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ELCDismissed· [2019] KEELC 5012 (KLR)

Evans Nakhabala Wekesa v Kenya African National Union; General of the Salvation Army (Registered Trustees) (Interested Party) eKLR [2019] KEELC 5012 (KLR)

Environment and Land Court of Kenya
17 January 2019
JKJ.G. Kemei
1,392 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 refused to let The Salvation Army join a Murang'a land dispute, ruling its contractual grievance belonged in a separate case.

What this practically means

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Executive summary

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The Salvation Army (Kenya East Territory) applied by notice of motion dated 15 May 2016 to be joined as an interested party to a suit between the Plaintiff and Defendant over trespass/ownership of MURANGA MUNICIPALITY BLOCK3/12. The Applicant deponed that it was the registered owner of the suit land from 1964 until 9 March 2012, when it exchanged the land with the Plaintiff for Unsurveyed Plot No. G in Muranga Township; the Plaintiff allegedly failed to transfer the plot, and the Applicant had occupied the land as licensee of the Defendant. The Plaintiff/Respondent opposed, contending the exchange was fully complied with or had failed, that the suit land had passed to a third party (Five Emukei Transporters Limited), and that the application was an abuse of process aimed at denying him the fruits of judgment. The Defendant filed no response. Applying Order 1 rule 10(2) of the Civil Procedure Rules and the test in Francis Karioki Muruatetu, and endorsing the liberal approach in Kingori v Chege, the court held that the Applicant's grievance arises from breach of the land exchange agreement - a distinct cause of action from the ownership dispute between the Plaintiff and Defendant. The agreement contained its own remedies for breach, and the Applicant remains free to sue the Plaintiff separately. The court could not determine that the Applicant was a necessary party, and the application was dismissed, with costs stated to the Applicant.

Key legal issues

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01

Whether the Applicant met the threshold for joinder as an interested party under Order 1 rule 10(2) of the Civil Procedure Rules

Holding

The Applicant is not a necessary party; its complaint about breach of the land exchange agreement constitutes a separate cause of action from the trespass/ownership dispute between the Plaintiff and Defendant, and the Applicant retains liberty to sue the Plaintiff separately

Reasoning

The dispute between the Plaintiff and Defendant concerns trespass/ownership of MURANGA MUNICIPALITY BLOCK3/12. The Applicant instead pursues a right arising from breach of the 9/3/12 land exchange agreement. The agreement is undisputed but was not honoured by both parties; no completion period was provided, no evidence shows the Plaintiff declined to transfer, and the agreement itself provided remedies for breach. The Applicant's case is therefore different from the suit and can be pursued independently.

p. 2

Legal principles established

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  • An applicant for joinder as an interested party must demonstrate personal interest in the matter, the prejudice to be suffered if not enjoined, the case it intends to make, and the relevance of its evidence to the issue in controversy
  • Courts must take a liberal approach to joinder applications but guard against frivolous or vexatious litigants
  • A party seeking joinder must disclose a cause of action not before the Court, or one that cannot be effectually determined without that party being heard

Court orders

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  1. 1.The notice of motion dated 15/5/2016 seeking joinder of the Applicant as an interested party is dismissed
  2. 2.Costs of the application awarded as stated in the judgment (see dataQualityFlags)

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 10(2)

Cases cited (2)

  • Francis Karioki Muruatetu & Anor. Vs Republic & 5 Others
    (2016) eKLR
  • Kingori vs. Chege
    (2002) 2 KLR 243
Jurisdiction invoked
Order 1 rule 10(2) of the Civil Procedure Rules (joinder of parties)

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, "Evans Nakhabala Wekesa v Kenya African National Union; General of the Salvation Army (Registered Trustees) (Interested Party) eKLR [2019] KEELC 5012 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5012/eng@2019-01-17

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