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ELCDismissedKakamega ELC (unspecified number) - Notice of Motion dated 16th September 2019· [2020] KEELC 57 (KLR)

Mumias Teachers Housing Co-operative Society Ltd v Onyo Waziri [2020] KEELC 57 (KLR)

Environment and Land Court
30 April 2020
NMN.A. Matheka
966 words in judgment
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The bottom line

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A Kenyan court dismissed a landowner's bid to add government parties to a land dispute because it broke a prior agreement to report back, calling it abuse of process.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kakamega (N.A. Matheka, J) determined a notice of motion dated 16th September 2019 brought by the defendant/applicant, the legal representative of the late Abdi Waziri Omolo, registered proprietor of L.R. No. S.Wanga/Lureko/1269. The applicant sought to enjoin the Land Registrar Kakamega, the National Land Commission, the Permanent Secretary Ministry of Lands and the Attorney General as defendants, to amend the plaint accordingly, and to obtain directions. The applicant alleged that the deceased lawfully purchased the land in 1993, obtained Land Control Board consent and a title deed, and that a Task Force Report suggesting prior government acquisition amounted to misrepresentation and negligence by the government, justifying compensation of about Ksh. 6,000,000. The respondent opposed, asserting the applicant had long known of the government acquisition, that an injunction had issued in the respondent's favour, and that the suit had partially proceeded before being stood down pending the position of the interested party on the parcel acquired by government. The court, perusing the record, noted that a consent had been entered for the interested party to state the position on the parcel, which was never done, and that the applicant instead filed this application after undertaking to consult on withdrawing related suits (Kakamega ELC No. 106 and 107 of 2017). The court dismissed the application as an abuse of the court process and ordered costs to be in the cause.

Key legal issues

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01

Abuse of court process

Holding

The joinder application was dismissed as an abuse of process because a consent had been entered that the interested party would give the position on the parcel acquired by government, which was never given, and instead the applicant filed the application

Reasoning

The court reviewed the record and noted that on 28th February 2019 the plaintiff's suit had partially proceeded before the plaintiff's witness was stood down. A consent was entered for the interested party to give the position on the parcel. Instead of doing so, and after the defendant's advocate undertook to consult on withdrawing related suits, the applicant filed this application, which the court found abusive.

p. 3
02

Joinder of necessary parties under Order 1 Rule 10

Holding

Not granted on the facts because the application was dismissed as abusive

Reasoning

Although the applicant sought joinder of the Land Registrar, National Land Commission, Permanent Secretary and Attorney General on grounds of negligence and misrepresentation in issuing the deceased's title, the court did not reach the merits, having found the application to be an abuse of process in the procedural context described.

p. 3

Legal principles established

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  • A party who has undertaken a course of conduct before the court (e.g. to consult on withdrawal of related suits) cannot instead file a joinder application; such conduct amounts to abuse of the court process

Court orders

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  1. 1.The applicant's application dated 16th September 2019 is dismissed
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A
  • Civil Procedure RulesOrder 1 Rule 10
  • Civil Procedure Rules 2010Order 11
  • Constitution of KenyaArticle 159
Jurisdiction invoked
Section 1A, 3A of the Civil Procedure Act, Order 1 Rule 10 of the Civil Procedure Rules, Article 159 of the Constitution

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, "Mumias Teachers Housing Co-operative Society Ltd v Onyo Waziri [2020] KEELC 57 (KLR)", Case Analysis (2020). Kakamega ELC (unspecified number) - Notice of Motion dated 16th September 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/57/eng@2020-04-30

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