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ELCPartially AllowedELC Case at Kajiado (application dated 27th February 2018)· [2018] KEELC 2318 (KLR)

Leonard Roipa Pasha v Elijah Tende Ole Kula & 5 others [2018] KEELC 2318 (KLR)

Environment and Land Court
17 July 2018
COCHRISTINE OCHIENG
2,080 words in judgment
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The bottom line

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The court allowed a land buyer to join an ongoing Kajiado land case as an interested party, but refused to undo orders already carried out.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kajiado on a Notice of Motion dated 27th February 2018 by Principles Styles Ltd, an intended 2nd Interested Party, invoking Article 40 of the Constitution, Order 1 Rule 10(2) and Order 45 of the Civil Procedure Rules and Section 19 of the Environment and Land Court Act. The applicant sought joinder, a stay of execution of the court's orders of 27th September 2017 (directing establishment of boundaries over parcels KAJIADO/KAPUTIEI NORTH/20, 917, 712 and 705), and review of those orders. The applicant, a purchaser for value registered in September 2015 over parcel 2334 - a subdivision of the parcels the subject of the boundary orders - contended it was unaware of the pending suit and would suffer adverse encroachment. The plaintiff opposed, showing the boundary dispute dated back to a 1990 determination by the Kajiado District Land Registrar and subsequent High Court litigation, that the applicant bought from a member of the 3rd Defendant's family while the suit was pending, and that a beacon had already been fixed in November 2017. The court applied Order 1 Rule 10(2) and the Supreme Court's decision in Trusted Society of Human Rights v Mumo Matemo, holding the applicant's presence necessary for effective and complete adjudication since the ultimate decree could not be enforced without it. However, the review and stay prayers were declined as overtaken by events, the beacon having been placed. Only prayer 2 (joinder) was allowed; costs were in the cause.

Key legal issues

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01

Joinder of Principles Styles Ltd as 2nd Interested Party

Holding

Joinder allowed; the company's presence is necessary for effective adjudication since the ultimate orders and decree cannot be enforced without it

Reasoning

The applicant is the registered proprietor of a subdivision of parcels over which the court had made orders and was not party to the proceedings giving rise to them. Applying Order 1 Rule 10(2) and the Trusted Society test, the court found its presence necessary for effective and complete adjudication, and that no party would suffer prejudice from the joinder.

p. 3
02

Review and stay of execution of the orders of 27th September 2017

Holding

Both prayers declined as overtaken by events

Reasoning

The application was filed almost five months after the impugned order, and the uncontroverted evidence was that the District Land Registrar Kajiado had already visited the disputed land in November 2017 and placed a beacon there pursuant to the court's direction. Review and stay would therefore serve no purpose.

p. 3

Legal principles established

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  • An interested party is one with a stake in proceedings who will be affected by the court's decision and whose interest cannot be adequately articulated unless they appear
  • Under Order 1 Rule 10(2), the court may at any stage add a person whose presence is necessary to enable it effectually and completely adjudicate on the suit

Court orders

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  1. 1.PRINCIPLES STYLES LIMITED be enjoined in the proceedings as the 2nd Interested Party
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Civil Procedure ActSection 1A
  • Civil Procedure RulesOrder 1 Rule 10(2); Order 22 rule 22; Order 45 rule 1; Order 51
  • Environment and Land Court ActSection 19

Cases cited (1)

  • Trusted Society Of Human Rights v Mumo Matemo & 5 others
    [2014] eKLR
Jurisdiction invoked
Article 40 of the Constitution; Section 1A of the Civil Procedure Act; Order 1 Rule 10(2), Order 22 rule 22, Order 45 rule 1 and Order 51 of the Civil Procedure Rules; Section 19 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Leonard Roipa Pasha v Elijah Tende Ole Kula & 5 others [2018] KEELC 2318 (KLR)", Case Analysis (2018). ELC Case at Kajiado (application dated 27th February 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2318/eng@2018-07-17

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