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ELCDismissedNot stated on the face of the ruling (interlocutory rulings in an amended originating summons)· [2019] KEELC 4082 (KLR)

Faustino Njeru Njoka & another v Mwireca Kiarirwa & 17 others; Stephen Igogo Matheri & 2 others;Njagi Njeru Ellias (Necessary Parties) [2019] KEELC 4082 (KLR)

Environment and Land Court of Kenya
13 March 2019
1,841 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Embu Environment and Land Court dismissed both applications, ruling that parties unhappy with a consent order must apply to set it aside, and clan membership alone does not require joining a lawsuit.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Embu (Y.M. Angima, J) determined two interlocutory notices of motion arising in a long-pending amended originating summons seeking rectification of land registers for numerous Mbeere/Mbita parcels in implementation of quashed ministerial appeal decisions from Embu High Court Misc Applications Nos. 72 of 2003 and 1 of 2004. The 2nd interested party's motion dated 13th August 2018 sought prohibition, inhibition, restriction and injunction orders over the suit parcels, contending that the consent order of 25th June 2018 removing encumbrances from Titles Mbeere/Mbita/2087, 2548 and 2571 was fraudulently obtained. The court held that the appropriate remedy was an application to set the consent order aside, not fresh encumbrance orders whose foundation (amendment of the originating sums with leave) was not shown to be fraudulent, and found no legal basis for the orders sought. The second motion, by Josephat Nyaga Mukembo and Njagi Njeru Elias claiming Ikandi/Nditi clan membership, sought joinder and removal of parcels, arguing res judicata. The court held that clan membership alone did not make them necessary parties; a necessary party is one without whom the court cannot effectually adjudicate, and they asserted no legal interest in the affected parcels. Both motions were dismissed with no order as to costs. The court directed priority hearing of the over-twelve-year-old originating summons and warned against distracting interlocutory applications.

Key legal issues

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01

Whether fresh encumbrance orders could properly issue over properties excluded from the amended originating summons

Holding

No - the proper course for a party aggrieved by the consent order was to apply to set it aside; the court declined to grant fresh orders that could themselves be set aside later

Reasoning

The consent of 25th June 2018 removing encumbrances was premised on the exclusion of those properties from the amended originating sums with leave of court. Fraud in that foundation was not demonstrated. Granting fresh encumbrance orders would expose them to being set aside, prompting endless fresh applications. The court therefore found no legal basis for the motion.

p. 2
02

Whether the applicants under the notice of motion dated 24th September 2018 were necessary parties

Holding

No - clan membership alone does not make a party necessary, and the applicants asserted no legal interest in the affected parcels

Reasoning

The court distinguished a necessary party from a 'joy rider', adopting the test that a necessary party is one without whom the court cannot effectually and completely adjudicate. The applicants showed no issues that required their participation and asserted no legal interest in the parcels. The court could call for previous decisions in earlier proceedings without them, defeating the res judicata objection as a ground for joinder.

p. 2
03

Whether the originating summons was res judicata

Holding

The contention was 'hardly sufficient' as a basis for joinder; the court could consider the previous proceedings' decisions without the applicants' presence

Reasoning

The applicants argued the suit was res judicata by reason of previous proceedings and adjudication. The court held this did not establish joinder, since it could call for and consider the rulings and judgments in those proceedings itself. No finding was made on the ultimate res judicata question, which remains for the substantive hearing.

p. 2

Legal principles established

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  • A party aggrieved by a consent order on grounds of fraud or lack of service should apply to set it aside rather than seek fresh substantive orders
  • A necessary party is one without whom the court cannot effectually and completely adjudicate upon the questions in controversy
  • In a rectification of register application, the only necessary parties are the current registered owners whose titles would be affected and those sought to be registered

Court orders

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  1. 1.The notice of motion dated 13th August 2018 is dismissed with no order as to costs
  2. 2.The notice of motion dated 24th September 2018 is dismissed with no order as to costs
  3. 3.Directions on the hearing of the amended originating summons to be given upon delivery of the ruling, the matter to be heard on a priority basis

Authorities

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Legislation

  • Civil Procedure Actsections 3A, 1A, 1B, 3
  • Civil Procedure RulesOrder 40 Rules 1, 2, 3, 4; Order 51(1); Order 1(10)
  • Land Registration Act, 2012sections 68, 69, 70
  • Land Adjudication Act (Cap 284)section 29
Jurisdiction invoked
Sections 3A, 1A and 1B of the Civil Procedure Act; Orders 40 and 51 of the Civil Procedure Rules; sections 68, 69 and 70 of the Land Registration Act, 2012

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, "Faustino Njeru Njoka & another v Mwireca Kiarirwa & 17 others; Stephen Igogo Matheri & 2 others;Njagi Njeru Ellias (Necessary Parties) [2019] KEELC 4082 (KLR)", Case Analysis (2019). Not stated on the face of the ruling (interlocutory rulings in an amended originating summons). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4082/eng@2019-03-13

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