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ELCPartially AllowedNot stated in judgment (suit filed 11th March 2016, Environment and Land Court, Thika)· [2019] KEELC 3156 (KLR)

Nyote Muhia v Lydiah Wairimu Kagodo & 2 others [2019] KEELC 3156 (KLR)

Environment and Land Court of Kenya
17 May 2019
3,352 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Thika allowed a buyer of Ruiru land to be added to a lawsuit but refused to stop him building, because he already held title and occupied the property.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 26th January 2017 by the plaintiff, Nyote Muhia, in a land dispute over parcels Ruiru/Mugutha Block 1/2251 and 1/2252, allocated by the 2nd Defendant, Nyakinyua Investment Ltd. The plaintiff sought joinder of Weru Macharia as 3rd Defendant, leave to amend the Plaint, and a temporary injunction restraining transfer, construction or development on the suit parcels. The plaintiff alleged that Macharia had purchased one parcel from the 1st Defendant, Lydia Wairimu Kagondo, and was carrying on construction on it, and that no valid title could pass from an illegally acquired title. Macharia opposed, asserting he was a bona fide purchaser who had taken possession and built his home, and that the plaintiff's remedy lay against the 2nd Defendant. The Court, applying Order 1 Rule 10(2), held Macharia a necessary party whose joinder was required for complete adjudication, since any judgment for the plaintiff would affect him without a hearing, contrary to natural justice. Leave to amend the Plaint was allowed as the amendment arose from the same facts and occasioned no prejudice. However, the Court declined the injunction: the 1st Defendant claimed acquisition in 1989 and held titles, preceding the plaintiff's claimed 1991 allocation, and the parcel had already been sold and occupied before the plaintiff's 2016 clearance letter; it would not be prudent to injunct a title holder absent proof of fraud. The plaintiff failed to establish a prima facie case under Giella v Cassman Brown, whose conditions are sequential. The application was allowed in part, with costs in the cause, and the parties were directed to prepare the main suit for hearing expeditiously.

Key legal issues

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01

Joinder of Weru Macharia as a necessary party

Holding

Weru Macharia is a necessary party for effective and complete adjudication because he purchased, occupies and has built on one of the suit parcels; any order for the plaintiff would affect him without a hearing.

Reasoning

The dispute concerns ownership of two Ruiru/Mugutha parcels. The Intended 3rd Defendant admitted purchasing one parcel from the 1st Defendant and living on it with his family. If the court found for the plaintiff over that parcel, he would be bound by the orders without having been heard, contrary to natural justice. Order 1 Rule 10(2) empowers the court to add any person whose presence is necessary for complete adjudication.

p. 3
02

Leave to amend the Plaint

Holding

Amendment should be allowed as it is necessary for the just determination of the controversy and occasions no prejudice to the defendants.

Reasoning

Order 8 Rule 3(5) permits amendments adding a new cause of action arising from the same or substantially the same facts. The court relied on Central Kenya Ltd v Trust Bank and John Nahashon Mwangi v Kenya Finance Bank, holding that amendments should be freely allowed and denied only as a last resort. Since the 3rd Defendant was to be enjoined, amendment was a natural consequence and would aid just adjudication.

p. 4
03

Temporary injunction against the defendants and the Intended 3rd Defendant

Holding

Injunction refused; the plaintiff failed to establish a prima facie case with probability of success.

Reasoning

The plaintiff claimed allocation in 1991 while the 1st Defendant claimed acquisition in 1989 and held titles; the 1st Defendant was first in time. By the time of the plaintiff's Clearance Letter of 26th February 2016, the parcel had already been sold and the 3rd Defendant was in occupation. Injunctions cannot reverse events already overtaken, and it would not be prudent to injunct a title holder absent proof of fraudulently acquired titles. The Giella conditions are sequential and failed at the first limb.

p. 4

Legal principles established

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  • A person whose presence is necessary to enable the court effectually and completely adjudicate on all questions in a suit ought to be joined as a party, and if the court's orders would affect a party without hearing them, that offends natural justice.
  • An amendment may be allowed notwithstanding that it adds or substitutes a new cause of action, provided the new cause of action arises out of the same or substantially the same facts as already pleaded.
  • Injunctions are issued to prevent threatened events, not events that have already occurred or been overtaken by events.
  • The conditions for an interlocutory injunction in Giella v Cassman Brown are sequential; the second and third conditions need not be addressed where the first (prima facie case) is not established.

Court orders

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  1. 1.The Notice of Motion application dated 26th January 2017 allowed in terms of prayers No.2 and 3 only (leave to amend the Plaint; interlocutory orders in terms of those prayers), allowed entirely
  2. 2.Prayer No.4 (costs of the application) disallowed in its entirety, with costs being in the cause
  3. 3.The parties to prepare the main suit for hearing expeditiously and avoid too many interlocutory applications

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 8 Rule 3 and Order 8 Rule 3(5)
  • Civil Procedure RulesOrder 40
  • Civil Procedure Act, Cap 21Sections 1A, 1B and 3A

Cases cited (8)

  • Central Kenya Ltd…Vs…Trust Bank & 4 Others
    CA No. 222 of 1998
  • Giella…Vs…Cassman Brown & Co ltd
    (1973) E.A 358
  • Aster Holdings Limited v City Council of Nairobi & 4 Others
    (2017) eKLR
  • John Nahashon Mwangi…Vs…Kenya Finance Bank Ltd (in liquidation)
    eKLR 2015
  • Joseph Ochieng & 2 Others t/a Aquiline Agencies…Vs…First National Bank of Chicago
    (1995) eKLR
  • Nyutu & Others…Vs…Gatheru & Others
    (1990) KLR 554
  • Jane Kemunto Mayaka….Vs…Municipal Council of Nakuru & Others
    HCCC No.124 of 2005
  • Kenya Commercial Finance & Co. Ltd…Vs…Afraha Education Society
    (2001) 1EA 86
Jurisdiction invoked
Original jurisdiction under the Civil Procedure Act (Cap 21) and Civil Procedure Rules (Order 1 Rule 10(2), Order 8 Rule 3 and Order 40; Sections 1A, 1B and 3A)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nyote Muhia v Lydiah Wairimu Kagodo & 2 others [2019] KEELC 3156 (KLR)", Case Analysis (2019). Not stated in judgment (suit filed 11th March 2016, Environment and Land Court, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3156/eng@2019-05-17

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