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ELCDismissedApplication dated 25th April, 2018 (in the Appeal from Machakos RMCC No. 1006 of 2008)· [2020] KEELC 666 (KLR)

Isaac Wambua Nzyoka v David Kisilu Mativo & 3 others;Thomas Nzioki Kibua (Interested Party) [2020] KEELC 666 (KLR)

High Court of Kenya
13 November 2020
OAO. A. Angote
2,163 words in judgment
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The bottom line

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The High Court in Machakos refused to let a land purchaser join an ongoing ownership appeal, ruling he must wait until the dispute between the original parties is resolved.

What this practically means

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Executive summary

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This ruling by the High Court at Machakos (O. A. Angote, J) determined a Notice of Motion dated 25th April 2018 by Thomas Nzioki Kibua seeking to be joined as an Interested Party in an appeal arising from Machakos CMCC No. 1006 of 2008, and seeking orders for the deposit of the original title deed for Machakos/Mua Hills/288, the temporary lifting of a caution registered by the Appellant, and the release of title deeds for parcels 365 and 366 arising from a 1993 mutation form. The Applicant claimed he had purchased 23 acres from the deceased proprietor and had been named a beneficiary in the confirmed grant, but transfer was blocked by the Appellant's caution. The Appellant opposed, noting a prior dismissed joinder application and lack of an identifiable stake; the Respondents noted the parcels did not exist on the mutation form. The court applied the test for interested parties from Communications Commission of Kenya v Royal Media Services (via Moses Wachira v Niels Bruel) and Meme v Republic, holding that the Appeal concerned ownership of the suit land as between the Appellant and the Respondents and that the Applicant was not a necessary party. It further held it would be mischievous to resolve the legality of the caution - the substantive issue on appeal - by interlocutory motion. The application was dismissed with costs.

Key legal issues

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01

Whether the Applicant should be joined as an Interested Party in the Appeal

Holding

The Applicant is not a necessary party; the Appeal concerns ownership of the suit land as between the Appellant and the Respondents, and the Applicant's claim lies against the Respondents only if the Appeal fails.

Reasoning

Applying the test in Communications Commission of Kenya (through Moses Wachira v Niels Bruel), an interested party must have a stake and suffer prejudice if denied joinder. The Applicant's claim depends on the outcome of the Appeal on ownership of parcel 288. If he purchased a portion, he should await resolution of the caution issue on Appeal before pursuing his claim.

p. 3
02

Whether the court can order the caution lifted and sub-divisions registered pending the Appeal

Holding

No. The legality of the caution is the substantive issue on Appeal and cannot be determined via an interlocutory application by a non-party.

Reasoning

The claim that the caution lodged by the Appellant should be lifted was the very claim before the trial court and now before the High Court on Appeal. The learned Magistrate found the caution an illegality, and those findings are what the Appellant has appealed. Allowing the application would prejudge the Appeal and possibly require the Applicant to commence fresh proceedings against whoever is found to be the bona fide owner.

p. 3

Legal principles established

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  • An Interested Party is one who has a stake in the proceedings and will be affected by the decision of the court either way.
  • A party cannot, by way of a Notice of Motion, deal with the very substantive issues that are before the court on Appeal.

Court orders

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  1. 1.The Application dated 25th April, 2018 is dismissed with costs.

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Land Registration ActSection 24
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (5)

  • Francis Karioki Muruatetu & Another vs. Republic
    (2016) eKLR
  • Moses Wachira vs. Niels Bruel & 2 Others
    (2015) eKLR
  • Communications Commission of Kenya & 4 Others vs. Royal Media Services Limited & 7 Others
    (2014) eKLR
  • Meme vs. Republic
    [2004] 1 EA 124
  • Elizabeth Nyambura Njuguna & another (suing as the Legal representatives of Njuguna Mwaura Mbogo) vs. E. K. Banks Limited & 2 others; Edward Kings Onyancha Maina (Interested Party)
    [2019] eKLR
On appeal from
Magistrates' Court, Machakos
CMCC No. 1006 of 2008
Jurisdiction invoked
Article 40 of the Constitution of Kenya 2010; Section 24 of the Land Registration Act 2012; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules

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, "Isaac Wambua Nzyoka v David Kisilu Mativo & 3 others;Thomas Nzioki Kibua (Interested Party) [2020] KEELC 666 (KLR)", Case Analysis (2020). Application dated 25th April, 2018 (in the Appeal from Machakos RMCC No. 1006 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/666/eng@2020-11-13

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