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ELCDismissedNot stated in the judgment· [2018] KEELC 2981 (KLR)

John Sergon v Richard Nagggy Aengwo & another [2018] KEELC 2981 (KLR)

Environment and Land Court
21 March 2018
MOM. A. Odeny
1,135 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to hand a land case to a buyer, saying buyers can wait until the case ends.

What this practically means

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Executive summary

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The plaintiff brought a notice of motion dated 7th July 2017 under Order 24 Rule 8 of the Civil Procedure Rules seeking leave to assign the suit to Daniel Kiprono, a purchaser of the suit land to whom the plaintiff had donated a general power of attorney. Counsel for the plaintiff argued that the defendants would suffer no prejudice since their defence would remain intact. The defendants opposed through grounds of opposition and a replying affidavit, submitting that the application was an abuse of process, an afterthought brought in bad faith to cure a fatal defect, that the plaintiff lacked capacity from the onset as his proprietary rights had been extinguished by the sale and execution of transfer forms, and that substitution would alter the substratum of the suit and prejudice the defence. The court framed one issue: whether the plaintiff had shown good reason to assign the suit. It observed that at the time of filing, the plaintiff had already sold the land, yet the plaint described him as the registered owner without disclosing the sale. Holding that the mere status of purchaser, coupled with a power of attorney, was insufficient explanation, and that the plaintiff remained the registered owner who could litigate and later transfer his interest under the sale agreement, the court found the application lacked merit, dismissed it with costs to the defendants, and directed that the old matter be fixed for hearing on a priority basis.

Key legal issues

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01

Whether the plaintiff established good reason for assignment of the suit to the purchaser under Order 24 Rule 8

Holding

No; the fact that the assignee is a purchaser with a power of attorney is not a good reason for assignment, and the application was dismissed

Reasoning

The court noted that the plaintiff remained the registered owner of the suit land and had not explained his difficulty in proceeding with the case or why he wished to assign the suit. The plaintiff had also not disclosed the sale in the plaint, describing himself as the registered owner. Bringing in the purchaser would confuse the defendants and delay an old matter. The plaintiff could litigate and later transfer his interest under the sale agreement.

p. 2

Legal principles established

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  • Under Order 24 Rule 8 of the Civil Procedure Rules, an assignee of an interest during the pendency of a suit may only continue the suit by leave of the court
  • Leave to assign a suit will only be granted where there is good reason and where the assignment will not prejudice the parties or change the substratum of the case

Court orders

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  1. 1.The plaintiff's notice of motion dated 7th July 2017 seeking assignment of the suit to Daniel Kiprono is dismissed with costs to the defendants
  2. 2.The matter, being an old case, should be fixed for hearing on a priority basis

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 8
Jurisdiction invoked
Order 24 Rule 8 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, "John Sergon v Richard Nagggy Aengwo & another [2018] KEELC 2981 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2981/eng@2018-03-21

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