Faustino Njeru Njoka & another v Mwireca Kiarirwa & 17 others; Stephen Igogo Matheri & 2 others;Njagi Njeru Ellias (Necessary Parties) [2019] KEELC 4082 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether fresh encumbrance orders could properly issue over properties excluded from the amended originating summons
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
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.
Whether the applicants under the notice of motion dated 24th September 2018 were necessary parties
No - clan membership alone does not make a party necessary, and the applicants asserted no legal interest in the affected parcels
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.
Whether the originating summons was res judicata
The contention was 'hardly sufficient' as a basis for joinder; the court could consider the previous proceedings' decisions without the applicants' presence
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 13th August 2018 is dismissed with no order as to costs
- 2.The notice of motion dated 24th September 2018 is dismissed with no order as to costs
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.