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ELCAllowedNKUBU PMCC CASE NO. 95 OF 2015 (Appeal)· [2019] KEELC 583 (KLR)

Gilbert Kiogora Mwirichia v Judson Mwenda Gitonga &another; [2019] KEELC 583 (KLR)

Environment and Land Court
27 November 2019
LMLucy N. Mbugua
1,539 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 a ruling of the Environment and Land Court at Meru (Mbugua J) on an application dated 30th August 2018 by Kenneth Gitonga M'ndegwa seeking to be enjoined in an appeal arising from Nkubu PMCC No. 95 of 2015 as an interested party and second respondent, to file his pleadings, and for a stay of execution of the Nkubu decree and orders. The applicant claimed to have purchased 3 acres out of L.R. Abogeta/U-Kithangari/2734 from the appellant for Kshs. 3,600,000, taken occupation, and developed the land, and to hold a consent order in Githongo SRMCC No. 57 of 2017 obliging the appellant to transfer the land. The respondent, Judson Mwenda, opposed, relying on a 2015 Nkubu consent by which the appellant agreed to transfer 3 acres to him, and alleging the sale to the applicant was a fraudulent attempt to evade that consent. The appellant supported the application. Applying Order 1 Rule 10(2) of the Civil Procedure Rules and the interested-party principles in Trusted Society of Human Rights v Mumo Matemo and Joseph Njau Kingori, the court found that both the Nkubu and Githongo courts dealt with the same property, as a site visit confirmed, and that the applicant's presence was necessary for complete adjudication. Finding that the lower court file was already before the court and that the suit land should not be alienated, the court allowed the application and granted a stay of execution of the Nkubu orders, with costs of the application to abide the outcome of the appeal.

Key legal issues

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01

Whether the applicant qualifies for joinder as an interested party

Holding

The applicant fits the definition of an affected party and his presence is necessary for the court to adjudicate fully.

Reasoning

Applying Order 1 Rule 10(2) of the Civil Procedure Rules and the criteria in Joseph Njau Kingori, the court found the applicant holds an asserted title to 3 acres from the appellant pursuant to a consent in Githongo SRMCC No. 57 of 2017, is in occupation, and both the Nkubu and Githongo courts dealt with the same property as confirmed by a site visit. His presence was necessary for complete adjudication.

p. 2
02

Whether a stay of execution of the Nkubu decree should issue

Holding

A stay of execution of the Nkubu orders was granted because the lower court file was before the High Court and execution should not proceed meanwhile.

Reasoning

The appellant's earlier stay application filed on 19.7.2018 was still pending; the court had already directed on 4.10.2018 that the suit land not be alienated and on 27.11.2018 that the Nkubu file be availed. Given that the lower court file was before the court, execution should not proceed pending the appeal.

p. 2

Legal principles established

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  • A person who was not a party to the original cause but whose interests will be affected by the decision may be joined as an interested party.
  • A party who took no part in the lower court's proceedings may nevertheless be directly affected by an appeal and be joined.

Court orders

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  1. 1.The application dated 30th August 2018 is allowed
  2. 2.The applicant, Kenneth Gitonga M'ndegwa, is enjoined in the appeal as an interested party/second respondent and may file his pleadings
  3. 3.A stay of execution is granted of the decree and orders in Nkubu PMCC No. 95 of 2015
  4. 4.The costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (6)

  • Parsaloi Ole Meikoki & others v Commissioner of Lands & 9 others
    [2017] eKLR
  • Trusted Society Of Human Rights v Mumo Matemo & 5 others
    [2014] eKLR
  • Joseph Njau Kingori vs. Robert Maina Chege & 3 others
    [2002] eKLR
  • Joseph Kamau Musa and 4 Others vs. Ereri Company Limited & 3 Others
    Nairobi Court of Appeal Civil Appeal No. 172 of 2006
  • Ahn -v- Openda
    [1982] KLR 87
  • Onjula Enterprises Ltd., -v- Sumaria
    [1986] KLR 651
On appeal from
Nkubu Principal Magistrate's Court
PMCC No. 95 of 2015
Jurisdiction invoked
Appellate jurisdiction over the subordinate court, with joinder under Order 1 Rule 10(2) 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, "Gilbert Kiogora Mwirichia v Judson Mwenda Gitonga &another; [2019] KEELC 583 (KLR)", Case Analysis (2019). NKUBU PMCC CASE NO. 95 OF 2015 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/583/eng@2019-11-27

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