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ELCPartially AllowedNotice of Motion dated 18th March, 2019· [2020] KEELC 1817 (KLR)

Tebere Concrete Company Limited v Dickson Macharia Gichuhi & another [2020] KEELC 1817 (KLR)

Environment and Land Court
19 June 2020
ECE.C. Cherono
1,870 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner affected by a property dispute can join the lawsuit as a necessary party, even though the court declined to immediately stop quarrying on the land.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 18th March 2019 by Moses Ndung'u Mungai, who sought to be enjoined in an Environment and Land Court suit at Kerugoya as 2nd defendant and to restrain the Plaintiff from excavating, mining stones and quarrying on land parcel MBEERE/WACHORO/1617, of which he claimed to be the registered proprietor, having purchased it in 2015 from the 1st defendant, Dickson Macharia Gichuhi. The Plaintiff opposed, disputing the Applicant's title, alleging it was obtained fraudulently and in contravention of court orders, and raising procedural objections, including that a separate suit between the same parties was pending in the Chief Magistrate's Court at Embu. The court, E.C. Cherono, ELC Judge, applied Order 1 Rule 10(2) of the Civil Procedure Rules and followed the Court of Appeal decisions in Pravin Bowry v John Ward and Civicon Limited v Kivuwatt Limited, holding that a party reasonably affected by pending litigation is a necessary and proper party. Satisfied that the Applicant had demonstrated sufficient interest in the suit property and a reasonable apprehension of being affected by execution if the Plaintiff succeeded, the court allowed joinder, directed the Applicant to file and serve pleadings within ten days, opened pleadings, and ordered costs of the application to be in the cause. No injunction restraining quarrying was granted; judgment delivered on 19th June 2020.

Key legal issues

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01

Joinder of a necessary party under Order 1 Rule 10(2) CPR

Holding

The Applicant was properly joignable as a defendant because he holds title to the suit property and his presence is necessary to effectually and completely determine the dispute

Reasoning

The court applied Order 1 Rule 10(2) which permits joinder of any person whose presence is necessary for the court to effectually and completely adjudicate. Relying on Pravin Bowry v John Ward and Civicon Limited v Kivuwatt Limited, it held that a party reasonably affected by pending litigation should be enjoined. The Applicant's title to the suit property and the Plaintiff's allegations of fraud against that title made his participation necessary to resolve all issues in the pleadings.

p. 2
02

Allegations that the Applicant's title was obtained fraudulently and illegally

Holding

Such allegations must be pleaded and ventilated once the Applicant is admitted as a party, not merely insinuated in affidavits

Reasoning

The Respondent alleged the Applicant's title was obtained illegally, irregularly and in contravention of court orders, but only in a replying affidavit. The court held those are matters for pleadings, which the Applicant could now file once enjoined, and treated the allegations as underscoring the need for his joinder rather than as a bar to it.

p. 2

Legal principles established

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  • A party who demonstrates sufficient interest in the subject matter of a suit and reasonable apprehension of being affected by the orders sought is a necessary party who may be enjoined under Order 1 Rule 10(2) CPR

Court orders

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  1. 1.The Applicant Moses Ndung'u Mungai be and is hereby enjoined in this suit as the 2nd defendant
  2. 2.The Applicant to file and serve his pleadings to the plaintiff's suit within 10 days from today's date
  3. 3.The pleadings thereafter opens and either of the parties are at liberty to file their pleadings in accordance with the law
  4. 4.The costs of this application shall be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Civil Procedure Act and RulesSection 63(c) and (e); Order 1 Rules 1, 3, 10(2) and 25; Order 3 Rule 3; Order 7 Rules 3, 5, 6, 7, 8 and 16; Order 40 Rules 1, 2, 3 and 4
  • Land Registration ActSections 24, 25 and 26

Cases cited (3)

  • Pravin Bowry Vs John Ward & Another
    (2015) e KLR
  • Deported Asians property Custodian Board Vs Jaffer Brothers Ltd
    EA 55 (SCU)
  • Civicon Limited Vs Kivuwatt Limited & 2 Others
    (2015) e KLR
Jurisdiction invoked
Article 40 of the Constitution of Kenya; Sections 63(c) and (e) and Orders 1 and 40 of the Civil Procedure Act and Rules; Sections 24, 25 and 26 of the Land Registration Act

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, "Tebere Concrete Company Limited v Dickson Macharia Gichuhi & another [2020] KEELC 1817 (KLR)", Case Analysis (2020). Notice of Motion dated 18th March, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1817/eng@2020-06-19

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