Prudenzio Nicholas Gaitara v Patrick Kariuki Muiruri & 2 others (? 1400 of 2013) (Environment and Land) [2017] KEELC 1755 (KLR)
The bottom line
#The Environment and Land Court refused to join the Land Registrar to a land dispute or remove his caveat, but left the door open for separate proceedings.
What this practically means
#Executive summary
#Key legal issues
#Joinder of the Land Registrar as a necessary party
The joinder was refused because the 3rd defendant did not demonstrate the registrar's legal interest in the subject matter or that his presence was necessary for effectual adjudication, and the application was to some extent res judicata having replicated the earlier dismissed application of 30th July 2015
Under Order 1 rule 10(2), a person may be joined only if they ought to have been joined or their presence is necessary for complete adjudication. The court relied on Deported Asians Property Custodian Board v Jaffer Brothers and the tests in Werrot & Co Ltd and Kingori v Chege. The 3rd defendant did not show a right to relief against the registrar or that an effective order required his presence; joinder was sought solely to remove the caveat. The earlier ruling of 29th January 2016 had already considered and rejected similar joinder, and nothing new was placed before the court.
Removal of the caveat lodged by the Land Registrar
The order for removal of the caveat was refused because it depended on the joinder limb, and orders cannot be made against a party not before the court
The second limb of the application was contingent on the first. Since the Land Registrar was not joined, the court had no jurisdiction to order removal of the caveat lodged by that registrar. The court noted that section 78(2) of the Land Registration Act empowers the court to order removal or variation of a restriction, but this power could not be exercised in the absence of the registrar. The 3rd defendant was left free to file separate proceedings against the registrar for removal of the caveat, which would not amount to multiplicity of suits.
Legal principles established
#- The court can only join a person to an existing suit where that person ought to have been joined under Order 1 rules 1 and 3, or where their presence is necessary to enable the court effectually and completely adjudicate upon all questions in the suit
- The wider principles of res judicata apply to interlocutory applications within a suit; there must be an end to applications of a similar nature
- A court cannot make orders against a party who is not before it
Court orders
#- 1.The 3rd defendant's application dated 4th February 2016 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Order 1 rule 10(2) of the Civil Procedure Rules and sections 76 and 78 of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Prudenzio Nicholas Gaitara v Patrick Kariuki Muiruri & 2 others (? 1400 of 2013) (Environment and Land) [2017] KEELC 1755 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1755/eng@2017-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.