Francis Nyaga Njeru v China Road and Bridge Corporation & another [2019] KEELC 4597 (KLR)

Environment and Land Court

6 February 2019

BEB M Eboso

1,245 words in judgment

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The bottom line

A Kenyan land court refused a company permission to join a case because its title documents looked forged, and ordered criminal investigations.

What this practically means

Executive summary

ARJ Capital Limited applied by notice of motion dated 28/6/2018 for leave to be joined in a trespass suit as an interested party, claiming to hold Grant Number IR 63990 over the suit property, with an affidavit sworn by Amina Omar as its legal manager. The plaintiff opposed, asserting the exhibited title documents were forgeries investigated and discredited by the Lands Departments and the Directorate of Criminal Investigations, and exhibited his own certificate of title, deed plan, official search and correspondence from the Directorate of Survey, the DCI and the Chief Land Registrar indicating that the grant and land reference relied on by the applicant did not exist in the land records. The court applied Order 1 rule 10(2) of the Civil Procedure Rules, under which joinder is allowed where a party's presence is necessary for effectual and complete adjudication. Examining the applicant's documents, the judge found them facially fraudulent: the grant was registered two years before it was signed by the Commissioner of Lands, the title predated the deed plan, and the Registrar of Titles confirmed the grant related to a different land reference. No director of the applicant swore an affidavit and there was no company resolution authorising the deponent. The court held the joinder discretion must be exercised on bona fide evidence and declined the application. It further directed the DCI to investigate all affidavits sworn by Amina Omar and their annexures, and directed service of the ruling on the DCI.

Key legal issues

Whether the applicant qualified for joinder as an interested party

Holding

The application was declined because the title documents exhibited were, on their face, fraudulent and no director of the applicant company swore an affidavit or presented the documents.

Reasoning

The court examined the grant and deed plan exhibited and found internal anomalies: the grant was registered before it was signed by the Commissioner of Lands, and the title predated the deed plan, which is procedurally impossible. The Registrar of Titles confirmed the grant related to a different land reference. A company resolution authorising the deponent was absent. Admitting a party relying on such documents would compromise the integrity of court process.

p. 2

The test for joinder under Order 1 rule 10(2)

Holding

The court may add a party whose presence is necessary to enable it effectually and completely to adjudicate upon and settle all questions in the suit, but the discretion is constrained by the bona fides of the applicant's evidence.

Reasoning

The court recited Order 1 rule 10(2) and stated the ordinary principle that joinder is allowed where presence is necessary for effectual adjudication. It then held that the wide discretion is to be exercised on the basis of bona fide evidence, not documents that are fraudulent on their face.

p. 1

Legal principles established

The discretion to order joinder under Order 1 rule 10(2) must be exercised on the basis of bona fide evidence and will not be exercised in favour of an applicant relying on apparently fraudulent documents.
Joinder is ordinarily allowed where the applicant's presence is necessary for the effectual and complete adjudication of all questions in the suit.

Court orders

1.Declined to grant the prayers sought in the notice of motion dated 28/6/2018
2.Directed the Director of Criminal Investigations to investigate all affidavits presented in court as sworn by Amina Omar, together with all annexures, to establish whether she committed a criminal offence
3.Directed that if an offence is established, the DCI and the DPP shall discharge their mandate as by law provided
4.Directed the Registrar of the Court to cause a copy of the ruling to be served on the Director of Criminal Investigations

Authorities

Legislation

Civil Procedure RulesOrder 1 rule 10(2)

Jurisdiction invoked: Order 1 rule 10(2) of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Francis Nyaga Njeru v China Road and Bridge Corporation & another [2019] KEELC 4597 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4597/eng@2019-02-06

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