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ELCDismissedNot stated in the judgment (application dated 30 October 2017 in a suit commenced by plaint on 22 September 2015)· [2018] KEELC 4762 (KLR)

Samuel Mburu Gichanga v Peter Ndungu Kinuthia & 4 others [2018] KEELC 4762 (KLR)

Environment & Land Court

30 January 2018

MSMunyao Sila

1,479 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

Kenya's Environment & Land Court dismissed an attempt to join a landowner's estate as a defendant, ruling courts only add defendants when the claim against them is clear from the pleadings.

What this practically means

Executive summary

The plaintiff sued by plaint filed 22 September 2015 claiming to be the absolute proprietor of Maela/Ndabibi Block 3/69 (Ngati), measuring 2.226 Ha, registered since 22 November 1995, acquired through membership of Ngati Farmers Co-operative Society Limited. He alleged that from January 2014 the five defendants trespassed and cultivated portions of the land, and sought a declaration of ownership, a permanent injunction, eviction, mesne profits and costs. The defendants pleaded that the plaintiff held the land in trust for the extended family, that it was distributed between him and the late Josphat Gitau Gichanga in equal shares, and that they purchased their portion from the deceased, who died on 22 November 2014 before completing survey and transfer of the excised parcel Maela/Ndabibi Block 3/871 (Ngati). Lucy Wanjiku Gitau, administrator of the deceased's estate, applied under Order 1 Rule 10(2) of the Civil Procedure Rules to be enjoined as 5th defendant because parcel 871 was allegedly carved out of the litigated parcel 69. Neither the plaintiff nor the defendants opposed the application. The court held that although Order 1 Rule 10(2) confers wide powers, joinder of a defendant should be ordered only in the clearest of cases where a clear cause of action against the proposed defendant is apparent from the plaintiff's pleadings; here it was not. The court noted the applicant's alternatives - being brought in as a third party by the defendants or filing a separate suit capable of consolidation - and found no prejudice. The application was dismissed with no orders as to costs.

Key legal issues

Whether the court should order joinder of a party as defendant under Order 1 Rule 10(2)

Holding

The application was dismissed; joinder as defendant is only appropriate in the clearest of cases where the cause of action against the proposed defendant is clear from the pleadings, and the applicant retains the options of third-party proceedings or a separate suit.

Reasoning

Despite the wide powers under Order 1 Rule 10(2), the court held that adding a defendant imposes on the plaintiff a party the plaintiff chose not to sue, which may cause hardship. The cause of action against the applicant was not apparent on the material before the court, and the applicant suffers no prejudice since she may be joined as third party by the defendants or may file her own suit, possibly consolidated with this one.

p. 3

Legal principles established

A party should only be enjoined as a defendant in the clearest of cases, where a clear cause of action against the proposed defendant is readily apparent from the plaintiff's pleadings

Court orders

1.The application dated 30 October 2017 seeking joinder of Lucy Wanjiku Gitau as 5th defendant is dismissed
2.No orders as to costs

Authorities

Legislation

Civil Procedure RulesOrder 1 Rule 10 (substitution and addition of parties)
Civil Procedure RulesOrder 1 Rule 10(4) / Order 10 Rule 4 as discussed (amendment of plaint upon addition of defendant)

Jurisdiction invoked: Order 1 Rule 10(2) of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Samuel Mburu Gichanga v Peter Ndungu Kinuthia & 4 others [2018] KEELC 4762 (KLR)", Case Analysis (2018). Not stated in the judgment (application dated 30 October 2017 in a suit commenced by plaint on 22 September 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4762/eng@2018-01-30

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