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ELCAllowedSuit filed 29.3.2012 (application dated 28.2.2017)· [2018] KEELC 4235 (KLR)

Fatuma Maitha Riara v Selu Suleiman Kirunya [2018] KEELC 4235 (KLR)

Environment and Land Court
7 March 2018
LMLucy N. Mbugua
680 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled that someone claiming an interest in disputed land can join a case even years after it started.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Meru on a notice of application dated 28.2.2017 in which Khalid Fatehdin sought to be enjoined as a party to a land suit concerning parcel No. 3838 at Mikinduri Trading Centre, filed on 29.3.2012. The applicant averred that the plaintiff was his aunt and that the land had been transferred to his relatives fraudulently; he relied on an unchallenged Kadhis' court order in Nakuru Succession Cause No. 7 of 2012 declaring him sole heir of his father. The plaintiff admitted the relationship but maintained the land was bought by her husband and that this was not a succession cause. The 1st defendant opposed the application as belated, filed six years after suit, made in bad faith and a fishing expedition. The court, applying Order 1 rule 10(2) of the Civil Procedure Rules, held that although it could not at that stage determine the nature and extent of the applicant's claim, fairness required that he be given a platform to vindicate his interests, noting he claimed ignorance of the suit and that the matter had never taken off. The application was allowed: the applicant was enjoined as 4th defendant, given 14 days to file his defence, counterclaim and documents, with the application to stand dismissed if he defaulted, and the matter was to be listed for pre-trial directions. Each party was to bear its own costs of the application.

Key legal issues

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01

Joinder of a party claiming an interest in the suit property

Holding

The applicant, who stakes a claim to the suit land and is a relative of the parties with an unchallenged Kadhis' court order declaring him heir, is properly enjoined as the 4th defendant

Reasoning

Order 1 rule 10(2) permits addition of a party at any stage where presence is necessary for complete adjudication. The applicant stakes a claim to the suit property; the court cannot at that stage determine the nature and extent of his claim, but fairness requires he be given a platform to vindicate his interests, particularly as the suit had never taken off since 2012.

p. 1
02

Whether inordinate delay defeats joinder

Holding

Delay does not defeat the joinder where the suit has never progressed and the applicant pleads ignorance of it

Reasoning

The 1st defendant argued the application came six years after suit was filed and was done in bad faith. The court noted the applicant claimed he was unaware of the suit and that although the plaint was filed on 29.3.2012 the matter had never taken off, favouring joinder in the interests of complete adjudication.

p. 2

Legal principles established

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  • A party whose presence is necessary to enable the court effectually and completely adjudicate on all questions in a suit may be added at any stage of the proceedings

Court orders

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  1. 1.Applicant Khalid Fatehdin is enjoined in the suit as the 4th defendant
  2. 2.Applicant to file and serve statement of defence and counterclaim (if any), documents and witness statements within 14 days from date of delivery of the ruling
  3. 3.In the event of non-compliance with order (ii), the application of 28.2.2017 shall stand as dismissed
  4. 4.Matter to be listed for pre-trial directions forthwith
  5. 5.Each party to bear their own costs of the application of 28.2.2017

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 10(2)
Jurisdiction invoked
Order 1 rule 10(2) 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, "Fatuma Maitha Riara v Selu Suleiman Kirunya [2018] KEELC 4235 (KLR)", Case Analysis (2018). Suit filed 29.3.2012 (application dated 28.2.2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4235/eng@2018-03-07

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