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ELCDismissedNot stated in judgment· [2018] KEELC 4308 (KLR)

Daniel Githiora Gatuha & 2 others v Joe Karanja Njoroge & 3 others [2018] KEELC 4308 (KLR)

Environment and Land Court
1 March 2018
JKJ G Kemei
1,508 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to add a co-operative society's liquidator to a land suit because a High Court stay had frozen his appointment.

What this practically means

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Executive summary

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The Plaintiffs, members of Kagaa Farmers Co-operative Society Limited, moved the court by Notice of Motion dated 20 November 2017 under sections 63–66 of the Co-operative Societies Act (Cap 486) and Orders 1 Rule 10(2) and 8 Rule 3 of the Civil Procedure Rules seeking leave to enjoin the liquidator of the Society as a defendant and to amend the plaint. They argued that the Society was the registered owner of the suit properties, which it subdivided and allocated to members between 1998 and 1999, and that the Defendants fraudulently consolidated some of those plots into LR No. Makuyu/Kimorori/Block III/3932, parts of which remained registered in the Society's name. Since the Society was placed under liquidation by Gazette Notice of 5 September 2014, they contended the liquidator was a necessary party. The 1st Defendant opposed, annexing a High Court order by Msagha Mbogholi J dated 6 February 2018 in Civil Appeal No. 327 of 2017 staying the Tribunal's orders appointing the liquidator, and arguing there was thus no liquidator in office. The court found that although the applicants had discharged the burden of showing the Society's registered ownership, making joinder conceptually justified under Order 1 Rule 10(2), the appointment of the liquidator was frozen pending appeal; joining a non-existent liquidator would be futile and would subvert the High Court order. The amendment application, being premised on the joinder, also failed. The entire application was dismissed with costs to the 1st Defendant on 1 March 2018.

Key legal issues

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01

Whether the liquidator of Kagaa Farmers Co-operative Society Limited is a necessary party

Holding

The joinder would have been justified on ownership of suit properties, but no liquidator is validly in office because the Tribunal's appointment order is stayed, so the joinder cannot stand

Reasoning

The court found copies of titles showing the society as registered owner on the file, satisfying the applicants' burden under Order 1 Rule 10(2). However, the High Court in Civil Appeal No. 327 of 2017 stayed the Tribunal order appointing the liquidator. Since the appointment was frozen pending appeal, there is no liquidator in existence to enjoin, and doing so would subvert the High Court order.

p. 3
02

Whether the plaint should be amended

Holding

The amendment application failed as it was premised on the joinder of the liquidator

Reasoning

The proposed amendment was directed at bringing claims against the liquidator as an enjoined party. Once joinder was refused, the basis for the amendment collapsed and the application failed in its entirety.

p. 3

Legal principles established

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  • A party may be joined where their presence is necessary to enable the court effectually and completely adjudicate upon all questions in the suit
  • Enjoining a party whose appointment has been stayed by a court order is futile and subversive of the court's order

Court orders

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  1. 1.The application dated 20/11/2017 is dismissed in its entirety
  2. 2.Costs of the application awarded to the 1st Defendant/Respondent

Authorities

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Legislation

  • Co-operative Societies Act (Cap 486)Sections 63, 64, 65, 66
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 1 Rule 10(2); Order 8 Rule 3
Jurisdiction invoked
Sections 63, 64, 65 & 66 of the Co-operative Societies Act (Cap 486) and Order 1 Rule 10(2), Order 8 Rule 3 and section 3A 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, "Daniel Githiora Gatuha & 2 others v Joe Karanja Njoroge & 3 others [2018] KEELC 4308 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4308/eng@2018-03-01

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