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ELCAllowedNot stated in the ruling· [2019] KEELC 129 (KLR)

Monica Musili Phillip & another v Tangai Munali & another [2019] KEELC 129 (KLR)

Environment and Land Court
18 December 2019
CMC. G. Mbogo
1,193 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Makueni on the defendants' Notice of Motion under Order 1 Rule 3, Order 7 Rule 17 and Sections 1A and 3A of the Civil Procedure Act. The applicants sought to enjoin Tamu Kenya Investments Limited as a defendant, leave to file their defence out of time, and to comply with Order 11. The 1st defendant, Tangai Munali, deposed that plot No. Sultan Hamud Town/412 is owned by and registered in the name of the company, of which he is a director, and that the plaintiffs had merely been allowed to use the plot by the previous owner. The plaintiffs opposed through grounds of opposition, arguing the application was misconceived, fatally defective, brought after inordinate delay and a strategy to delay the suit. Only the defendants' counsel filed submissions, citing Housing Finance Company of Kenya Ltd vs. Faith Kimelia & Another on joinder of necessary parties, and Joshua Mulungu Mutie vs. County Government of Machakos on a defendant's right to file a defence before judgment. The court found that the draft defence denied the plaintiffs' claim of registered ownership and asserted occupation with the company's authority, so ownership of the suit property is genuinely contested. Holding that the interests of justice required the company's joinder to enable complete adjudication, the court allowed the application: Tamu Kenya Investment Limited was enjoined as a defendant, the defendants were granted 21 days to file and serve their defence, and costs of the application were provided for.

Key legal issues

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01

Joinder of Tamu Kenya Investments Limited as a defendant

Holding

The company was joined because ownership of the suit property is contested and its presence enables complete adjudication

Reasoning

The plaint asserts the plaintiffs are registered owners of plot No. Sultan Hamud Town/412, but the draft defence denies this and raises the company's authority over the property. Since a parcel of land cannot have two titles, ownership is genuinely in contention, and joining the registered company enables the court to effectually and completely adjudicate on the issues. The application is therefore neither misconceived nor an abuse of process.

p. 3
02

Leave to file defence out of time

Holding

Leave granted; a defendant has a right to defend the suit before judgment and the draft defence raises triable issues on ownership

Reasoning

Relying on the authority cited by the applicants' counsel, since there is no judgment in the matter the question of triable issues is for the defendant to raise by filing a defence; it is a constitutional and statutory right to defend a suit. The draft defence denies the plaintiffs' registration claim and asserts occupation with the company's authority, disclosing contention on ownership justifying leave.

p. 3

Legal principles established

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  • A party whose presence is necessary to enable the court effectually and completely adjudicate upon and settle all questions in the suit may be added as a defendant under Order 1 of the Civil Procedure Rules

Court orders

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  1. 1.Tamu Kenya Investment Limited be enjoined in this suit as a Defendant
  2. 2.The Defendants/Applicants are granted leave of 21 days from the date of the ruling to file and serve their defence
  3. 3.Costs of the application are provided for

Authorities

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Legislation

  • Civil Procedure Rules (Cap 21 Laws of Kenya)Order 1 Rule 3
  • Civil Procedure Rules (Cap 21 Laws of Kenya)Order 7 Rule 17
  • Civil Procedure Rules (Cap 21 Laws of Kenya)Order 1 Rule 10 (referred to in Housing Finance case quote and Order 11 compliance)
  • Civil Procedure Rules (Cap 21 Laws of Kenya)Order 11
  • Civil Procedure ActSections 1A and 3A

Cases cited (2)

  • Housing Finance Company of Kenya Ltd vs. Faith Kimelia & Another
    [1998] eKLR
  • Joshua Mulungu Mutie and Another vs. County Government of Machakos
    [2018] eKLR
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act; Order 1 Rule 3 and Order 7 Rule 17 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, "Monica Musili Phillip & another v Tangai Munali & another [2019] KEELC 129 (KLR)", Case Analysis (2019). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/129/eng@2019-12-18

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