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ELCPartially AllowedNotice of Motion dated 26th April 2016 and Notice of Motion dated 9th May 2016 in a consolidated suit· [2017] KEELC 2713 (KLR)

Besnson Ritho Muriithi (Suing as the Administrator of the Estate of Joseph Maingi Muriithi) v George Ngugi Karungo & 2 others [2017] KEELC 2713 (KLR)

Environment and Land Court
28 April 2017
1,886 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Nairobi land court joined one buyer to a property dispute and stopped construction, but refused to join another whose interest lacked evidence.

What this practically means

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Executive summary

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The 1st defendant brought two applications in a consolidated suit concerning disputed Embakasi plots. By a Notice of Motion dated 26th April 2016 he sought leave to join Susan Njoroge as the 15th interested party and an injunction restraining her from interfering with Plot No. 263. By a Notice of Motion dated 9th May 2016 he sought leave to join David Mungai Mwaura as the 16th interested party and an injunction restraining him from interfering with Plot No. 388. The 1st defendant alleged that both proposed parties claimed to have purchased the plots from the plaintiff and were constructing thereon in breach of court orders issued on 25th February 2013 and 26th July 2013. The plaintiff opposed, contending that Plot No. 263 had been sold to Next Technologies Ltd and that the applications were intended to delay the main suit. The court framed two issues: whether joinder should be allowed and whether temporary injunctions should issue. Applying the liberal-joinder principles in Peter Nganga Muiruri v Housing Finance Co of Kenya Ltd, the court dismissed the first application, finding no material showing Susan Njoroge's interest in Plot No. 263 or any construction by her. However, there was evidence that Plot No. 388 was in the possession of a third party carrying out construction contrary to the order of 26th July 2013, which the court accepted was David Mungai Mwaura. He was joined as the 15th interested party and an injunction was granted against him, applying the Nguruman prima facie case test. The application dated 9th May 2016 was allowed with costs to the 1st defendant.

Key legal issues

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01

Whether Susan Njoroge (proposed 15th interested party) should be joined and restrained from interfering with Plot No. 263

Holding

The application was refused; no basis for joinder or injunction was established

Reasoning

Plot No. 263 was said to have been sold by the plaintiff to Next Technologies Ltd, who was not being joined. The 1st defendant placed no material showing Susan Njoroge's interest in the plot, nor evidence of any sale to her or of construction by her. Joinder would not assist the court in determining the issues, and no basis existed for an injunction at the 1st defendant's instance.

p. 3
02

Whether David Mungai Mwaura (proposed 16th interested party) should be joined and restrained from interfering with Plot No. 388

Holding

Joinder was allowed and a temporary injunction was granted

Reasoning

The order of 26th July 2013 presupposed the 1st defendant's possession of Plot No. 388 and restrained him from further construction. There was evidence that construction was ongoing on the plot in possession of a third party, which the court accepted was the proposed interested party, contrary to the court order. He was served but did not respond. A prima facie case with threatened violation of right was therefore established, warranting joinder and an injunction.

p. 4
03

The test for joinder of parties

Holding

Joinder should be liberally allowed where necessary for complete adjudication, subject to considerations of delay, prejudice and cause of action

Reasoning

The court applied the settled principles from Peter Nganga Muiruri v Housing Finance Co of Kenya Ltd, quoting them verbatim: joinder is permitted at any stage where necessary to enable the court to efficaciously and completely adjudicate, but may be refused where it clouds issues, causes delay, or where no cause of action arises or the other party would suffer uncompensatable prejudice.

p. 3

Legal principles established

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  • Applications for joinder of parties should be liberally allowed but may be refused where the joinder will confuse issues, cause delay or prejudice, or where no cause of action arises against the party to be joined
  • A party seeking a temporary injunction must show a clear and unmistakable right directly threatened by the act sought to be restrained

Court orders

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  1. 1.The application dated 26th April 2016 is dismissed with no order as to costs
  2. 2.The application dated 9th May 2016 is allowed in terms of prayers 3 and 4, David Mungai Mwaura being joined in the consolidated suit as 15th interested party
  3. 3.A temporary injunction issues against the joined interested party restraining him from entering into, alienating, developing or in any way interfering with Plot No. 388
  4. 4.The 1st defendant shall have the costs of the application dated 9th May 2016

Authorities

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Legislation

  • Civil Procedure Act / Rules on joinder and amendment of pleadingsNot specifically cited

Cases cited (4)

  • Peter Nganga Muiruri vs. Housing Finance Co of Kenya Ltd & 2 others
    (2016) eKLR
  • Beoco Ltd vs. Alfafa Laval Co. Ltd
    [1994] 4 ALL ER 464
  • Central Kenya Ltd vs. Trust Bank and 4 others
    CA No. 222 of 1998
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 others
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (disputed parcels L.R No. 27903/263 and L.R No. 27903/388); no specific constitutional or statutory provision cited

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, "Besnson Ritho Muriithi (Suing as the Administrator of the Estate of Joseph Maingi Muriithi) v George Ngugi Karungo & 2 others [2017] KEELC 2713 (KLR)", Case Analysis (2017). Notice of Motion dated 26th April 2016 and Notice of Motion dated 9th May 2016 in a consolidated suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2713/eng@2017-04-28

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