Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 25th July 2019 in Malindi HCCC (consolidated with Malindi HCCC No. 22 of 2011)· [2019] KEELC 80 (KLR)

Soft White Beach Limited v Joseph Kashuru Mumbo & 4 others; Joseph Nicholas Murage (As Administrator of the Estate of Benard Chiori Murage (Proposed Interested Party) [2019] KEELC 80 (KLR)

Environment and Land Court (High Court), Malindi
5 December 2019
2,235 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to let a man join a land case and stop judgment, telling him his real remedy was compensation from the Government.

What this practically means

#

Executive summary

#
By a Notice of Motion dated 25th July 2019, Joseph Nicholas Murage, suing as administrator of the estate of his father Benard Chiori Murage, sought to be enjoined as an Interested Party in a long-running land dispute over Plot No. Chembe/Kibabamshe/393 (and its alleged sub-divisions 651 and 652), and further sought suspension of the judgment scheduled for 21st November 2019 and reopening of the trial so he could tender evidence. He relied on a 1978 Certificate of Title issued to his father and a Gazette Notice of 17th July 2017 by the National Land Commission confirming the property belonged to his father. The Plaintiff company and the 2nd Defendant opposed, asserting the application came eight years into the suit and too late. Olola J, in a ruling delivered on 5th December 2019, accepted that joinder may be ordered at any stage where a common question of law or fact arises, but held that both existing parties traced their claims to 1999 Letters of Allotment, whereas the Applicant's father's earlier title had been nullified when the land reverted to Government after erroneous adjudication, as explained in Angote J's ruling of October 2013. The court found no nexus between the deceased and the parties, and held the Applicant's remedy, if any, lay in seeking compensation from the Government, incompatible with the existing cause of action. The application was dismissed with costs to the Plaintiffs and the 2nd Defendant.

Key legal issues

#
01

Whether the Proposed Interested Party should be joined at the post-hearing, pre-judgment stage

Holding

Joinder was declined because the Applicant had no claim against the existing parties; his interest derived from a pre-nullification title and any remedy lies against the Government in compensation

Reasoning

The court accepted that joinder may occur at any stage, but the determining factor is a common question of law or fact with the existing parties. Both parties in the suit traced their titles to 1999 Letters of Allotment, whereas the Applicant's father's title dated from 1978 and had been nullified when the land reverted to Government. His proposed claim was therefore incompatible with the existing cause of action, and joinder would occasion unnecessary complications.

p. 2
02

Whether the Judgment scheduled for delivery should be arrested and the suit reopened

Holding

Refused; the application, being premised on the joinder, had no merit

Reasoning

Since the court found the Applicant had no compatible claim and declined the enjoinder, there was no basis to suspend the pending judgment or reopen the fully-heard proceedings. The respondents had also demonstrated inordinate delay, the suit having been in court for eight years with the Applicant aware of it since 2013.

p. 3

Legal principles established

#
  • Joinder of parties is permitted where a common question of law or fact arises, but will be declined where the proposed cause of action is incompatible with or totally different from the existing one
  • Where property is allocated by Government after nullification of earlier titles, a dispossessed former title-holder's remedy lies in compensation from the Government, not joinder in a dispute between subsequent allottees

Court orders

#
  1. 1.The application dated 25th July 2019 is dismissed
  2. 2.Costs of the application awarded to the Plaintiffs and the 2nd Defendant

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 47, 48, 50(1), 159
  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Civil Procedure RulesOrder 1
Jurisdiction invoked
Articles 47, 48, 50(1) and 159 of the Constitution; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Soft White Beach Limited v Joseph Kashuru Mumbo & 4 others; Joseph Nicholas Murage (As Administrator of the Estate of Benard Chiori Murage (Proposed Interested Party) [2019] KEELC 80 (KLR)", Case Analysis (2019). Notice of Motion dated 25th July 2019 in Malindi HCCC (consolidated with Malindi HCCC No. 22 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/80/eng@2019-12-05

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