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ELCDismissed· [2017] KEELC 1755 (KLR)

Prudenzio Nicholas Gaitara v Patrick Kariuki Muiruri & 2 others (? 1400 of 2013) (Environment and Land) [2017] KEELC 1755 (KLR)

Environment and Land Court
26 July 2017
4,277 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (S. Okong'o J) determined the 3rd defendant's Notice of Motion dated 4th February 2016 in a suit concerning the validity of the transfer of L.R No. 4953/2414 in Thika Municipality. The application sought two orders: leave to join the Land Registrar, Central Registry Nairobi as a party to the suit, and an order directing the registrar to remove the caveat lodged on the suit property's title on 9th April 2015. The 3rd defendant, claiming to be the registered proprietor, argued that the caveat was lodged without notice or hearing, contravened sections 76 and 77 of the Land Registration Act and Articles 40 and 47 of the Constitution, and that the registrar was a necessary party under Order 1 rule 10 of the Civil Procedure Rules. The plaintiff opposed, contending the application was premature because the suit was stayed pending leave to proceed as a derivative action, that joinder had not been shown to be necessary, and that the 3rd defendant's title was under challenge for fraud. The 1st and 2nd defendants similarly opposed, alleging the 3rd defendant's registration was fraudulently procured. The court declined the joinder, holding the 3rd defendant had not demonstrated that the registrar was a necessary party, that the application substantially replicated an earlier dismissed application and was to some extent res judicata, and that the registrar's joinder was sought solely to lift the caveat. The caveat-removal limb fell with the joinder limb since orders cannot issue against a non-party. The application was dismissed with no order as to costs, and the 3rd defendant was left at liberty to institute separate proceedings against the registrar.

Key legal issues

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01

Joinder of the Land Registrar as a necessary party

Holding

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

Reasoning

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.

p. 5
02

Removal of the caveat lodged by the Land Registrar

Holding

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

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The 3rd defendant's application dated 4th February 2016 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 40(3)(a) and (b)
  • Constitution of KenyaArticle 47(1)
  • Constitution of KenyaArticle 159
  • Land Registration Actsections 76(1), 76(2), 76(3), 77, 78(2)
  • Registration of Titles Act (now repealed)section 65(1)(f)
  • Civil Procedure Actsections 1A, 1B and 3A
  • Civil Procedure RulesOrder 1 rules 1, 3 and 10(1)-(4)

Cases cited (13)

  • R. vs. National Land Commission & another exparte Esther Waringa Ndirangu
    JR Appl. No. 241 of 2014
  • Emfil Limited vs. Registrar of Titles Mombasa & 2 others
    CA No. 312 of 2012
  • Matoya vs. Standard Chartered Bank (K) Ltd & others
    (2003) 1 EA 140
  • Ezekiel Misango Mutisya vs. National Lands Commission & 5 others
    JR case No. 400 of 2013
  • Itrade Company Ltd vs. Jane Mukami Mwanigi
    ELC Misc. 225 of 2014
  • Foss vs. Harbottle
  • Dadani vs. Manji & 3 others
    Nairobi HCCC No. 913 of 2002
  • John Kamau Mbugua vs. The Standard Ltd & KTN Baraza Ltd
    Nairobi HCCC No. 270 of 2011
  • Deported Asians Property Custodian Board vs. Jaffer Brothers Limited
    (1999) 1 EA 55 (SCU)
  • Pravin Bowry vs. John Ward and another
    (2015) eKLR
  • Werrot and Company Ltd. and others vs. Andrew Doughlas Gregory and others
    Nairobi (Milimani) HCCC No. 2363 of 1998 (1998) LLR 2848 (CCK)
  • Kingori vs. Chege & 3 others
    [2002] 2 KLR 243
  • Uhuru Highway Development Limited vs. Central Bank of Kenya & 2 others
    Nairobi CA No. 36 of 1996
Jurisdiction invoked
Order 1 rule 10(2) of the Civil Procedure Rules and sections 76 and 78 of the Land Registration Act

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, "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.