Rose Wangari Ndungu & another v Catherine Njeri (Suing on behalf of the benefit of Estate of the late Gabriel Kungu Kamunu (Deceased) [2018] KEELC 1255 (KLR)
The bottom line
#A Kenyan court allowed a landowner to join a company through a counter-claim but refused her injunction and review, freezing any sale of the disputed property.
What this practically means
#Executive summary
#Key legal issues
#Omnibus applications
The application was an omnibus application mixing prayers, which courts frown upon, but the Court considered its substance rather than technicalities
The Court cited Bahriya Petroleum Ltd v Gulf Oil Co Ltd on the undesirability of mixing prayers requiring separate applications, but held that guided by Article 159 of the Constitution and Sections 1A and 1B of the Civil Procedure Act, substance would prevail over form and the application would be determined on its merits.
Injunction against a non-party
Injunctive orders cannot issue against the Intended 3rd Defendant as it is not yet a party; the application is premature
The Applicant sought an injunction against Stelluc Limited which had not yet been joined to the suit. The Court held that a party cannot be injuncted before being made a party, and further that a second application for injunction after one was dismissed offends the res judicata rule, citing Mwambeja Ranching Co. Ltd v Kenya National Capital Corporation Ltd.
Review under Section 80 Civil Procedure Act and Order 45 Rule 1
The Applicant failed to establish discovery of new and important matter or evidence justifying review; the transfer post-dated the ruling and was not new discovery; appeal, not review, was the proper remedy
Review requires discovery of new and important matter not within the applicant's knowledge at the time of the order, an error apparent on the face of the record, or other sufficient reason. The sale to Stelluc Limited occurred on 14th June 2017, after the 23rd May 2017 ruling, so it was not new discovery. The Applicant also failed to attach the order sought to be reviewed. Citing Pancras T. Swai v Kenya Breweries Ltd, the Court held that dissatisfaction with a ruling is a ground for appeal, not review.
Joinder of a necessary party
Stelluc Limited is a necessary party whose presence is needed for complete settlement, but the Applicant as Defendant can only enjoin it through an amended Defence with a counter-claim
Under Order 1 Rule 10(2) the Court has discretion to add a person whose presence is necessary to effectually and completely adjudicate the suit. Since the suit property is now allegedly owned by Stelluc Limited and fraud is alleged in the sale, its presence is necessary. However, as the Applicant is a Defendant and not the Plaintiff, she can only join it via a counter-claim in an amended Defence.
Lis pendens
The doctrine of lis pendens applies: Stelluc Limited may use the suit property but is prohibited from selling or alienating it until the suit is determined
The suit property is allegedly now in the hands of Stelluc Limited while the Defendant/Applicant lays claim to it and the suit is pending. Relying on Bernedette Muriu v NSSF Board of Trustees and Section 52 of the Indian Transfer of Property Act, the Court issued preservation orders prohibiting further sale or alienation pending determination, while permitting ordinary use of the property.
Legal principles established
#- A party cannot be injuncted before being made a party to the proceedings
- An erroneous conclusion of law is a ground for appeal, not for review
- The doctrine of lis pendens restrains alienation of suit property pending determination of the suit
Court orders
#- 1.The Applicant granted leave to amend her Defence to include a counter-claim against Stelluc Co. Ltd, the joinder and amendment to be effected within 21 days
- 2.Prayers No. 3, 4 and 6 of the application dismissed entirely with costs to the Respondents
- 3.Stelluc Co. Ltd at liberty to use and/or utilize the suit property Dagoretti/Riruta/6213 but prohibited from selling or alienating it to other third parties until the suit is heard and determined (lis pendens)
- 4.The above orders issued for the purpose of preserving the suit property
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya and Sections 1A & 1B of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Wangari Ndungu & another v Catherine Njeri (Suing on behalf of the benefit of Estate of the late Gabriel Kungu Kamunu (Deceased) [2018] KEELC 1255 (KLR)", Case Analysis (2018). ELC No. 180 of 2017 (formerly ELC No. 1282 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1255/eng@2018-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.