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ELCDismissedNot stated in the judgment (application dated 16/7/2019 in pending suit)· [2019] KEELC 914 (KLR)

Martin Macharia Kamau v Peterson Njoroge & 2 others; Joseph Kiptanui Kimeto (Applicant) [2019] KEELC 914 (KLR)

Environment and Land Court
4 November 2019
MNMwangi Njoroge
1,380 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 refused to add a man as a defendant in a land caution case because his ownership claim came from different facts and belonged in a separate lawsuit.

What this practically means

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Executive summary

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The applicant, Joseph Kiptanui Kimeto, moved the Environment and Land Court at Kitale by a notice of motion dated 16/7/2019 under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 1 Rule 10(2) and Order 51 Rule 1 of the Civil Procedure Rules, seeking to be enjoined as a defendant in a pending suit. He claimed to be member No. 1451 of Tuwan Farm Company Ltd, jointly with the plaintiff and the 1st defendant and one Philip Adika, and asserted that the suit plot was to be shared among the four of them, yet the title was issued exclusively in the plaintiff's name. The plaintiff opposed, arguing the application was a collusion with the 1st defendant, an afterthought brought after two years of inordinate delay, and that the applicant's proper remedy was a separate suit for co-ownership rather than joinder, which would amount to misjoinder and confuse and delay the suit. The sole issue was whether the applicant should be made a defendant. Mwangi Njoroge J held that under Order 1 Rule 10(2) the test is whether the proposed party's presence is necessary to enable the court effectually and completely adjudicate upon all questions in the suit. Since the plaintiff's claim is only for removal of a caution registered in favour of the 1st defendant, and the applicant has no caution and his co-ownership claim arises from different facts, he is not a necessary party; joinder would confuse the issues and delay the hearing. The application was dismissed with costs on 4 November 2019.

Key legal issues

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Whether the applicant should be enjoined as a defendant under Order 1 Rule 10(2) of the Civil Procedure Rules

Holding

The application was dismissed because the applicant failed to demonstrate he was a necessary party; his co-ownership claim arises from different facts than the plaintiff's caution-removal claim.

Reasoning

The court held that its discretion on joinder is wide but is governed by whether the presence of the proposed party is necessary to effectually and completely adjudicate on all questions in the suit. The plaintiff's claim is solely for removal of a caution registered in favour of the 1st defendant; the applicant has no caution and did not lodge one, so his cause of action arises from different facts. Joining him would confuse the issues and delay the hearing.

p. 2

Legal principles established

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  • The test for joinder under Order 1 Rule 10(2) is whether the presence of the person sought to be joined is necessary to enable the court effectually and completely adjudicate upon and settle all questions in the suit
  • The burden of demonstrating necessity for joinder lies on the applicant

Court orders

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  1. 1.The application dated 16/7/2019 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 51 Rule 1
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 1 Rule 10(2) and Order 51 Rule 1 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, "Martin Macharia Kamau v Peterson Njoroge & 2 others; Joseph Kiptanui Kimeto (Applicant) [2019] KEELC 914 (KLR)", Case Analysis (2019). Not stated in the judgment (application dated 16/7/2019 in pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/914/eng@2019-11-04

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