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ELCPartially AllowedCase No 313 of 2014· [2017] KEELC 2451 (KLR)

Ruth Wanja Mwangi v Samuel Mwaura Njuguna & 2 others [2017] KEELC 2451 (KLR)

Environment and Land Court
13 June 2017
DOD. O. Ohungo
685 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, administrator of the estate of James Mungai Ilaya alias James Mungai Iraya, moved the court by Notice of Motion dated 18th May 2015 in a dispute over parcels Miti Mingi/Miti Mingi Block 1/311 (Menengai) and Miti Mingi/Miti Block 1/312. She alleged the 1st defendant fraudulently obtained title to the parcels and that I.D Number 7807163 used in a purported sale agreement did not belong to the deceased. She sought three substantive orders: production by the 2nd Defendant of sale and transfer documents deposited at the District Lands Registry; production by the DCIO Naivasha of records of proceedings and minutes between the plaintiff and the 1st defendant; and disclosure by the Registrar of Persons of the identity of the bearer of I.D number 7807163. None of the defendants filed a response. At the hearing, counsel for the 1st defendant indicated no opposition, and counsel relied entirely on the application and supporting affidavit. The court noted the Attorney General, on record for the 2nd and 3rd defendants, had not opposed the application. However, it observed that the DCIO Naivasha and the Registrar of Persons were not parties to the suit and no case was pleaded against them in the plaint; the court cannot issue orders against persons who are not parties and have not been heard. Prayers 2 and 3 were therefore dismissed. Relying on section 22 of the Civil Procedure Act, which empowers the court to order discovery, the court granted prayer 1 unopposed, directing the 2nd Defendant to produce the registry documents, with costs to the plaintiff.

Key legal issues

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01

Whether discovery orders can issue against non-parties to the suit

Holding

Prayers 2 and 3, directed at the DCIO Naivasha and the Registrar of Persons, were dismissed because neither is a party to the suit and no case was pleaded against either of them.

Reasoning

The court observed that prayers 2 and 3 were directed at the DCIO Naivasha and the Registrar of Persons respectively, neither of whom is a party to the suit. Upon perusing the plaint, no case was pleaded against either. Since they had not been given a hearing, granting orders against them would condemn them unheard. Prayers 2 and 3 were therefore dismissed.

p. 2
02

Whether the 2nd Defendant should be compelled to produce land registry documents

Holding

Prayer 1 was granted, there being no opposition from the 2nd Defendant, on the strength of section 22 of the Civil Procedure Act which empowers the court to order discovery.

Reasoning

The application was brought, among others, under section 22 of the Civil Procedure Act, which empowers the court to order discovery. The Attorney General on record for the 2nd and 3rd defendants did not oppose the application. Consequently, the court ordered the 2nd Defendant to produce documents and/or certified copies of the sale and transfer documents deposited at the District Lands Registry for the two parcels.

p. 2

Legal principles established

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  • A court cannot issue orders against persons who are not parties to the suit before it and who have not been given a hearing (audi alteram partem)
  • Section 22 of the Civil Procedure Act empowers the court to order discovery and production of documents

Court orders

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  1. 1.Prayers 2 and 3 of the application dismissed
  2. 2.The 2nd Defendant/Respondent ordered to produce documents and/or certified copies thereof of all documents deposited at the District Lands Registry as pertains to parcels known as MITI MINGI/MITI MINGI BLOCK 1/311 (MENENGAI) and MITI MINGI/MITI BLOCK 1/312 being sale and transfer documents
  3. 3.Costs of the application to the plaintiff

Authorities

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Legislation

  • Civil Procedure Actsection 22
Jurisdiction invoked
Section 22 of the Civil Procedure Act (discovery and production of documents)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ruth Wanja Mwangi v Samuel Mwaura Njuguna & 2 others [2017] KEELC 2451 (KLR)", Case Analysis (2017). Case No 313 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2451/eng@2017-06-13

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