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ELCAllowedNotice of Motion dated 18th November 2017· [2018] KEELC 3158 (KLR)

Julius Gatoto Maina v Johnson Gaitho Wanjohi & 3 others [2018] KEELC 3158 (KLR)

Environment and Land Court
31 May 2018
2,042 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 confirmed that defendants can join necessary parties to a land dispute at any stage when justice requires it.

What this practically means

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Executive summary

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The court ruled on a Notice of Motion dated 18th November 2017 by the Defendant, Johnson Gaitho Wanjohi, seeking to enjoin Jackson Maina Riithia, the Thika Land Registrar and the Attorney General as 2nd, 3rd and 4th Defendants in a land dispute over Ruiru Kiu Block 2 (Githunguri)/4584. The Plaintiff claimed permanent injunction against the Defendant's interference with his peaceful occupation, alleging equitable ownership of land registered in the name of Jackson Maina Riithia. The Defendant counterclaimed that the registration was fraudulent and sought its cancellation, necessitating joinder. The Plaintiff opposed, arguing a defendant cannot enjoin a co-defendant or amend the plaint, and should instead use a third-party notice. The court framed three issues: the relevant law on joinder, entitlement to joinder, and prejudice. It held Order 1 Rule 10(2) of the Civil Procedure Rules governs joinder and should be liberally interpreted, citing Sarkar's Code of Civil Procedure and Central Kenya Ltd vs Trust Bank. Finding that Riithia would be condemned unheard if the counterclaim succeeded, and that the Land Registrar and Attorney General were necessary to explain and implement any orders, the court held all were necessary parties. It found no prejudice to the Plaintiff, noting joinder is permissible at any stage and aids just determination under Sections 1A and 1B of the Civil Procedure Act. The application was allowed entirely with costs to the Defendant; the Plaintiff was to amend the plaint within 14 days, the enjoined parties to file defences within 14 days of service, and the matter set down for pre-trial conference and expeditious hearing.

Key legal issues

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01

Relevant law on joinder of parties

Holding

Order 1 Rule 10(2) of the Civil Procedure Rules governs joinder, empowering the court at any stage to add a person necessary for complete adjudication, and should be interpreted liberally.

Reasoning

The court identified Order 1 Rule 10(2) as the governing provision, which permits joinder either on application or suo motu where a person's presence is necessary to effectually and completely adjudicate all questions in the suit. Relying on Sarkar's Code of Civil Procedure, it adopted a liberal and wide interpretation, extending to all persons necessary for complete adjudication, and noted joinder should be freely allowed absent prejudice.

p. 2
02

Whether the intended parties should be enjoined

Holding

Jackson Maina Riithia, the Land Registrar and the Attorney General are necessary parties whose joinder was warranted.

Reasoning

The registered owner, Jackson Maina Riithia, was alleged to have fraudulently acquired title; if the court found for the Defendant he would be condemned unheard, so his presence was necessary. The Land Registrar was required to explain the questioned registration, and the Registrar and Attorney General would implement any cancellation orders. The court thus found all three necessary for complete and effectual adjudication.

p. 3
03

Whether joinder would prejudice the Plaintiff

Holding

No prejudice or injustice would be occasioned; joinder aids just determination under Sections 1A and 1B of the Civil Procedure Act.

Reasoning

The Plaintiff argued a defendant cannot choose co-defendants or amend the plaint, but the court held Order 1 Rule 10(2) permits joinder at any stage where necessary. The suit had not started, and even if it had, joinder was permissible. There was no evidence of prejudice; instead the joinder would aid just determination as required by the overriding objectives in Sections 1A and 1B.

p. 3

Legal principles established

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  • The court has discretion to order joinder of a party at any stage of proceedings where the party is necessary for complete and effectual adjudication and no prejudice will result.
  • Amendments and joinders should be freely allowed unless they cause prejudice or injustice not compensable in costs.

Court orders

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  1. 1.Notice of Motion dated 18th November 2017 allowed entirely in terms of prayers No. I & II with costs to the Defendant/Applicant
  2. 2.Jackson Maina Riithia, Thika Land Registrar and the Attorney General enjoined as 2nd, 3rd and 4th Defendants respectively
  3. 3.Plaintiff directed to amend the Plaint within 14 days and serve the Defendant/Applicant and the enjoined parties
  4. 4.Enjoined parties granted leave of 14 days after service to file their defences
  5. 5.Matter to be set down for Pre-trial Conference before the Deputy Registrar after close of pleadings and thereafter set down for hearing expeditiously

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 1 Rule 15(1)
  • Civil Procedure RulesOrder 1 Rule 22
  • Civil Procedure ActSections 1A & 1B

Cases cited (4)

  • J.M.K. vs M.W.M & Another
    (2015) eKLR
  • Kenya Commercial Bank vs Suntra Investment Bank Ltd
    (2015) eKLR
  • Central Kenya Ltd vs Trust Bank & 4 Others
    C.A No.222 of 1998
  • Tang Gas Distributors Ltd vs Said & Others
    (2014) EA 448
Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules; Sections 1A & 1B of the Civil Procedure Act

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, "Julius Gatoto Maina v Johnson Gaitho Wanjohi & 3 others [2018] KEELC 3158 (KLR)", Case Analysis (2018). Notice of Motion dated 18th November 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3158/eng@2018-05-31

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