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ELCAllowedChamber Summons application dated 28th May, 2019· [2019] KEELC 1761 (KLR)

Philip Ngethe v Kenneth Mwangi & 2 others [2019] KEELC 1761 (KLR)

Environment and Land Court
18 September 2019
COChristine Ochieng
972 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court can add the Land Registrar to a land dispute and rewrite an order so a landowner's title can actually be registered.

What this practically means

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Executive summary

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The Environment and Land Court at Kajiado, per Christine Ochieng J, determined an unopposed Chamber Summons dated 28th May 2019 brought under Order 1 Rule 10 and Order 50 of the Civil Procedure Rules by Philip Ngethe. The Applicant, who had been the successful party in Court of Appeal Civil Application No. 177 of 2016 concerning ownership of land parcel LR No. 25699 (also plot No. 316 R), obtained an order dated 3rd April 2019 directing revocation of the title and registration of the land in his name. When he presented the order for execution, the Land Registrar referred it back for clarification because Order No. 3 did not specifically name the Land Registrar as the party mandated to register the title, the 2nd Respondent having no mandate to register land and issue title deeds. The Applicant sought leave to enjoin the Land Registrar as 3rd Respondent and to amend the order of 3rd April 2019 so that prayer No. 3 would direct the Land Registrar to register him as owner of LR No. 25699. The Respondents, though duly served, filed no response. The court framed a single issue: whether the Land Registrar should be enjoined and the order amended. Relying on Order 1 Rule 10(1) and (2) and the joinder principles laid down by Nambuye J in Joseph Njau Kingori v. Robert Maina Chege & 3 others [2002] eKLR, the court held the Land Registrar a necessary party. The court allowed the application, enjoined the Land Registrar Kajiado as 3rd Respondent, amended the order accordingly, and directed that costs be in the cause.

Key legal issues

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01

Whether the Land Registrar should be enjoined as a party and the order of 3rd April 2019 amended

Holding

Application allowed; the Land Registrar is a necessary party whose presence enables the Court to effectually adjudicate and enforce the order.

Reasoning

The court applied Order 1 Rule 10(1) and (2) of the Civil Procedure Rules and the joinder principles in Joseph Njau Kingori v. Robert Maina Chege. It found the Land Registrar's presence necessary to effectually and completely settle all questions, noting the Registrar must execute the registration since the 2nd Respondent lacks mandate to register and issue title deeds. The application was unopposed.

p. 2

Legal principles established

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  • Guiding principles for joinder of an intending party: necessary party, proper party, relief flowing from that party, decree unenforceable without their presence, and presence necessary for complete adjudication.

Court orders

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  1. 1.The Land Registrar Kajiado be and is hereby enjoined as the 3rd Respondent.
  2. 2.The Order of this Court granted on 9th April, 2019 be and is hereby amended to read: 'That this Court do hereby issue an Order directing the 3rd Respondent, Land Registrar to register the Applicant as the owner of title known as L.R No. 25699.'
  3. 3.The costs will be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10
  • Civil Procedure RulesOrder 50

Cases cited (1)

  • Joseph Njau Kingori vs. Robert Maina Chege & 3 others
    [2002] eKLR
Jurisdiction invoked
Order 1 Rule 10 and Order 50 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, "Philip Ngethe v Kenneth Mwangi & 2 others [2019] KEELC 1761 (KLR)", Case Analysis (2019). Chamber Summons application dated 28th May, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1761/eng@2019-09-18

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