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ELCPartially AllowedNot stated in the judgment (Notice of Motion filed 8/5/2018)· [2018] KEELC 908 (KLR)

Waithira Mwangi v Wanjiru Mwangi & another [2018] KEELC 908 (KLR)

Environment and Land Court
1 November 2018
JKJ.G. Kemei
1,359 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a tea buying centre to join a land dispute, confirming that a dismissed application is not the same as one heard and decided on its merits.

What this practically means

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Executive summary

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The Applicant, Nyona Tea Buying Centre, moved the Environment and Land Court at Murang'a by Notice of Motion filed in 2018 seeking to be added as an interested party to a suit concerning L.R No. LOC 18/GACHOCHO/839, with liberty to participate in the proceedings. It claimed the registered owner donated 0.1 acres of the suit land on which it constructed and commissioned a tea buying centre with the owner's authority, and sought to assert entitlement to that portion by adverse possession after over 12 years of open and uninterrupted occupation. Both the Plaintiff and the Defendant opposed the application: the Plaintiff argued it repeated a withdrawn application, that the suit land was registered in the name of Mwangi Philip Kiguta rather than Isaac Kamau Mwangi, and that the Applicant had not annexed the nature of its claim; the Defendant argued the application was res judicata, a similar application having been dismissed on 29/3/2018, and an abuse of process. Guided by Order 1 Rule 10(2) of the Civil Procedure Rules and the authorities of Lucy Nungari Ngigi and Kingori v Chege, the court adopted a liberal approach to joinder. It rejected the res judicata objection because the earlier application was merely dismissed, not heard and determined, and found the Applicant had disclosed an adverse possession claim sharing a commonality of facts with the claims of both existing parties. The court allowed the application, enjoined the Applicant as an interested party, directed it to file and serve pleadings within 14 days with corresponding leave to the Plaintiff and Defendant, ordered compliance with Order 11, and directed that the Applicants meet the costs of the application.

Key legal issues

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01

Res judicata as a bar to the joinder application

Holding

The application is not res judicata because the earlier application was dismissed without being heard and determined on the merits

Reasoning

The Defendant argued that a similar application had been dismissed on 29/3/2018 and that the present application was therefore res judicata. The court held that dismissal for non-disclosure of a claim is not a hearing and determination on the merits; res judicata requires a prior suit heard and determined between the same parties.

p. 2
02

Joinder of an interested party

Holding

The Applicant's adverse possession claim shares a commonality of facts with the existing dispute over the suit land and its joinder is necessary for complete adjudication without prejudice to existing parties

Reasoning

The court applied Order 1 Rule 10(2) and the liberal approach in Lucy Nungari Ngigi and Kingori v Chege. The Applicant claimed 0.1 acres of LOC 18/GACHOCHO/839 by adverse possession; the same land is claimed by both Plaintiff and Defendant, so a common question of fact or law arises and no prejudice would be occasioned by joinder.

p. 2

Legal principles established

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  • Joinder of parties may be declined where the cause of action proposed or the relief sought is incompatible with or totally different from the existing cause of action or relief
  • In deciding an application for joinder the Court must exercise a liberal approach so as not to shut out a genuine litigant
  • A dismissal of an application for not disclosing a claim is not a determination on the merits and does not found res judicata

Court orders

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  1. 1.The interested party is enjoined as a party to the suit
  2. 2.The interested party to file and serve its pleadings within 14 days from the date of the ruling
  3. 3.Corresponding leave granted to the Plaintiff and the Defendant to file and serve any responses
  4. 4.Parties to comply with Order 11 and set the suit for hearing
  5. 5.Costs of the application to be met by the Applicants

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 7 Rule 9
  • Civil Procedure RulesOrder 11

Cases cited (2)

  • Lucy Nungari Ngigi & 128 Others vs. National Bank of Kenya Limited & Anor
    Civil Case No. 517 of 2014 (2015) eKLR
  • Kingori vs. Chege
    (2002) 2 KLR 243
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, "Waithira Mwangi v Wanjiru Mwangi & another [2018] KEELC 908 (KLR)", Case Analysis (2018). Not stated in the judgment (Notice of Motion filed 8/5/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/908/eng@2018-11-01

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