Faustino Njeru Njoka & another v Mwireca Kiarirwa & 17 others;Stephen Igogo Matheri & 2 others (Interested Parties);Njagi Njeru Ellias (Necessary Parties/Applicants) [2019] KEELC 4217 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed both applications, ruling that consent orders must be set aside directly and clan membership alone does not make someone a necessary party.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to fresh interlocutory encumbrance orders notwithstanding an existing consent order
The application lacked legal basis; the proper remedy was to set aside the consent order, and the factual foundation (exclusion of properties upon amendment) was not shown to be fraudulent
The consent of 25th June 2018 removing encumbrances rested on the exclusion of the three properties from the amended originating sums, effected with leave of court. Fraud was not demonstrated. Granting fresh orders would create circularity since they too could be set aside. The court therefore found no legal basis for the fresh encumbrance orders sought.
Joinder of the applicants as necessary parties
Joinder was refused; clan membership alone does not confer necessary-party status and no unresolved issue required their participation
Distinguishing a necessary party from a joy rider, the court held that a necessary party is one without whom the court cannot effectually and completely adjudicate. The applicants asserted no legal interest in the parcels affected by the rectification orders; the only necessary parties are the current registered owners and those sought to be registered.
Res judicata raised as a ground for joinder
The contention was insufficient to warrant joinder; the court can call for and consider previous decisions without the applicants' presence
The applicants argued the originating summons was res judicata by reason of previous adjudication proceedings. The court held this contention hardly sufficient: the court is capable of calling for the decisions, rulings and judgments in the prior proceedings and considering them without the applicants being enjoined as parties.
Legal principles established
#- A necessary party is one without whom the court may not be able to effectually and completely adjudicate upon the questions in controversy
- A party aggrieved by a consent order on grounds of fraud or lack of service must apply to set it aside rather than seek fresh substantive orders
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 court to hear and dispose of the old matter on a priority basis
- Jurisdiction invoked
- Sections 3A, 1A and 1B of the Civil Procedure Act; Order 40 Rules 1, 2, 3, 4 and Order 51(1), Order 1(10) 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 (Interested Parties);Njagi Njeru Ellias (Necessary Parties/Applicants) [2019] KEELC 4217 (KLR)", Case Analysis (2019). Originating Summons (number not stated in the judgment), Embu High Court Misc Application No. 72 of 2003 and Misc Application No. 1 of 2004 referred to as antecedent proceedings. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4217/eng@2019-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.