Peter Kamau Kung’u v James Thendu Gitau & 5 others [2018] KEELC 3297 (KLR)
The bottom line
#A Kenyan court allowed a landowner to join a land dispute as a defendant, but refused to join the people who sold him the land.
What this practically means
#Executive summary
#Key legal issues
#Whether the registered current proprietor of the suit property is a necessary party
The Applicant, being the current registered proprietor whose proprietary rights would be affected by any determination, is a necessary party.
The Plaintiff sought a declaration that he is the rightful owner of the suit property, but the land is now registered in the name of the Applicant. Any determination the Court makes would impact on the Applicant's proprietary rights. The Applicant holds the title while the Plaintiff claims ownership of the same, so his presence is necessary for effectual and complete adjudication of the questions in dispute.
Whether the former owners (vendors) of the suit property are necessary parties
The 5th and 6th Intended Defendants are not necessary parties since they transferred the property before the suit and ceased to have any proprietary or beneficial interest.
The Applicant confirmed he purchased the suit property from the 5th and 6th Intended Defendants. Once they sold and transferred the land, they ceased to have any proprietary or beneficial interest over it, and it would be unnecessary to drag them into the matter. They can only be useful witnesses for the Applicant but not parties to the suit. Their presence was therefore held not necessary at all as parties.
Whether the omission of the Applicant from the suit was bona fide
The omission was bona fide, as at the time of filing the suit in 2013 the Applicant had no proprietary interest, having acquired title only on 28th October 2014.
The Plaintiff filed the suit in 2013 when the property was registered in the names of the 5th and 6th Intended Defendants. By then the Applicant had not obtained any proprietary interest, and it was not clear whether the Plaintiff was even aware the land was registered in the Applicant's name. The Court accordingly concluded that the omission would be a bona fide one under the first threshold in Hadson Moffat Kamau.
Legal principles established
#- In determining whether to join a party, the Court must be satisfied that the party is necessary to enable it effectually and completely adjudicate upon and settle all questions involved in the suit.
- A vendor who has sold and transferred the suit property to a third party ceases to have any proprietary or beneficial interest and is not a necessary party; he may only be a witness.
Court orders
#- 1.The Applicant, Peterson Murage Kariuki, be enjoined as a 4th Defendant in the suit
- 2.The suit be amended to reflect the addition of the Applicant as 4th Defendant and the Plaint to be amended within 14 days and served on all parties
- 3.The Plaintiff, 1st, 2nd and 3rd Defendants to avail and serve the pleadings already filed to the Applicant's Advocate within 14 days; the Applicant has leave of 14 days to file its pleadings after service
- 4.Parties to comply with Order 11 within 30 days after close of pleadings and thereafter fix the matter for pre-trial directions before the Deputy Registrar
- 5.Costs shall be in the cause
- Jurisdiction invoked
- Order 1 Rules 3 and 10(2) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Kamau Kung’u v James Thendu Gitau & 5 others [2018] KEELC 3297 (KLR)", Case Analysis (2018). Milimani ELC No. 1426 of 2013 (Peter Kamau Kungu v The Land Registrar, Thika & Others). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3297/eng@2018-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.