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ELCDismissed· [2018] KEELC 4066 (KLR)

Benson Maina Gathithi Mugi & 12 others v John S Njire Maina & 2 others [2018] KEELC 4066 (KLR)

Environment and Land Court
23 February 2018
JKJ.G. Kemei
1,349 words in judgment
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The bottom line

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A Kenyan tenant who lost a bid to join a land ownership case was told his tenancy dispute belongs before a separate tribunal, not that court.

What this practically means

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Executive summary

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This judgment of the Environment and Land Court at Murang'a (J.G. Kemei, J) determines a Notice of Motion by Simon Macharia Kairu seeking to be enjoined into a suit concerning ownership of Plot Loc.11/Maragi/1193/82 Mukuyu market. The suit involves Plaintiffs and two Defendants 'as delegates of the KENYA AFRICAN NATIONAL UNION (KANU) KIHARU BRANCH', with the Plaintiffs seeking revocation of the sale of the suit premises by the 2nd Defendant to the 1st Defendant on grounds it was irregularly effected without their consent. The Applicant claimed to be a tenant of the premises under a 10-year tenancy agreement with the Plaintiffs effective 1/10/2009 to 30/9/2019, with an investment of about Kshs. 5 million in temporary structures, and asserted he had been threatened with rent recovery and eviction by the 1st Defendant. The 1st Defendant opposed, arguing the Applicant's interest was that of a mere tenant unrelated to the ownership dispute, that his remedies lay before the Business Premises Rent Tribunal (where he had already filed a dispute), and that joinder would introduce a new cause of action. The Plaintiffs and 2nd Defendant did not oppose. The court applied Order 1 Rule 10(2) of the Civil Procedure Rules, 2010 and Kingori vs. Chege (2002) 2 KLR 243, holding that a liberal approach to joinder must not admit parties whose interests are distinct. The court found the Applicant's tenancy rights would not be affected whichever way the ownership dispute was decided, his rent dispute was before a competent tribunal, and he was not a necessary party. The application was dismissed with costs to the 1st Defendant.

Key legal issues

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01

Whether the Applicant is a necessary party whose presence is required to enable the Court to effectually and completely adjudicate on all questions in the suit

Holding

The application for joinder was dismissed. The Applicant's interests arise from a tenancy agreement and are distinct from the ownership dispute between the Plaintiffs and the 1st Defendant; the ownership dispute does not affect his tenancy rights, and his rent dispute is already before the Business Premises Rent Tribunal.

Reasoning

The court evaluated the pleadings and found the principal dispute to be the allegedly irregular transfer of title from the 2nd Defendant to the 1st Defendant without the Plaintiffs' consent. The Applicant's interests are contractual (a 10-year tenancy) and not affected by that dispute. He had already sought relief at the Business Premises Rent Tribunal, so adequate alternative remedies existed, and joinder would introduce a new cause of action.

p. 3

Legal principles established

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  • In deciding an application for joinder, the Court must exercise a liberal approach so as not to shut out a genuine litigant, but must guard against the frivolous or vexatious litigant whose sole motivation is to complicate and confuse issues.
  • A person whose interests in a suit are distinct from the rights in dispute between the existing parties, and who will not be affected by the outcome, is not a necessary party under Order 1 Rule 10(2).

Court orders

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  1. 1.The Applicant's Notice of Motion dated 22/9/07 seeking joinder is dismissed with costs to the 1st Defendant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rule 10(2)

Cases cited (1)

  • Kingori vs. Chege
    (2002) 2 KLR 243
Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules, 2010 (joinder of parties)

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, "Benson Maina Gathithi Mugi & 12 others v John S Njire Maina & 2 others [2018] KEELC 4066 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4066/eng@2018-02-23

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