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ELCPartially AllowedELC Case at Murang'a (Notice of Motion dated 19/04/2017)· [2018] KEELC 4483 (KLR)

David Mwangi Tatei & another v Abigael Wanjiru Tatei & 6 others [2018] KEELC 4483 (KLR)

Environment and Land Court (High Court)
15 February 2018
2,736 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Murang'a court allowed new owners to be added to a family land dispute and blocked any sale of the disputed plots until the case is fully heard.

What this practically means

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Executive summary

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The defendants/applicants in a land suit filed a Notice of Motion dated 19/04/2017 seeking leave to amend their defence to include a counterclaim against the plaintiffs and intended parties, joinder of those intended parties (Jane Wambui Mungai and Philip Salim Mutuma Mbaya, the current registered owners of the subdivided parcels), and a temporary injunction restraining any dealing with parcels Loc.7 Gakoigo/5125-5130, subdivided from the original parcel LOC.7 Gakoigo/715. The applicants claimed they had been disinherited in Nyeri Succession Cause No. 133 of 1998 concerning their late father's estate, had preferred appeals, and that the sale and subdivision to the intended parties occurred while interim orders were in place. The intended parties opposed, arguing injunctions could not issue against non-parties, that the prayers were res judicata following Nyeri rulings, and that they were innocent purchasers in possession. J.G. Kemei J allowed the application. Relying on Order 1 rules 3 and 10(2) and the decisions in Lucy Nungari Ngigi and Kingori v Chege, the court held the intended parties' joinder necessary since orders in the suit would affect them and a common question of fact and law arose. The amendment to include a counterclaim was allowed despite non-compliance with Order 7 Rule 8, the court invoking Article 159(2)(d) against procedural technicalities. A temporary injunction preserving the suit lands issued under Section 63(e) and Order 40 Rule 1. The res judicata objection failed because the prior Nyeri orders were spent and new parties were introduced. Costs were awarded in the cause.

Key legal issues

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01

Joinder of intended parties

Holding

Joinder allowed because the intended parties are registered proprietors whose interests will be affected by any orders in the suit

Reasoning

Applying Order 1 rules 3 and 10(2) and the authorities of Gikonyo J and Warsame J, the court found a common question of fact and law between the defendants and intended parties, both having an interest in the suit property. Orders in the suit would affect the intended parties, so their presence was necessary to enable complete adjudication without prejudice to any party.

p. 3
02

Amendment of defence to include counterclaim

Holding

Granted, despite non-conformity with Order 7 Rule 8, invoking Article 159(2)(d)

Reasoning

Sections 100 of the Civil Procedure Act and Orders 8 rules 3 and 5 empower the court to allow amendments at any stage where necessary to determine the real questions. The defect of form in the counterclaim, though glaring, was curable by amendment and caused no prejudice; procedural technicalities were overridden under Article 159(2)(d).

p. 4
03

Temporary injunction against intended parties

Holding

Granted under Section 63(e) and Order 40 Rule 1 to preserve the suit property pending trial

Reasoning

The court found preservation necessary to prevent the ends of justice being defeated, given the subdivision and registration effected while interim orders were in subsistence. Ownership issues were left to trial.

p. 4
04

Res judicata objection

Holding

Rejected; the earlier Nyeri orders were spent and did not bar the present prayers

Reasoning

The earlier interim injunction restrained the defendants from committing waste and, given that the intended parties are now in possession, those orders were spent. The introduction of new parties also took the matter outside res judicata principles.

p. 5

Legal principles established

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  • Joinder of parties is permitted at any stage where a common question of law or fact arises, but may be refused where it causes delay, costs or incompatibility
  • The court must take a liberal approach in joinder applications so as not to shut out a genuine litigant bound by the outcome
  • Amendment of pleadings is allowed liberally so as to determine the real questions in controversy
  • Introduction of a new party removes a determination from the principles of res judicata

Court orders

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  1. 1.Jane Wambui Mungai and Philip Salim Mutuma Mbaya are joined as Defendants/Intended parties to the suit
  2. 2.The amended defence to include the Counterclaim is allowed subject to further and appropriate amendments to conform with Order 7 Rule 8 and subject to payment of requisite fees, deemed properly on record
  3. 3.A temporary injunction restraining the intended parties/Respondents, their agents, servants or anybody claiming under them from alienating, selling, transferring, leasing, charging or otherwise dealing with Loc.7 Gakoigo/5125, 5126, 5127, 5128, 5129 and 5130 until hearing and determination of the suit
  4. 4.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure ActSection 100
  • Civil Procedure ActSection 63(e)
  • Civil Procedure RulesOrder 1 rule 3
  • Civil Procedure RulesOrder 1 rule 10(2)
  • Civil Procedure RulesOrder 1 rule 10(4)
  • Civil Procedure RulesOrder 7 rule 8
  • Civil Procedure RulesOrder 7 rule 9
  • Civil Procedure RulesOrder 8 rule 3
  • Civil Procedure RulesOrder 8 rule 5
  • Civil Procedure RulesOrder 40 rule 1

Cases cited (2)

  • Lucy Nungari Ngigi & 128 Others vs. National Bank of Kenya Limited & Anor.
    Civil Case No. 517 of 2014 (2015) eKLR
  • Kingori vs. Chege
    (2002) eKLR 243
Jurisdiction invoked
Civil Procedure Act and Civil Procedure Rules (Order 1 rules 3 and 10(2), Order 7 rules 8 and 9, Order 8 rules 3 and 5, Section 63(e) and Section 100), Article 159(2)(d) of the Constitution

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, "David Mwangi Tatei & another v Abigael Wanjiru Tatei & 6 others [2018] KEELC 4483 (KLR)", Case Analysis (2018). ELC Case at Murang'a (Notice of Motion dated 19/04/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4483/eng@2018-02-15

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