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ELCAllowedNotice of motion application dated 3rd November 2017· [2018] KEELC 628 (KLR)

Martha Karwira Anthony v William Arianda Andere & another; Josephine Wanjiru Mwangi (Proposed Interested Party) [2018] KEELC 628 (KLR)

Environment and Land Court
16 November 2018
BEB M Eboso
1,432 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner was allowed to join an ongoing land case because any court decision would affect her ownership rights.

What this practically means

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Executive summary

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The applicant, Josephine Wanjiru Mwangi, applied by notice of motion dated 3rd November 2017 to be joined and to participate in a land suit concerning parcel Kajiado/Olchoro-Onyore/1156. She claimed she was the registered proprietor until a fraudulent transfer was registered in favour of the 1st defendant, William Arianda Andere; she held her original title dated 27th November 1986, discovered the fraudulent transfer in June 2011, and learnt of the suit in October 2017. She argued any orders in the suit would affect her constitutional and proprietary rights. The plaintiff opposed, asserting she purchased the property from the 1st defendant on 3rd June 2011 and that a restriction on the register, lodged at the applicant's behest, prevented transfer; she argued the application was a late, dilatory tactic and the applicant should file her own suit. The 2nd defendant did not oppose. Guided by Order 1 Rule 10 of the Civil Procedure Rules and the Central Kenya Ltd and Lucy Nungari Ngigi authorities, the court held the applicant was a necessary party: she claims ownership, holds the original title and is in possession, and it would be irrational to finalise the case and make orders on the property without her. The court also found that the plaint's prayers did not permit interlocutory judgment under Order 10(6), so the interlocutory judgment entered by the Deputy Registrar was irregular and was set aside. The applicant was joined as 3rd defendant with 21 days to file pleadings, and the suit was ordered transferred to the Kajiado Environment and Land Court after 30 days.

Key legal issues

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01

Whether joinder of the intended interested party should be allowed at the final stages of the suit

Holding

Joinder was allowed because the applicant claims ownership of the suit property, holds the original title and is in possession; she is a necessary party for effectual adjudication.

Reasoning

The applicant asserts she is the registered proprietor until a fraudulent transfer was effected, holds the original title and is in possession. The plaintiff had excluded her from the suit despite the restriction lodged at her behest. Locking her out and finalising the case would be irrational since any orders would affect her proprietary rights. The plaintiff's proposal that she file a separate suit was rejected as the determining factor is a common question of fact or law.

p. 2
02

Validity of the interlocutory judgment entered against the 1st defendant

Holding

The interlocutory judgment was entered in error and cannot stand, as the prayers in the plaint do not permit interlocutory judgment under Order 10(6).

Reasoning

The court examined the prayers sought in the plaint and found the suit is not amenable to interlocutory judgment under Order 10(6) of the Civil Procedure Rules. The judgment entered by the Deputy Registrar was therefore irregular and was set aside, with the suit to proceed as an undefended cause under Order 10 rule 9 if the 1st defendant fails to enter appearance.

p. 2

Legal principles established

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  • A person whose presence is necessary to enable the court effectually and completely to adjudicate upon all questions in the suit may be added at any stage of the proceedings.
  • A suit whose prayers are not of a kind amenable to interlocutory judgment cannot sustain such a judgment; one entered in error cannot stand.

Court orders

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  1. 1.The applicant Josephine Wanjiru Mwangi is hereby joined in this suit as a 3rd defendant.
  2. 2.The said Josphine Wanjiru Mwangi is allowed to file her pleadings, including counterclaim, if she so deems necessary, within 21 days.
  3. 3.The irregular interlocutory judgment entered herein is set aside and the suit against the 1st defendant shall proceed as an undefended cause under Order 10 rule 9 of the Civil Procedure Rules should the 1st defendant fail to enter appearance by the time the suit comes up for hearing.
  4. 4.Upon expiry of 30 days from today, the suit herein shall be transferred to Kajiado Environment and Land Court for hearing and determination

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10
  • Civil Procedure RulesOrder 10(6)
  • Civil Procedure RulesOrder 10 rule 9

Cases cited (2)

  • Central Kenya Ltd vs. Trust Bank & 4 others
    Civil Appeal No. 222 of 1998
  • Lucy Nungari Ngigi & 128 Others vs. National Bank of Kenya Limited & Anor.
    Civil Case No. 517 of 2014 (2015) eKLR
Jurisdiction invoked
Order 1 Rule 10 of the Civil Procedure Rules (joinder of parties)

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, "Martha Karwira Anthony v William Arianda Andere & another; Josephine Wanjiru Mwangi (Proposed Interested Party) [2018] KEELC 628 (KLR)", Case Analysis (2018). Notice of motion application dated 3rd November 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/628/eng@2018-11-16

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