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ELCPartially AllowedNotice of motion dated 23rd May 2018 in ELC NO. 266 of 2017· [2018] KEELC 446 (KLR)

Nyaega Mogocha Onsese v Magabe Mwita Ngweina [2018] KEELC 446 (KLR)

Environment and Land Court
14 November 2018
GOG. M. A. Ongondo
1,163 words in judgment
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The bottom line

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A woman who bought land at a public auction was allowed to join an ongoing Kenyan land dispute, but her request to have the land transferred to her was postponed until trial.

What this practically means

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Executive summary

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This is a ruling on a Notice of motion dated 23rd May 2018 by Dinah Matinde Nyaisara, the intended interested party, brought under Order 1 Rules 3 and 10 of the Civil Procedure Rules in an adverse possession suit (ELC No. 266 of 2017) commenced by originating summons on 11th February 2005, in which the plaintiff claims 2.65 hectares of the suit land by adverse possession against the defendant, the registered owner. The applicant sought to be enjoined as an interested party, sought transfer of the suit land to herself, and sought an order compelling the Executive Officer of Kehancha Law Courts to effect the transfer on behalf of the surety. She deponed that she purchased the land for Kshs. 200,000 at a public auction in execution of a decree in Kehancha SRM Criminal Case No. 987 of 2010, where the respondent had stood surety. The respondent opposed through an attorney, claiming lawful ownership and residence. Counsel for the applicant relied on Order 1 Rule 10(2) and the Lucy Nungari Ngigia case; counsel for the respondent maintained the status quo order of 1st November 2016, did not object to the joinder prayer, but urged that the transfer prayers await the hearing. The court held that joinder under Order 1 Rule 10(2) serves complete adjudication of all questions in the suit, and since the applicant showed a claim calling for adjudication alongside the claims of the plaintiff and defendant, she was entitled to be enjoined. Prayer 1 was allowed; prayers 2 and 3, being final in nature, were declined pending trial. Costs were in the cause.

Key legal issues

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01

Whether the purchaser at a public auction in execution of a decree should be enjoined as an interested party in a suit claiming the same land by adverse possession

Holding

Yes - the applicant showed she has a claim calling for adjudication together with the issues raised by the plaintiff and defendant, so she is entitled to be enjoined to the suit

Reasoning

The applicant claimed ownership as purchaser for value of the suit land bought at public auction in execution of a decree in a criminal case. The plaintiff and defendant also claim ownership of the same land. Since the applicant has shown a claim which calls for adjudication together with the issues raised by the plaintiff and defendant, joinder under Order 1 Rule 10(2) was merited to enable complete adjudication of all questions.

p. 2
02

Whether the court could grant transfer of the land and compel the Executive Officer at the interlocutory stage

Holding

No - those orders are final in nature and must await the hearing of the suit on merit

Reasoning

Orders 2 and 3 of the motion sought transfer of the suit land and compulsion of the Executive Officer to effect transfer. The court found these to be final relief that could only be determined at the hearing of the suit on merit, and declined them.

p. 2

Legal principles established

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  • Under Order 1 Rule 10(2) of the Civil Procedure Rules, the court has discretion to add or enjoin a party to a suit to enable it effectually and completely adjudicate upon and settle all questions involved in the suit

Court orders

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  1. 1.The applicant, Dinah Matinde Nyaisara, is enjoined to the suit as an interested party (order 1 of the Notice of motion dated 23rd May 2018 allowed)
  2. 2.Orders 2 and 3 sought in the motion declined
  3. 3.Costs of the motion be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 3, Order 1 Rule 10(2)

Cases cited (2)

  • Lucy Nungari Ngigia and others –v– National Bank of Kenya and another
    NBI HCCC NO. 517 of 2014
  • Ogada –v- Mollin
    (2009) KLR 620
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, "Nyaega Mogocha Onsese v Magabe Mwita Ngweina [2018] KEELC 446 (KLR)", Case Analysis (2018). Notice of motion dated 23rd May 2018 in ELC NO. 266 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/446/eng@2018-11-14

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