Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedKisii Environment and Land Court — Notice of Motion dated 6th March 2017 (suit arising from plaint dated 29th June 2016, filed 13th July 2016)· [2018] KEELC 3460 (KLR)

Shirvling Supermarket Limited v Jimmy Ondicho Nyabuti & 2 others [2018] KEELC 3460 (KLR)

Environment and Land Court
16 March 2018
JMJ. M. Mutungi
3,158 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

The court refused to let a landowner join an ongoing suit as an 'interested party', ruling he must join as plaintiff or defendant and that his land wasn't even part of the dispute.

What this practically means

#

Executive summary

#
Charles Mageto, the intended interested party, moved the court by Notice of Motion dated 6th March 2017 under Sections 1B and 3A of the Civil Procedure Act, Order 8 Rule 3 and Order 40 of the Civil Procedure Rules, seeking joinder as an interested party and an interim injunction restraining the defendants from trespassing on or dealing with LR No. Kisii Municipality/Block III/299. He deponed that he purchased the leasehold interest in parcel 299 in 2008 from Charles Magare Okeyo and Benson Onwonga Okeyo, whose title had been upheld by Wambilyangah, J. in Kisii HCCC No. 3 of 2001, and that the 2nd defendant's counterclaim indirectly challenged his ownership. The plaintiff and defendants filed grounds of opposition and the application was argued by written submissions. The court held that the correct provision for joinder is Order 1 Rule 10(2), not Order 8 Rule 3, and that the Civil Procedure Rules make no provision for joinder as an interested party in ordinary civil suits — a party must join as plaintiff or defendant. Applying Pravin Bowry, Deported Asians Property Custodian Board and Civicon, and the Supreme Court's Muruatetu/Trusted Society principles by analogy, the court found the applicant's interest lay in parcel 299 while the plaint and counterclaim concern parcel 298 only. No relief sought affects parcel 299, so the applicant demonstrated neither a sufficient interest nor necessity for joinder. The joinder application was dismissed with costs of Kshs. 7,500 to the plaintiff and Kshs. 7,500 to the defendants, payable by the intended interested party; the injunction application failed with it.

Key legal issues

#
01

Whether the intended interested party has a sufficient interest in the subject matter of the suit

Holding

He does not; his interest lies in parcel 299 while the suit and counterclaim concern parcel 298, and no relief sought affects parcel 299.

Reasoning

The plaint and the 2nd defendant's intended counterclaim both relate solely to parcel Kisii Municipality/Block III/298. The applicant claims ownership of parcel 299, on which the ownership issue was previously determined by Wambilyangah, J. in Kisii HCCC No. 3 of 2001. Neither the plaintiff nor the 2nd defendant seeks orders affecting parcel 299, so the applicant's interest is remote and peripheral.

p. 4
02

Whether joinder as an 'interested party' is available in ordinary civil proceedings

Holding

Not available under the Civil Procedure Rules; joinder must be as plaintiff or defendant under Order 1 Rule 10(2).

Reasoning

The court observed that unlike petitions and judicial review matters, where interested parties are enjoined under settled Supreme Court principles, ordinary civil suits require a party to join as plaintiff or defendant, with relief sought or a defence that necessitates the joinder. The applicant neither seeks relief nor is sought as a co-defendant, so joinder as an interested party has no procedural basis.

p. 3
03

Whether the applicant's injunction application could stand independently of the joinder application

Holding

It could not; having failed on joinder, the injunction was unsustainable.

Reasoning

The injunction sought to protect the applicant's interest in parcel 299, but no party to the suit claims that parcel or has interfered with it. Since the applicant was not enjoined, the court could not grant protective relief to a stranger to the proceedings. The injunction application therefore collapsed with the joinder application.

p. 4

Legal principles established

#
  • The test for joinder under Order 1 Rule 10(2) is whether the applicant has an identifiable interest in the subject matter, though it need not succeed at trial, or is a necessary party whose presence enables the court to effectually and completely adjudicate upon all questions in the suit.
  • In ordinary civil proceedings under the Civil Procedure Rules there is no provision for joinder as an 'interested party'; a party must be joined as plaintiff or defendant.
  • The Muruatetu/Trusted Society principles govern qualification of interested parties in petitions and judicial review matters.

Court orders

#
  1. 1.The applicant's Notice of Motion dated 6th March 2017 seeking joinder as interested party is dismissed
  2. 2.Costs of the application awarded to the plaintiff and the defendants, assessed at Kshs. 7,500 for the plaintiff and Kshs. 7,500 for the defendants, payable by the intended interested party

Authorities

#

Legislation

  • Civil Procedure ActSections 1B, 3A
  • Civil Procedure RulesOrder 8 Rule 3; Order 40 Rules 1, 2, 3 and 4(1)(e); Order 1 Rule 10(2)

Cases cited (5)

  • Pravin Bowry –vs- John Ward & Another
    [2015] eKLR
  • Deported Asians Property Custodian Board –vs- Jaffer Brothers Ltd
    [199] 1 E.A 55 (SCU)
  • Civicon Limited –vs- Kivuwatt Limited & 2 Others
    [2015] eKLR
  • Trusted Society of Human Rights Alliance –vs- Mumo Matemu & 5 Others
    SC Petition No. 12 of 2013 [2015] eKLR
  • Francis Karioki Muruatetu & Another –vs- Republic & 4 Others
    SC Petition No. 16 of 2015 [2016] eKLR
Jurisdiction invoked
Sections 1B and 3A of the Civil Procedure Act and Order 1 Rule 10(2) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (17)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Shirvling Supermarket Limited v Jimmy Ondicho Nyabuti & 2 others [2018] KEELC 3460 (KLR)", Case Analysis (2018). Kisii Environment and Land Court — Notice of Motion dated 6th March 2017 (suit arising from plaint dated 29th June 2016, filed 13th July 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3460/eng@2018-03-16

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