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ELCAllowedNot stated in the judgment· [2018] KEELC 4537 (KLR)

Evans Nakhabala Wekesa v Kenya African National Union [2018] KEELC 4537 (KLR)

Environment and Land Court
15 February 2018
JKJ.G. Kemei
1,470 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that anyone buying land while a court case over it is ongoing must be joined to that case.

What this practically means

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Executive summary

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The Defendant applicant filed a Notice of Motion on 7/11/17 seeking joinder of Five Emukei Transporters Ltd as a party and leave to amend its defence and counterclaim. The underlying dispute concerns Parcel No. Murang'a Township Block 111/12. The Plaintiff's claim had been allowed and the Defendant's counterclaim dismissed on 16/03/16, but on 5/10/17 the court ordered the suit be heard afresh on the merits. Pending that, the Plaintiff transferred the suit property to Five Emukei Transporters Ltd, which the applicant described as a mischievous attempt to remove the subject matter from the court's reach. The Plaintiff/respondent opposed, contending the applicants had not demonstrated ownership or occupation, that the transfer was lawful, and that any claim against the intended party lay in a separate suit. The court, guided by Gikonyo J's decision in Lucy Nungari Ngigi & 128 Others v National Bank of Kenya Ltd and Order 1 rule 7 of the Civil Procedure Rules, held that the test for joinder is whether a common question of fact or law arises. Since the transfer occurred during the subsistence of the suit and ownership was in issue, the intended party was a necessary party whose presence was required for the court to effectively and completely adjudicate. The court allowed the application, enjoined Five Emukei Transporters Ltd, permitted the amendment of the defence and counterclaim upon payment of fees, directed compliance with Order 11 within 30 days, and awarded costs to the applicant.

Key legal issues

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01

Joinder of an intended party after transfer of the suit property

Holding

The intended party was properly joined as a necessary party because the transfer occurred while the suit was pending and ownership of the property is in issue

Reasoning

The court applied Order 1 rule 7 and the common test that a common question of fact or law must arise between existing and intended parties. Because the property was transferred while the suit was live and ownership is squarely in dispute, joinder was necessary for the court to effectively and completely adjudicate upon and settle all questions in the suit, and to bind the new owner by any orders made.

p. 2
02

Amendment of defence and counterclaim to plead against the new owner

Holding

Leave to amend the defence and counterclaim was granted, with the draft deemed filed upon payment of fees

Reasoning

Having held the intended party a necessary party, the court allowed the defendant to amend so that its claim against the current registered owner could be litigated, ensuring the ruling of 5/10/17 directing a fresh hearing on the merits would be fully effective.

p. 3

Legal principles established

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  • A party in whom a right to relief arises out of the same transaction, or with whom a common question of law or fact arises, may be joined at any stage of the proceedings
  • Transfer of the suit property during the subsistence of a suit makes the new registered owner a necessary party

Court orders

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  1. 1.Five Emukei Transporters Limited be and is hereby enjoined as a party to the proceedings
  2. 2.The applicant be and is hereby allowed to amend its defence and counterclaim as per the draft on record and the same be deemed properly filed thereon subject to the payment of the necessary fees
  3. 3.Parties to take the necessary steps to comply with the provisions of Order 11 within the next 30 days and thereafter set the matter for hearing

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 7
  • Civil Procedure RulesOrder 7 Rule 9
  • Civil Procedure RulesOrder 11

Cases cited (1)

  • Lucy Nungari Ngigi & 128 Others vs. National Bank of Kenya Limited & Anor.
    Civil Case No. 517 of 2014 (2015) eKLR
Jurisdiction invoked
Order 1 rule 7 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, "Evans Nakhabala Wekesa v Kenya African National Union [2018] KEELC 4537 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4537/eng@2018-02-15

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