established

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  • Joinder of parties may be refused where it would cause practical difficulties, is unnecessary, or occasions delay or costs; a common question of law or fact must arise between existing and intended parties.
  • An application for joinder may be disallowed where the issues raised by the applicants are already canvassed by the pleadings of the existing parties.
  • A party seeking locus must show that his own interest has been or is about to be prejudiced (as submitted by the 2nd Respondent citing Law Society of Kenya v Commissioner of Lands).

Court orders

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  1. 1.The applicants' application dated 25/4/2017 is dismissed

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure RulesOrder 1
  • Advocates ActNot specified (cited in 1st Defendant's grounds of opposition)

Cases cited (2)

  • Law Society of Kenya Vs Commissioner of Lands & Others
    (2000) eKLR
  • Central Kenya Ltd vs. Trust Bank & 4 others
    CA No. 222 of 1998 (unreported)
Jurisdiction invoked
Order 51 rule 1 of the Civil Procedure Rules; joinder governed by Order 1 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, "Benson Maina Gathithi Mugi & another v John S. Njire Maina & another [2017] KEELC 1636 (KLR)", Case Analysis (2017). Not stated in judgment (Notice of Motion dated 25/4/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1636/eng@2017-09-28

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