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ELCDismissed· [2017] KEELC 2723 (KLR)

Esther Watiri v Josiah Mwangi & 3 others [2017] KEELC 2723 (KLR)

Environment and Land Court
28 April 2017
SOS. OKONG'O
833 words in judgment
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The bottom line

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A Kenyan court refused to add Nairobi City County to a land dispute, ruling that a party you merely need information from is a witness, not a party.

What this practically means

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Executive summary

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This was a ruling on the Plaintiff's Notice of Motion dated 28th April 2015 in a land dispute over Plot No. 5/146, allocated to the Plaintiff on 4th March 1992. The Plaintiff alleged that the Defendants encroached on the plot, destroyed her structures and began erecting their own, and that she had been paying ground rent and rates to the Nairobi City Council and its successor, Nairobi City County. The Defendants had not filed a defence. The Plaintiff sought joinder of Nairobi City County as a necessary party under Order 1 Rule 10(2) of the Civil Procedure Rules, on the grounds that the County had allocated her the plot and could assist the court on ownership, plus an order maintaining the status quo. The County opposed through a replying affidavit sworn by its legal services director, Karisa Iha, contending that joinder was unnecessary since any information required could be availed without joining it as a party. Justice S. Okong'o held that the onus lay on the Plaintiff to establish a case for joinder; no dispute existed between the Plaintiff and the County, and joinder would not enable the court to effectually and completely adjudicate the issues, particularly as the issues were not yet even defined. Evidence on ownership could be obtained by witness summons. The status quo prayer was also refused, an injunction application of 13th March 2015 already being pending. The application was dismissed wholly with costs to the interested party.

Key legal issues

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01

Whether the interested party was a necessary party to the suit

Holding

The application for joinder failed because no dispute existed between the Plaintiff and the interested party and its joinder would not enable complete adjudication of the issues

Reasoning

The court exercised its discretion under Order 1 Rule 10(2), guided by the principles in Technomatic Limited and Meme vs. Republic cited by the Plaintiff. It found that the Plaintiff bore the onus of justifying joinder, that there was no dispute between her and the interested party, and that the ownership information she sought could be obtained by witness summons rather than by joining the County as a party.

p. 2
02

Whether the status quo order should issue

Holding

The prayer for maintenance of the status quo was refused for lack of valid grounds, noting a separate pending injunction application

Reasoning

The court noted the Plaintiff had already filed a Notice of Motion for injunction on 13th March 2015 which remained pending. No valid grounds were advanced for the status quo order in the present application, so the court found the prayer had no basis and refused it alongside the joinder prayer.

p. 2

Legal principles established

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  • The burden lies on the applicant seeking joinder to establish a case that the proposed party's presence is necessary for the court to effectually and completely adjudicate on all questions in the suit
  • A party from whom a litigant merely seeks information or evidence need not be joined; such evidence may be obtained by witness summons

Court orders

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  1. 1.The Plaintiff's Notice of Motion application dated 28th April 2015 is dismissed
  2. 2.Costs of the application awarded to the interested party

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (2)

  • Technomatic Limited T/A Promopack Company vs. Kenya Wine Agencies Ltd. & Another
    (2014) eKLR
  • Meme vs. Republic
    (2004) KLR 637
Jurisdiction invoked
Order 1 Rule 10(2) 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, "Esther Watiri v Josiah Mwangi & 3 others [2017] KEELC 2723 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2723/eng@2017-04-28

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