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ELCAllowedNotice of Motion dated 21st May 2013 (suit unstated)· [2017] KEELC 3156 (KLR)

Lucia Nyagaki v Joel Kuria Ndungu & another [2017] KEELC 3156 (KLR)

High Court of Kenya
31 March 2017
MGMary M. Gitumbi
1,007 words in judgment
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The bottom line

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Kenya's High Court ruled that anyone claiming ownership of disputed land can join the case, and consolidated suits cannot be withdrawn unilaterally.

What this practically means

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Executive summary

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This ruling by Mary M. Gitumbi, J of the High Court at Nairobi, delivered on 31 March 2017, determined a Notice of Motion dated 21 May 2013 by Roy Gachungi Mungau seeking (i) joinder as an interested party, (ii) consolidation of HCCC No. 728 of 2005 and HCCC No. 1423 of 2005 with the present suit, and (iii) costs. The Applicant averred he purchased the suit property, Ruiru/Ruiru East Block 2/5042, from Rebecca Wanjiku Mukui in January 1992 and took possession, but in April 2005 found the Defendants building on it, claiming purchase through Benedette Wambui Njoroge. Both Benedette and Lucy Nyagaki had previously sued the Applicant and Mukui over the same property in HCCC No. 728 of 2005 and HCCC No. 1423 of 2005, which were consolidated by consent before Justice Ojwang in December 2005. The Plaintiff opposed, asserting she had withdrawn HCCC No. 1423 of 2005 and that the application was meant to scuttle the hearing; the Defendants did not oppose. Framing the twin questions of who may be enjoined as an interested party and whether consolidation was warranted, the court applied Order 1 Rule 10(2) of the Civil Procedure Rules, 2010, the Supreme Court's definition in Trusted Society of Human Rights Alliance v Mumo Matemo, and the Court of Appeal's statement of the object of consolidation in David Ojwang' Okebe. Holding that the Applicant had a stake in the property and that a consolidated suit cannot be withdrawn by one party, the court allowed the application, enjoined the Applicant as an interested party, consolidated the suits with this file as lead file, and ordered costs in the cause.

Key legal issues

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01

Joinder of an interested party

Holding

The Applicant, a self-described bona fide purchaser claiming ownership of the suit property, has a stake warranting joinder as an interested party under Order 1 Rule 10(2).

Reasoning

Order 1 Rule 10(2) permits joinder of a person whose presence is necessary to effectually and completely adjudicate upon and settle all questions in the suit. Applying the Supreme Court's definition in Trusted Society of Human Rights Alliance, the court found the Applicant claims ownership of the same property in dispute and his participation is necessary for complete adjudication.

p. 2
02

Consolidation of suits

Holding

The suit was consolidated with the previously consolidated HCCC No. 728 of 2005 and HCCC No. 1423 of 2005, this file being the lead file.

Reasoning

Relying on the Court of Appeal's articulation of the object of consolidation in David Ojwang' Okebe, the court held that where there are common questions of law or fact or relief in respect of the same transaction, consolidation is desirable. All suits concern ownership of the same parcel, Ruiru/Ruiru East Block 2/5042.

p. 3
03

Effect of consolidation on purported withdrawal of a suit

Holding

The Plaintiff could not validly withdraw HCCC No. 1423 of 2005 because it had been consolidated with HCCC No. 728 of 2005 by consent orders; a consolidated suit cannot be withdrawn by one party.

Reasoning

The court reasoned that once suits are consolidated they become one proceeding; unilateral withdrawal is ineffective. This negated the Respondent's objection that her withdrawal of HCCC No. 1423 of 2005 paved the way for the instant suit.

p. 2

Legal principles established

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  • An interested party is one with a stake in the proceedings who will be affected by the decision of the court.
  • A consolidated suit remains alive and cannot be withdrawn by one party alone.
  • The main object of consolidation is to save costs and time by avoiding a multiplicity of proceedings covering largely the same ground.

Court orders

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  1. 1.Roy Gachungi Mungau be joined as an interested party in these proceedings
  2. 2.HCCC No. 728 of 2005 and HCCC No. 1423 of 2005 be consolidated with this suit, with this file as the lead file
  3. 3.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rule 10(2)

Cases cited (2)

  • Trusted Society of Human Rights Alliance versus Mumo Matemo & 5 Others
    (2014) eKLR
  • David Ojwang’ Okebe & 11 Others v South Nyanza Sugar Company Limited & 2 Others
    CA Kisumu Civil Appeal (Appl) No. 139 of 2008 (2009) eKLR
Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules, 2010

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, "Lucia Nyagaki v Joel Kuria Ndungu & another [2017] KEELC 3156 (KLR)", Case Analysis (2017). Notice of Motion dated 21st May 2013 (suit unstated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3156/eng@2017-03-31

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