Irine Mwango Anasi (suing as the legal administratix of the Estate of Abigael Kemunto Opande – Deceased) v Jared Tom Ngiti Opande & 5 others [2018] KEELC 1456 (KLR)
The bottom line
#A Kenyan court refused to undo an order joining a land-selling company to a land fraud suit, because the company's lawyer simply missed the hearing date.
What this practically means
#Executive summary
#Key legal issues
#Whether the hearing of 12th March 2018 proceeded properly in the absence of the proposed 6th defendant
The hearing was properly conducted; the date was taken in the presence of all parties, who were duly served, and the proceedings were not ex parte
The hearing date of 12th March 2018 was fixed in open court on 19th February 2018 when Mr. Mose Nyambega appeared for the proposed 6th defendant and obtained extension of time to file submissions. Counsel was absent and had not filed submissions by the hearing date. Because the date was given in court in the presence of all affected parties, there was no question of want of service, and the court was entitled to proceed and hear the parties present.
Whether the joinder of the 6th defendant was a judicious exercise of discretion
Yes; the 6th defendant is a necessary party since the root of the 3rd defendant's title lies in parcels sold to it by the 6th defendant, whose title is under challenge as fraudulently derived
The plaintiff alleges the parcels transferred to Inka Holdings were fraudulent subdivisions of the deceased's land effected despite a subsisting prohibitory injunction. The 3rd defendant dealt only with the 6th defendant, so it can only seek explanation of title and any cross-claim from the 6th defendant. The 6th defendant cannot extricate itself by saying the sale to the 3rd defendant was completed, since the suit puts in issue whether it had good title to pass.
Whether the 6th defendant satisfied the grounds for review under Order 45 Rule 1
No; the alleged misdiarisation by counsel is neither new matter, error apparent on the face of the record, nor sufficient cause, and no prejudice will be suffered
The order for joinder did not depend on submissions but on the pleadings and material on record, and the court could even have joined the party suo moto. The 6th defendant retains the opportunity to file a defence and answer the cross-action, so it suffers no prejudice. Counsel's inadvertent mistake of misdiarising the date does not meet the review threshold.
Whether the arbitration clause in the sale agreement ousted the court's jurisdiction over the 3rd defendant's claim against the 6th defendant
No; the dispute predates and does not arise from the sale agreement, which was fully performed
The 6th defendant relied on Clause 23 of the sale agreement requiring arbitration. The court held the dispute in suit concerns the authenticity of the titles the 6th defendant acquired from the 1st and 2nd defendants before selling to the 3rd defendant, not matters arising from the performed contract; hence the court retains jurisdiction to determine those issues.
Legal principles established
#- The court has an unfettered discretion under Order 1 Rule 10(2) to order joinder of a party at any stage; the principal consideration is whether the party's presence is necessary to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit
- An applicant for review must establish discovery of new and important matter, an error apparent on the face of the record, or other sufficient cause, and must apply without unreasonable delay
- Counsel's misdiarisation of a hearing date is a mistake by counsel that does not qualify as a ground for review where the hearing was not ex parte
- An arbitration clause in a fully performed sale agreement does not oust the court's jurisdiction to determine disputes over the authenticity of titles acquired before and independent of that agreement
Court orders
#- 1.The 6th defendant's Notice of Motion dated 19th March 2018 seeking review of the order of 12th March 2018 is dismissed with costs to the plaintiff and the 3rd defendant
- Jurisdiction invoked
- Inherent and original jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Motempa Suakei Siteya (Suing as the Legal of the Estate of Suakei Ole Siteya Korongolo) v Charles Omondi Olute & 4 others [2019] KEELC 587 (KLR)[2019] KEELC 587 (KLR)14 Nov 2019
- Lucy Wamuyu Marubu v Mercy Njoki Irungu [2017] KEELC 2787 (KLR)[2017] KEELC 2787 (KLR)7 Mar 2017applied
Cite this brief
#Cite this brief
Caselaw, "Irine Mwango Anasi (suing as the legal administratix of the Estate of Abigael Kemunto Opande – Deceased) v Jared Tom Ngiti Opande & 5 others [2018] KEELC 1456 (KLR)", Case Analysis (2018). Ruling on Notice of Motion dated 19th March 2018 (Kisii High Court; suit concerning LR No. Nyaribari Chache/Keumbu/3728). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1456/eng@2018-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.