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ELCPartially AllowedChamber Summons dated 1st July 2016 (suit property L.R No. Thegenge/Karia/870)· [2018] KEELC 2294 (KLR)

Mercy Watar Nderitu & 3 others v Susan Wairimu Wahoro & 2 others [2018] KEELC 2294 (KLR)

Environment and Land Court
9 March 2017
LWL N Waithaka
1,483 words in judgment
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The bottom line

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A Kenyan court allowed land buyers to drag their sellers into a property dispute, but refused to restrict dealings on land now owned by an outsider.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nyeri (L N Waithaka, J) determined a chamber summons dated 1st July 2016 by which the 1st to 4th defendants sought leave to issue a third party notice against Alleygram Consultants Limited and Albert John Muchiri, the parties who had sold them the suit property, L.R No. Thegenge/Karia/870. The defendants contended the intended third parties were necessary to fairly determine all issues; the plaintiff opposed, arguing misjoinder and that the defendants' occupation was illegal for want of Land Control Board consent, and objected to the plea for an order of inhibition after the property was transferred to Peter Gicha Mwangi during the suit. The court, heard inter partes despite the ex parte default under Order 1 Rule 15(1) CPR, held that since the defendants occupied the property under an agreement with the intended third parties, who had an agreement with the plaintiff which she allegedly rescinded, and since the plaintiff sought general damages against the defendants, joinder was warranted. On the consent issue, the court held that mere lapse of the six-month period in Section 8 of the Land Control Act renders a controlled transaction voidable, not void; it is refusal by the Board under Section 9(2) that voids it, and there was no evidence of such refusal. Leave for the third party notice was granted as prayed, but the order of inhibition was declined because the current proprietor, not being a party, had to be heard first.

Key legal issues

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01

Whether leave to issue a third party notice should be granted

Holding

Granted - the intended third parties sold the suit property to the applicants and are necessary for fair and effectual determination of all issues

Reasoning

The applicants entered the suit property pursuant to an agreement with the intended third parties, who in turn had an agreement with the plaintiff that she allegedly rescinded. Since the plaintiff seeks general damages against the applicants, joining the third parties allows all issues on the subject matter to be determined as between plaintiff, defendants and third parties under Order 1 Rule 15(1) CPR.

p. 2
02

Whether the applicants' occupation is illegal for want of Land Control Board consent

Holding

At this stage the occupation cannot be declared illegal; lapse of time for applying for consent makes the transaction voidable, not void

Reasoning

There was no evidence the transaction between the plaintiff and the intended third parties was subjected to Sections 8 and 9 of the Land Control Act or that consent was refused. Section 8(1)'s proviso permits the High Court to extend time even after six months, so lapse of time alone does not void the transaction; it is refusal by the Board under Section 9(2) that does.

p. 2
03

Whether an inhibition should issue against the suit property

Holding

Declined for now, since the current proprietor is not a party and must be heard first

Reasoning

The suit property was transferred to Peter Gicha Mwangi during the pendency of the suit. Because the registered proprietor is not before the court on the inhibition question, fairness requires affording him an opportunity to be heard before any inhibition is considered.

p. 3

Legal principles established

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  • Lapse of the six-month period for applying for Land Control Board consent under Section 8 of the Land Control Act renders a controlled transaction voidable, not void; it is refusal of consent by the Board under Section 9(2) that renders the transaction void
  • A third party whose agreement underlies the dispute is a necessary party where issues should be determined as between all parties to the subject matter

Court orders

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  1. 1.Leave granted to the defendants/applicants to issue a third party notice upon Alleygram Consultants Limited and Albert John Muchiri
  2. 2.Application for an order of inhibition declined pending hearing of the current proprietor

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 15(1)
  • Land Control ActSection 8, Section 8(1), Section 9, Section 9(2), Sections 11 and 13
  • Land Registration ActSection 28
  • Penal CodeSection 91
Jurisdiction invoked
Order 1 Rule 15(1) 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, "Mercy Watar Nderitu & 3 others v Susan Wairimu Wahoro & 2 others [2018] KEELC 2294 (KLR)", Case Analysis (2017). Chamber Summons dated 1st July 2016 (suit property L.R No. Thegenge/Karia/870). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2294/eng@2018-03-09

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